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

SURVEILLANCE IS NOT REPORTING PUBLIC EVENTS

Surveillance does not include reporting on public events

Collyer 7 JUDGES: ROSEMARY M. COLLYER, United States District Judge. OPINION BY: ROSEMARY M. COLLYER SERVICEMEMBERS LEGAL DEFENSE NETWORK, Plaintiff, v. DEPARTMENT OF DEFENSE AND DEPARTMENT OF JUSTICE, Defendants. Civil Action No. 06-200 (RMC) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 471 F. Supp. 2d 78; 2007 U.S. Dist. LEXIS 2119

January 12, 2007, Decided lexis

SLDN argues that DOD improperly limited its search by narrowly interpreting SLDN's FOIA request. Originally, DOD did not search for TALON reports because SLDN requested documents related to "surveillance" and DOD does not believe the TALON program [**19] constitutes surveillance. DOD contends that "surveillance" involves keeping a close watch over a person or organization, while the TALON program dealt with mere reporting of public events that were scheduled to occur or had occurred. Defs.' Mem., Ex. 6. SLDN disputes this characterization of the term "surveillance" and alleges that DOD should not have interpreted its request so narrowly.

SURVEILLANCE IS NOT INDISCRIMINATE DATA COLLECTION

surveillance is distinct from general date collection

Joh 14 Elizabeth E. Joh, Professor of Law, U.C. Davis School of Law Washington Law Review March, 2014 89 Wash. L. Rev. 35 ARTIFICIAL INTELLIGENCE AND THE LAW: ESSAY: POLICING BY NUMBERS: BIG DATA AND THE FOURTH AMENDMENT lexis

Not only is the quantity of information collected in the big data context far greater, the very nature of surveillance itself is different. If conventional surveillance involves the intentional tracking of one or a few suspects by actual police officers, what happens when a person "emerges" as a surveillance target as a result of a computer analysis? In the traditional surveillance context, the police have not been constrained by the Fourth Amendment so long as their investigations neither interfered with an individual's movements, nor ranged beyond public spaces. n168 As the Supreme Court has observed, there is no constitutional right to be free from police investigation. n169

But this surveillance discretion may mean something different in the big data context. The intentional surveillance of targeted individuals is not equivalent to the perpetual "indiscriminate data collection" n170 of entire populations. While both approaches involve watching by the government, a program like the N.Y.P.D.'s "total domain awareness" system differs from traditional surveillance enough to warrant a different approach. n171 The very quality of public life may be different when government watches everyone - surreptitiously - and stores all of the resulting information. n172

CHARACTERISTICS OF SURVEILLANCE

Surveillance can be done in many ways

Constitution Committee 9 Constitution Committee, House of Lords, Parliament, UK 2009, Session 2008-09 Publications on the internet, Constitution Committee - Second Report, Surveillance: Citizens and the State Chapter 2 http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/1804.htm

18. The term "surveillance" is used in different ways. A literal definition of surveillance as "watching over" indicates monitoring the behaviour of persons, objects, or systems. However surveillance is not only a visual process which involves looking at people and things. Surveillance can be undertaken in a wide range of ways involving a variety of technologies. The instruments of surveillance include closed-circuit television (CCTV), the interception of telecommunications ("wiretapping"), covert activities by human agents, heat-seeking and other sensing devices, body scans, technology for tracking movement, and many others.

Surveillance can be preliminary, limited and full

Wells 4 Christina E. Wells, Enoch N. Crowder Professor of Law, University of Missouri-Columbia School of Law. Ohio Northern University Law Review 2004 30 Ohio N.U.L. Rev. 451 THE TWENTY-SEVENTH ANNUAL LAW REVIEW SYMPOSIUM PRIVACY AND SURVEILLANCE: EMERGING LEGAL ISSUES: Symposium Article: Information Control in Times of Crisis: The Tools of Repression lexis

