Privacy and Surveillance: What Are Your Rights?
by: Marni Cooper

Email: Marni Cooper
March 16, 2011

Home | Research for CST 515: Privacy and Technology | Freedom of Speech | Crime and Technology


Definition

If you asked 10 people their definition of privacy, you would probably get 10 different answers. This is because people tend to think of privacy as a personal matter, instead of thinking about it on a larger scale. Merriam Webster Online, however, simply defines privacy as "freedom from unauthorized intrusion." While there is no specific mention of the right to privacy in the United States Constitution, there are many laws available that protect this right for individuals. Prior to technological advancements such as computers, video cameras, and microphones, people had reasonable expectations of privacy. However, with these technological advancements that we enjoy today come the possibility of an invasion of our privacy.

Surveillance Laws

Several laws have been created to authorize audio surveillance, such as listening to or recording phone calls by telephone and over the internet. These laws include the Omnibus Crime Control and Safe Streets Act of 1968, otherwise known as The Wiretap Act, the Communications Assistance for Law Enforcement Act (CALEA) of 1994, and the Foreign Intelligence Surveillance Act of 1978. Many of the laws are updates of existing laws to keep up with technology. Others were created to protect people's rights from abusive government invasions of privacy.

Omnibus Crime Control and Safe Streets Act of 1968 (The Wiretap Act)

According to the USDOJ, The Wiretap Act of 1968 "prohibits any person from intentionally intercepting, or attempting to intercept, any wire or oral communication." Its 1986 amendment, which "required telephone companies to build wiretapping capability into their network" (Diffie & Landau, 2009), extended this protection to electronic communication. To violate this Act, five elements must be present:

  1. The act must be intentional.
  2. The interception of the communication must happen at the same time as the transmission.
  3. The interception must be of the contents of the communication.
  4. It must involve any wire, oral, or electronic communication.
  5. It must include the use of a device.
This Act not only protect the interception of a communication, but also how the communication is disclosed. As with many laws, ignorance of the law is not a defense. If a person records information and uses it without knowledge of the law or fully understanding the law, he or she would still be in violation of the law.

Foreign Intelligence Surveillance Act (FISA) of 1978

The Foreign Intelligence Surveillance Act (FISA), enacted in 1978, is a law developed after the discovery of large-scale abuses by various United States government agencies such as the National Security Agency (NSA), Federal Bureau of Investigation (FBI), and the Central Intelligence Agency (CIA). The Act was created to provide checks and balances on foreign intelligence, foreign powers, and foreign agents. The subsequent amendment in 2008, established guidelines for electronic surveillance of foreign intelligence agents and the collection of any information obtained during an investigation. In addition, this law covers United States citizens in foreign countries who require surveillance while under investigation.

Communications Assistance for Law Enforcement Act (CALEA)

The Communications Assistance for Law Enforcement Act (CALEA) is an law passed in 1994 that better enables law enforcement agencies to conduct electronic surveillance. According to Guhl and Pendse (2008), the CALEA "requires that digitally switched telephone networks be designed and built with wiretap capabilities and that service providers assist law enforcement agencies in obtaining surveillance." This was an incredible advancement from wiretapping of the past in which required law enforcement served warrants on local telephone company. Under CALEA, law enforcement officials could now digitally tap the telephone company's network and redirect it to their location. According to Upson (2007), this Act was developed out of increased concerns from law enforcement officials that digital telephone lines were becoming more difficult to tap. In addition to telephone surveillance, this Act has been expanded to cover surveillance of email, VoIP, and broadband internet traffic.

Moral, Ethical, and Social Pros and Cons of Audio Surveillance

Pros

Cons

One tends to measure ethics in terms of right and wrong. When I think of the ethical issues of audio surveillance, I think about how it benefits everyone, not just how it affect a particular individual. When law enforcement uses audio surveillance in the manner it was intended, I believe that it is ethically correct. Many people may agree that if it is for the greater good, audio surveillance is okay. However, there will be those who believe that if it impedes on one innocent person's right to privacy, it is wrong. When we compare the greater good versus an individual's rights, we must look at the pros and cons.

I believe morals are personal, unlike ethics. Morality is treating someone like you would want to be treated. Generally, ethics rules are guidelines developed for a group. As a citizen, I would like to think that law enforcement officials are using surveillance capabilities for its intended use: to catch criminals. The downside is that surveillance almost always involves innocent people who are not able to consent to such an intrusion.

Socially, people record audio all of the time on smaller recorders and even their telephones without considering whose right they may be violating. Even in a casual conversation, if the other party is not aware of the recording, it is a violation of the law. In addition, some of the recorded communication could be misinterpreted based on social difference or taken out of context when video surveillance doesn't accompany it.

Overall, I believe that a little intrusion is necessary. The criminals are outsmarting law enforcement on a regular basis. It is hard for law enforcement, and the laws, to keep up. I believe that many people would not mind invasion of their privacy, even as an innocent party, if any "sensitive" information obtained is not used to harm that person. For example, what if during the course of a criminal investigation, audio surveillance revealed that one of the criminal's niece is adopted and the parents do not want the child to know. What if the recording had to be played in court? How could this child be protected? Is the conviction of the criminal worth more than protecting the innocent family's rights?

And where does it end? Who is policing the police? If history repeats itself, how many times will we find out that law enforcement agencies are still violating laws meant to protect individual's rights? Unfortunately, innocent parties often do not find out about their involvement in criminal investigations until after the investigation is over. One can only hope that law enforcement is in compliance with the law. Before acting in any unscrupulous manner, each law enforcement agent should ask themselves, "How would I feel if this happened to me?"


References

Diffie, W. & Landau, S. (2009). Communications Surveillance: Privacy and Security at Risk. Communications of the ACM, 51(11), 42-47. Retrieved from EBSCOhost.

Guhl, S. D., & Pendse, R. (2008). The Communications Assistance for Law Enforcement Act (CALEA). Information Security Journal, 17(3), 110-113. doi:10.1080/19393550802297399

United States Department of Justice [USDOJ], Computer Crime & Intellectual Property Section. http://www.justice.gov/criminal/cybercrime/ccmanual/02ccma.html Retrieved March 13, 2011

Upson, S. (2007). Wiretapping Woes. IEEE Spectrum, 44(5), 10-12. Retrieved from EBSCOhost.