Tag Archives: Surveillance

On the Bulk Collection of Tangible Things

This article examines the controversy surrounding bulk telephone metadata collection that has ensued since their disclosure in June 2013. The author analyzes the “use of tangible things” provision to acquire telephony metadata, including limitations on this practice, the statutory issues such a practice raises, and the ways in which the Foreign Intelligence Surveillance Court has decided on the issue since 2006. This article concludes that the Executive’s response, as delineated in a January 2014 speech, has yet to be fully implemented; however, the author argues that the disclosures have nonetheless raised new questions about the relative values of privacy and transparency in US intelligence.

Discovering the Artichoke: How Mistakes & Omissions Have Blurred the Enabling Intent of the Classified Information Procedures Act

Misunderstandings of the Classified Information Procedures Act (CIPA), and confusions between CIPA and the state secrets doctrine, have resulted in a split in federal circuit courts over how CIPA functions. Congress should amend the statute to end this confusion and enhance its original goals—to enable discovery to protect a defendant’s rights and to protect intelligence sources and methods vital to the national security of the United States.

 

Virtual Checkpoints and Cyber-Terry Stops: Digital Scans To Protect the Nation’s Critical Infrastructure and Key Resources

The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources, primarily owned by the private sector, are governed by a different set of constitutional principles and laws. This article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements. By viewing cybersecurity through a protective Fourth Amendment lens, as opposed to a criminal, intelligence, or military lens, fairly well established legal frameworks from the physical world can be applied to cyberspace to enable the government to use technology to identify malicious digital codes that may be attacking the nation’s critical infrastructure and key resources without running afoul of the Fourth Amendment.
The article argues that reasonable and limited digital scans at virtual checkpoints in cyberspace, which are binary and do not initially expose the contents of the communications to human review, and “cyber-Terry stops,” are a constitutional and effective way to minimize the cybersecurity risks to the nation. The article proposes that Congress consider and enact sensible new legislation that will specifically enable the government to take remedial and other protective actions in cyberspace within the constitutional framework that has enabled this nation to prosper.