The Levi guidelines contemplated three levels of investigations: preliminary, limited and full. Preliminary investigations could be instigated only upon the basis of "allegations or other information" that the target might be engaged in unlawful activities involving the use of force or violence. ⁿ¹⁷³ Such investigations were confined to ascertaining "whether there [was] a factual basis for opening a full investigation" and were limited to 90 days unless longer periods were approved by FBI headquarters. ⁿ¹⁷⁴ The guidelines further limited surveillance techniques in preliminary investigations to review of existing FBI files, existing law enforcement records, public records, and other established sources of information. ⁿ¹⁷⁵ Physical surveillance and interviews were allowed only to identify the subject of an investigation and more intrusive forms of surveillance, such as mail covers, mail openings, electronic surveillance, and recruitment of new informants were expressly prohibited. ⁿ¹⁷⁶

Surveillance includes communication, physical, and transactional

Slobogin 97 Christopher Slobogin, Professor of Law, Alumni Research Scholar and Associate Dean, University of Florida College of Law; Reporter, American Bar Association Task Force on Technology and Law Enforcement.

Harvard Journal of Law & Technology Summer, 1997 10 Harv. J. Law & Tec 383 SYMPOSIUM: CRIME AND TECHNOLOGY: ARTICLE: TECHNOLOGICALLY-ASSISTED PHYSICAL SURVEILLANCE: THE AMERICAN BAR ASSOCIATION'S TENTATIVE DRAFT STANDARDS lexis

In 1995, the American Bar Association began an effort to fill this void. In May of that year, the ABA's Criminal Justice Section established a Task Force on Technology and Law Enforcement. n5 Composed of judges, prosecutors, defense attorneys, privacy experts, national security experts, law professors, and representatives of federal and state law enforcement agencies, n6 the Task Force was initially directed to [*387] review the ABA's Electronic Surveillance Standards. n7 These standards, which cover wiretapping and bugging, have not been substantially revised since 1978. n8 However, the ABA also recognized the need to expand the scope of these standards to reflect the development of other "advanced investigative tools" -- tools that might require a rebalancing of "the need for aggressive law enforcement with privacy and freedom . . . considerations." n9

To carry out this objective, the Task Force divided law enforcement surveillance practices into three conceptual categories: communications surveillance, physical surveillance, and transactional surveillance. n10 The [*388] term communications surveillance encompasses the real-time n11 interception of oral, written, and electronic communications using electronic or other means. n12 Physical surveillance involves the real-time observation or detection of movements, activities, and conditions. Finally, transactional surveillance refers to efforts to access pre-existing records such as phone logs, electronic mail logs, credit card histories, other financial transaction data, and air, train, and bus travel bookings. n13

Surveillance can be physical or transaction

Slobogin 10 Christopher Slobogin, Milton Underwood Professor of Law, Vanderbilt University Law School.

Minnesota Law Review May, 2010 94 Minn. L. Rev. 1588 SYMPOSIUM CYBERSPACE & THE LAW: PRIVACY, PROPERTY, AND CRIME IN THE VIRTUAL FRONTIER: Proportionality, Privacy, and Public Opinion: A Reply to Kerr and Swire lexis

The problem with the Court's post-Terry cases is not their adoption of a balancing framework but their willingness to make blithe assumptions about the "invasiveness" of the government actions and to treat legislative and executive allegations of law enforcement "need" as givens. Instead, I argue, the Court should engage in strict scrutiny analysis of government efforts to obtain evidence of wrongdoing. n19 Privacy at Risk elaborates on this argument by focusing on two different types of government surveillance, "physical surveillance" and "transaction surveillance." Physical surveillance refers to real-time observation of physical behavior with the naked eye or with technology such as binoculars, night scopes, tracking devices, and surveillance cameras. n20 Transaction surveillance involves obtaining information about transactions from third-party record-holders, such as banks, credit card agencies and Internet service providers (ISPs). n21 With the help of technology, both types of surveillance have increased exponentially in the past decade. n22

Surveillance tends to be indiscriminate, continuous, and secret – as opposed to a search

Dempsey 97 James X. Dempsey, Senior Staff Counsel, Center for Democracy and Technology, Washington, D.C. Albany Law Journal of Science & Technology 1997 8 Alb. L.J. Sci. & Tech. 65

