Legislative Regulation of Surveillance

Abstract

Most of the law governing technological surveillance by law enforcement is found in legislation. This chapter first outlines the most important federal surveillance statutes in the United States and a sampling of representative state legislation, organized under three categories: interception of communications; physical surveillance; and accessing of surveillance records. It then discusses the advantages and disadvantages of regulating surveillance through legislation rather than judicial decision, and through state or local laws rather than through federal legislation. Finally, it contends that, if legislation is to be the principal means of regulating the government’s surveillance activities, law enforcement agencies should also have to adhere to administrative law principles in implementing that legislation.

Keywords: surveillance, legislation, fourth amendment, subpoenas, federalism, ECPA