Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad

This Article reveals interdependent legal and technical loopholes that the US intelligence community could use to circumvent constitutional and statutory safeguards for Americans. These loopholes involve the collection of Internet traffic on foreign territory, and leave Americans as unprotected as foreigners by current United States (US) surveillance laws. This Article will also describe how modern Internet protocols can be manipulated to deliberately divert American’s traffic abroad, where traffic can then be collected under a more permissive legal regime (Executive Order 12333) that is overseen solely by the executive branch of the US government. Although the media has reported on some of the techniques we describe, we cannot establish the extent to which these loopholes are exploited in practice. An actionable short-term remedy to these loopholes involves updating the antiquated legal definition of “electronic surveillance” in the Foreign Intelligence Surveillance Act (FISA), that has remained largely intact since 1978. In the long term, however, a fundamental reconsideration of established principles in US surveillance law is required, since these loopholes cannot be closed by technology alone. Legal issues that require reconsideration include the determination of applicable law by the geographical point of collection of network traffic, the lack of general constitutional or statutory protection for network-traffic collection before users are “intentionally targeted,” and the fact that constitutional protection under the Fourth Amendment is limited to “US persons” only. The combination of these three principles results in high vulnerability for Americans when the US intelligence community collects Americans’ network traffic abroad

Kaleidoscopic data-related enforcement in the digital age

The interplay between competition, consumer and data protection law, when applied to data collection and processing practices, may lead to situations where several competent authorities can, independently, carry out enforcement actions against the same practice, or where an authority competent to carry out enforcement in one area of law can borrow the concepts of another area to advance its own goals. The authors call this “kaleidoscopic enforcement”. Kaleidoscopic enforcement may undermine existing coordination mechanisms within specific areas, and may lead to both the incoherent enforcement of EU rules applicable to data, and to sub-optimal enforcement. An EU level binding inter-disciplinary coordination mechanism between competition, consumer and data protection authorities is needed. Now the Commission has announced ambitious plans to enhance the coherent application of EU law in several areas, it is the perfect time to work towards creating such an enforcement mechanism

Detection of low-conductivity objects using eddy current measurements with an optical magnetometer

Detection and imaging of an electrically conductive object at a distance can be achieved by inducing eddy currents in it and measuring the associated magnetic field. We have detected low-conductivity objects with an optical magnetometer based on room-temperature cesium atomic vapor and a noise-canceling differential technique which increased the signal-to-noise ratio (SNR) by more than three orders of magnitude. We detected small containers with a few mL of salt-water with conductivity ranging from 4-24 S/m with a good SNR. This demonstrates that our optical magnetometer should be capable of detecting objects with conductivity 1 and opens up new avenues for using optical magnetometers to image low-conductivity biological tissue including the human heart which would enable non-invasive diagnostics of heart diseases.Comment: Main article with supplemental materia