America
has a long history of separating military operations from civilian law
enforcement and domestic governmental functions.[1]
The information technology revolution has created new realities that will
challenge this old order of things. As
knowledge grows, it will greatly improve decision making for the military, law
enforcement, the domestic sector of the government, as well as the business
community. With these opportunities,
come threats to privacy from the compilation of information, as well as the
threat from malicious digitized information itself.[2] This post focuses on the implications of the
military holding all of this information.
Organizational
silos have separated military, domestic intelligence, law enforcement, and
other parts of the government form each other for over two centuries. The processing of online information and the
need to protect our IT systems is slowly starting to merge across these parts
of the government.[3]
Historically
the military worked overseas. The
military's potential role in domestic cyber protection was discussed in a
previous post on this blog, but this post concerns data collection. Essentially, what do the American people want
the military to know? The Defense
Department has vast resources of computing machines and highly educated
personnel to collect all kinds of information.
International crime syndicates, money transfers, immigrant population
flows, and of course cyber investigations are all subjects about which the
military could collect domestic data in the conduct of its duties.
What
other parts of the government and the business community do with that
information from the military is yet another set of issues. The military might have data sets about
children's academic performance at on-base schools that the federal and local
education authorities might like. Many
medical and scientific innovations come from the battlefield. In addition, the research and data that the
military, and all other parts of the government collect are invaluable to the
business community. These are policies
that should be allowed, but then that raises the issue discussed below of whether
the aggregation of too much information sets up a power imbalance between the government
and citizenry.[4]
As the
word “privacy” is not written in the constitution, it is usually
associated with the First and Fourth Amendments. The U.S. Supreme Court has stated that the
military can collect information on civilian matters without a presumption of
violating First Amendment rights such as the right to associate.[5] The law needs to be modernized to control how
the information is protected and with whom it is shared.
The other
big issue is Fourth Amendment issues in law enforcement. We want criminals arrested, and better yet,
deterred from the start. The Posse Comitatus Act generally bans the military
from civilian law enforcement.[6] The normal judicial test is 1) military troops
may not pervade law enforcement organizations, 2) the military cannot be used
to catch criminals, and 3) civilians cannot be subject to the military's
regulations.[7] While there is no rule to exclude evidence from
military investigators in federal civilian court,[8]
three states ban it and it is a rare occurrence.[9] The
exception is when military investigators discover fraud with defense
contractors or espionage on a base, since there is a nexus between the military
and the criminal code on those subject matters.
In the
world of Big Data, the military might be able to amass volumes of domestic
information legitimately and the hand over evidence of crimes with such
regularity that civilian law enforcement becomes dependent on it. That is where the law comes in. To stop the temptation to use analyzed data,
albeit for public good, when it violates the expected privacy of the American
people.
[1]
Laird v. Tatum 408 U.S. 1, 15 (1972)
[2] http://thehill.com/blogs/hillicon-valley/technology/280243-overnight-tech-hagel-stresses-importance-of-cybersecurity-ahead-of-confirmation-hearing
[3] http://www.nextgov.com/cybersecurity/2013/02/defense-positions-military-cyber-squad-dhs-turf/61057/
[4] http://www.wired.com/politics/security/commentary/securitymatters/2006/05/70886
[5]
Laird v. Tatum 408 U.S. 1 (1972)
[6] 18
U.S.C. § 1385
[7] Congressional
Research Service, The Posse Comitatus Act and Related Matters: The use of the
Military to Execute Civilian law August 16, 2012 http://www.fas.org/sgp/crs/natsec/R42659.pdf
[8]
U.S. v Walden 490 F 2d. 372, 376 (1974)
[9] http://www.fas.org/sgp/crs/natsec/R42659.pdf
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