Resolution resolved: The United States federal government should substantially curtail its domestic surveillance. Violations

Surveillance is ONE of the measures to prevent diversion of nucleat fuel

ARTICLE: Survival of Rights Under The Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards lexis

n24. Paragraph 29 of INFCIRC/153 provides that "material accountancy shall be used as a safeguards measure of fundamental importance, with containment and surveillance as important complementary features." INFCIRC/153, supra note 23. Safeguards, roughly put then, are a bean-counting exercise involving the provision of information by the safeguarded state and on-site inspection by the IAEA to verify the location of nuclear material. The "accountancy" component of safeguards refers to the obligation of the safeguarded state to keep accurate and complete records of nuclear material subject to safeguards. Paragraphs 59-69 of INFCIRC/153 provide for detailed reports by the safeguarded state to the IAEA; notably including, pursuant to paragraph 62, an initial report, or "declaration," which establishes a baseline for material accounting. Based on these reports "and the results of its verification activities," the IAEA maintains an inventory of safeguarded nuclear material. Id. para. 41. Verification activities specified in the agreement include routine, ad hoc, and special inspections. Id. paras. 71-73. "Routine" inspections are limited to access to "strategic points" negotiated in the subsidiary arrangements between the safeguarded state and the IAEA for implementation of the agreement. Id. para. 76(c). Ad hoc inspections, which are primarily conducted to verify the initial report, id. paras. 71(a) and (b), authorize access in such cases, "and until such time as the strategic points have been specified in the Subsidiary Arrangements, ... to any location where the initial report or any inspections carried out in connection with it indicate that nuclear material is present," id. para. 76(a). When, pursuant to paragraph 73(b), the IAEA "considers that the information made available" to it "is not adequate for the Agency to fulfill its responsibilities under" the agreement, it may "obtain access, in agreement with ... [the safeguarded state], to information or locations in addition to those specified" for routine or ad hoc inspections. Id. para. 77(b). The scope of inspections includes, among other things, "containment," which allows for the application of locks and seals on nuclear storage areas to prevent movement of nuclear material, and "surveillance," which involves human and remote observation of specified activities at nuclear facilities. Id. para. 74(d); Edwards, International Legal Aspects of Safeguards, supra note 23, at 6.

Surveillance can occur in schools

ARTICLE: The Status of School Discipline and Violence lexis

The late 1980s and early 1990s saw the elasticity of discipline. Discipline moved away from more humane methods toward zero tolerance, a get-tough approach reminiscent of sixteenth-century draconian practices. The zero-tolerance approach has taken off in response to the more violent nature of school disruption. Zero tolerance has two major dimensions: detection and punishment. The detection aspect involves surveillance, which includes everything from adult hall monitors, police, and professional security guards to "cameras, metal detectors, locker searches, and other measures more commonly seen in prisons" (Greenberg 1999, 3). Some, such as Hylton (1996), view detection not as prisonlike but as a "proactive" approach involving great attention to security. His manual is a step-by-step guide to mobilizing school security. It presents a wealth of information pertaining to loss prevention planning, development of security forces, external vehicular patrol, protective barriers and lighting, and security detection, training, and equipment.

Surveillance includes early detection of disease

http://www.ncbi.nlm.nih.gov/books/NBK52862/

Early detection is essential to the control of emerging, reemerging, and novel infectious diseases, whether naturally occurring or intentionally introduced. Containing the spread of such diseases in a profoundly interconnected world requires active vigilance for signs of an outbreak, rapid recognition of its presence, and diagnosis of its microbial cause, in addition to strategies and resources for an appropriate and efficient response. Although these actions are often viewed in terms of human public health, they also challenge the plant and animal health communities.

Surveillance, defined as “the continual scrutiny of all aspects of occurrence and spread of a disease that are pertinent to effective control” (IOM, 2003; Last, 1995; WHO, 2000), involves the “systematic collection, analysis, interpretation, and dissemination of health data” (WHO, 2000). Disease detection and diagnosis is the act of discovering a novel, emerging, or reemerging disease or disease event and identifying its cause. Diagnosis is “the cornerstone of effective disease control and prevention efforts, including surveillance” (IOM, 2003).

