Reconstructing Electronic Surveillance Law

Abstract

After the September 11th attacks in 2001, Congress hastily passed the USA-Patriot Act which made several changes to electronic surveillance law. The Act has sparked a fierce debate. However, the pros and cons of the USA-Patriot Act are only one part of a much larger issue: How effective is the law that regulates electronic surveillance? The USA-Patriot Act made a number of changes in electronic surveillance law, but the most fundamental problems with the law did not begin with the USA-Patriot Act. In this article, Professor Solove argues that electronic surveillance law suffers from significant problems that predate the USA-Patriot Act. The USA-Patriot Act indeed worsened some of these problems, but surveillance law had lost its way long before. Surveillance law is thus in need of a radical reconstruction. After exploring specific difficulties with the scope, standards, and enforcement mechanisms of the statutes, Solove turns to examine the more deeply-rooted and systematic problems. Solove contends that electronic surveillance law is overly intricate and complex, that it has failed to keep pace in adapting to new technologies, and that it provides for insufficient judicial and legislative oversight. He proposes ways in which surveillance law should be reconstructed to address these problems. Solove recommends a rather radical solution: Warrants supported by probable cause should be required for most uses of electronic surveillance. Finally, Solove suggests that Congress draft a charter regulating the FBI.