ARTICLE: COMMUNICATIONS PRIVACY IN THE DIGITAL AGE: REVITALIZING THE FEDERAL WIRETAP LAWS TO ENHANCE PRIVACY lexis

In important ways, electronic surveillance has always posed greater threats to privacy than the physical searches and seizures [*70] that the Fourth Amendment was originally intended to cover. n13 To begin with, "electronic surveillance is almost inherently indiscriminate." n14 Interception of a telephone line provides to law enforcement all of the target's communications, whether they are relevant to the investigation or not, raising concerns about compliance with the particularity requirement in the Fourth Amendment and posing the risk of general searches. n15 In addition, electronic surveillance involves an on-going intrusion in a protected sphere, unlike the traditional search warrant, which authorizes only one intrusion, not a series of searches or a continuous surveillance. n16 Officers must execute a traditional search warrant with dispatch, not over a prolonged period of time. If they do not find what they were looking for in a home or office, they must leave promptly and obtain a separate order if they wish to return to search again. n17 Electronic surveillance, in contrast, continues around-the-clock for days or months. Finally, the usefulness of electronic surveillance depends on lack of notice to the suspect. n18 In the execution of the traditional search warrant, an announcement of authority and purpose ("knock and notice") is considered essential so that the person whose privacy is being invaded can observe any violation in the scope or conduct of the search and immediately seek a judicial order to halt or remedy any violations. n19 In contrast, wiretapping is conducted surreptitiously.

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.

Surveillance can be mass or targeted

Constitution Committee 9 Constitution Committee, House of Lords, Parliament, UK 2009, Session 2008-09 Publications on the internet, Constitution Committee - Second Report, Surveillance: Citizens and the State Chapter 2 http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/1804.htm

TWO BROAD TYPES OF SURVEILLANCE

24. Two broad types of surveillance can be distinguished: mass surveillance and targeted surveillance. Mass surveillance is also known as "passive" or "undirected" surveillance. (JUSTICE, p 109, note 20) It is not targeted on any particular individual but gathers images and information for possible future use. CCTV and databases are examples of mass surveillance.

25. Targeted surveillance is surveillance directed at particular individuals and can involve the use of specific powers by authorised public agencies. Targeted surveillance can be carried out overtly or covertly, and can involve human agents. Under the Regulation of Investigatory Powers Act 2000 (RIPA), targeted covert surveillance is "directed" if it is carried out for a specific investigation or operation. By comparison, if it is carried out on designated premises or on a vehicle, it is "intrusive" surveillance. Targeting methods include the interception of communications, the use of communications "traffic" data, visual surveillance devices, and devices that sense movement, objects or persons.

Surveillance can be targeted or mass

Glancy 12 Dorothy J. Glancy, Professor of Law, Santa Clara University Law School.

Santa Clara Law Review 2012 52 Santa Clara L. Rev. 1171 lexis

Covert surveillance by autonomous vehicles secretly collecting and reporting personal information seems more likely. Such surveillance is often conducted remotely so that it remains hidden from those being monitored. Given the sophisticated technologies applied in autonomous vehicles, technically unsophisticated users may not understand an autonomous vehicle's potential surveillance capabilities to collect, store, or share personal information about its user. These covert surveillance capabilities include both targeted surveillance of a particular person and mass surveillance of groups or populations.

1. Targeted Surveillance

Targeted surveillance keeps track of a particular identified human person, who would otherwise expect to be let alone, and certainly not to be followed. Such surveillance nearly always involves surreptitiously collecting detailed personal information about the targeted individual and keeping track of the target's every move. Usually, this type of information collection is not conducted openly. For example, assume that an autonomous vehicle generates personal information about a user's location in real time without the user's knowledge or consent. If communicated beyond the vehicle, this real-time information would make it possible to locate the targeted user all of the time, as well as to maintain a comprehensive record of all the places the user has been. When this personal information is transmitted or disclosed to recipients unknown to the target, such surveillance compromises both autonomy and personal information privacy interests. This is the type of vehicle tracking that, because no warrant authorized installation of the tracking device, was held unconstitutional by the United States Supreme Court in United States v. Jones. n97

