Culture Clashes: Freedom, Privacy, and Government Surveillance Issues Arising in Relation to National Security and Internet Use

1. Introduction

Professor Jack Balkin of Yale Law School may have hit the nail on the head when he described the advent of the “Surveillance Society” in the United States in a law journal article published a few years ago. (Balkin, 2008) With our growing use of the Internet and other information and communication technologies, there has been the parallel use by the law enforcement and national security communities of surveillance of online communications, digital forensics, etc. Balkin says it is inevitable – however the extent to which the average citizen is monitored raises legal and policy issues related to freedom of the Internet, privacy and civil liberties.

There are various sectors battling this out in United States courts and Congress: the so-called “privacy lobby”(derided by some experts from outside the military and intelligence communities) (Baker, 2010), who have been litigating issues concerning government-ordered telecommunication company surveillance during the Bush administration and who continue to litigate (Kravets, 2011, Jewel vs. NSA, 2011, Jewel v NSA Full Complaint, 2011); the Internet freedom philosophers and theorists who worry that the Internet will morph from the Wild West mode to one in which communications and use are limited by regulations, governments, etc. (Bradshaw, 2011, Berners-Lee, 2010) Technologists looking at the redesign of the Internet so that it is no longer open to all, but perhaps carved up into a variety of separate networks with varying kinds of access, or made more secure, particularly for government and business purposes (Shanker, 2010).

This chapter will examine the evolution of the law surrounding surveillance by governments in democracies of Internet use and the resultant litigation; technological measures put into place for protection of national security, etc.; policy and law with respect to Internet surveillance by governments, law enforcement, and currently private sector companies and Internet Service Providers (ISPs), etc.