Quasi-Constitutional Protections and Government Surveillance

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by the Fourth Amendment—individual privacy and freedom from arbitrary government intrusions into the personal sphere. Faced with government surveillance requests that posed significant privacy concerns, but for which the government was unlikely to accept “no” as an answer, the FISC resourcefully employed a familiar tool—minimization procedures (rules designed to augment privacy protections in the context of electronic surveillance)—to champion constitutional principles and preserve for itself a role in surveillance oversight while simultaneously avoiding a no-win confrontation with the executive. This creative solution took the form of a bargain: the FISC permitted the government to implement its surveillance programs, but only after embedding in those programs a set of rules protecting what I have labeled “quasi-constitutional rights.

Quasi-Constitutional Protections and Government Surveillance

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by the Fourth Amendment—individual privacy and freedom from arbitrary government intrusions into the personal sphere. Faced with government surveillance requests that posed significant privacy concerns, but for which the government was unlikely to accept “no” as an answer, the FISC resourcefully employed a familiar tool—minimization procedures (rules designed to augment privacy protections in the context of electronic surveillance)—to champion constitutional principles and preserve for itself a role in surveillance oversight while simultaneously avoiding a no-win confrontation with the executive. This creative solution took the form of a bargain: the FISC permitted the government to implement its surveillance programs, but only after embedding in those programs a set of rules protecting what I have labeled “quasi-constitutional rights.

The Copyright Principles Project: Directions for Reform

Copyright law performs a number of important functions. It facilitates public access to knowledge and a wide range of uses of creative works of authorship, and, in so doing, it helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values. It provides opportunities for rights holders to recoup investments in creating and disseminating their works and to enjoy the fruits of whatever success arises from the public\u27s uses of their works. In the process, copyright also plays a role in regulating new technologies and services through which creative works may be accessed. A well-functioning copyright law carefully balances the interests of the public in access to expressive works and the sound advancement of knowledge and technology, on the one hand, with the interests of copyright owners in being compensated for uses of their works and deterring infringers from making market-harmful appropriations of their works, on the other. Copyright law should enable the formation of well-functioning markets for creative and informative works that yield benefits for all stakeholders

Telecommunications and Internet Services: The digital side of the TTIP. Paper No. 8 in the CEPS-CTR project ‘TTIP in the Balance’ and CEPS Special Report No. 112/July, 17 July 2015

In the overall negotiations on the Transatlantic Trade and Investment Partnership (TTIP), the digital chapter appears to be growing in importance. This is due to several factors, including the recent Datagate scandal that undermined trust between the negotiating parties and led to calls to suspend the US-EU Safe Harbour agreement as well as the furious debate currently ongoing in both legal systems on key issues such as policies to encourage broadband infrastructure deployment, network neutrality policies and the application of competition policy in cyberspace. This paper explores the current divergences between the two legal systems on these key issues and discusses possible scenarios for the ultimate agreement to be reached in the TTIP: from a basic, minimal agreement (which would essentially include e-labelling and e-accessibility measures) to more ambitious scenarios on network neutrality, competition rules, privacy and interoperability measures