Electronic Surveillance. How are arguments about Echelon and Carnivore affected by the terrorist attacks in 2001? Discuss the Patriot Act. The terrorist attacks on the U.S. in 2001 led to laws reducing restrictions on government surveillance of the Intern

Electronic Surveillance in the Post 9 /11 Milieu

Introduction

When terrorist attacks were perpetuated against the United States , the government is faced with the dilemma of instituting stricter security measures and infringing on the basic civil liberties of the citizens in exchange for the prevention of another repeat of the incident . The authorities struggle to strike a balance between security concerns and basic rights of citizens . The United States government 's response to the 9 /11 crises could be thought of as a knee-jerk reaction to the events The hastily legislated

PATRIOT Act sailed through Congress with the least resistance . Within six weeks from the day of terror , the House voted 356-to-66 and the Senate 98-to-1 to pass the anti-terror bill (Chang , 2001 ,

.1

The Patriot Act affected the provisions of the First and Fourth Amendment . With the subversion of the Foreign Intelligence Surveillance Act (FISA ) to include domestic applications , the Patriot Act inadvertently rendered the Electronic Communications Privacy Act (ECPA signed into law by President Reagan in 1986 in recognition of the emerging technological issues and the Privacy Act of 1974 moot (Hayden Hendricks and Novik , 1990 ,

.68 . In addition , Paye (2006 ) astutely observed that the enactment of the Patriot Act effectively circumvented the judicial control and legitimized what he termed as a frontal attack on the rule of law (p .29 . The Patriot Act eradicated the boundaries between police and intelligence work . The judicial checks and balance were markedly absent and the Act provided the Executive branch the unrestrained right to exercise its prerogatives ignoring the basic tenets of the Constitution . Suspected persons could not invoke the Fourth Amendment as defense . Furthermore , the administration 's demand for more power to implement measures judged to be preemptive strategies has created the impression that the Act was in support of self-preserving agenda

Some of the articles relevant to electronic surveillance are included in Articles 212 and 214 of the reauthorization of the Patriot Act . Article 212 authorized disclosure of communication , information and Internet accesses to the government without the benefit of a judicial courts accession to the act . Article 214 sanctioned the government to eavesdrop on suspected individuals without a warrant (Chang , 2001 ,

p .4-5 Formerly , the police had to prove to the courts there were mitigating circumstances that would justify such act . Under the reauthorization the right to privacy was eroded and due process clearly ignored

Pre-Patriot Act Initiatives of the Clinton Administration

With the rapid development of information technology , the Clinton administration recognized some legislative gaps that would regulate the use electronic media . Furthermore , with the growing concern over global terrorist activities , the Clinton administration aimed to update existing laws to conform to current needs . Congress under the Clinton administration enacted the Communications Assistance for Law Enforcement Act (CALEA . The CALEA 's purpose was to preserve the government 's ability . to intercept communications involving advanced technologies . while protecting the privacy of communications and without impeding the introduction of new technologies (Henderson ,2002 ,p .179

However , Congress also realized that information gathered revealed more about the user than merely digits of the phone number . Congress now required law enforcement agencies to secure court s in to implement CALEA . Congress also restricted the government from using the pen /trap method in electronic modes . The law enforcement agencies were allowed to use pen /trap if the information was traceable through the telephone number (Kerr , 2003 ,

.633

When the issue of pen registers applicability to the Internet came up the law was quite unclear about whether pen /trap was only applicable to telephone devices . The trace and trap ' definition was ambiguous . The trap and trace device ' was referred to as a device which captures the incoming electronic or other impulse which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted (Kerr , 2003 ,

.633 . Federal judges agreed that the definition extended to include the Internet . Two important events would push for the Patriot Act amendments to the pen register statute . On July 17 ,2000 , the Clinton administration expressed its support to include the Internet in the pen register definition However , it did not reach the Congress but it set the precedent for clarifying the scope of the pen register . On November 17 , 2000 Magistrate Judge Patricia Trumbull of the Northern District of California in San Jose dissented and denied the inclusion of the Internet in the pen register scope saying that the law clearly limited the scope to telephone devices (Kerr , 2003 ,

.635

The Clinton administration 's recognition of the need to synchronize existing laws to apply to current developments was a first step for the succeeding administration to review and consolidate the laws on electronic surveillance . The Clinton administration also paved the way for further debate on the scope of pen /trap statutes . When the Clinton administration restricted access to the application of CALEA in law enforcement , the intention was to institute protection against criminal activities without infringing on the Fourth Amendment . Prior to the Patriot Act , the Clinton Administration had shown support to update existing electronic surveillance laws (Kerr , 2003 ,

