A common oversimplification regarding U.S. surveillance law is that it’s a play in five acts:
- The Communications Assistance for Law Enforcement Act (CALEA)
- The Electronic Communications Privacy Act (ECPA)
- The Foreign Service Intelligence Act (FISA)
- Title III of the Omnibus Crime Act (The “Wiretap Act”)
- The Patriot Act
Similarly, privacy advocates are fond quoting their “4th Amendment rights.”
If only the laws governing electronic surveillance, lawful intercept and privacy were that simple.
In addition to federal law, surveillance and privacy are subject to separate statutes in all 50 states. Interpretation of state and federal laws can vary widely by court jurisdiction, creating confusion and complexity for communications companies and law enforcement agencies charged with deploying lawful intercept, and at the same time with safeguarding privacy rights in cases that may cross state lines and court jurisdictions. For example, the legal standards for using mobile location data to track criminals can differ in adjoining court jurisdictions even within a single state.
Some states are taking surveillance law in new directions. In April 2014, Utah adopted a statute that places severe limits on the use of electronic surveillance — including a requirement to notify a suspect that he is under observation by the police and to destroy the electronic record of the surveillance within two weeks.
As for the Constitutional right to privacy — there’s no such thing, at least not in the document penned by the Founding Fathers. That interpretation of the 4th Amendment came well over a century later, in the 1920s, in a ruling by the Supreme Court.
The point is: The law is never simple and surveillance law is notoriously complex. Insider Surveillance will keep you posted on changes in law and policy that might be overlooked by mainstream media. Like that Utah law which, if it sets a precedent for other states, could create problems for law enforcement down the road.