Towards Coherent Regulation of Law Enforcement Surveillance in the Network Society

In this paper, we study the evolution of telecommunications technology and its impact on law enforcement surveillance. Privacy and the need for law enforcement to conduct investigations have not been at the center of the recent public policy debate. Yet, policy environments have approved law enforcement surveillance that can be and is intrusive. Law enforcement surveillance therefore deserves particular attention when discussing the basic human right to privacy. We illustrate that despite the gradual acceptance of the basic human right to privacy, in the digital age the United States (US) government continues its historical pattern of using technology to enhance its power of search . The most recent example is the installation of the Digital Collection System 1000 (DCS1000), formerly known as Carnivore, a classified packet sniffer, on American networks by the American federal law enforcement agency. We discuss pre-convergence surveillance in the areas of US postal mail, telegraph and telephone communications, as well as physical surveillance. We also analyze post-convergence surveillance in the area of physical surveillance, encrypted telephony and the Internet (e.g., electronic mail). From examination of these cases, we see that not only is there a technology convergence but also a convergence of jurisdiction. We note that ensuring protection of privacy rights of the individual is not an adequate method of keeping government surveillance in check. * The contributions of Jean Camp to this work were funded in part by NSF grant 9985433, and an equipment grant from HP. This work represents solely the opinions of the authors, and in no way reflects the beliefs of Harvard, the United States Government, or the Notes/Windows environments in which we are employed. We conclude w..