Reforming Surveillance Law
University of San Francisco School of Law
University of Lausanne, Faculty of Law and Criminal Justice; Id Est Avocats
August 20, 2012
Berkeley Technology Law Journal, Forthcoming
Univ. of San Francisco Law Research Paper No. 2013-03
As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.
This article is the first to analyze the Swiss law and demonstrate its advantages over the U.S. approach. The comparison sheds light on the inadequacy of U.S. surveillance law, including its recurrent failure to require substantial judicial review, notify targets of surveillance, and provide meaningful remedies to victims of unlawful practices. Notably, through judicial oversight, the Swiss significantly restrict several law enforcement surveillance practices that U.S. law leaves to the discretion of the police. The article explains the differences in approach as stemming from the greater influence of international human rights law in Switzerland and the Swiss people’s willingness to engage in a wholesale revision of their law.
In the United States, the courts and Congress have struggled to establish appropriate surveillance rules, as evidenced by recent controversial judgments in the Supreme and appellate courts and congressional hearings on ECPA reform. Citizens have grown increasingly concerned about law enforcement agents’ excessive use of new surveillance technologies to gather information about their private communications and daily activities. This article analyzes an alternative approach that, if adopted here, would significantly improve our electronic surveillance laws.
Number of Pages in PDF File: 55
Keywords: Electronic Surveillance, Privacy, Criminal Procedure, Fourth Amendment, Swiss Law, Cyberspace LawAccepted Paper Series
Date posted: November 8, 2012 ; Last revised: March 18, 2013
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