[*1210] Unless personal information from autonomous vehicle is encrypted and rendered anonymous, interconnected autonomous vehicles communicating location and other data back and forth over a wireless network could be very useful tools for invisible targeted surveillance. Absent data encryption and anonymity, access to an autonomous vehicle network would enable immediate remote access to the real time location of an autonomous vehicle and its user. Such access would also enable collection of longitudinal records of past locations. As a result, access to the interconnected autonomous vehicle network, would enable law enforcement, national security, and other types of public and private agencies to conduct remote surveillance of the vehicle's user. When a third party, such as a network operator, is a repository of personal information collected through such surveillance, privacy protection would be even further compromised. n98 This personal information held by third parties would be available to government and private sector investigators through subpoenas or administrative orders, without the target of the surveillance ever knowing that the information exists. Indeed, law enforcement access to certain stored personal information from such a network may require neither probable cause nor a warrant. n99

A selfcontained autonomous vehicle could also be tracked and its user targeted for surveillance in real time. However, the vehicle itself would not be transmitting the surveillance information. Unless connected to a network or attached to a tracking device, a selfcontained autonomous vehicle would not itself enable remote real-time tracking. However, to the extent that the vehicle keeps historical information, such as

[*1211] past itineraries, about the surveillance target, that information could be extracted from the selfcontained autonomous vehicle by those with access to the computer systems inside the vehicle. Unlawful access by breaking into the vehicle would possibly be deterred by burglary and other laws. Law enforcement extraction of surveillance information from a selfcontained autonomous vehicle would likely require at least probable cause as well as a warrant. n100

Use of autonomous vehicles comprehensively to keep track of the whereabouts of a targeted individual in all places and at all times can exert substantial control over that individual. Maintaining centralized information about an individual compromises individual self-determination and autonomy and can be harmful to the individual's psychological health. Comprehensive centralized surveillance systems concentrated on an individual can also influence the individual's future choices by keeping track of each time that individual visits socially or politically "unacceptable" locations. The New York Court of Appeals described the impact of targeted surveillance: "Disclosed in [tracking] data ... will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on." n101

Targeted surveillance compromises an important aspect of individual autonomy - the ability to resist being categorized, manipulated psychologically, intimidated, or mechanistically predicted by society or the government. When an individual is subject to being constantly watched, that person does not feel free to question or to oppose those in charge of the surveillance system.

2. Mass Surveillance

Mass surveillance involves indiscriminate and comprehensive collection of personal information from [*1212] everyone within an area or sector. This type of large-scale surveillance of a population can also function as an instrument of control over the behavior of every individual within that population. Jeremy Bentham suggested this use of mass surveillance in his design for an efficient prison which he called the panopticon - all-seeing device. n102

Applied to autonomous vehicles, mass surveillance could seek to collect personal information about all those who use autonomous vehicles. Such mass surveillance would collect and define behavior patterns of autonomous vehicle users. These profiles could later be useful for such purposes as (i) creating algorithmic profiles of typical autonomous vehicle users, (ii) predicting each autonomous vehicle user's individual behavior, or (iii) finding one autonomous vehicle that may or may not be behaving according to prescribed patterns.

Mass surveillance is sometimes confused with intense, comprehensive surveillance of a targeted person. For example, surveillance of the suspected drug dealer, Antoine Jones, in United States v. Jones constructed a comprehensive pattern, or mosaic, of highly detailed information about Jones's activities and used that mosaic to locate his drug stash house. n103 Real-time information from the GPS surveillance device attached to his vehicle allowed law enforcement to follow Jones and to see him traveling to the stash house where he was arrested. Just about every investigative tool in the law enforcement surveillance arsenal was used against Jones: wiretaps, physical following, fixed-camera surveillance, as well as attachment of a GPS tracking device to his vehicle, so that the device automatically and continuously located Jones and recorded his every movement. However, the GPS tracking was crucial; and it was the warrantless installation of the GPS device that caused the United States Supreme Court to overturn Jones's criminal conviction. These efforts by law enforcement to follow Jones everywhere and to collect detailed information about what he was doing and with whom he was doing it all of the time was intensive, comprehensive targeted surveillance using massive resources. But such tracking was not mass surveillance, [*1213] since the government has not yet tried to watch everyone in the District of Columbia as intensively as law enforcement agencies targeted Jones. Nevertheless, the potential for scaling up the type of massive surveillance used to convict Jones into region-wide mass surveillance of all persons, including those not suspected of criminal activity, troubled some of the Justices who decided Jones.

