The Massive Metadata Machine: Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe

I/S: A Journal of Law and Policy for the Information Society, vol. 10(2), p. 481-522 (2014)

34 Pages Posted: 13 Oct 2013 Last revised: 13 Feb 2015

Bryce Clayton Newell

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Date Written: October 11, 2013

Abstract

This paper explores the relationship between liberty and security implicated by secret government mass surveillance programs. It includes both doctrinal and theoretical analysis. Methodologically, the paper examines judicial reasoning in cases where parties have challenged secret government surveillance programs on Constitutional or human rights grounds in both United States’ Courts and at the European Court of Human Rights (ECtHR). Theoretically, this paper will draw on theories in the fields of law, surveillance studies, and political theory to question how greater recognition of citizen rights to conduct reciprocal surveillance of government activity (for example, through expanded rights to freedom of information) might properly balance power relations between governments and their people. Specifically, the paper will question how liberal and neorepublican conceptions of liberty, defined as the absence of actual interference and the possibility of arbitrary domination, respectively, and the jurisprudence of the ECtHR can inform the way we think about the proper relationship between security and liberty in the post-9/11, post-Snowden United States of America.

Keywords: surveillance, NSA, liberty, freedom, law, policy, neorepublicanism, security, privacy, human rights, ECTHR, Europe, United States

Suggested Citation

Newell, Bryce Clayton, The Massive Metadata Machine: Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe (October 11, 2013). I/S: A Journal of Law and Policy for the Information Society, vol. 10(2), p. 481-522 (2014). Available at SSRN: https://ssrn.com/abstract=2339338

Bryce Clayton Newell (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037 DB
Netherlands

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