Dan Solove on electronic surveillance, post-Patriot Act [priv]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Reconstructing Electronic Surveillance Law
Date: Thu, 30 Sep 2004 23:42:02 -0400
From: Daniel Solove <djsolove () comcast net>
To: Declan McCullagh <declan () well com>
References: <415A3349.1050705 () well com>

Declan,

I have just posted on SSRN the latest version of my essay, Reconstructing
Electronic Surveillance Law.  I think that you and the Politech audience
would find this essay to be of interest.

It can be downloaded at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=445180

The essay examines electronic surveillance law in light of the USA-Patriot
Act.  The USA-Patriot Act has sparked a fierce debate. However, the pros and
cons of the USA-Patriot Act are only one part of a much larger issue: How
effective is the law that regulates electronic surveillance?

The USA-Patriot Act made a number of changes in electronic surveillance law,
but the most fundamental problems with the law did not begin with the
USA-Patriot Act.  Electronic surveillance law suffers from significant
problems that predate the USA-Patriot Act. The USA-Patriot Act indeed
worsened some of these problems, but surveillance law had lost its way long
before. Surveillance law is thus in need of a radical reconstruction.

I explore specific difficulties with the scope, standards, and enforcement
mechanisms of the electronic surveillance statutes.  I then turn to the more
deeply-rooted and systematic problems.  Electronic surveillance law is
overly intricate and complex.  It has failed to keep pace in adapting to new
technologies, and it provides for insufficient judicial and legislative
oversight.  I propose ways in which surveillance law should be reconstructed
to address these problems.  My solution is a radical one: Warrants supported
by probable cause should be required for most uses of electronic
surveillance.  Furthermore, I suggest that Congress draft a charter
regulating the FBI.

I am very interested in any thoughts and comments you or the Politech
audience has about the essay.

Regards,

Daniel J. Solove
Associate Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
http://www.law.gwu.edu/facweb/dsolove/

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