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FOREWORD

The Shadowy Law of Modern


Surveillance

Gina M. Abbadessa*

T
he law is notoriously slow, and technological advancement fast. The
Founders never imagined cell phones and text-messaging, drones
and aerial surveillance, personal computers and wireless home
automation systems. These technologies can contain innumerable bits of
our personal lives—photos, call records, search histories, text messages,
and even audio of telephone calls—that we would prefer to keep private.
Yet we have but one Constitution (infrequently amended) to protect us
against privacy intrusions, and court interpretations of it must keep pace
with how the world changes. These interpretations—particularly those
issued by the Supreme Court, which generate a fair amount of fervor—
create a sort of collective understanding of what the government can and
cannot do within the bounds of the Constitution. In her recent book, The
Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age, Laura
K. Donohue contends that individual rights in the United States are
disserved and even violated by a shadowy, undercover body of legal
precedent—or “secret law.”1 Responding to Professor Donohue’s book,
Professors Heidi Kitrosser and Lawrence Friedman explore the
implications of secret law on individual rights in the United States.
In her article “Secret Law and the Snowden Revelations: A Response to
The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age, by
Laura K. Donohue,” Professor Heidi Kitrosser notes that new and
developing technologies enable the government to have an unprecedented
look at our “personal relationships, political commitments, and health
concerns.”2 Kitrosser characterizes the law that exists to theoretically

* Candidate for Juris Doctor, New England Law | Boston (2019). B.S., magna cum laude,
Political Communication: Leadership, Politics, and Social Advocacy, Emerson College (2011).
1 LAURA K DONOHUE, THE FUTURE OF FOREIGN INTELLIGENCE: PRIVACY AND SURVEILLANCE
IN A DIGITAL AGE 146 (2016).
2 Heidi Kitrosser, Secret Law and the Snowden Revelations: A Response to The Future of

Foreign Intelligence: Privacy and Surveillance in a Digital Age, by Laura K. Donohue, 52 NEW

1
2 New England Law Review [Vol. 52 | 1

oversee such government intrusion as “secret law,” or legal authority that


requires compliance, but is classified or withheld from the public.3 If
secretive courts like the Foreign Intelligence Surveillance Court (FISC) are
issuing unpublished—but precedential—opinions, Kitrosser argues, an
entire body of covert law has developed to govern the constitutionality of
surveillance procedures.4
Though the FISC and similar courts govern the behavior of the
executive branch only, they may be radically altering individual rights by
reinventing statutes behind the scenes, thus expanding their reach in
practice.5 As an illustration of this practice, Kitrosser points to Edward
Snowden’s leak of a government order directed to Verizon. The order was
upheld (in a confidential opinion that would never have seen light but for
Snowden’s leak) based on a lax interpretation of what information was
“relevant”—and therefore able to be collected—for the purposes of a
terrorism or intelligence investigation by the government. 6 Although only
“relevant” tangible things may be collected by statute, Kitrosser suggests
that the FISC judge who upheld the Verizon order neutered the import of
the relevance requirement by concluding that “all Internet metadata was
‘relevant’ to terrorism investigations.”7
By this standard, there is practically no metadata information that
cannot legally be collected by the government when it is engaged in a
terrorism or intelligence investigation. Were it not for the secrecy of
surveillance law, Kitrosser asserts, erroneous reasoning like this would be
easier to spot and challenge—and individual rights would be less subject to
the vagaries of a concealed body of law.8
Professor Lawrence Friedman confronts secret law in his article
Remnants of Privacy in the Modern Surveillance State. Much as Kitrosser
contends that secret law allows for reinvention of existing statutes,
Friedman asserts that government agencies involved in surveillance are
practically untethered from the reach of the Fourth Amendment. Agents at
organizations such as the National Security Agency are free to collect
sensitive data from us, and “[w]e just have to trust that they are acting in
good faith.”9 This is especially problematic because the material being

ENG. L. REV. 5,6 (2017).


3 Id. at 7 (quoting Dakota S. Rudesill, Coming to Terms with Secret Law, 7 HAR. NAT’L SEC. J.

241, 249 (2015)).


4 See id. at 8.
5 Id. at 9.
6 Id. at 10.
7 Id. (quoting DONOHUE, supra note 1, at 48 (emphasis in original)).
8 Kitrosser, supra note 2, at 11.
9 Lawrence Friedman, Remnants of Privacy in the Modern Surveillance State, 52 NEW ENG. L.
2017] Modern Surveillance 3

surveilled—internet and telephony metadata, for example— provide “the


context for everything we do.”10
Friedman agrees with Donohue that today’s surveillance collection
methods are akin to use of the general warrant, so reviled by the Founders
that granted the new Americans express protections against such
indiscriminate intrusion.11 Where Friedman disagrees with Donohue is in
his estimation of what can be done to counter secret law and rampant
individual rights abuses in the course of surveillance. Donohue believes
that judicial consideration of the opposition to general warrants may help,
but Friedman doubts the judiciary can or will accomplish any meaningful
change.12 This doubt is premised on serious concerns about the ability of
the Supreme Court to rein in government surveillance given the
entrenched third-party doctrine13 and the deference the Court has
traditionally shown to national security concerns.14
So what can be done to counter privacy intrusion by agencies governed
by secret law? Kitrosser points out that the public cannot contest such
transparent “secret law,” and concludes that actions like Snowden’s are
what will ultimately focus attention on secret law and force legislative
response.15 Friedman advocates for state constitutional litigation, believing
the states to be in a position to appreciate historical arguments about
information privacy and to influence Supreme Court decision-making.16
Whatever the merits of either approach, they are not the only approaches
to be considered. One could imagine, for example, that voters could elect
an official who promised to take action on this issue—or, conversely, to not
elect officials who have been complacent about it. The Supreme Court
could surprise legal scholars like Professor Friedman and make a definitive
ruling that reins in the ability of government agencies to intrude in the
name or surveillance. Or, as Professor Kitrosser surmises, the future or
foreign intelligence may in fact be a future of leakers and whistleblowers.
Whichever the case, Laura Donohue’s book sounds the alarm on
government surveillance—an alarm Americans would do well to heed.

REV. 15, 17 (2017).


10 Id. (quoting DONOHUE, supra note 1, at 39).

11 Id. at 16, 18.

12 Id. at 19, 20, 27.

13 Id. at 20 (“This doctrine, developed by the Supreme Court in the late 1970s, holds that

individuals have no reasonable expectation of privacy in information they voluntarily


transmit to third parties, like financial institutions and telephone service providers.”)
14 Id. at 25.
15 See Kitrosser, supra note 2, at 12–13.
16 Friedman, supra note 9, at 28.