In recent years, foreign bulk data collection of US citizens’ personal data has emerged as a new and increasing national security threat. The ability of foreign adversaries to collect—and in some cases, buy outright—US person data is officially governed by IEEPA and CFIUS. Bernard Horowitz and Terence Check argue that these regulatory frameworks are ill-suited for the particular issues raised by present-day data processing technology.
The authors examine both IEEPA and CFIUS in turn—how these regulations function in practice, and how they apply to bulk adversarial data collection. The authors focus particularly on the recent decision in TikTok v. Trump and how it may undermine the ability of the United States to restrict data trade on national security grounds.
Bernard Horowitz is Law Clerk for Senior Judge Mary Ellen Coster Williams of the United States Court of Federal Claims. This article does not reflect the views of the Court of Federal Claims or Judge Williams, and was written solely in the author’s personal capacity and not as part of his court-related duties.
Terence Check is Senior Counsel, Cybersecurity and Infrastructure Security Agency, Department of Homeland Security; LL.M in Law & Government, specializing in National Security Law & Policy, American University Washington College of Law (2015); J.D., magna cum laude, Cleveland State University, Cleveland-Marshall College of Law (2014); Editor-in-Chief, Cleveland State Law Review (2013-2014). This article does not reflect the official position of the US government, DHS, or CISA and all opinions expressed are solely those of the authors. He is the author of “Turning US Vetting Capabilities and International Information-sharing to Counter Foreign White Supremacist Terror Threats” in the JNSLP Online Supplement.
Alden Fletcher analyzes the historical origins and intent behind the Constitution’s “Calling Forth Clause” that has served as a foundation for confiding vast military authority in the president and potentially allowing the use of military force against civilians. While scholars have interpreted the Clause’s original meaning as requiring violent resistance to the laws before military force may be brought to bear, Fletcher shows that evidence from English, colonial, and founding-era history reveals the Clause was designed without such narrow constraints.
But historical evidence also suggests Congress and the judiciary could be intimately involved in the decision of deploying military forces domestically. Fletcher thus concludes that the founding era history both supports broad permission of the federal government to use troops domestically, as well as a significant ability of Congress and the courts to check the executive’s use of military force, even in a crisis.
Discussions of the Espionage Act usually focus on the public’s conception of “spying.” Spies steal information that their government seeks to keep secret and disclose that information to other governments. A common acronym, “MICE,” describes the common motivations for spying: money, ideology, compromise, and ego.
The Espionage Act, however, covers a broader set of conduct that can compromise U.S. national security. The original Act, enacted as the United States entered the First World War, included the precursors to prohibitions against undisclosed foreign-government activities in the United States.
The Espionage Act also prohibits taking or possessing national security-related information from the government and keeping it in an unauthorized location. This article explains how some criminal law protections for national security information interact with Executive Branch decisions to protect information based on national security concerns, and how those protections apply in cases where a defendant stole and kept national security information, even if the defendant did not disclose that information to an unauthorized recipient.
To the uninitiated, taking national security information from its authorized location and keeping it in an unauthorized location may seem like a ministerial or administrative violation without much substantive consequence. But to the national security professional—and to the national security professional’s counterparts in adversarial services—such theft constitutes a profound compromise of security.
Authorized locations for the storage of national security information are approved because they are secure and because they facilitate the government’s control over, and tracking of, individuals who access that information—for example, as then-Assistant Attorney General John Demers stated, when Nghia Hoang Pho stole highly classified information and retained it at an unauthorized location, he “placed at risk our intelligence community’s capabilities and methods, rendering some of them unusable.”
Continue reading Willfulness and the Harm of Unlawful Retention of National Security Information →