The rich legal literature that has grown up to assess the constitutionality of bulk communications collection by the government has focused overwhelmingly—and understandably—on the challenge such programs pose to particular claims of individual right against the state, yet attempting to describe what seems troubling about bulk collection in terms of individual rights alone has significant doctrinal and conceptual limits.
From the perspective of private industry, Mieke Eoyang examines the interplay between US national security electronic surveillance and the US telecommunications companies that are necessary intermediaries for this surveillance, tracing the history of major surveillance programs and identifying key areas of tension. Eoyang recommends reforms including a court process for government access to overseas data on foreign customers, leaving bulk, unfiltered data in the hands of private industry, and working with close allies to build consensus around electronic surveillance norms.
As the field of privacy and digital surveillance grows increasingly chaotic, Michael Price proposes a compelling supplement to the third-party doctrine. Eschewing the popular position that our privacy clashes are generational, Price instead reviews the history of Fourth Amendment jurisprudence to identify missteps in doctrine that have led us to the current impossible position. Along the way he wrestles with problems such as cloud storage and communications metadata, and he concludes with a framework that strikes a new balance between our storied civil liberties heritage and the “papers” of a big data society.