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
Date Written: October 11, 2013
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
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