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

National Security Pedagogy: The Role of Simulations

This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand. Part III examines traditional legal pedagogy, grounding the discussion in studies initiated by the American Bar Association, the Carnegie Foundation, and others. It suggests that using the law-writ-large as a starting point for those interested in national security law is a mistake. Instead, it makes more sense to work backwards from the skills most essential in this area of the law. The article then proposes six pedagogical goals that serve to distinguish national security law: (1) understanding the law as applied, (2) dealing with factual chaos and uncertainty, (3) obtaining critical distance—including, inter alia, when not to give legal advice, (4) developing nontraditional written and oral communication skills, (5) exhibiting leadership, integrity, and good judgment in a high-stakes, highly-charged environment, and (6) creating continued opportunities for self-learning. Equally important to the exercise of each of these skills is the ability to integrate them in the course of performance. These goals, and the subsidiary points they cover, are neither conclusive nor exclusive. Many of them incorporate skills that all lawyers should have—such as the ability to handle pressure, knowing how to modulate the mode and content of communications depending upon the circumstances, and managing ego, personality, and subordination. To the extent that they are overlooked by mainstream legal education, however, and present in a unique manner in national security law, they underscore the importance of more careful consideration of the skills required in this particular field. Having proposed a pedagogical approach, the article turns in Part IV to the question of how effective traditional law school teaching is in helping to students reach these goals. Doctrinal and experiential courses both prove important. The problem is that in national security law, the way in which these have become manifest often falls short of accomplishing the six pedagogical aims. Gaps left in doctrinal course are not adequately covered by devices typically adopted in the experiential realm, even as clinics, externships, and moot court competitions are in many ways ill-suited to national security. The article thus proposes in Part V a new model for national security legal education, based on innovations currently underway at Georgetown Law. NSL Sim 2.0 adapts a doctrinal course to the special needs of national security. Course design is preceded by careful regulatory, statutory, and Constitutional analysis, paired with policy considerations. The course takes advantage of new and emerging technologies to immerse students in a multi-day, real-world exercise, which forces students to deal with an information-rich environment, rapidly changing facts, and abbreviated timelines. It points to a new model of legal education that advances students in the pedagogical goals identified above, while complementing, rather than supplanting, the critical intellectual discourse that underlies the value of higher legal education

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

New Media, Free Expression, and the Offences Against the State Acts

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability and contribute to a volatile social environment. Significant political risks also accompany this novel genre. Hostile actors can use social media platforms to deepen political schisms, to promote certain candidates, and, as demonstrated by the recent Cambridge Analytica debacle, to swing elections. Extremist groups and terrorist organisations can use online interactions to build sympathetic audiences and to recruit adherents. Since 1939, the Offences Against the State Act (OAS) has served as the primary vehicle for confronting political violence and challenges to state authority. How effective is it in light of new media? The challenges are legion. Terrorist recruitment is just the tip of the iceberg. Social networking sites allow for targeted and global fundraising, international direction and control, anonymous power structures, and access to expertise. These platforms create spaces within which extreme ideologies can prosper, targeting individuals likely to be sympathetic to the cause, 24 hours a day, seven days a week, ad infinitum. They offer an alternative reality, subject to factual manipulation and direction—a problem exacerbated by the risk of so-called deep fakes: autonomously-generated content that makes it appear that people acted, or that certain circumstances occurred, which never did. In November 2019 the Irish Government adopted a new regulation targeting social media. The measure focuses on political advertising and to ensure that voters have access to accurate information. It does not address the myriad further risks. This chapter, accordingly, focuses on ways in which the Offences Against the State Act (OAS) and related laws have historically treated free expression as a prelude to understanding how and whether the existing provisions are adequate for challenges from new media

