Civil Liberty and National Security: The Implications of the Debate for the United States Intelligence Community

For years, the US Intelligence Community has worked to maintain the thin and often wavering line between civil liberty and national security in its attempts to protect the American people while simultaneously preserving their constitutional rights. However, this line has often shifted with the course of American history, including events such as the Alien and Sedition Acts, the establishment of the Church Committee, and the publication of the NSA’s data collection program. One of the most significant of these factors was the passage and eventual amendment of the Foreign Intelligence Surveillance Act, which opened the door to later constitutional controversies. In the midst of this ever-changing national landscape, how is the US Intelligence Community to strike a balance between protecting the American people and ensuring their civil freedoms? The Intelligence Community must remember that it has a responsibility to protect both the American people and their constitutional freedoms. The Intelligence Community faces the unique challenge of reconciling the freedom of the American people to live safely and the freedom of the US government, embodied by the executive branch, to lead. In recent history, it has done a remarkable job of instituting measures of oversight and enacting greater controls on itself as part of the executive branch to avoid the unconstitutional missteps it has taken in the past. Intelligence agencies in the present and future must continue to prioritize not only on the safety of the United States and its people but also on the maintenance of the liberties guaranteed to them under the US Constitution

The Trickle-Down War

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and more technologically sophisticated armies. The complexity and expense of maintaining more professionalized standing armies made it increasingly difficult for non-state groups to compete with states, giving centralized states a war-making advantage and enabling them to increasingly monopolize the means of large-scale violence. But the need to recruit, train and sustain ever-larger and more sophisticated armies also put pressure on these states to provide basic services, improving nutrition, education, and so on. Ultimately, we arrive at the late 20th century European welfare state, with its particular trade-offs between the state and its subjects

FISA Reform

Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect—i.e., a taxonomy of potential options. This article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The article begins by considering the legal underpinnings and challenges to the President\u27s Surveillance Program. It then examines how technology has altered the types of information available, as well as methods of transmission and storage. The article builds on this to develop a taxonomy for how a statutory approach to foreign intelligence gathering could be given force. It divides foreign intelligence gathering into two categories: front-end collection and back-end analysis and use. Each category contains a counterpoise structured to ensure the appropriate exercise of Congressionally-mandated authorities. For the front-end, this means balancing the manner of collection with requirements for approval. For the back-end, this means offsetting implementation with transparency and oversight. The article then considers the constituent parts of each category

Cross Border Data Flows: Could Foreign Protectionism Hurt U.S. Jobs?: Hearing Before the Subcomm. On Commerce, Mfg. & Trade of the H. Comm. on Energy & Commerce, 113th Cong., Sept. 17, 2014 (Statement of Laura K. Donohue)

Documents released over the past year detailing the National Security Agency’s telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) directly implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. firms, the economy, and U.S. national security. The first Snowden documents, printed June 5, 2013, revealed that the U.S. government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had intercepted international content under Section 702 of the FISA Amendments Act. The type of information obtained ranged from E-mail, video and voice chat, videos, photos, and stored data, to Voice over Internet Protocol, file transfers, video conferencing, notifications of target activity, and online social networking details. The companies involved read like a who’s who of U.S. Internet giants: Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple. More articles highlighting the extent to which the NSA had become embedded in the U.S. high tech industry followed. In September 2013 ProPublica and the New York Times revealed that the NSA had enjoyed considerable success in cracking commonly-used cryptography. The following month the Washington Post reported that the NSA, without the consent of the companies involved, had obtained millions of customers’ address book data: in one day alone, some 444,743 email addresses from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail, and 22,881 from other providers. The extent of upstream collection stunned the public – as did slides demonstrating how the NSA had bypassed the companies’ encryption, intercepting data as it transferred between the public Internet and the Google cloud. Further documents suggested that the NSA had helped to promote encryption standards for which it already held the key or whose vulnerabilities the NSA understood but not taken steps to address. Beyond this, press reports indicated that the NSA had at times posed as U.S. companies—without their knowledge—in order to gain access to foreign targets. In November 2013 Der Spiegel reported that the NSA and the United Kingdom’s Government Communications Headquarters (GCHQ) had created bogus versions of Slashdot and LinkedIn, so that when employees from the telecommunications firm Belgacom tried to access the sites from corporate computers, their requests were diverted to the replica sites that then injected malware into their machines. As a result of growing public awareness of these programs, U.S. companies have lost revenues, even as non-U.S. firms have benefited. In addition, numerous countries, concerned about consumer privacy as well as the penetration of U.S. surveillance efforts in the political sphere, have accelerated localization initiatives, begun restricting U.S. companies’ access to local markets, and introduced new privacy protections—with implications for the future of Internet governance and U.S. economic growth. These effects raise attendant concerns about U.S. national security. Congress has an opportunity to redress the current situation in at least three ways. First, and most importantly, reform of the Foreign Intelligence Surveillance Act would provide for greater restrictions on NSA surveillance. Second, new domestic legislation could extend better protections to consumer privacy. These shifts would allow U.S. industry legitimately to claim a change in circumstance, which would help them to gain competitive ground. Third, the integration of economic concerns at a programmatic level within the national security infrastructure would help to ensure that economic matters remain central to national security determinations in the future

