After Snowden: Regulating Technology-Aided Surveillance in the Digital Age

Imagine a state that compels its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human rights groups would condemn the state for denying the most basic elements of human dignity and freedom. Student groups would call for boycotts to show solidarity. We would pity the offending state\u27s citizens for their inability to enjoy the rights and privileges we know to be essential to a liberal democracy. The reality, of course, is that this is our state-with one minor wrinkle. The United States does not directly compel us to share all of the above intimate information with it. Instead, it relies on private sector companies to collect it all, and then it takes it from them at will. We consent to share all of this private information with the companies that connect us to the intensely hyperlinked world in which we now live through our smart phones, tablets, and personal computers. Our cell phones constantly apprise the phone company of where we are, as well as with whom we are talking or texting. When we send emails, we share the addressing information, subject line, and content with the internet service provider. When we search the web or read something online, we reveal our interests to the company that runs the search engine. When we purchase anything with a credit card, we pass on that information to the credit card company. In short, we share virtually everything about our lives--much of it intensely personal-with some private company. It is recorded in an easily collected, stored, and analyzed digital form. We do so consensually, at least in theory, because we could choose to live without using the forms of communication that dominate modem existence. But to do so would require cutting oneself off from most of the world as well. That is a high price for privacy

The Question Concerning Technology in Compliance

In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures

Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments

[Excerpt] Beginning in the summer of 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been published and are apparently based on unauthorized disclosures of classified information by Edward Snowden, a former NSA contractor. The reports have focused on two main NSA collection activities conducted under the auspices of the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As the public’s awareness of these programs has grown, Members of Congress and the public have increasingly voiced concerns about the constitutionality of these programs. This report provides a description of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each. Although a brief overview of the constitutional arguments and issues raised in the assorted cases is included, a detailed analysis or evaluation of those arguments is beyond the scope of this report

Internet and the flow of knowledge: Which ethical and political challenges will we face?

The term “knowledge” is used more and more frequently for the diagnosis of societal change (as in “knowledge society”). According to Bell (1973), since the 1970s we have been experiencing the ?rst phase of such a change towards a knowledge society, consisting of a rapid expansion of the academic system and a growth of investments in research and development in many countries. In this phase, as Castells (1996) points out, information technology has been rapidly changing the workplace as well as the composition of social organisations. In this first phase, the focus has been on scienti?c knowledge, its production and application in expert cultures. Since the Mid-1990s, however, this focus has been widening, such that one can speak of a second phase of the knowledge society (Drucker 1994a, 1994b; Stehr 1994; see also Knorr-Cetina 1998; Krohn 2001). Now it is no longer only scientific knowledge that is seen as driving the change, but also ordinary knowledge and practical knowledge, as know-how. The change is, as I would put it, autocatalytic, for typical of knowledge societies is “not the centrality of knowledge and information, but the application of such knowledge and information to knowledge generation and information processing/communication devices, in a cumulative feedback loop between innovation and the uses of innovation“ (Castells 1996: 32). Science has also been changing to be part of this loop, as shown in the rise of applied sciences and in the acknowledgement of uncertainty and ignorance issues (cf. Heidenreich 2002: 4 ff.; see also Hubig 2000 and Böschen & Schulz-Schaeffer 2003). The most significant change in this second phase however is the popularization of the Internet, that is seen as a key factor that governs societal change today. So what exactly is this “knowledge” that is driving present knowledge societies? Can we rely on the philosophical analysis of the term to get some insight here

Fixing FISA for Long War: Regulating Warrantless Surveillance in the Age of Terrorism

[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in their name. As the Bush Administration has recently discovered, where these caveats are (or are perceived to have been) disrespected, government surveillance is perceived to degenerate into an illegitimate invasion of privacy and arbitrary abuse of power. On December 16, 2005, the New York Times revealed that, shortly after the terrorist attacks of September 11, the White House surreptitiously authorized the National Security Agency (“NSA”) to conduct surveillance on Americans inside the United States. This search for evidence of terrorist activity without first obtaining a court-approved warrant was in apparent violation of the Foreign Intelligence Surveillance Act (“FISA”) and in possible abrogation of the Fourth Amendment. […] In this article, assuming that the warrantless searches are necessary and that strict compliance with FISA in its current form would inhibit the collection of intelligence vital to national security, I will suggest amendments to FISA that would create a new independent body, appointed by the FISC, with the power to review the NSA’s warrantless searches and with the standing to challenge the constitutionality of individual searches before the FISC. Where an individual’s constitutional rights have been violated, the agency would be able to collect damages on his behalf and to move for an injunction on continued surveillance. I will also suggest statutory limitations restricting the admissibility of evidence gathered through warrantless surveillance in criminal prosecutions. Before I offer any suggestions for the amendment of FISA, however, I will describe in further detail the purpose and relevant provisions of the law to be amended and the deficiencies of the Administration’s legal justifications for bypassing those provisions. Because the Administration believes that the President has the inherent authority to conduct warrantless searches pursuant to his power as Commander-in-Chief, it does not believe that amendments to FISA (or even FISA itself) are necessary. Thus, in Part II of this article, I will briefly sketch the historical circumstances which led Congress to believe why it was necessary and proper to enact FISA, outline the provisions of FISA which are relevant to this article, and describe the contours of the NSA program to the extent that they have been made public. In Part III, I will suggest why the Administration’s arguments regarding the legality of the domestic surveillance program lack merit. Finally, in Part IV, I will offer suggestions for the amendment of FISA

When Is Employee Blogging Protected by Section 7 of the NLRA?

The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how the National Labor Relations Board and the courts should address the unique features of employee blogs

The National Security Process and a Lawyer’s Duty: Remarks to the Senior Judge Advocate Symposium

September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And both of these occurrences have emphasized the importance of viewing terrorism and cyber security as problems requiring effective vertical and not just horizontal process. Where most national security problems require coordination amongst federal agencies, homeland security is equally about coordination between federal, state, and local actors down to the level of first responder and the technician who spots the first medical anomaly. This vertical process will test the manner in which information is shared, resources allocated, and perhaps the level at which decisions of life and death, heretofore made by the President, are taken. Constitutional democracy also means that all decisions are made according to law. And that means that sound Executive process must incorporate timely and competent legal advice. In some cases, legal review is dictated by statute, as in the case of the Foreign Intelligence Surveillance Act (FISA), which requires the attorney general, or his designee, to approve requests for electronic surveillance or physical search before they are submitted to the FISA court. In other cases, the President has directed a specific process to ensure legal review in areas historically prone to peril, including certain intelligence activities. However, the majority of legal advice within the national security process is not directed, but is the product of practice, custom, and personal interchange between lawyer and client. That means that good process requires personal persuasion, presence, and value added, or the lawyer will find he or she is only contributing to decisions where legal review is mandated and then only as the last stop on the bus route. Constitutional democracy does not rest on such process

The Question Concerning Technology in Compliance

In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures

Airline meteorological requirements

A brief review of airline meteorological/flight planning is presented. The effects of variations in meteorological parameters upon flight and operational costs are reviewed. Flight path planning through the use of meteorological information is briefly discussed