What does the analysis above imply for changing today’s law regarding electronic surveillance? There is broad agreement that today’s legal regime is not optimally aligned with the technological and circumstantial realities of the present. But there is profound disagreement both about whether the basic principles underlying today’s regime continue to be sound and about the directions in which changes to today’s regime ought to occur. Some analysts believe that the privacy has suffered as the result of an increasing gap between technology/circumstances and the more slowly changing law, while others believe that technological change is upsetting the traditional balance away from the legitimate needs of law enforcement and national security.
Many of the issues discussed above were also flagged in the report issued by the TAPAC, a bipartisan panel of independent legal experts and former government officials appointed by Secretary of Defense Donald Rumsfeld in the wake of the TIA [Total/Terrorist Information Awareness program; see Appendix J] debacle. For example, the report noted that the risks to informational privacy of government data mining efforts were exacerbated by disjointedness in the laws applicable to data mining. Thus, programs that appear to pose similar privacy risks are subject to a variety of often inconsistent legal requirements. Such inconsistencies, the report argued, reflected “the historical divide in the United States between laws applicable to law enforcement and those applicable to foreign intelligence and national security activities, as well as the different departments, contexts, and times in which those programs were developed.”
It also noted that depending on which department developed the tools, the use of data mining to protect the homeland was either required or prohibited and that today’s laws regulating the collection and use of information about U.S. persons were created in the 1970s, and thus do not take into account recent developments in digital technologies, including the Internet. Pointing out that “the ubiquity of information networks and digital data has created new opportunities for tracking terrorists and preventing attacks,” the report argued that “new technologies [also] allow the government to engage in data mining with a far greater volume and variety of data concerning U.S. persons, about whom the government has no suspicions, in the quest for information about potential terrorists or other criminals” and that then-current laws were “often inadequate to address the new and difficult challenges presented by dramatic developments in information technologies.”