Tracking Online Behavior to Combat Terror in the U.K.
As of last week, all Internet traffic in the United Kingdom will be archived for a year’s time. The British government has adopted the European Union directive requiring Internet access providers to store their users’ email traffic (i.e., the authors, date, and time of messages, not the messages themselves), VoIP calls (traditional phone calls are already monitored pursuant to previously adopted EU directive), and web surfing. Hundreds of public agencies, including law enforcement, will have access to data reservoirs teeming with personal information to fight “crime and terrorism.” The U.K. is poised to amass more data from the private sector in the name of counter-terrorism, considering proposals to require social networking sites, such as Facebook, to retain its British users’ records. The British government has adopted a threat model of governance: emergencies demand extraordinary measures to protect security, no matter the cost to other liberties.
The Obama Administration may not be as opposed to the U.K. approach as might be assumed. In the same week that the British adopted data retention as part of its anti-terror strategy, the Department of Justice vigorously defended the National Security Agency’s surveillance of countless Americans. In Jewel v. NSA, Electronic Frontier Foundation’s lawsuit challenging the National Security Agency’s warrantless wiretapping of Americans, the DOJ invoked the state secrets doctrine, insisting that the case must be dismissed without further inquiry in order to prevent “exceptionally grave harm to national security.” The DOJ also argued that the U.S. Patriot Act immunizes the U.S. from liability under federal wiretapping laws and the Stored Communications Act, going even further than the Bush Administration’s invocation of sovereign immunity for FISA violations. The emergency model of executive power may be here to stay.