Welcome to Notes From the Unsound... Lets Talk CyberLaw

An intro to the blog and some observations on the relationship between surveillance and freedom.

Welcome to Notes From the Unsound. My name is Collin Parker, and I am here to share my thoughts on cybersecurity and other things that interest me. Although technology will be a big part of this blog, I will also discuss things like literature, history, and whatever else I find interesting at the moment.

Today I wrote an essay for class on the topic of surveillance and privacy, how surveillance can impact cybercrime, and its many inherent drawbacks. We were told to keep it from becoming an opinion piece. I didn’t like that. So I will here produce the essay and add in my own opinion on the topic. Enjoy!

“History shows us that the balance of liberty and security is anything but a new phenomenon. The tension between online privacy and government surveillance is a newer iteration of a conflict which has been present in every civilized society with some government structure. Humans have always pondered the opportunity costs of cutting out liberty for security. This is especially true for American history, as shown by the colonists attempts to protect themselves from unreasonable property seizures under British rule. This question’s impact on cyberlaw comes in the form of asking how surveillance can be used properly while making consideration for the online privacy of the average citizen.

As noted in the textbook, surveillance online was essentially nonexistent until the development of browser cookies in the 1990s (Yar and Steinmetz, 2019). From there, surveillance took off, resulting in what is now known as the world of big data, where user’s data is “mined” without consent. Advancements in online surveillance capabilities has given the government an extraordinary amount of power in surveilling its citizens. Online surveillance could potentially be used to prevent cybercrime and must derive its powers and limitations from a higher authority. The Fourth Amendment is the doctrine which should guide law enforcement with any operations dealing with the surveillance of American citizens. Mass seizures of personal data should only be authorized when probable cause is present, and a search warrant is signed. In Carpenter v. United States, an important precedent was set in favor of this notion. The Supreme Court decided that the seven days of data police acquired from cell towers was in violation of the Fourth Amendment, as no warrant was obtained (Hecht-Felella, 2021). This case sets a clear precedent for how the government can be limited in surveillance; not entirely, but enough to be effective and maintain privacy expectations.

First, it is imperative to discuss the ways that online surveillance could prevent and deter the possibility of cybercrime. Proponents of surveillance can point to the way it will enforce norms onto citizens, compelling them to internally remind themselves to follow the law. It is the possibility of being watched which can cause one to not commit crimes, whether they are truly being watched or not. The textbook uses Foucault’s conception of the “panopticon” as an example of how institutionalized surveillance can influence society to follow the law (Yar and Steinmetz, 2019). Expansion of this concept into the world of constant Internet usage has created an environment where the constant possibility of surveillance has established a sense of self-policing. Additionally, surveillance can be useful in the monitoring of terrorist activities and threats of violence.

Although proper surveillance can possibly prevent cybercrime, the privacy expectations of citizens must be considered before establishing operations. As previously discussed, Fourth Amendment protections prevent unreasonable seizures of property, and as the Carpenter decision puts forth, this extends to personal data. The main worry in establishing a method of surveilling for cybercrime is that government agencies will violate their own laws and trample on personal liberties. As evidenced by the expositions by Edward Snowden, the NSA’s surveillance of American citizens routinely violates any reasonable expectations of privacy (Yar and Steinmetz, 2019). Furthermore, laws such as the PATRIOT Act of 2001 expand surveillance powers at levels which could be considered in discord with Forth Amendment provisions. The fundamental problem of government surveillance is essentially that power-wielding individuals tend to abuse or find loopholes in their own limitations. If the Fourth Amendment and the framework established by Carpenter is uniformly applied to all facets of government surveillance, security and personal liberty will be balanced.”

References

Hecht-Felella, L. (2021, March 18). The fourth amendment in the digital age - how carpenter can shape privacy protections for new technologies. brennancenter.org. Retrieved February 21, 2023, from https://www.brennancenter.org/our-work/policy-solutions/fourth-amendment-digital-age

Yar, M., Steinmetz, K. F. (2019). Cybercrime and society (3rd ed.). Sage

As you can see, I attempted to straddle the line as much as possible to appease my professors. If you are an astute reader, however, you can probable pick up that I fall on the side of protecting privacy as much as possible. I believe surveillance, especially by the government, should be as limited as possible while still functioning as necessary. The average person does not know the technical details of a cookie or how Internet service providers store enough knowledge about a person to make a detailed profile on them. Due to this lack of cyber awareness, most users do not have the knowledge to consent to the amount of data they are giving up. This must be considered when assessing an individual’s “expectation of privacy” which has been held as a standard to comply with the Fourth Amendment.

To promote digital rights and the privacy of all Internet users, cybersecurity awareness must be its precursor. Online security awareness is alarmingly scarce throughout the world. If you become a dedicated reader of this blog, it is my intention to make you more aware of the environment technology and process has fostered. Become cyber aware. Your privacy may depend on it.