CIVIL LIBERTIES AND LAW IN THE ERA OF SURVEILLANCE

Cover Story

CIVIL LIBERTIES AND LAW IN THE ERA OF SURVEILLANCE

Can the law keep up with technology?

By Marguerite Rigoglioso| November 17, 2014 | Issue 91

Gérard Dubois

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Government Surveillance ArtIt may no longer be an exaggeration to say that big brother is watching. When Edward Snowden leaked classified government documents last year, many were surprised to learn just how much access the National Security Agency (NSA) has to the personal email and phone records of ordinary citizens. Those revelations about the scope and extent of surveillance by American intelligence agencies have prompted a national debate about civil liberties in an age of new technology that enables the government to both collect and store vast amounts of personal information about its citizens. The discussion is also surfacing in local communities where technology allows law enforcement to indiscriminately gather information on law-abiding citizens—information that is collected, kept, and shared with little to no oversight, or awareness by the general public.

Today, new technologies are changing the relationship between the citizen and the state, with the government and law enforcement able to access our information and observe our private activities, raising important civil liberties questions. Stanford Law School faculty and alumni are centrally involved in some of the most important questions surrounding this issue—working in key areas where the law is still catching up with technology.

Looming large over the debate is the post-9/11 war on terrorism, which has led to legislation such as the USA Patriot Act, designed to make it easier for the government to collect data that would help combat terrorism. At the same time, the incredible evolution in technology over the past two decades has revolutionized both the tools available to the government for surveillance and those used by individuals to live their lives.

“We’re living in the 21st century, but when it comes to issues concerning information technology, the law is still rooted in the 20th century,” says Anthony Romero, JD ’90, executive director of the American Civil Liberties Union (ACLU).

In striking a balance between constitutional rights, crime fighting, and national security, the legal doctrines at issue include everything from post-9/11 legislation that has given law enforcement access to electronic records, to constitutional rules governing criminal procedure, to the regulation of surveillance technology equipment by local governments.

Technology at the Local Level

The U.S. is a country of highways and cars, where Americans spend a lot of time behind the wheel. And tracking how we use our cars offers a picture of much more than simply our mode of transportation.

Automatic License Plate Reader/Recognition technology, ALPR, developed in the United Kingdom in the late 1970s, has been in use since the early 1980s as a tool to aid law enforcement agencies in various ways, from tracking stolen cars to identifying criminals. Since its introduction, this technology has become more powerful, mobile, and affordable. Today, more than 70 percent of police departments in the U.S. use some form of ALPR, recording thousands of plate numbers daily with cameras mounted on patrol cars and at key traffic areas such