JENNIFER DASKAL is Associate Professor of Law at American University Washington College of Law. From 2009 to 2011, she served as Counsel to the Assistant Attorney General for National Security at the U.S. Department of Justice.
In 2013, after the National Security Agency contractor Edward Snowden released thousands of top-secret documents, the U.S. government scrambled to justify its far-reaching surveillance programs. In an effort to make these data-collection programs more transparent and legitimate, the Obama administration established a special review group, revived a dormant privacy oversight board, and issued an executive order pledging to respect the privacy rights of noncitizens abroad. U.S. technology and telecommunications companies—whose complicity Snowden’s documents had exposed—moved into a defensive crouch. In order to maintain their international customer base, they sought to explain away their past cooperation and distanced themselves from the government. In 2015, the U.S. Congress entered the fray, reining in the so-called telephony metadata program, the NSA’s bulk collection of the phone numbers of incoming and outgoing calls, which can be used to draw a map of a person’s associations.
The British, with their own set of sophisticated intelligence capabilities, have been grappling with many of the same concerns. In the fall of 2016, Parliament passed the Investigatory Powers Act—which opponents call “the snoopers charter,” but which defenders portray as an overdue piece of legislation that sets the parameters on what the government can do when it comes to surveillance. As with most controversies, there is an element of truth to both sides of the debate. The statute gives the intelligence services the right to collect large quantities of information with a single warrant, and it allows courts to compel private companies to help decrypt communications (a development that raises concerns about both privacy and network security). But it also adds checks and protections where there were none before. For the first time in the United Kingdom’s history, warrants to intercept communications are subject to judicial review; previously, the executive branch could execute these on its own say-so.
Rhodri Jeffreys-Jones’ comprehensive new book, We Know All About You, puts these contemporary debates over surveillance—which he defines as “spying on a mass scale”—
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