The Perilous Dialogue

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in Britain. In the United States, we tend to treat “security” and “freedom” as distinct phenomena: policy considerations set against pre-existing, political rights. Security becomes linked to decisions taken by the executive to preserve life—e.g., heightening protection against terrorist attacks by restricting entitlements specified in the Bill of Rights. Thus, Judge Richard Posner argues that in dangerous times, we must adjust constitutional rights to meet the demands of security. Professors Adrian Vermeule and Eric Posner propose “a basic tradeoff between security and liberty.” As Professor Holmes points out, the tradeoff framework is not limited to those who come down more heavily on the security side of the equation; civil libertarians also refer to the framework, arguing for the protection of rights in the face of security demands. In the United Kingdom, in contrast, scholars and policy makers tend to consider security versus freedom as a case of competing rights: the right to life or the right to freedom from fear set against the right to move freely. As Prime Minister Tony Blair announced on 9/11, the exercise of state power would be necessary to protect “the basic civil liberty that people have to go about their business free form [sic] terror.” This framing—competing rights in tension—reflects Britain’s constitutional structure. Measures introduced by Parliament do not have to conform to a written constitution. While some documents, such as the 1215 Magna Carta, or the 1689 Bill of Rights, carry special significance, they are part of a broader system that encompasses legal and non-legal rules. The multiplicity and fluidity of rights, and the constant effort to balance them, reflect Britain’s relationship with Europe, where the European Convention on Human Rights (incorporated into British domestic law through the 1998 Human Rights Act) and European Communities law weave together to create a complex system of rights and rules protecting them. Despite the manner in which the United States and United Kingdom interpret “security or freedom,” reflective of their respective constitutional differences, in both countries the dichotomy between rights and security dominates the counterterrorist discourse. And in both regions, because the dichotomy ignores in its narrow terms of reference the far-reaching effects of counterterrorism, it stifles the debate. The “hydraulic” assumption inherent in the “security or freedom” framework overlooks the possibility that rules—indeed, the rule of law itself—provide security. There are multiple types of securities and liberties at stake. And the framework distorts the “real tradeoffs” that are being made, such as the risks inevitably entailed in the allocation of limited resources. Most importantly, “security or freedom” fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government. This article suggests that at each point where the legislature would be expected to push back against the executive’s power—at the introduction of measures, at the renewal of temporary provisions, and in the exercise of oversight—its ability to do so is limited. The judiciary’s role is similarly restricted: constitutional structure and cultural norms narrow the courts’ ability to check the executive at anything but the margins. With the long-term political and economic effects of this expanded executive strength masked by the immediacy of the “security or freedom” dichotomy, the true costs of anti-terror legislation in the United States and in the United Kingdom have gone uncalculated. Over the past four decades, both countries have seen the relationship between governmental branches altered, individual rights narrowed, and the relationship of the citizens to the state changed. Counterterrorist law has alienated important domestic and international communities, created bureaucratic inefficiencies, and interrupted commercial activity. As these two countries set global counterterrorist norms through important multilateral and bilateral organizations, such as the United Nations (“UN”), the UN Security Council, the G7/G8, and the Financial Action Task Force, the risk increases that these detrimental effects will be transferred to other constitutional democracies. American and British provisions, moreover, have evolved outside the specter of terrorist groups actually using weapons of mass destruction to inflict mass casualties. The proliferation of weapons of mass destruction—and I would add biological weapons to Professor Holmes’s concern about fissile material—together with a growing willingness on the part of extremists to sacrifice themselves, may drive the two countries to take increasingly severe measures. Such provisions could lead to a shift in the basic constitutional structure of both countries

A Tale of Two Sovereigns: Federal and State Use and Regulation of Unmanned Aircraft Systems

Despite claims to the contrary, the federal government is severely limited in what it can do to regulate unmanned aircraft systems (UASs). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and land within their bounds, before turning to the limits of federal interstate commerce authorities. With river navigation and aviation serving as the forerunners of federal power, the chapter distinguishes the types of questions that accompany UAS, arguing that it is in relation to adjacent airspace and noneconomic activities where the federal government is at its weakest in any effort to regulate the states. Up to 500 ft above the ground, states have sovereignty, with authority over roads, land, and waterways. Within this domain, federal Commerce Clause powers only occupy a narrow area, leaving state police powers the dominant framework for UAS. The chapter concludes by highlighting the advantages of having states take the lead for UAS, focusing on the risk to rights of allowing the federal government to move into this realm and underscoring the importance in the role of the states as incubators of innovation

Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether. Searches of these devices implicate privacy concerns well beyond those of the home, which has long been protected even for customs and immigration purposes. This Essay traces the evolution of the border exception, noting the effect of recent Supreme Court decisions, to argue that CBP and ICE are operating outside constitutional constraints. The Essay considers two objections grounded in the legitimate interests of CBP and ICE. It responds, first, that inspection of digital devices differs from the examination of a traveler’s purse or luggage: the level of intrusion and the amount of information obtained changes the quality of the search, triggering Fourth Amendment protections. Second, as an immigration matter, as soon as citizens are identified, absent probable cause, the government does not have the constitutional authority to search their devices at all. Foreigners lacking a substantial connection to the country, however, do not enjoy the same Fourth Amendment protections. It concludes by observing that because of the substance and complexity of the issue, Congress has an important role to play in determining what types of searches are justified

Terrorism and Trial by Jury: The Vices and Virtues of British and American Criminal Law

British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways. First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence. Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, juries may be sympathetic to those engaged in violence and may acquit the guilty. Alternatively, following a terrorist attack, juries may be biased. They may identify with the victims, or they may, consciously or unconsciously, seek to return a verdict that conforms to community sentiment. Jurors also may worry about becoming victims of future attacks. Third, the presence of jurors may limit the type of information provided by the state. Where national security matters are involved, the government may not want to give ordinary citizens insight into the world of intelligence. Where deeply divisive political violence has been an issue for decades, the state may be concerned about the potential of jurors providing information to terrorist organizations. These risks are not limited to the terrorist realm. Criminal syndicates, for instance, may try to intimidate juries into returning a verdict of not guilty, and public outrage often accompanies particularly heinous crimes. But the very reason why these other contexts give rise to a similar phenomenon is because terrorist crimes have certain characteristics-characteristics that may be reflected in other forms of crime, but which are, in many ways, at the heart of what it means for an act to be terrorist in nature: terrorist organizations are created precisely to coerce a population, or specific individuals, to accede to the group\u27s demands. The challenge is political in nature, and the method of attack is chosen for maximum publicity. Terrorist organizations, moreover, can and often do use information about the state to guide their operations. It is in part because of these risks that the United Kingdom and United States have changed the rules governing terrorist trials-at times eliminating juries altogether.This Article reflects on the relationship between terrorism and jury trial and explores the extent to which the three dangers identified can be mitigated within the criminal-trial framework. It does not provide a comprehensive analysis of the rich case law and literature that address jury trial—one of the most studied legal institutions on both sides of the Atlantic. Instead, its aim is more modest: The text weighs the advantages and disadvantages of suspending juries specifically for terrorism. Here, the United Kingdom\u27s experiences prove illustrative. The Article considers the extent to which similar concerns bear on the U.S. domestic realm, and the decision to try Guantánamo Bay detainees by military tribunal. It suggests that the arguments for suspending juries in Northern Ireland are more persuasive than for taking similar steps in Great Britain or the United States. This Article then considers ways to address concerns raised by terrorism that stop short of suspending juries. Juror selection, constraints placed on jurors, and the conduct of the trial itself provide the focus. Of these, emphasis on juror selection, although not unproblematic, proves most promising. Again, distinctions need to be drawn between the United Kingdom and the United States. In the former, for instance, occupational bars to jury service could be lowered, while in the latter, increased emphasis on change in venue may prove particularly effective. Changes in the second category, constraints on jurors, may be the most damaging to the states\u27 counterterrorist programs. Finally, while changes in the trial process may help to address risks, they also may prove contentious and be prone to seeping into the criminal realm. The Article concludes by questioning whether and to what extent such alterations could be insulated from the prosecution of non-terrorist criminal offenses

Bulk Metadata Collection: Statutory and Constitutional Considerations

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of Smith v. Maryland, the privacy invasions resulting from the universal use of pen registers and trap and trace devices, and the advent of new technologies. Over the past decade, tension has emerged between the view that new technologies should be considered from the perspective of trespass doctrine and the view that Katz’s reasonable expectation of privacy test should apply. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines. Under trespass doctrine, the primary order for the telephony metadata program amounts to a general warrant—the elimination of which was the aim of the Fourth Amendment. Under Katz, in turn, citizens do not expect that their telephony metadata will be collected and analyzed. Most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. FISA reform is necessary to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of statutory and constitutional law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs,” and requiring the government to demonstrate past effectiveness prior to obtaining renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States