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Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad

2015; University of Michigan Law School; Volume: 21; Issue: 2 Linguagem: Inglês

1528-8625

Axel Arnbak, Sharon Goldberg,

Criminal Law and Evidence

This Article reveals interdependent legal and technical loopholes that the US intelligence community could use to circumvent constitutional and statutory safeguards for Americans. These loopholes involve the collection of Internet traffic on foreign territory, and leave Americans as unprotected as foreigners by current United States (US) surveillance laws. This Article will also describe how modern Internet protocols can be manipulated to deliberately divert American’s traffic abroad, where traffic can then be collected under a more permissive legal regime (Executive Order 12333) that is overseen solely by the executive branch of the US government. Although the media has reported on some of the techniques we describe, we cannot establish the extent to which these loopholes are exploited in practice. An actionable short-term remedy to these loopholes involves updating the antiquated legal definition of “electronic surveillance” in the Foreign Intelligence Surveillance Act (FISA), that has remained largely intact since 1978. In the long term, however, a fundamental reconsideration of established principles in US surveillance law is required, since * Axel Arnbak is a Faculty Researcher at the Institute for Information Law, University of Amsterdam and a Research Affiliate at the Berkman Center for Internet & Society, Harvard University. Sharon Goldberg is Associate Professor of Computer Science, Boston University and a Research Fellow, Sloan Foundation. She gratefully acknowledges the support of the Sloan Foundation. Both authors thank Timothy H. Edgar, Ethan Heilman, Susan Landau, Alex Marthews, Bruce Schneier, Haya Shulman, Marcy Wheeler and various attendees of the PETS’14 and TPRC’14 conferences for discussions and advice that have greatly aided this work. Alexander Abdo, David Choffnes, Nico van Eijk, Edward Felten, Daniel K. Gillmore, Jennifer Rexford, Julian Sanchez and the anonymous reviewers for HotPETS’14 each provided insightful comments on drafts of this Article. Views and errors expressed in this Article remain the sole responsibility of the authors. This Article was submitted on September 1, 2014 and a brief update was concluded on December 26, 2014. All URLs have been checked on this date. An earlier version of this Article was first posted online on June 27, 2014.