Surveillance of health can be active or passive

b. Surveillance

Surveillance includes gathering information on health of a population

Wilson 8 Andrea Wilson, J.D. University of Houston Law Center. Houston Journal of Health Law & Policy

Fall, 2008 9 Hous. J. Health L. & Pol'y 131 Comment and Note: Missing the Mark: The Public Health Exception to the HIPAA Privacy Rule and Its Impact on Surveillance Activity lexis

The evaluation and maintenance of public health has long been recognized as an essential function of government in the United States, even predating the Revolutionary War. n1 Public health [*132] agencies' essential functions focus on the general health of the population to protect against epidemics, environmental risks, the effects of natural disasters, and insufficient accessibility to adequate health services. n2 Surveillance, defined as "the systematic observation of a population to identify the causes, prevalence, incidence, and health effects of injury or disease," is accomplished by the accumulation, compilation, and use of information about the health of individuals. n3 It is one of the primary means by which public health officials are able to foster and support these needed functions, enabling agencies to develop policy that will reduce risk to the public's health. n4 Surveillance involves "disease reporting, anonymous serological surveys, and other epidemiological investigation" to gather information "on both communicable and noncommunicable diseases." n5 Properly utilized, surveillance is a fundamental government activity, indispensable in nature. n6

Surveillance is only ONE part of epidemiology

Eggen 8 Jean Macchiaroli Eggen, Professor of Law, Widener University School of Law; member, Widener Health Law Institute. Connecticut Law Review December, 2008 41 Conn. L. Rev. 561 Article: The Synergy of Toxic Tort Law and Public Health: Lessons From a Century of Cigarettes lexis

n151 Epidemiology may be defined as "[t]he study of the distribution and determinants of health-related states in human and other animal populations. Epidemiological studies involve surveillance, observation, hypothesis-testing, and experiment." Stedman's Medical Dictionary 582 (Marjory Spraycar et al. eds., 26th ed. 1995). The task of epidemiology is to examine the relationship between a disease and a particular factor (such as cigarette smoking) to determine if a causal connection exists. Bert Black & David E. Lilienfeld, Epidemiologic Proof in Toxic Tort Litigation, 52 Fordham L. Rev. 732, 750 (1984). The epidemiologist examines this relationship in the context of populations, comparing the disease experiences of people exposed to the factor with those not so exposed. Although the epidemiologist utilizes statistical methods, the ultimate goal is to draw a biological inference concerning the relationship of the factor to the disease's etiology and/or to its natural history. . . . It is an integrative, eclectic science utilizing concepts and methods from other disciplines, such as statistics, sociology and demography for the study of disease in populations. Id. at 750-51.

COINTELPRO was far more than just surveillance

Wells 4 Christina E. Wells, Enoch N. Crowder Professor of Law, University of Missouri-Columbia School of Law. Ohio Northern University Law Review 2004 30 Ohio N.U.L. Rev. 451 THE TWENTY-SEVENTH ANNUAL LAW REVIEW SYMPOSIUM PRIVACY AND SURVEILLANCE: EMERGING LEGAL ISSUES: Symposium Article: Information Control in Times of Crisis: The Tools of Repression lexis

The FBI's abuse of domestic intelligence-gathering culminated in its now- infamous COINTELPRO operations, which it conducted from 1956 until 1971. Counterintelligence operations such as these ostensibly include "those actions by an intelligence agency intended to protect its own security and to undermine hostile intelligence operations." n144 The FBI's programs, however, went far beyond intelligence-gathering to counter national security threats, instead extending to "secret actions de[signed] to 'disrupt' and 'neutralize' target groups and individuals . . . on the theory that preventing the growth of dangerous groups and the propagation of dangerous ideas would protect the national security and deter violence." n145

As with earlier FBI surveillance operations, the targets of its COINTELPRO operations expanded over time. Beginning with the CPUSA in 1956, n146 the COINTELPRO programs grew to include the Socialist Workers Party, the civil rights movement, White hate groups, Black nationalist groups, [*474] and "new left" groups, a broadly defined category of organizations including the Southern Christian Leadership Conference, Students for a Democratic Society, and the National Organization for Women. n147 The breadth of the investigations was staggering-over COINTELPRO's life the FBI opened 2,000 separate investigations. n148 It was also indiscriminate. Anything remotely considered to be subversive justified an investigation, even something as trivial as writing a letter to a newspaper supporting protests against censorship. n149

The FBI's COINTELPRO tactics went far beyond surveillance, reliance on informers and illegal searchers, although those familiar techniques were part of its arsenal. COINTELPRO also included actions designed to harass targets, such as:

attempts to disrupt marriages, to stir factionalism within and between dissident groups, to have dissidents fired from jobs and ousted by landlords, to prevent protestors from speaking and protest groups from forming, to have derogatory material planted in the press or among acquaintances of targets, to interfere with peaceful demonstrations and deny facilities for meetings and conferences, to cause funding cut-offs to dissident groups, to prevent the distribution of literature and to get local police to arrest targets for alleged criminal law violations. n150