.637

The Clinton administration justified CALEA 's increased capability to conduct electronic surveillance by saying that it was a necessary strategy to counter threats to national security . The American Civil Liberties Union (ACLU ) argued that increased government omniscience was unnecessary as there was no real terrorist ' threat . The government only succeeded at alienating its citizens and made Americans felt more insecure in their own domains . That argument was forwarded in pre-9 /11attacks . The Clinton administration 's proactive move was done in deference to the absence of appropriate laws to regulate cyberspace Unfortunately , the fears of the Clinton administration became real in 2001 (Hayden , Hendricks and Novik , 1990 , pp .68-71

Technology-based Intelligence Measures

Alvin Toffler (1990 , in his book Power Shift indicated that the axis of power is shifting towards the entity that possesses more substantial knowledge . Information technology in this case is both a powerful medium and a vulnerable platform . Just as the terrorist and criminal elements have the capacity to harness technology to advance their nefarious intentions , so can law enforcement agencies engage with them using state-of-the-art systems . Information technology has leveled the playing field

Two such technology-driven counterintelligence measures include Echelon and Carnivore . The United States and its allies used Echelon to intercept communications intelligence from suspected perpetrators Echelon is a code for a series of computers with the ability to decode intercepted communications . The National Security Agency is responsible for coordinating and implementing the strategy in the United States . The system is capable of intercepting all forms of electronic communications including land-line and cellular telephone calls , satellite communications , electronic mail , facsimiles , and various forms of radio transmission (Sloan , 2001 ,p .1467

The Federal Bureau of Investigation (FBI ) primarily uses carnivore as countermeasures against cyber crimes . The intention was to protect the interests of the American public against unlawful use of cyberspace to perpetrate crimes . The main targets of the Carnivore are terrorism information warfare , child pornography , fraud (including white collar and virus writing and distribution (Durham , 2002 , n .p . The Carnivore is capable of filtering e-mails from suspected criminals and tracing the origins of these messages . It operates on two modes , the pen ' and full . The pen ' mode will only capture the addresses of the messages while the full ' mode can access the entire contents of the e-mails (Etzioni , 2004 ,

.59

Legal Dimensions of Electronic Surveillance

Serious allegations have been thrown at the intelligence community for using Echelon and Carnivore other than what they were intended for . Some perceived abuses include using Echelon to conduct unlawful activities such as economic espionage . Within the United States , there are laws that would regulate the use of such technology . It is a fact that when electronic surveillance is applied as an intelligence measure , the privacy of individuals are violated . The success of electronic surveillance in this case involves some violation of the law

When the Patriot Act extended the jurisdiction of the FISA , many believed that this was the remedy for dated and incompatible statutes that would regulate emerging technologies . However , civil liberties proponents advocated that the FISA has overextended its limits and the power of the Executive branch was deemed overreaching . Therefore , the risk of violating the provisions of the Fourth Amendment and the privacy of American citizens are not improbable . With the FISA in place , any suspected individuals may be subject to investigations or surveillance without the need for a court (Henderson ,2002 ,p .179

Holland (2005 ) recognized that the current laws concerning emerging technologies are quite unclear . Procedurally , law enforcers may obtain warrants to search suspected electronic emails under Title I content warrant , Title II stored communications , Title III pen register , or a FISA warrant , without violating the provisions of the Fourth Amendment . The Patriot Act in this case , through FISA , merely circumvented the bureaucratic system as a quick response to protect the interests of the citizens and immediate apprehension of suspected terrorists or criminals . Emerging technologies require swift action or evidences may be rendered obsolete because of the rapid developments in information technology . In Kerr 's (2003 ) opinion , the Patriot Act merely updated current laws on electronic surveillance . The passage of the Act had opened the debate on electronic surveillance laws and brought to light much needed discussions to create a balance between privacy and security . The law on electronic surveillance should be a work in progress to keep up with the pace of the developments in information technology (p .673

Social Dimensions Electronic Surveillance

Electronic surveillance greatly affected privacy issues . With the law allowing law enforcement more room to maneuver , the First and Fourth amendments are inadvertently violated . Various movements and advocates had strived to achieve a balance in a largely heterogeneous society such as the United States . The United States ' government judging from the new policies adopted for security seemed to adhere to the Strict Father model . The Strict-father model follows paternalistic norms and the decision of the head of the family is absolute because it is assumed that all the responsibilities , in this case , security of the nation falls absolutely on the responsibility of the government . Consultation plays a meager role in establishing conformity (Lakoff ,1995

