Surveillance Law Through Cyberlaw's Lens

Abstract

The continuing controversy over the surveillance-related provisions of the USA Patriot Act highlights the depth of Americans' concern about internet privacy. Although calls to limit the government's surveillance powers strike a chord with the public, the legal framework governing surveillance activities is highly technical and poorly understood. The Patriot Act's sunset date provides Congress with an opportunity to revisit that framework.

This Article seeks to contribute to the debate over the appropriate scope of internet surveillance in two ways. First, the Article explores the intricacies of the constitutional and statutory frameworks governing electronic surveillance, and particularly surveillance to acquire electronic evidence. Such an exploration should not only clarify many of the poorly understood aspects of the surveillance framework, but also provide guidance on how surveillance law reforms should proceed.

Second, this Article takes initial steps toward reconceptualizing internet surveillance law. Surveillance law is viewed as a narrow and specialized field at the outer boundaries of the domain of criminal procedure. Just as electronic surveillance generally is not a central focus of criminal procedure courses, internet surveillance law is rarely given significant treatment within internet law or "cyberlaw" courses. At most, such courses tend to focus on the significant cases illuminating the relationship between the Fourth Amendment's protection against warrantless searches and technological developments that enhance the government's surveillance powers. Within the growing body of internet law scholarship, too, surveillance issues take a back seat to copyright, trademark, and free speech matters. The marginalization of internet surveillance law is unfortunate in two respects: first, surveillance law issues can provide a rich illustration of some of the major themes that emerge in internet law scholarship; and second, internet law scholarship can illuminate and provide an organizing normative structure to some of the policy dilemmas Congress faces in updating surveillance law.

Keywords: surveillance, privacy, internet, cyberlaw

JEL Classification: K1, K14