Surveillance includes response capability as well as observation

Young 77 Don J. Young, District Judge Charles JONES et al., Plaintiffs, v. Sol WITTENBERG et al., Defendants Civ. No. C 70-388 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION 440 F. Supp. 60; 1977 U.S. Dist. LEXIS 14729 July 29, 1977

This staffing projection raised a number of serious concerns in the mind of the Special Master. First of all it must be noted that

Surveillance involves both observation and response capability. It is obvious that surveillance alone is meaningless if there is no opportunity for effective intervention. 26

Effective intervention thus involves both an adequate number of correctional personnel and the ability of those persons to respond quickly to an emergency. Had the Regional Planning [**166] Unit's recommendation of three correctional officers per floor per shift been effectuated, response time in the new facility would have been longer than that experienced in the old jail. On a number of occasions correctional officers stated to the Special Master that they would not attempt to intervene in an inmate fight unaccompanied by other guards. This attitude is consistent with the policy set forth in the institution's then existing draft Policy

ELECTRONIC SURVEILLANCE

Electronic surveillance is observing with the aid of electric devices

West's Encyclopedia of American Law 8 CITE West's Encyclopedia of American Law, edition 2. \

Copyright 2008 The Gale Group, Inc. All rights reserved. The Free Dictionary http://legal-dictionary.thefreedictionary.com/Electronic+Surveillance

Electronic Surveillance

Observing or listening to persons, places, or activities—usually in a secretive or unobtrusive manner—with the aid of electronic devices such as cameras, microphones, tape recorders, or wire taps. The objective of electronic surveillance when used in law enforcement is to gather evidence of a crime or to accumulate intelligence about suspected criminal activity. Corporations use electronic surveillance to maintain the security of their buildings and grounds or to gather information about competitors. Electronic surveillance permeates almost every aspect of life in the United States. In the public sector, the president, Congress, judiciary, military, and law enforcement all use some form of this technology. In the private sector, business competitors, convenience stores, shopping centers, apartment buildings, parking facilities, hospitals, banks, employers, and spouses have employed various methods of electronic eavesdropping. Litigation has even arisen from covert surveillance of restrooms.

Three types of electronic surveillance are most prevalent: wire tapping, bugging, and videotaping. Wire tapping intercepts telephone calls and telegraph messages by physically penetrating the wire circuitry. Someone must actually "tap" into telephone or telegraph wires to accomplish this type of surveillance. Bugging is accomplished without the aid of telephone wires, usually by placing a small microphone or other listening device in one location to transmit conversations to a nearby receiver and recorder. Video surveillance is performed by conspicuous or hidden cameras that transmit and record visual images that may be watched simultaneously or reviewed later on tape.

Electronic

Executive Order '81 Executive Order 12333--United States intelligence activities National Archives

Source: The provisions of Executive Order 12333 of Dec. 4, 1981, appear at 46 FR 59941, 3 CFR, 1981 Comp., p. 200, unless otherwise noted. http://www.archives.gov/federal-register/codification/executive-order/12333.html#3.4

b) Electronic surveillance means acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter.

(d) Foreign intelligence means information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.

Electronic surveillance covers electronic transmission of voice and data

L I I 15 Legal Information Institute LII a small research, engineering, and editorial group housed at the Cornell Law School 2015 Electronic Surveillance https://www.law.cornell.edu/wex/electronic_surveillance

Two general categories of electronic communication surveillance exist. Wire communications refer to the transfer of the human voice from one point to another via use of a wire, cable, or similar device. When law enforcement "taps" a wire, they use some mechanical or electrical device that gives them outside access to the vocal transfer, thus disclosing the contents of the conversation. Electronic communications refer to the transfer of information, data, or sounds from one location to another over a device designed for electronic transmissions. This type of communication includes email or information uploaded from a private computer to the internet.

Warrant Requirement

Electronic surveillance

Bazan 7 Elizabeth B. Bazan, Legislative Attorney, American Law Division CRS Report to Congress

The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence

Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions Updated February 15, 2007 https://www.fas.org/sgp/crs/intel/RL30465.pdf

18 50 U.S.C. § 1801(f)(2) defines “electronic surveillance” to mean:

(1) the acquisition by an electronic, mech anical, or other surveillance device of the contents of any wire or radio co mmunication sent by or intended to be received by a particular, known United Stat es person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person ha s a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mech anical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any person thereto, if such acquisition occurs in the United States , but does not include the acquis ition of those communications of computer trespassers that would be pe rmissible under section 2511(2)(i) of Title 18 ;

(3) the intentional acquisition by an elect ronic, mechanical, or other surveillance device of the contents of any radi o communication, under circumstances in which a person has a reasonable expecta tion of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electr onic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy a nd a warrant would be required for law enforcement purposes.

