Lawful Illegality: What Snowden Has Taught Us About the Legal Infrastructure of the Surveillance State

Austin, Lisa M.

doi:10.2139/ssrn.2524653

Cited by 9 publications

(20 citation statements)

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“…Specifically, we demonstrate how Fourth Amendment and related procedural laws governing the admissibility of evidence are viewed in two cases examining the use of malware by US police investigating the distribution and viewing of child exploitation material (CEM) on the Playpen dark web site. Our argument extends Austin's (2015) lawful illegality framework, which was originally developed to explain how surveillance by SIGINT agencies becomes legitimized through law and demonstrates how these processes are also becoming normalized in criminal law enforcement.…”

Section: Introductionmentioning

confidence: 59%

“…While the Fourth Amendment to the United States (US) Constitution aims to curtail state intrusions into the private domain (Cuddihy 2009), many post-9/11 surveillance measures aimed at promoting national security lack oversight (Bauman et al 2014). Using Lisa Austin's (2015) lawful illegality framework, we argue that the permissive legal regimes underpinning surveillance by Western signals intelligence (SIGINT) agencies are now filtering into routine forms of policing (Haggerty 2012) and evidence collection by sanctioning "government dragnets" (Slobogin 2010). Specifically, we demonstrate how Fourth Amendment and related procedural laws governing the admissibility of evidence are viewed in two cases examining the use of malware by US police investigating the distribution and viewing of child exploitation material (CEM) on the Playpen dark web site.…”

Section: Introductionmentioning

confidence: 99%

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Lawful Illegality: Authorizing Extraterritorial Police Surveillance

Warren

Mann

Molnár

2020

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This paper examines Lisa Austin’s (2015) concept of lawful illegality, which interrogates the legal foundations for potentially unlawful surveillance practices by United States (US) signals intelligence (SIGINT) agencies. Lawful illegality involves the technically lawful operation of surveillance powers that might be considered unlawful when examined through a rule of law framework. We argue lawful illegality is expanding into domestic policing through judicial decisions that sanction complex and technically sophisticated forms of remote online surveillance, such as the use of malware, remote hacking, or Network Investigative Techniques (NITs). Operation Pacifier targeted and dismantled the Playpen dark web site, which was used for distributing child exploitation material (CEM), and has generated many judicial rulings examining the legality of remote surveillance by the FBI. We have selected two contrasting cases that demonstrate how US domestic courts have employed distinct logics to determine the admissibility of evidence collected through the NIT deployed in Operation Pacifier. The first case, United States v. Carlson (2017 US Dist. LEXIS 67991), offers a critical view of the use of NITs by the FBI, with physical geography constraining the legality of this form of surveillance in US criminal procedure. The second case, United States v. Gaver (2017 US Dist. LEXIS 44757), authorizes the use of NITs because the need to control crime is believed to justify suspending the geographic limits on police surveillance to identify people involved in the creation and dissemination of CEM. We argue this crime control emphasis expands the reach of US police surveillance while undermining due process of law by removing the protective function of geography. We conclude by suggesting the permissive geographic scope of police surveillance reflected in United States v. Gaver (2017 US Dist. LEXIS 44757), and many other Playpen cases, erodes due process for all crime suspects, but is particularly acute for people located outside the US, and suggest a neutral transnational arbiter could help limit contentious forms of remote extraterritorial police surveillance.

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Section: Introductionmentioning

confidence: 59%

Section: Introductionmentioning

confidence: 99%

Lawful Illegality: Authorizing Extraterritorial Police Surveillance

Warren

Mann

Molnár

2020

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“…Austin (2015a) has termed this development a form of 'lawful illegality', whereby the principles and norms of rule of law are increasingly undermined through what may essentially be 'lawful' practices. The 'lawful' use of surveillance technologies are increasingly understood to open up operational discretion through legal grey holes, or even legal black holes (Austin 2015a;Dyzenhaus 2006). Further, these lawful authorities are then extended through the changing technological environment of counter-law II.…”

Section: Socio-technical-legal Apparatusesmentioning

confidence: 99%

Technology, Law, and the Formation of (il)Liberal Democracy?

Molnár

2017

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This article argues that the politics of surveillance and (il)liberalism in Australia is conditioned by the dynamic interplay between technological development and law. Applying criminologist Richard Ericson’s concept of ‘counter-law’, the article illustrates how rapidly advancing capacities for surveillance and Australia's legal infrastructure collide. In this view, even regulatory safeguards can be instrumental in the broader drift toward (il)liberal democracy. Drawing on the Australian context to illustrate a broader global trend, this article conveys how such an apparatus of control reflective of (il)liberal democracy might be more accurately understood as a form of socio-technical rule-with-law.

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“…As Lisa Austin notes, increased information sharing and the increasingly blurred investigatory roles of law enforcement, border control, and intelligence agencies have made "gaining a clear public understanding of proposed changes to lawful access laws or the full significance of legal cases before the courts […] extremely difficult." 103 Although an extended discussion of the systemic effects of recent Canadian legislative changes lies beyond the scope of this chapter, we highlight some pertinent events, concerns, and controversies below.…”

Section: Recent Controversiesmentioning

confidence: 99%

Systematic Government Access to Private-Sector Data in Canada

Bailey

2017

Bulk Collection

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This chapter focuses on Canadian law as it applies to government access to private-sector data. The Canadian Charter of Rights and Freedoms implicitly provides constitutional protection of privacy by prohibiting unreasonable search and seizure by the state (s. 8) and by limiting government intrusion on life, liberty and security of the person (s. 7). With some exceptions, the Charter requires law enforcement agencies to seek prior authorization before accessing personal information. However, Canada’s national security intelligence agencies are subject to more relaxed standards. The Privacy Act regulates federal government institutions’ relationship with personal information, whereas the private sector is regulated by the Personal Information and Protection of Electronic Documents Act. However, numerous exceptions in both statutes allow for (and in some cases encourage), information sharing between private-sector and state entities.

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Lawful Illegality: What Snowden Has Taught Us About the Legal Infrastructure of the Surveillance State

Cited by 9 publications

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Lawful Illegality: Authorizing Extraterritorial Police Surveillance

Lawful Illegality: Authorizing Extraterritorial Police Surveillance

Technology, Law, and the Formation of (il)Liberal Democracy?

Systematic Government Access to Private-Sector Data in Canada

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