Exploitation of Emerging Technologies for Crime Prevention Term Paper

1 Introduction

The development of new technologies opens new opportunities for surveillance and prevention of crimes through the early identification of suspicious activities and identification of potential offenders, including terrorists. At this point, the proposed technology of surveillance and detection of cell phone location is effective and helpful but, at the same time, the technology is highly controversial with regard to the privacy and basic civil rights of the US citizens. The use of new technology opens new opportunities which can violate civil rights of American citizens. This is why the use of the technology is questionable and the technology should be used carefully and upon the approval from the FISA Court. Otherwise, the technology will be offensive in regard to civil rights of citizens. In order to avoid any infringement on the rights of U.S. citizens the Federal Bureau of Investigation should not be allowed to use this technology for any investigation or against any U.S. born “person of interest” within the confines of the U.S. border without first obtaining approval from the FISA Court after firmly establishing said personnel’s ties to a terrorist entity

2 The historical background and privacy protection under the US Constitution

2.1 The historical context of the introduction of the new surveillance technology

The enhancement of surveillance opportunities of FBI as well as other law enforcement and national security agencies is the result of the persisting struggle of the US against the major threats to the national security, including terrorism, both domestic and international one. Often terrorism is used as the major reason for the enhancement of policies and the introduction of new technologies to survey and monitor activities of suspects as well as individuals that may be related to suspicious activities and crimes. The enhancement of surveillance opportunities have become particularly significant after 9/11 and the introduction of the Patriot Act along with other changes that opened wider surveillance opportunities and laid the ground for the possible violation of the privacy right of Americans and surveillance procedures.

The safety of citizens is the primary concern of the government and agencies like FBI. This concern is natural since one of the primary duties of any government is to ensure the survival of its legitimate governing regime and the physical safety of its citizens (Vardi, 2013). FBI views the enhancement of the public safety through the expansion of its surveillance opportunities, including the use of new technologies as the proposed one which allows locating the position of individuals and switching on microphones on their cell phones. Obviously, it is easier for FBI to reach their goals, if they have such virtually unlimited surveillance opportunities and can survey virtually any individual without the individual even being aware that he/she is being surveyed.

However, there is an equally important duty of the government and government agencies like FBI which is to preserve democracy and civil liberties and to fulfill obligations mandated under national constitutions, as well as international and humanitarian conventions (Vardi, 2013). This means that FBI cannot misuse its power and technologies available to FBI to perform its surveillance activities. Instead, FBI like any other government agency has to comply with the US Constitution and respect civil rights and liberties of Americans that means that FBI has to protect the privacy rights of citizens and the surveillance procedure.

2.2 The expectation of privacy granted by the US Constitution

The new technology raises the threat to the privacy right of citizens. The possible violation of privacy is the main issue of the new surveillance technology. The expectation of privacy in communication, cyberspace, and other areas is  based on the Fourth Amendment of the United States Constitution (Pekgözlü & Öktem, 2012). This is why FBI uncontrollable use of the new technology may lead to the violation of Constitutional rights of Americans.

However, today, expectations of privacy and traditional views on privacy have started to change. The US government has stretched the meaning of “reasonable” in the US Constitution Bill of Right’s proscription against unreasonable searches beyond reasonableness (Vardi, 2013).  In such a situation, there is a risk of making the new technology another “reasonable” tool to use for the identification of criminal activities and criminals. Such interpretation is still intrinsically wrong because FBI cannot survey Americans without any legal limitations as the new technology allows them to do.

3 FBI corporate responsibility and surveillance rights and opportunities

3.1 Corporate responsibility and liability for illegal monitoring and surveillance activities

At this point, it is possible to refer to the concept of the corporate responsibility of FBI and its liability for illegal monitoring and surveillance activities. The absence or presence of monitoring and surveillance activities in a company holds serious legal consequences for companies (Etsebeth, 2007). Similar liabilities should be applied to FBI as well because like any other organizations, FBI cannot conduct its monitoring and surveillance activities illegally. There are clear legal procedures which FBI should comply with like any other organizations. The violation of laws and legal procedures by FBI is unacceptable and FBI should bear the full liability for such violations. The new technologies creates risks to the violation of surveillance laws and procedures by FBI.

