Electronic surveillance law is subject to a paradigm shift where traditional principles are reconsidered and the notion of privacy has to be reconstructed. This paradigm shift is the result of four major changes in our society with regard to: technology, perceptions of threats, interpretation of human rights and ownership over telecommunications. The above-mentioned changes have created a need to reform both the tools of electronic surveillance and domestic legislation. Surveillance that was previously kept secret with reference to National Security is now subject to public debate, including Communications Intelligence (COMINT), a sub-category of Signals Intelligence (SIGINT). This chapter covers systems of “mass surveillance,” such as data retention and COMINT, and whether these are consistent with the European Convention on Human Rights. The chapter comes to two conclusions in relation to COMINT. First, the perceived threats have changed, shifting the focus of COMINT from military threats towards non-state actors such as terrorists and criminal networks. Second, COMINT involves relatively narrow interception of the content of messages compared to its large-scale collection and storage of traffic data, which through further processing may reveal who is communicating with whom.
Secrecy in U.S. National Security: Why a Paradigm Shift Is Needed