The Relevance of Relevance: Section 215 of the USA PATRIOT Act and the NSA Metadata Collection Program

In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program. The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. § 1861. The statute requires that there be reasonable grounds to believe the data collected is “relevant to an authorized investigation.” The government deems all these records “relevant” based on the fact that they are used to find patterns and connections in preventing terrorist activity. Critics of the program, however, assert that billions of records cannot possibly be relevant when a negligible portion of those records are actually linked to terrorist activity. This Note examines the conflicting interpretations of “relevant,” and concludes that while the current state of the law permits bulk data collection, the power of the NSA to collect records on such a large scale must be reined in

The challenge to privacy from ever increasing state surveillance: a comparative perspective

This article explores how internet surveillance in the name of counterterrorism challenges privacy. Introduction International terrorism poses serious threats to the societies it affects. The counter-terrorism measures adopted since 2001 have sought to limit the advance of terrorism but, in the process, also created enormous challenges for (transnational) constitutionalism. Long-held and cherished principles relating to democracy, the rule of law and the protection of a wide range of human rights have come under increasing strain. Legislative authority to shoot down hijacked aircrafts or to use lethal drones against suspected terrorists affect the right to life; waterboarding of prisoners and other inhumane practices contravene the prohibition of torture; extraordinary renditions and black sites circumvent constitutionally protected rights and processes, including the right to freedom and security, the right to a fair trial and due process for suspected terrorists; ill-defined terrorism offences undermine the rule of law and personal freedom; blanket suspicion of Muslims as terror sympathisers impacts on freedom of religion and leads to unfair discrimination; and mass surveillance of communication sweeps away the right to privacy. This article explores how internet surveillance in the name of counterterrorism challenges privacy. In Part II, the article analyses the international dimension of counter-terrorism measures and the conceptualisation of data protection and privacy in the European Union (‘EU’), the United States of America (‘US’) and Australia. Part III compares the different concepts of data protection and privacy, and explores the prospects of an international legal framework for the protection of privacy. Part IV concludes that work on international data protection and privacy standards, while urgently needed, remains a long-term vision with particularly uncertain prospects as far as antiterrorism and national security measures are concerned

Human Rights and the War on Terror: The USA PATRIOT Act

The events of September 11, 2001 serve as the origin of the United States’ War on Terror as popularized by the Bush administration. Previously, American strategies to combat terrorism focused on attacks against its interests abroad, and support for other governments’ efforts to curb terrorist acts within their own boundaries. However, September 11 revealed vulnerability to violence by non-state actors within U.S. borders. In response, the United States reshaped its anti-terrorist strategies to prevent future attacks by targeting terrorists, foreign and domestic, known and potential

Surveillance, big data and democracy: lessons for Australia from the US and UK

This article argues that current laws are ill-equipped to deal with the multifaceted threats to individual privacy by governments, corporations and our own need to participate in the information society. Introduction In the era of big data, where people find themselves surveilled in ever more finely granulated aspects of their lives, and where the data profiles built from an accumulation of data gathered about themselves and others are used to predict as well as shape their behaviours, the question of privacy protection arises constantly. In this article we interrogate whether the discourse of privacy is sufficient to address this new paradigm of information flow and control. What we confront in this area is a set of practices concerning the collection, aggregation, sharing, interrogation and uses of data on a scale that crosses private and public boundaries, jurisdictional boundaries, and importantly, the boundaries between reality and simulation. The consequences of these practices are emerging as sometimes useful and sometimes damaging to governments, citizens and commercial organisations. Understanding how to regulate this sphere of activity to address the harms, to create an infrastructure of accountability, and to bring more transparency to the practices mentioned, is a challenge of some complexity. Using privacy frameworks may not provide the solutions or protections that ultimately are being sought. This article is concerned with data gathering and surveillance practices, by business and government, and the implications for individual privacy in the face of widespread collection and use of big data. We will firstly outline the practices around data and the issues that arise from such practices. We then consider how courts in the United Kingdom (‘UK’) and the United States (‘US’) are attempting to frame these issues using current legal frameworks, and finish by considering the Australian context. Notably the discourse around privacy protection differs significantly across these jurisdictions, encompassing elements of constitutional rights and freedoms, specific legislative schemes, data protection, anti-terrorist and criminal laws, tort and equity. This lack of a common understanding of what is or what should be encompassed within privacy makes it a very fragile creature indeed. On the basis of the exploration of these issues, we conclude that current laws are ill-equipped to deal with the multifaceted threats to individual privacy by governments, corporations and our own need to participate in the information society

U.S. Surveillance of Citizens: The Prevention of Domestic Terrorism

The United States drastically increased the powers given to the federal government following the terrorist attacks of September 11, 2001, as the sheer number of casualties and shock that struck the nation called for an immediate response. The fear of another mass attack is still within the minds of the American people, and the U.S. government has taken measures to attempt to prevent such a tragedy. This thesis will analyze the topic of domestic surveillance, as well as ethical concerns for the criminal justice field, and will explore the future of homeland security and anti-terrorism for this country if this trend of surveillance continues