In the post 9 /11 society , the use electronic surveillance as a law enforcement and preemptive measure exemplifies such paternalistic decision . The Patriot Act authorizes the measure with some critical trade offs like privacy issues , detention without trial , basic liberties addressing freedom of speech and religion (Heymann , 2002 441 . Political dissent for example , if seen in intercepted communications may be construed as acts initiating or leading to terrorism . Heymann described the effects of curbing political expressions as having a debilitating effect upon our political system (p .441 . The curtailment prevents citizens from expressing their views thereby a nation 's government becomes increasingly divorced from the will of its citizens (Heymann , 2002 ,

. 441

Ethical Dimensions Electronic Surveillance

The Utilitarian philosophy when applied to the use of electronic surveillance would concur with the government 's response of applying whatever means to advance what it would deemed best for the majority The United States reckoned that their decision to implement Echelon or Carnivore would produce positive results in the good overcoming the evil elements of society . The actions may inadvertently violate privacy provisions . For the government , deterrents against possible terrorist attacks by whatever means are far more important than conceding to their critics . The government is obliged to provide security for all its citizens therefore they should do whatever it takes to fulfill that obligation

However , Kantian categorical imperatives would disagree with the strategy of the government to provide security . According to Immanuel Kant , we cannot derive ethical conclusions from metaphysical or theological knowledge of the good (which we lack ) or from a claim that human happiness is the sole good (which we cannot establish (O 'Neill 1998 . For Kant , the moral imperative , in this case the privacy requisite provided by the Fourth Amendment is inviolable . No amount of reasoning would justify that the means of promoting favorable circumstances should involve removing the limits just because it is beneficial to some . The basic rights provided in the Fourth Amendment on privacy should be respected and absolute . Kant 's categorical imperative connoted that if a principle is not universal , then it is not applicable to society . The application of Echelon and Carnivore in this case is deemed unethical

Conclusion

In the interest of providing security to the American citizens , the government may have encroached on some provisions guaranteeing the rights of every citizen . However , one must also recognize that current laws to counter terrorist activities are inadequate . With the advent of new technologies , the perpetrators are also abreast with the developments and have the intention to use any means to promote their self-interests . The government likewise will use every available means to counter terrorist acts against the country and its citizens . Both opposing camps would inevitably infringe on the basic rights of American citizens

References

Chang , N (2001 . The USA PATRIOT Act : What 's so patriotic about trampling on the Bill of Rights ? Retrieved February 1 , 2007 from HYPERLINK "http /www .ccr-ny .org /v2 /reports /docs /USA_PATRIOT_ACT .pdf http /www .ccr-ny .org /v2 /reports /docs /USA_PATRIOT_ACT .pdf

Durham , G .S (2002 . Carnivore , the FBI 's E-Mail surveillance system devouring criminals , not privacy . Federal Communications Law Journal 54 (3 .n .p

Etzioni , A (2004 . How patriotic is the Patriot Act ? Freedom versus security in the age of terrorism . New York . Routledge

Hayden , T , Hendrick , E . and Novik , J .D (1990 . Your Right to Privacy : A Basic Guide to Legal Rights in an Information Society . Carbondale , IL Southern Illinois University Press

Henderson , N .C (2002 .The Patriot Act 's impact on the government 's ability to conduct electronic surveillance of ongoing domestic communications . Duke Law Journal . 52 (1 179

Heymann ,

.B (2002 . Civil liberties and human rights in the aftermath of September 11 . Harvard Journal of Law Public Policy . 25 (2 441

Holland ,C (2005 ) NOTE : Neither big brother nor dead brother : The need for a new Fourth Amendment standard applying to emerging technologies Kentucky College of Law Kentucky Law Journal , Retrieved February 1 , 2007 from :http /web .lexis-nexis .com .libproxy .sdsu .edu /universe /doclist ?_m 55 3b3853c5f5e8f0aaff4 _startdoc 26 wchp dGLbVzW-zSkVA _md5 b7c8 ef363bc70487a3541942f5bcec0c

Kerr , O .S (2003 . Internet surveillance law after the USA patriot act The big brother that isn 't . Northwestern University Law Review 97 (2 607-673

Lakoff , G (1995 . Metaphor , Morality , and Politics , or Why conservatives have left liberals in the dust . Retrieved February 2 , 2007 from : http /www .wwcd .org /issues /Lakoff .html

O 'Neill , O (1998 . Kantian ethics . In E . Craig (Ed , Routledge Encyclopedia of Philosophy . London : Routledge . Retrieved February 2 ,2007 , from : http /www .rep .routledge .com /article /L042SECT1

Paye ,J .C (2006 . A permanent state of emergency . Monthly Review . 58 (6 29-37

Sloan , L .D (2001 . Echelon and the legal restraints on signals intelligence : A need for reevaluation . Duke Law Journal 50 (5 1467

Toffler , A (1990 . Powershift : Knowledge , Wealth and Violence at the edge of the 21st century . New York . Bantam Books

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