Any examination of cybersecurity law would be incomplete without an examination of the constraints that both the government and private companies have on monitoring networks and sharing information. From the Fourth Amendment's prohibition on unreasonable searches and seizures to the Cybersecurity Act of 2015, both the government and companies face significant constraints on monitoring electronic traffic, even if the intentions are to protect networks and users.
As discussed throughout this book, cybersecurity involves more than just preventing viruses and malware from infecting systems or flooding networks with denial of service attacks. Cybersecurity involves efforts by both the private and public sector to secure the Internet and computer systems and to fight cybercrime. This chapter focuses on the tools – and limits – that U.S. government entities have to conduct cyber operations.
This chapter first examines U.S. legal restrictions on government and private sector surveillance. We first begin with a discussion of the Fourth Amendment's application to electronic content, and the general prohibition on warrantless searches and seizures by the government and government agents. We then examine the Electronic Communications Act and its three components: (1) the Stored Communications Act, ...