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Alan Z. Rozenshtein, a former contributor to this site who now works at the Department of Justice, is well known to long-time Lawfare readers for his writing on many national security law topics, particularly on issues of national security law in cyber-related topics. Alan has just posted to SSRN a very interesting and important article on the issues raised by government surveillance in an era that today is perhaps most memorably characterized by the legal standoff between Apple and the Department of Justice over unlocking the cell phone of one of the San Bernardino terrrorists.
"Surveillance Intermediaries" (forthcoming 2018, Stanford Law Review) offers a comprehensive analysis of the legal and policy issues for all stakeholders in a world characterized by corporate actors standing between the U.S. government and targets of surveillance. Its policy framework (both descriptive and normative) considers the competing interests for different parties and tradeoffs at issue in such cases as San Bernardino (and others). Its legal framework offers a cogent analysis of the law relevant to these situations - no easy task, given that the legal areas range from civil liberties and privacy to national security and Constitutional law. Rozenshtein has written an article with a powerful, yet flexible, analytic framework - but also one written with impressive clarity and accessibility for the non-specialist in these legal areas. It is likely to be at the center of analytic approaches to a problem that, in one form or another, is not going away soon.
Apple’s 2016 fight against a court order commanding it to help the FBI unlock the iPhone of one of the San Bernardino terrorists exemplifies how central the question of regulating government surveillance has become in American politics and law. But scholarly attempts to answer this question have suffered from a serious omission: scholars have ignored how government surveillance is checked by “surveillance intermediaries,” the companies like Apple, Google, and Facebook that dominate digital communications and data storage, and on whose cooperation government surveillance relies. This Article fills this gap in the scholarly literature, providing the first comprehensive analysis of how surveillance intermediaries constrain the surveillance executive. In so doing, it enhances our conceptual understanding of, and thus our ability to improve, the institutional design of government surveillance.
Surveillance intermediaries have the financial and ideological incentives to resist government requests for user data. Their techniques of resistance are: proceduralism and litigiousness that reject voluntary cooperation in favor of minimal compliance and aggressive litigation; technological unilateralism that designs products and services to make surveillance harder; and policy mobilization that rallies legislative and public opinion to limit surveillance. Surveillance intermediaries also enhance the “surveillance separation of powers”; they make the surveillance executive more subject to inter-branch constraints from Congress and the courts, and to intra-branch constraints from foreign-relations and economics agencies as well as the surveillance executive’s own surveillance-limiting components.
The normative implications of this descriptive account are important and cross-cutting. Surveillance intermediaries can both improve and worsen the “surveillance frontier”: the set of tradeoffs—between public safety, privacy, and economic growth—from which we choose surveillance policy. And while intermediaries enhance surveillance self-government when they mobilize public opinion and strengthen the surveillance separation of powers, they undermine it when their unilateral technological changes prevent the government from exercising its lawful surveillance authorities.