Resolution resolved: The United States federal government should substantially curtail its domestic surveillance. Violations

Surveillance can be individualized or programatic

Sales 14 NATHAN ALEXANDER SALES, Associate Professor of Law, Syracuse University College of Law.

I/S: A Journal of Law and Policy for the Information Society Summer, 2014 10 ISJLP 523 NSA SURVEILLANCE: ISSUES OF SECURITY, PRIVACY AND CIVIL LIBERTY: ARTICLE: Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy lexis

Programmatic surveillance initiatives like these differ in simple yet fundamental ways from the traditional forms of monitoring with which many people are familiar--i.e., individualized or particularized surveillance. Individualized surveillance takes place when authorities have some reason to think that a specific, known person is breaking the law. Investigators will then obtain a court order authorizing them to collect information about the target, with the goal of assembling evidence that can be used to establish guilt in subsequent criminal proceedings. Individualized surveillance is common in the world of law enforcement, as under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. n23 It is also used in national security investigations. FISA allows authorities to obtain a court order to engage in wiretapping if they demonstrate, among other things, probable cause to believe that the target is "a foreign power or an agent of a foreign power." n24

By contrast, programmatic surveillance has very different objectives and is conducted in a very different manner. It usually involves the government collecting bulk data and then examining it to identify previously unknown terrorists, spies, and other national security threats. A good example of the practice is link analysis, in [*528] which authorities compile large amounts of information, use it to map the social networks of known terrorists--has anyone else used the same credit card as Mohamed Atta?--and thus identify associates with whom they may be conspiring. n25 (It is also possible, at least in theory, to subject these large databases to pattern analysis, in which automated systems search for patterns of behavior that are thought to be indicative of terrorist activity, but it's not clear that the NSA is doing so here.) Suspects who have been so identified can then be subjected to further forms of monitoring to determine their intentions and capabilities, such as wiretaps under FISA or other authorities. In a sense, programmatic surveillance is the mirror image of individualized surveillance. With individualized monitoring, authorities begin by identifying a suspect and go on to collect information; with programmatic monitoring, authorities begin by collecting information and go on to identify a suspect.