3.2 FBI possibility to use surveillance based on the use of electronic devices

FBI may refer to some legal norms in defense of the new technology and its possible use. For example, in 1977, Congress enacted the Foreign Intelligence Surveillance Act (FISA). The act was in response to the claims of successive presidential administrations. Inherent, plenary powers under Article II, to issue memorandum authorizing the electronic surveillance where “grave matters involving defense of the nation” were involved (Baldwin & DiPerna, 2007). This means that FBI and other law enforcement and national security agencies can use surveillance under special conditions in grave matters, when the national security is under a threat. At this point, the key concept is the definition of the grave matter because it allows determining whether FBI can use the new technology or not. FBI can use it, if the matter is grave, and cannot, if the matter is not grave.

However, the surveillance based on the proposed technology does not involve grave matters involving defense of the nation but rather involves routine monitoring and surveillance that may also involve the violation of the privacy right of citizens. In the past, the US has applied simplified surveillance procedures, as it was after 9/11. President Bush admitted signed an executive order in 2002 directing the National Security Agency to conduct warrantless electronic surveillance on the e-mail and telephone conversations between US citizens and persons oversea (Baldwin & DiPerna, 2007).  Although this type of surveillance violates FISA, the President claimed he has the inherent authority to authorize such warrantless surveillance under Article II to the US Constitution and via the joint resolution by Congress (Baldwin & DiPerna, 2007). In case of the new technology, FBI still cannot apply it without the President issuing a special executive order that could grant FBI with the right to use such procedure.

Nevertheless, the policy of surveillance conducted under the President Bush did comply with the concept of “grave matters involving defense of the nation”, while now there are no such threats present that means that the use of the new surveillance technology would be illegal and would not comply with existing legal norms, neither Article II of the US Constitution, nor other legal norms that allowed the FBI and other law enforcement agencies to use electronic and telephone surveillance. This means that the new technology cannot be applied by FBI without undergoing strict procedure of authorization of surveillance from the FISA.

Conclusion

Thus, new technologies are helpful in terms of the investigation of crimes and crime prevention through the effective surveillance and identification of the exact location of individuals through the localization of their cell phones. However, the new technology the FBI is going to use is highly controversial with regard to the possible violation of the privacy right granted to Americans by the US Constitution. This is why the application of the new technology should be under the strict control and need approval of FISA Court to ensure that civil rights of Americans are adequately protected and not abused by FBI. The new technology should keep balance between surveillance opportunities of FBI and civil rights of citizens. FBI cannot use the surveillance technology without limitations. Instead, the use of the technology has to comply with clear regulations that ensure the protection of privacy rights and regulate the surveillance procedure based on the use of electronic devices and cell phones.

References:

Baldwin, F.N., Jr, & DiPerna, T. A. (2007). The rule of law. Journal of Financial Crime, 14(4), 405-437. doi:http://dx.doi.org.molloy.idm.oclc.org/10.1108/13590790710828145

Etsebeth, V. (2007). Monitoring and surveillance in the workplace: Lessons learnt? – investigating the international legal position. The Journal of Digital Forensics, Security and Law: JDFSL, 2(2), 23-39. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/211213047?accountid=28076

Pekgözlü, I., & Öktem, M. K. (2012). Expectation of privacy in cyberspace: The fourth amendment of the US constitution and an evaluation of the Turkish case. Sosyoekonomi, (2), 7-22,224,226. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/1265608899?accountid=28076

Vardi, M. Y. (2013). The end of the American network. Association for Computing Machinery. Communications of the ACM, 56(11), 5. Retrieved from http://molloy.idm.oclc.org/login?url=https://search-proquest-com.molloy.idm.oclc.org/docview/2049933975?accountid=28076

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"The terms offer and acceptance." freeessays.club, 17 May 2016

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"The terms offer and acceptance." freeessays.club, 17 May 2016

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