Joel Brenner presents his critique of Professor Laura Donohue’s The Future of Foreign Intelligence, and its “full-throated denunciation of the entire legal framework regulating the government’s collection of data about American citizens and permanent residents.” He discusses her findings in detail, and in the end, finds that they both agree on a number of specific proposals, and “disagree profoundly on FISA’s rationale and constitutional limitations.”
From the perspective of private industry, Mieke Eoyang examines the interplay between US national security electronic surveillance and the US telecommunications companies that are necessary intermediaries for this surveillance, tracing the history of major surveillance programs and identifying key areas of tension. Eoyang recommends reforms including a court process for government access to overseas data on foreign customers, leaving bulk, unfiltered data in the hands of private industry, and working with close allies to build consensus around electronic surveillance norms.
In “Deterring Financially Motivated Cybercrime,” Zachary K. Goldman and Damon McCoy present three strategies for deterring attacks that use malicious cyber capabilities to generate a profit. Each strategy—the imposition of financial sanctions, public/private partnerships to disrupt tools of cybercrime, and activities to disrupt payment networks run by criminals who sell fraudulent goods over the Internet—is analyzed for strengths and weaknesses. The authors conclude with a discussion of the ways in which regulatory tools to combat cybercrime can overcome problems with formulating a cohesive deterrent strategy such as secrecy and attribution.
David Kris examines recent developments in foreign intelligence surveillance, including the impact of the Snowden leaks and the rise of the Islamic State of Iraq and the Levant on public and political attitudes towards electronic surveillance. In light of these developments, Kris presents several issues that he expects will surface as the 2017 expiration date of the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) draws near. He also addresses the longer-term impacts that other political and technological developments will have on foreign surveillance.
The Honorable Lewis A. Kaplan draws on his voluminous experience on the federal bench to illuminate some of the special concerns that attend terrorism and national security cases. Kaplan reviews several judicial challenges unique to terrorism cases, including classified information issues and the use of defendants’ statements in the course of prosecution. He concludes that Article III courts not only are capable of trying such cases, but they are the forum most consistent with our American values of fairness and transparency.