Patriot Act in terms of code breaking and code reconstruction

As Michel Foucault pointed out, subtle surveillance techniques characterize modern states. Development of bureaucracy entails advances in surveillance techniques, and their subtlety lies not in the establishment of visible control apparatuses, but in the automatic functioning of power (Foucault, 2004). Here internalization of power is achieved, and the power relations are inscribed in citizens’ minds. It is particularly significant here to note that many surveillance techniques are invisible. People’s first reaction to the Patriot Act symbolizes how surveillance techniques have been out of the citizens’ sights: Some reacted vehemently to the establishment of the USA Patriot Act, as if there had been no law like it before its enactment. Various kinds of electronic surveillance laws have existed since communication through electronic devices became humans’ main communication tool. In 1986, for example, Congress enacted the Electronic Communications Privacy Act (ECPA), which was an application of preexisting surveillance law, such as the Wiretap Act, to computer networks (Kerr, 2003). Importantly, the Patriot Act is a revision of those preexisting electronic surveillance laws. The act of revision is not a simple job, entailing complex but tangible administrative steps and processes. Naturally, through this tangible process, obscure things - the nature of electronic surveillance law and its mechanism of evolution – become clear. Then what is the mechanism of electronic surveillance law’s evolution?  

Preexisting electronic surveillance law before the USA Patriot Act aimed to regulate (or stifle) citizens’ anti-social behaviors. I will focus here on anti-US terrorists’ behaviors, which are a serious subset of anti-social behaviors. As Lessig pointed out, law aims to achieve a high degree of regulation (Lessig, 1999). Consider a terrorist who is dangerous to America’s security. Constitutional law powerfully regulates his suspicious behaviors, for example, life in prison for any kinds of terrorists act (this is simply an example). In addition to this direct regulation, law utilizes various kinds of apparatuses that make law enforcement more effective (to achieve a higher degree of regulation). Lessig points out three examples of those apparatuses: norms, markets and code/architecture. For example, a norm stating that citizens should report a person’s suspicious behaviors helps to crack down terrorists. In addition, the market limits the sale of certain kinds of products to authorized people. The architecture of an airport, for example, includes its complete screening system and controls terrorists’ movement. Certain architecture of new media space, for example, ID and password systems, limits terrorists’ activity in the new media space. The FBI’s and CIA’s surveillance techniques also constitute important parts of the architecture/code in stifling terrorists’ behaviors. Among those three apparatuses, the role of markets and norms in stifling terrorists’ behaviors seems to be meager. In sum, this mechanism is summarized in the following figure.

However, was the preexisting law, in conjunction with the market, norms and architecture, successful in regulating terrorists’ behaviors? No. The way those terrorists nullified the law’s regulating forces signifies the mechanism for the surveillance law’s revision. To clarify, I will focus on the architecture/code of cyberspace.

Communication networks are a characteristic feature of modern life. People utilize various kinds of communication networks such as the postal system, the telephone network and, most importantly nowadays, the Internet. We communicate with each other using these networks. Though these networks, i.e., new media space, are mostly used by ordinary citizens, these networks unfortunately “provide a stage for the commission of criminal acts” (Kerr, 2003, p.608). When communication networks are used for criminal acts, “the network itself becomes a crime scene” (Kerr, 2003, p.608). The terrorist group that attacked the US utilized communication networks as “a stage for the commission of criminal acts.” They were, let’s say, experts in new media. Al Qaeda’s casing teams usually include a computer expert (National Commission on Terrorist Attacks upon The United States, 2004). The 9/11 Commission Report notes the use of advanced communication technology by terrorists group in the following:

Terrorists, in turn, have benefited from this same rapid development of communication technologies. They simply could buy off the shelf and harvest the products of the $3 trillion per year telecommunication industry. They could acquire, without great expense, communication devices that were varied, global, instantaneous, complex and encrypted. The emergence of the World Wide Web has given terrorists a much easier means of acquiring information and exercising command and control over their operations. The operational leader of the 9/11 conspiracy, Mohamed Atta, went online from Hamburg, Germany to research US flight schools (National Commission on Terrorist Attacks upon The United States, 2004, p.88).

In other words, terrorists were well aware of how to overcome the barriers of law through breaking the code/architecture of new media space. It is particularly important here to note that a disturbance in any one of those apparatuses – norms, market or code/architecture – ultimately affects the regulating function of any law, because the law’s effectiveness is achieved only when those three apparatuses work in concert. Here, breaking the code or architecture of new media space, especially cyberspace, refers to 1) breaking the latent surveillance potential in the technological design of the Internet, or 2) circumventing barriers established by designers of the Internet’s architectural software and hardware. Electronic surveillance techniques constitute one part of the new media space’s architecture. Those techniques and software that are sometimes connected or incorporated into cyberspace have played the role of “regulators” of terrorists’ behaviors. However, al Qaeda’s technical ingenuity, in conjunction with the lack of regulation of new media space, such as cyberspace, enabled terrorists to circumvent the new media space’s architecture and code, necessarily resulting in breaking and nullifying them. Damage inflicted on the new media space’s code and architecture stultified existing surveillance laws such as ECPA. The following figure summarizes the explanations given so far:

Now we can understand the evolutionary process of surveillance law. What is required is reconstruction of the new media space’s damaged architecture and code, by adding more sophisticated surveillance techniques. Consequently, this process calls for a revision and update of preexisting surveillance law. Here, “revision and update” of preexisting law needs a particular technique as well. Lessig calls the technique “translation” (Lessig, 1999). Originally, the translation technique’s aims in updating the law lie in preserving the constitution’s original meaning in a new context, preserving what the original framers conceived. In the translation of any past law, for example, the Wiretap Act, which is related to sensitive issues such as civil rights and privacy, the law’s translation into a new context should focus on whether or not the update preserves citizens’ basic rights, for example, protections of “persons, houses, papers and effects against unreasonable searches and seizures” (Lessig, 1999, p.111). In the case of the USA Patriot Act, however, which is essentially an update of preexisting surveillance laws, the principle of translation is fundamentally different from what it must be. The USA Patriot Act is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. As shown in the patriotic framing of its contents, the USA Patriot Act’s translation principle lies more in materializing tools’ effectiveness, i.e., establishing powerful architecture for surveillance techniques, than in protecting the civil liberties provided by the Constitution. It is true that civil liberty issues are obviously considered in the USA Patriot Act. However, those privacy and civil rights issues definitely do not take priority in the Act (Cusick, 2003). We can sum up the aforementioned process in the following figure.