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American Surveillance: Intelligence, Privacy, and the Fourth Amendment, Anthony Gregory

Reviewed by Bruce E. Altschuler

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In his relatively short book about a topic that he describes as “enormous,” Anthony Gregory begins by reminding readers of the importance of language. Those whose subject is “intelligence” stress its importance in rational foreign policy decision-making, whereas students of “surveillance” are more concerned with how it endangers domestic privacy. As a result, much of their debate consists of talking past each other. Because Gregory believes in the interrelationship of the two, he devotes the first two-thirds of his book to a history of intelligence gathering and the rest largely to the Fourth Amendment and the difficulty of protecting privacy.

Gregory's history begins with George Washington's administration, whose foreign intelligence spending took up 12 percent of the federal budget. Although that amount soon declined, it was more than made up during the Civil War, when surveillance expanded to include the interception of telegrams, aerial observation via balloons, codes, and the infiltration of dissident groups. This pattern continued, with surges occurring during the Progressive Era and both world wars.

The Cold War brought both a dramatic increase in expenditures and the development of the current intelligence bureaucracy. A crucial safeguard was the institutional separation between domestic and foreign intelligence gathering led, respectively, by the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency, with other agencies, such as the National Security Agency (NSA) and Defense Intelligence Agency, established during that period. Despite reductions after the Cold War, largely because, according to Gregory, “Americans cared more about privacy than terrorism” (p. 91), the intelligence presence remained substantial, particularly the NSA, which by 2001 had 38,000 employees.

Up to this point, the book is a useful historical survey that is basically a summary of previously published information. In his chapter on events since the September 11 attacks, however, Gregory provides more detailed analysis. He believes that reforms resulting from pre–September 11 intelligence shortcomings concentrated too much on the expansion of intelligence and surveillance capabilities rather than the failure of policymakers to heed the warnings they were given. The book's epilogue returns to this theme, applying it to the Iraq War. Edward Snowden's 2013 revelations demonstrated that the separation between foreign and domestic spying had broken down.

The mild reform of the 2015 USA Freedom Act made little difference. One example pointed out by Gregory is judicial approval of such FBI powers as placing software that can take control of people's computers, including webcams for surveillance.

Most of the remainder of the book discusses the Fourth Amendment, which Gregory finds a very limited safeguard of privacy because its prohibition of “unreasonable searches and seizures” is so vague. Until the mid-twentieth century, this provision applied primarily to physical intrusions, but the advent of wiretapping eventually led the courts to develop the equally ambiguous doctrine of “reasonable expectation of privacy” to determine when a warrant is required. Gregory points out the ineffectiveness of this as a safeguard against government intrusions while also explaining why proposed alternatives are unlikely to be improvements. Accelerating the decline of privacy have been the militarization of local police and the growth of administrative searches. He concludes that supporters of privacy need “more than the Fourth Amendment” (p. 165), but he does not provide his own recommendation for what that should be. He also discusses the significance of private information gathering as a danger to freedom, but this section is too brief to add much to this much-analyzed topic.

Because his analysis of the Fourth Amendment focuses on local law enforcement, Gregory could do a better job of connecting it to the foreign intelligence gathering history of the earlier part of the book. Overall, however, American Surveillance is a useful introduction to an important subject.

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