Mass surveillance operates at a different level from the comprehensive surveillance that targeted Jones. Instead, mass surveillance indiscriminately collects personal information about large numbers of people on a population-wide basis. n104 Usually mass surveillance is covert so as not to affect the patterns of human behavior being recorded. But mass surveillance can also be overt, as Jeremy Bentham suggested for the Panopticon Prison. n105 Automated photo-radar is sometimes used in this open way to deter speeding by announcing that all vehicles on a particular road will have their speeds and license plates recorded, and driver photographs taken, so that citations can be sent automatically to those who were speeding. Some towns engage in overt mass surveillance when they post signs that a photograph of every vehicle and its license plate is taken upon entering or leaving the municipality. n106

Mass surveillance that collects personal information from everyone on the road is not necessary for most transportation management and planning purposes. Anonymous data identifying neither vehicles nor drivers is sufficient for calculating traffic flows or road usage for transportation management and land use planning purposes. For example, [*1214] cameras recording roadway traffic flows often use low-resolution optics incapable of capturing specific vehicles or license plates. Loop detectors or other sensors that do not identify particular vehicles are used to collect information about how many vehicles use particular road segments at particular times and how fast vehicles in general are moving on those segments. In contrast, more precise roadway surveillance that collects specific identifying information about each vehicle or person on a roadway facilitates use of that information for purposes other than counting cars or determining traffic speeds. For example, roadway surveillance that identifies vehicles or drivers may be used to enforce traffic laws, as well as to find or to follow a particular person for further investigation.

Roadway surveillance information that collects personal data about everyone is often used to compile profiles of people who use particular routes. Mass-collected personal data profiles of individuals' travel patterns can be used not only by law enforcement, but by marketers and advertisers who use the data to predict and manipulate future consumer behavior, for example through direct behavioral advertising. Such detailed personal information about an autonomous vehicle user's locations and on-road behavior can be highly valuable both to the government and to private sector enterprises of many different types, such as news media, private investigators, insurance companies, vehicle product manufacturers, and political campaigns.

The interconnected version of autonomous vehicles could enable mass surveillance in the form of comprehensive, detailed tracking of all autonomous vehicles and their users at all times and places. The networked nature of this type of autonomous vehicle involves a communications network that transmits and receives information related to each particular vehicle. Being able to identify specific devices may be necessary for network security. But, unless measures are taken to assure anonymity as well as data security, the resulting comprehensive personal information collection could be used to profile, predict, and perhaps manipulate the behavior of the vehicles and their users. Law enforcement, private investigators, advertisers, and marketers will all be eager to seek access to an interconnected autonomous vehicle network, as well as to the personal data transmitted through[*1215] such a network, unless the network is carefully planned to preserve and protect privacy.

It is interesting to note that selfcontained autonomous vehicles could be used for a different type of mass surveillance. These vehicles rely on arrays of externally facing sensors that will continuously collect detailed information about the roadway environment surrounding the vehicle. Information from these sensors is processed by the vehicle's analytic systems that enable the vehicle to distinguish toddlers from fireplugs. As a result, the selfcontained vehicle will collect detailed data about everywhere the vehicle travels, as well as everything and everyone encountered. In some ways, a selfcontained autonomous vehicle operates as a "mobile panopticon" that moves along roads and highways and literally takes in all details about what is going on in the areas through which the vehicle travels. Based on such mass surveillance concerns, Federal Communications Commission imposed sanctions on Google, for collection of wireless information by "Street View." n107

Mass surveillance collection and use of personal information about large numbers of people also compromises autonomy privacy interests. Surveillance systems - whether they are law enforcement programs, traffic management systems, or private marketing systems - all directly affect the autonomy of travelers by overriding individual control over who or what watches and keeps track of their movements from place to place. When the government controls such universal surveillance, political concerns about centralizing too much power in a potentially overbearing state reinforce privacy concerns. Authoritarian systems can misuse such mass surveillance systems to round up suspects or to treat individuals or whole categories of people as undesirable or deserving sanctions based on where they are or where they have been. Personal mobility is an aspect of people's lives that totalitarian political systems particularly seek to control.