The italicized portion of Subsection 1801(f)(2) was added by Sec. 1003 of P.L. 107-56.

19

A “physical search” is defined under sec tion 301(5) of FISA, 50 U.S.C. § 1821(5), to mean:

any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) “electronic surveillance”, as defined in section 1801(f) of this title [50 U.S.C.], or (B) the acquisition by the United States Government of foreign in telligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in [50 U.S.C. § 1801(f)].

Electronic surveillance differs from traditional searches

Simpson 4 OPINION BY: ROBERT SIMPSON Kopko v. Miller 751 M.D. 2003 COMMONWEALTH COURT OF PENNSYLVANIA 842 A.2d 1028; 2004 Pa. Commw. LEXIS 131 February 20, 2004, Decided

lexis

As science developed these detection techniques, law makers, sensing the resulting invasion of individual privacy, have provided some statutory protection for the public. …

Berger v. State of New York, 388 U.S. 41, 45-47, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967) (citations and footnotes omitted).

Unlike the eavesdropper at common law, the modern eavesdropper is aided by sophisticated electronic devices that facilitate eavesdropping in almost any situation. Ralph S. Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U. Pa. L. Rev. 169 (1969). Describing the distinctions between physical searches and wiretaps, Professor Ralph Spritzer wrote:

The conventional search is limited to a designated thing in being--one of a finite number of things to be found in the place where the search is to be conducted, and ordinarily discoverable in a single brief visit. On the other hand, electronic surveillance is a quest for something which may happen in the future. Its effectiveness normally depends upon a [**18] protracted period of lying-in-wait. For however long that may be, the lives and thoughts of many people--not merely the immediate target but all who chance to wander into the web--are exposed to an unknown and undiscriminating intruder. Such a search has no channel and is certain to be far more pervasive and intrusive than a properly conducted search for a specific, tangible object at a defined location.

Id. at 189. These observations emphasize the differences between traditional investigations into a suspect's area of privacy and wiretap investigations. Similarly, electronic surveillance is almost inherently indiscriminate. Interception of a telephone line provides to law enforcement all of the target's communications, whether they are relevant to the investigation or not, raising concerns about compliance with the particularity requirement in the Fourth Amendment and posing the risk of general searches. In addition, electronic surveillance involves an on-going intrusion in a protected sphere, unlike the traditional search warrant, which authorizes only one intrusion, not a series of searches or a continuous surveillance. Officers must execute a traditional [**19] search warrant with dispatch, not over a prolonged period of time. If they do not find what they were looking for in a home or office, they must leave promptly and obtain a separate order if they wish to return to search again. Electronic surveillance, in contrast, continues around-the-clock for days or months. Finally, the usefulness of electronic surveillance depends on lack of notice to the suspect. In the execution of the traditional search warrant, an announcement of authority and purpose ("knock and notice") is considered [*1036] essential so that the person whose privacy is being invaded can observe any violation in the scope or conduct of the search and immediately seek a judicial order to halt or remedy any violations. In contrast, wiretapping is conducted surreptitiously.

Metadata analysis is not electronic surveillance

Cassidy 13 John Cassidy, staff writer at The New Yorker since 1995. June 27, 2013

The New Yorker N.S.A. Latest: The Secret History of Domestic Surveillance

http://www.newyorker.com/news/john-cassidy/n-s-a-latest-the-secret-history-of-domestic-surveillance

Still, the N.S.A. chafed at the remaining legal restrictions on accessing data from American citizens communicating online with other American citizens. In a November, 2007, memorandum, which the Guardian has also posted online, a lawyer at the Justice Department, Kenneth Wainstein, told Michael Mukasey, the New York judge who had recently taken over as Attorney General, that the N.S.A. wanted a new set of procedures that would give the Agency considerably broader authorization. The memo said:

The Supplemental Procedures, attached at Tab A, would clarify that the National Security Agency (NSA) may analyze communications metadata associated with United States persons and persons believed to be in the United States…We conclude that the proposed Supplemental Procedures are consistent with the applicable law and we recommend that you approve them.

The memo argued that the new set of procedures, because they covered online metadata rather than actual content, didn’t violate the Fourth Amendment’s right to privacy, and neither did they need the approval of the FISA courts: “To fall within FISA’s definition of ‘electronic surveillance,’ an action must satisfy one of the four definitions of that term. None of these definitions cover the communications metadata analysis at issue here.”

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