Secret Searches and Digital Civil Liberties

May 12, 2017 by Neil Richards

In this excerpt from our new Digital Privacy initiative, Neil Richards from Washington University School of Law tackles the issue of “secret government searches”—namely, instances of government surveillance that remain secret to the search target.

You can read the full text of Richards’ white paper at our special section, A Twenty-First Century Framework for Digital Privacy, at https://constitutioncenter.org/digital-privacy

Perhaps surprisingly, the most compelling moment in Oliver Stone’s “Snowden” biopic is the sex scene. Halfway through this movie about government surveillance and whistleblowing, the audience is shown a graphic and seemingly gratuitous sexual encounter involving Edward Snowden (played by Joseph Gordon Levitt) and his girlfriend Lindsay Mills (played by Shailene Woodley). In the midst of their passion, Snowden’s eyes rest on Lindsay’s open laptop, the empty eye of its camera gazing towards them. In a flash, he recalls an earlier event in which NSA contractors hacked laptop cameras to secretly spy on surveillance subjects in real time. Edward and Lindsay’s mood was ruined, to say the least, by the prospect of government agents secretly watching their intimate activities.

The scene evokes George Orwell’s famous warning about telescreens, the omnipresent surveillance devices in Big Brother’s Oceania, by which the Thought Police could secretly watch anyone at any time. It also has grounding in reality. The use of millions of hacked webcams as monitoring devices was a program known as “Optic Nerve,” which was part of the Snowden revelations. Another program leaked by Snowden involved the surveillance of the pornography preferences of jihadi radicalizers (including at least one “U.S. person”), with the intention being the exposure of their sexual fantasies to discredit them in the Muslim world. Snowden himself famously appeared on John Oliver’s HBO show “Last Week Tonight,” humorously but effectively reducing unchecked government surveillance to the basic proposition that secret surveillance allowed the government, among other things, to “get your dick pics.”

Sexual surveillance may get our attention, but in our digital networked society, in which many of our documents are stored in the cloud, secret government surveillance powers are vastly broader than the power to be an electronic Peeping Tom. Today, the U.S. government has a wide variety of means of secretly watching and searching the people who live in the United States, whether they are citizens, permanent residents, or visitors.

How did we get to a place where secret government surveillance seems both omnipresent and unavoidable? It may be hard to believe these days, but when the Internet first jumped into the public consciousness in the mid-1990s, it was touted as a realm of anarchy and personal empowerment, a tool of freedom rather than of oppression. At the time, the specter of always-on secret surveillance was unthinkable for a variety of technical, political, and legal reasons. Such surveillance was technologically impossible in a pre-broadband world of modems and computers that were usually not connected to the network and in which the Cloud was a dream of technologists and science fiction writers. It was practically impossible, because of the high costs of in-person surveillance. It was politically impossible, too, with many politicians having first-hand memory of the totalitarian regimes of the Axis Powers. Legally, too, the law was settled that the government needed to get a warrant before it tapped a phone, searched papers, or intercepted an email.

How times have changed. These well-established technical and political roadblocks to widespread secret surveillance vanished rapidly in the early months of the twenty-first century. When Al Qaeda terrorists turned four commercial airlines into missiles and attacked New York and Washington, D.C. in September 2001, a stunned American President without a strong commitment to civil liberties began to authorize unprecedented levels of digital surveillance. From a technological perspective, the attacks occurred just after the mass adoption of the Internet, and just before the social media and smartphone phases of the digital revolution. These advances and adoptions, running on a stream of previously uncollected personal data, made it technically possible for the government to read a person’s emails or documents stored in the cloud, or obtain a minutely-detailed transcript of their location logged from the GPS chip in their phone. At the same time, these new technologies started to blur the lines between public and private, destabilizing settled legal understandings of the boundaries between what was private and what was not. In this environment, law enforcement often took the position that in doing their job of promoting security, it was better to ask for forgiveness than permission in attacking the newly-available digital evidence.

Yet despite the growth of the surveillance-industrial complex, there are hopeful signs. Apple and Microsoft, among other technology companies, have engaged in high-profile litigation with the federal government on behalf of their users’ privacy, including litigation over the security of iPhones and the government’s ability to place gag orders on its searches of Microsoft’s cloud and email services.

The result of these changes is the rise of a phenomenon I shall call the “secret government search.” This is, as the name suggests, a search by law enforcement of information relating to an individual. Secret government searches can be diverse—they can be physical or increasingly digital; they can be executed under a warrant, under no warrant, or under some intermediate authorization; they can be unknown to all, or served on a trusted digital service accompanied by an injunction forbidding notice to the target; and the target may get delayed notice of the search or no notice ever. Different kinds of secret government searches can raise different problems, and these problems may require different solutions. But at bottom, secret government searches share the essential characteristic of being government surveillance of which the target has no notice at the time of the search.

In this essay, I attempt to put the rise of secret government searches into context—historical, technological, and most importantly constitutional. My argument is straightforward—the current state of secret government searches is a dangerous anomaly in our democratic order. It is unprecedented as a technological and historical matter, and it is inconsistent with what I believe is the best reading of our constitutional traditions protecting freedom of thought, freedom of expression, and freedom from unreasonable searches and seizures. If we are to faithfully translate our hard-won civil liberties against the state from the physical realm to the digital, we need to do better to limit the ability of the government to peer into the lives of its citizens in ways that are not only secret but also relatively unconstrained. It is important to recognize, however, that this is not a question of civil liberties “in cyberspace,” as if the digital realm is somehow a separate one. While the fiction of separate physical and virtual worlds may have been a useful one twenty years ago, in today’s networked, mobile era of ubiquitous personal computers, the overwhelming majority of ordinary people use digital platforms and technologies to live their everyday lives. Recognition of this fact must also cause us to recognize that there is not really any such place as “cyberspace.” On the contrary, there is only space, and humans in that space trying to live their lives—sometimes using digital tools, sometimes using pre-digital ones, and frequently using a combination of the two. Yet if we fail to fully extend our hard-won rights in traditional activities to digital, networked activities, those rights will be substantially and perhaps even fatally diminished. If that were to happen, we would all be less safe as a result.

This argument proceeds in four steps. First, I will describe the lay of the land with respect to secret government searches, a phenomenon I term “the secret search epidemic.” I argue that it is impossible to fully understand the constitutional issues these searches raise without an appreciation of the essential technical and other roles played by the technology companies whose businesses enable the creation of this data in the first place. Second, I examine these secret searches as “searches,” and consider them from the perspective of Fourth Amendment law. This focuses our attention on the “search” part of secret government searches. I argue that the best reading of the Fourth Amendment in this context is that secret searches are unreasonable, and that if we permit them, we risk repeating the mistakes of the past with respect to the Fourth Amendment and new technologies. Third, I consider whether secret searches are a threat to First Amendment values, either by virtue of their secrecy or by the fact that in the digital context they are often served on cloud providers and accompanied by injunctions forbidding those companies to ever tell their customers about the government’s accessing their data. I conclude that secret, unconstrained searches of this kind represent a serious threat to our First Amendment values. Finally, I chart a path forward for secret surveillance law, offering four principles that should govern the delicate task of translating our civil liberties into the digital society.