The epistemological rupture

The introduction to this chapter maintained that the recent past in international police cooperation against transnational organised crime constituted an epistemological rupture, a change fundamental to law enforcement cooperation so that one must accept that there is a rupture in our understanding of international law enforcement, a before and an after. This deep rupture is random or bulk data collection, which is closely linked with the militarization of law enforcement and the increasing and, in this author’s view, unhealthy blurring of the boundary between law enforcement and the intelligence services.

The use of undercover agents and of CIs gave rise, in the 1990s, to scholarly studies that questioned the necessity for such methods, their legality, and pointed out the possible excesses on the part of law enforcement.[1] [2] [3] [4] [5] In a seminal work, Nadelmann opined: ‘the internationalization of crime and law enforcement also created a new set of problems, mostly related to the trespassing on national sovereignty. The “Americanization” of police methods and strategies in West European states led to the unsolicited import of American undercover agents and to unsupervised interventions no central authority could account for.’42

In the twenty years since Nadelmann’s work, preoccupations would seem to have changed, however. On one side, the demand for absolute security—in the sense of sine cura—that subtended developed countries is now seen perhaps not to be realistic and populations realize that to arrive at a high level of personal security, albeit not absolute, a number of cherished principles must be surrendered or toned down, in particular privacy rights/13 The question that faces populations at this stage is to what degree they would allow their governments to intrude on their privacy for security reasons.

On one side of the debate one finds total refusal, for example Giorgio Agamben, in a lecture on Destituent Power, and, on the other, appeals for almost total electronic access to our (digital) lives.^ The recent terrorist attacks in Paris, France, Antalya, Turkey, Sousse, Tunisia, and Bamako, Mali, act as a sobering background to the observation by law enforcement and security services that strong encryption has made it impossible for them to execute court orders (warrants) giving them access to data or, indeed, to use communications interception to prevent terror attacks. A proposed amendment of the so-called Rule 41 (Federal Rules of Criminal Procedure), which is the regulation of the FBI’s use of communication and data intercept, is by some scholars considered very invasived5 The proposal is of import in itself, but is particularly thought-provoking since, if accepted, it would give federal judges in the United States the right to issue warrants for the hacking of computers in other jurisdictions. This is possible—not to say unavoidable—because network investigative techniques (NITs) operate by sending surveillance software over the internet seeking the target computer or computers. These, however, may very well be in a foreign jurisdiction. One might obviously oppose the civil liberty preoccupations by pointing out that the target computers from which illegal activity is organised have themselves done everything to be anonymous, including using software concealing the computers’ location, thereby leaving law enforcement little choice.[6] [7] [8]

In reality, the introduction of anti-money laundering regulations with an obligation on banks to notify the authorities of suspicious transactions caused an epistemological rupture first in the Western world and then, by coercive imposition of the same on developing countries, in the rest of the world. Without any reference to probable cause that the information concerned a suspect criminal and without needing a court order, the authorities assigned to themselves the right to avail themselves of hitherto confidential banking information.

The development of digital technologies provides the authorities with relatively easy access to information that has so far been considered private and protected as such, for example medical files and, say, listings of books and material one might have borrowed at public libraries. As regards the latter, one clearly sees the dilemma: on one hand, the disagreeable spectre of an opinion police and, on the other, the identification of a person’s reading habits to prevent a terror attack; the same dichotomy obtains regarding the use of the internet: not only the monitoring of messaging and communications services, but also of websites accessed might lead to the discovery of terrorists planning an action. One would submit that it is an ethical matter to determine which of the two valid points of views here outlined should be preferred, the philosopher’s complete rejection or the practitioner’s full acceptance, considering that the former might entail avoidable deaths, the latter a severe loss of citizens’ privacy rights^7

  • [1] Cyrille Fijnaut and Gary T. Marx, Undercover: Police Surveillance in Comparative Perspective,Amsterdam, Martinus Nijhoff Publishers, 1995.
  • [2] Nadelmann, Cops Across Borders, cited in note 1 above. 43 Sine cura: without care.
  • [3] 44 Giorgio Agamben, ‘For a theory of destituent power’, public lecture, Athens, 16 November 2013.
  • [4] 45 Ed Pinkington, ‘FBI demands new powers to hack into computers and carry out surveillance’, The
  • [5] Guardian, 29 October 2014.
  • [6] Ahmed Ghappour, ‘Justice Department proposal would massively expand FBI extraterritorial surveillance’, 16 September 2014, available at: http://www.justsecurity.org, accessed 15 February 2016.
  • [7] Elias Groll, ‘Paris attacks reopen crypto wars’, Foreign Policy, 17 November 2015.
  • [8] Victor E. Kappeler and Peter B. Kraska, ‘Normalising police militarisation, living in denial’, (2013)Policing and Society; Giddens, The Nation-State and Violence, cited in note 39 above; Peter B. Kraska,‘Militarization and policing: its relevance to 21st century policing’, (2007) Policing, 1.
 
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