WikiLeaks and the Institutional Framework for National Security Disclosures

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.The lessons of the Pentagon Papers case for WikiLeaks, however, are more complicated than they may first appear. The Court’s per curiam opinion masks areas of substantial disagreement as well as a number of shared assumptions among the Court’s members. Specifically, the Pentagon Papers case reflects an institutional framework for downstream disclosure of leaked national security information, under which publishers within the reach of U.S. law would weigh the potential harms and benefits of disclosure against the backdrop of potential criminal penalties and recognized journalistic norms. The WikiLeaks disclosures show the instability of this framework by revealing new challenges for controlling the downstream disclosure of leaked information and the corresponding likelihood of “unintermediated” disclosure by an insider; the risks of non-media intermediaries attempting to curtail such disclosures, in response to government pressure or otherwise; and the pressing need to prevent and respond to leaks at the source

Federalization in Information Privacy Law

In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. That conclusion, though narrow, rests on descriptive and normative claims with broad implications for the state-federal balance in information privacy law. Descriptively, Professor Schwartz sees the current information privacy law landscape as the product of successful experimentation at the state level. That account, in turn, fuels his normative claims, and in particular his sympathy with theories of competitive federalism. As I will argue, however, we cannot ignore the federal inputs -- judicial and legislative -- that shape significant segments of state information privacy law. The story of information privacy law is one of federal leadership as well as state experimentation, and we should be wary -- whether on the basis of observable practice or theoretical perspective -- of disabling Congress from articulating and federalizing privacy norms. Moreover, even from the perspective of competitive federalism, the arguments for federal regulation of information privacy law are stronger than Professor Schwartz suggests. privacy, digital privacy, internet law, competitive federalis

Hearings before the United States Senate Committee on the Judiciary on the Nomination of John G. Roberts to be Chief Justice of the United States

Originally published by the United States Senate Committee on the Judiciary Perma.cc GovInfo Perma.c

Executive Power in Youngstown\u27s Shadows

Fifty years after it was handed down, the Supreme Court\u27s decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court\u27s separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown\u27s shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson\u27s concurrence, is of special importance to congressional primacy scholars, who believe that the Constitution is best read to lodge most foreign affairs powers with Congress. The Article argues that Youngstown offers fewer lessons for analyzing problems of presidential power in foreign affairs than congressional primacy scholars suggest. In particular, the case offers no general theory of the scope of the President\u27s constitutional powers with respect to foreign affairs. Moreover, contrary to scholars\u27 assertions, the case provides no basis for courts to construe statutory delegations of authority to the executive in the foreign affairs area any more narrowly than statutory delegations of authority in purely domestic contexts. In fact, Justice Jackson\u27s opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President\u27s constitutional authority in foreign affairs

WikiLeaks and the Institutional Framework for National Security Disclosures

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.The lessons of the Pentagon Papers case for WikiLeaks, however, are more complicated than they may first appear. The Court’s per curiam opinion masks areas of substantial disagreement as well as a number of shared assumptions among the Court’s members. Specifically, the Pentagon Papers case reflects an institutional framework for downstream disclosure of leaked national security information, under which publishers within the reach of U.S. law would weigh the potential harms and benefits of disclosure against the backdrop of potential criminal penalties and recognized journalistic norms. The WikiLeaks disclosures show the instability of this framework by revealing new challenges for controlling the downstream disclosure of leaked information and the corresponding likelihood of “unintermediated” disclosure by an insider; the risks of non-media intermediaries attempting to curtail such disclosures, in response to government pressure or otherwise; and the pressing need to prevent and respond to leaks at the source

Chasing Bits Across Borders

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework for evaluating the legality of cross-border searches, both as a matter of international law and as a matter of U.S. law. The Article argues that remote cross-border searches are problematic as a matter of international law, and that U.S. adoption of bilateral or multilateral agreements authorizing remote-cross border searches on foreign law standards lower than those of the Fourth Amendment would be problematic as a matter of U.S. constitutional law. The Article also situates the remote cross-border search issue within the context of the larger theoretical debate over the power of geographically based sovereigns to exercise jurisdiction over internet activities. That debate ordinarily focuses on a sovereign\u27s jurisdiction to prescribe legal rules governing internet conduct; by broadening the inquiry to focus on a sovereign\u27s enforcement jurisdiction, a study of remote cross-border searches highlights certain normative bases for refining our understanding of how principles of territorial sovereignty apply in the internet context

Executive Power in Youngstown\u27s Shadows

Fifty years after it was handed down, the Supreme Court\u27s decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court\u27s separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown\u27s shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson\u27s concurrence, is of special importance to congressional primacy scholars, who believe that the Constitution is best read to lodge most foreign affairs powers with Congress. The Article argues that Youngstown offers fewer lessons for analyzing problems of presidential power in foreign affairs than congressional primacy scholars suggest. In particular, the case offers no general theory of the scope of the President\u27s constitutional powers with respect to foreign affairs. Moreover, contrary to scholars\u27 assertions, the case provides no basis for courts to construe statutory delegations of authority to the executive in the foreign affairs area any more narrowly than statutory delegations of authority in purely domestic contexts. In fact, Justice Jackson\u27s opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President\u27s constitutional authority in foreign affairs

Surveillance Law Through Cyberlaw\u27s Lens

The continuing controversy over the surveillance-related provisions of the USA Patriot Act highlights the depth of Americans\u27 concern about internet privacy. Although calls to limit the government\u27s surveillance powers strike a chord with the public, the legal framework governing surveillance activities is highly technical and poorly understood. The Patriot Act\u27s sunset date provides Congress with an opportunity to revisit that framework. This Article seeks to contribute to the debate over the appropriate scope of internet surveillance in two ways. First, the Article explores the intricacies of the constitutional and statutory frameworks governing electronic surveillance, and particularly surveillance to acquire electronic evidence. Such an exploration should not only clarify many of the poorly understood aspects of the surveillance framework, but also provide guidance on how surveillance law reforms should proceed. Second, this Article takes initial steps toward reconceptualizing internet surveillance law. Surveillance law is viewed as a narrow and specialized field at the outer boundaries of the domain of criminal procedure. Just as electronic surveillance generally is not a central focus of criminal procedure courses, internet surveillance law is rarely given significant treatment within internet law or cyberlaw courses. At most, such courses tend to focus on the significant cases illuminating the relationship between the Fourth Amendment\u27s protection against warrantless searches and technological developments that enhance the government\u27s surveillance powers. Within the growing body of internet law scholarship, too, surveillance issues take a back seat to copyright, trademark, and free speech matters. The marginalization of internet surveillance law is unfortunate in two respects: first, surveillance law issues can provide a rich illustration of some of the major themes that emerge in internet law scholarship; and second, internet law scholarship can illuminate and provide an organizing normative structure to some of the policy dilemmas Congress faces in updating surveillance law