Category Archives: Surveillance

United States v. Klein: Judging Its Clarity and Application

Professor Wasserman offers several evaluations of the Supreme Court’s 1872 decision in Klein. In places he states that it was issued in a “pathological period,” is confusing to read, and therefore difficult to apply. Yet elsewhere in his article he finds the decision to be understandable and recognizes that it offers several clear separation of powers principles. Between those two competing and conflicting positions, the latter analysis is on firmer ground. His article focuses on two recent national security issues – the 2008 statute granting immunity to telecoms that provided assistance to NSA surveillance, and the Military Commissions Act (MCA) of 2006 – to determine whether they are consistent with and controlled by Klein.


Professor Wasserman describes Klein as the product of what Vincent Blasi “has called a period of constitutional pathology, a period reflecting ‘an unusually serious challenge to one or more of the central norms of the constitutional regime.’” Pathological periods, Blasi says, are marked by a “sense of urgency stemming from societal disorientation if not panic.” They come at a time of “a shift in basic attitudes, among certain influential actors if not the public at large,” concerned with what Wasserman calls “central constitutional commitments.” Panic can affect structural features, including formal and informal separation of powers and checks and balances, which may “exert much less of a restraining influence” on the political branches and the public.” Rigorous judicial review “must be reserved for extreme cases challenging pathological laws and action . . . as a bulwark against overreaching officials and citizens.”

Klein arose, Wasserman points out, “in a previous pathological period –Reconstruction.” That is true, but what does that say about the clarity of the decision and subsequent ability to apply it with confidence? Good things and bad things come out of periods of stress and panic. The“pathological” period after the Civil War yielded three constitutional amendments: the Thirteenth (abolishing slavery), the Fourteenth (establishing new rights), and the Fifteenth (extending the right to vote). Those years opened up new professional opportunities for women. Some branches of government may perform well, others poorly. The requirement each time is to analyze a particular case or action to determine how well a political institution carries out its constitutional duties. In considering Klein in the context of the politics of 1872, the Court was clearly under stress but issued a decision that pushed back against indefensible legislation and did so in a manner that gave clear and valued guidance to future legislation and litigation.

WikiLeaks, the Proposed SHIELD Act, and the First Amendment

The release of formerly classified documents and government cables by the whistle-blower website WikiLeaks in 2010 poses a dilemma. The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate. But government officials often insist that such information be kept secret, even from those to whom they are accountable –the American people. How should we resolve this dilemma? The issue is complex and has many dimensions.

Following release of the documents, the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act was introduced in Congress. The proposed legislation would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States, “any classified information . . . concerning the human intelligence activities of the United States or . . . concerning the identity of a classified source or informant” working with the intelligence community of the United States.

Foundational Questions Regarding the Federal Role in Cybersecurity

During the last two years of the Bush administration, the senior leadership at the U.S. Department of Homeland Security (DHS) spent substantial time and effort in first helping to craft, and then attempting to implement, Homeland Security Presidential Directive 23/National Security Presidential Directive 54 (HSPD 23/NSPD 54), Cyber Security and Monitoring.

A Comparative Study of the Information Security Policies of Japan and the United States

This article describes the information security policies and institutions of the Japanese government and draws attention to comparable policies and institutions of the U.S. government. We begin with a discussion of Japan’s cybersecurity system. In Part II, we examine a particular type of information security policy, namely, cryptography policy, as a special example of how the different systems operate. Japan has implemented a cryptography policy that draws extensively on the Organization for Economic Cooperation and Development (OECD) Cryptography Policy Guidelines. These guidelines are discussed to highlight issues that might emerge in the future in cryptography and merit attention at an international level. Part III analyzes anti-bot policy. Bots, an increasing concern on the Internet, break into an individual user’s PC and remotely control it. Bots pose a real problem for many nations, and there is clearly a need for multinational cooperation. This article concludes by suggesting that all involved parties must determine the appropriate extent of lawful access to communications. Moreover, cooperation in eliminating bots provides a good opportunity for Japan and the United States to lead an international effort.

Cybersecurity and Freedom on the Internet

Cybersecurity has become a national imperative and a government priority. Increased cybersecurity will help protect consumers and businesses, ensure the availability of critical infrastructures on which our economy depends, and strengthen national security. However, cybersecurity efforts must be carefully tailored in order to preserve privacy, liberty, innovation, and the open nature of the Internet.2 To design an effective and balanced cybersecurity strategy, each part of the country’s critical infrastructure3 must be considered separately. Solutions that may be appropriate for the power grid or financial networks may not be suitable for securing the public portions of the Internet that constitute the very architecture for free speech essential to our democracy. Policy toward government systems can be much more prescriptive than policy toward private systems. The characteristics that have made the Internet such a success – its openness, its decentralized and user-controlled nature, and its support for innovation and free expression – may be put at risk if heavy-handed policies are enacted…