Travelers forced to look over their shoulders for surveillance systems are affected both by knowing and by not

[*1216] knowing whether or when others are watching their actions or capturing personal information about them. Particularly when a person chooses to do something unconventional or considers going to a potentially notorious destination, such uncertainty can be stifling.

Surveillance can be mass or targeted

Constitution Committee 9 Constitution Committee, House of Lords, Parliament, UK 2009, Session 2008-09 Publications on the internet, Constitution Committee - Second Report, Surveillance: Citizens and the State Chapter 2 http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/1804.htm

TWO BROAD TYPES OF SURVEILLANCE

24. Two broad types of surveillance can be distinguished: mass surveillance and targeted surveillance. Mass surveillance is also known as "passive" or "undirected" surveillance. (JUSTICE, p 109, note 20) It is not targeted on any particular individual but gathers images and information for possible future use. CCTV and databases are examples of mass surveillance.

25. Targeted surveillance is surveillance directed at particular individuals and can involve the use of specific powers by authorised public agencies. Targeted surveillance can be carried out overtly or covertly, and can involve human agents. Under the Regulation of Investigatory Powers Act 2000 (RIPA), targeted covert surveillance is "directed" if it is carried out for a specific investigation or operation. By comparison, if it is carried out on designated premises or on a vehicle, it is "intrusive" surveillance. Targeting methods include the interception of communications, the use of communications "traffic" data, visual surveillance devices, and devices that sense movement, objects or persons.

Surveillance is sustained and targeted

Macnish 11 Kevin Macnish, University of Leeds, United Kingdom ‎2011 Surveillance Ethics | Internet Encyclopedia of Philosophy, a peer-reviewed academic resource www.iep.utm.edu/surv-eth/

Surveillance involves paying close and sustained attention to another person. It is distinct from casual yet focused people-watching, such as might occur at a pavement cafe, to the extent that it is sustained over time. Furthermore the design is not to pay attention to just anyone, but to pay attention to some entity (a person or group) in particular and for a particular reason. Nor does surveillance have to involve watching. It may also involve listening, as when a telephone conversation is bugged, or even smelling, as in the case of dogs trained to discover drugs, or hardware which is able to discover explosives at a distance.

Surveillance can be prospective or retrospective

Kerr 3 Orin S. Kerr, Associate Professor, George Washington University Law School. Northwestern University Law Review Winter, 2003 97 Nw. U.L. Rev. 607 ARTICLE: INTERNET SURVEILLANCE LAW AFTER THE USA PATRIOT ACT: THE BIG BROTHER THAT ISN'T lexis

The law often distinguishes between prospective and retrospective surveillance because they raise somewhat different privacy concerns. As Justice Douglas noted in his concurrence in Berger v. New York, n38 prospective surveillance can at worst constitute "a dragnet, sweeping in all conversation within its scope." n39 The surveilling party taps into the network at a given location and picks up traffic passing through, but cannot know in advance exactly what the traffic will be. Some of the traffic may prove relevant, but usually much of the traffic will not be. n40 Further, it can be technically difficult (if not impossible) to filter the communications down to the relevant evidence before the government observes it. Accordingly, prospective surveillance tends to raise difficult questions of how the communications should be filtered down to the evidence the government seeks. n41 In contrast, the scope of retrospective surveillance is generally more limited. The [*617] primary difference is that in most cases a substantial portion of the evidence will no longer exist. n42 Because retrospective surveillance involves accessing records that have been retained in a network, the scope of surveillance ordinarily will be limited to whatever information or records may have been retained in the ordinary course of business. n43 Some records may be kept, but others may not.