The Argument against Technology-Neutral Surveillance Laws

Abstract

Introduction Should Congress write tech-specific or tech-neutral laws? Those who have considered this question have almost always chosen neutrality: laws should refer to the effects, functions, or general characteristics of technology, but never to a particular type or class of technology.1 Those who espouse tech neutrality come from across the political and ideological spectrum and embrace tech neutrality dogmatically, often referring to it as a principle, one presumably violated only in exceptional circumstances for the most compelling reasons.2 But a close examination of the arguments supporting tech neutrality reveals many underappreciated flaws. At least three arguments support tech neutrality - consistency, the need to avoid underinclusiveness, and the recognition of institutional shortcomings - but each is contingent and rebuttable, and in many situations does not apply. While other scholars have called Congress's blind adherence to the principle of tech neutrality into question,3 none have explored the neutrality of laws regulating government search and surveillance. This rich, important context bears close scrutiny because the path of surveillance law so often follows the twists and turns of evolving technology.4 Moreover, since 9/11, Congress has more than once replaced tech-specific surveillance laws with tech-neutral ones: for example, with the USA PATRIOT Act5 Congress brought neutrality to the Pen Register and Trap and Trace Devices Act6 (Pen Register Act), and through the Protect America Act7 (PAA) it did the same for the Foreign Intelligence Surveillance Act8 (FISA). We should worry about this trend because the arguments in favor of tech neutrality are especially misguided in the surveillance context. When it comes to surveillance, every argument supporting tech neutrality can be met with a powerful counterargument: Tech-neutral laws often force consistency, even when inconsistency is preferable; they avoid underinclusiveness by permitting overinclusiveness; and they address Congress's supposed institutional shortcomings by cutting Legislative oversight over surveillance, even though history has taught us to beware the surveillance of an unchecked Executive. Given the deep flaws in the arguments for tech neutrality in the surveillance context, we should stop treating tech neutrality as a principle and instead treat it as a choice. Finally, the blind adherence to the principle of tech neutrality pushes Congress away from the many benefits of tech specificity. Most importantly, a tech-specific surveillance law, even one imposing few constraints on the agencies conducting surveillance, forces the Executive Branch to consult with Congress whenever technology changes in significant ways, which might help offset the troubling culture of secrecy in national security policy by bringing broader, more participatory democratic oversight to the conduct of national surveillance. Also, because technology evolves so rapidly and constantly, tech-specific surveillance laws operate as a technology sunset, expiring not on some arbitrarily defined timetable, but whenever the circumstances demand. Both of these benefits increase the Legislature's role in national surveillance and national security debates and restore checks against the Executive's power in ways that might have helped avoid some of the surveillance abuses and excesses of the recent past. This Article proceeds in three Parts, offering, in turn, the best arguments for tech neutrality (Part I), the underappreciated counterarguments to those arguments (Part II), and the case for tech specificity (Part III). Ultimately, this Article tries to counter the pervasively held attitude that tech-specific laws are indefensible mistakes to be avoided. Quite often, tech specificity is the wiser course - the best way to balance the government's need to provide security with the right to privacy. I. Tech-Neutral Laws A. …

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