The Memory Gap in Surveillance Law
44 Pages Posted: 17 Jun 2008
U.S. information privacy laws contain a "memory gap": they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance activities. Because the government can only compel disclosure of that which is retained, data retention practices can profoundly alter the privacy balance that surveillance law strikes.
This Article explores the surveillance law framework in light of current and developing data storage trends. It argues that the significance of those trends lies in the shift toward an architecture of increasingly "perfect" memory. Fourth Amendment doctrine has always permitted data to flow from third parties to the government. Importantly, however, that doctrine and the statutes that supplement it have also coexisted with technological and economic factors that produce surveillance gaps. The dominant architecture of the predigital era was an architecture of forgetting: data about most of our activities could not be captured at all, could be memorialized only imperfectly, or could be retained long term only at significant cost. As these constraints on memory erode, so too will the zones of information privacy they have supported. The changing architecture of memory raises fundamental questions about the application of well-entrenched rules for communications surveillance.
Keywords: surveillance, cyberlaw, electronic mail, e-mail, internet privacy, data retention
JEL Classification: K1, K14
Suggested Citation: Suggested Citation