Category Archives: Surveillance

Lessons for the Next Twenty Years: What We’ve Learned in the Two Decades Since 9/11

A Note from Editor-in-Chief William C. Banks

By any measure the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001 brought an immediate laser focus to the phenomenon of international terrorism.

Though hardly new to the United States and the world in 2001, the 9/11 attacks instantaneously elevated countering international terrorism to the dominant national security imperative at home and abroad.

Questions were legion: Should we have known the attacks were coming? What could we have done to prevent them? What lessons learned will help forestall the next attack? What are the best options for countering international terrorism?

Twenty years later many lessons have been learned, even as we continue to struggle with the ever changing dynamics of global terrorism. JNSLP is honored to publish this Special Edition, “Lessons Learned for the Next Twenty Years: What We’ve Learned in the Two Decades Since 9/11.”

Special recognition and thanks are due to Guest Editor Matt Kronisch and Director of the Syracuse University Institute for Security Policy and Law Jamie Baker. Matt and Jamie approached us with the idea for a Special Edition, and then Matt worked miracles in securing commitments from an extraordinary assemblage of distinguished veterans of the larger national security and counterterrorism field to prepare short essays commemorating through various lenses what the two decades since 9/11 have shown.

Spend a moment glancing at the Table of Contents for the Special Edition and you will recognize many of the names and you will correctly anticipate that a deep dive into this marvelous collection of essays is a must.


Foreword
Thomas H. Kean & Lee H. Hamilton

Introduction
Matthew L. Kronisch

PART I: THE CENTRALITY OF INSTITUTIONS, POLICY, AND PROCESS

Staying Left of Boom: The Central and Essential Role of the NSC
James E. Baker

Lessons from the Past Twenty Years—A Former National Security Policymaker and Intelligence Community Leader’s Perspective
Michael G. Vickers

Reflections on Twenty Years of Counterterrorism Strategy and Policy
Nicholas J. Rasmussen

From 9/11 to 1/6: Lessons for Congress from Twenty Years of War, Legislation, and Spiraling Partisanship
Dakota S. Rudesill

Jack of All Trades, Master of None: Managing the Intelligence Community of the Future
Corin R. Stone

National Security Decision-Making in the Age of Technology: Delivering Outcomes On Time and On Target
Gary P. Corn

PART II: THE TOOLS OF INFLUENCE AND ACCESS

USSOCOM and SOF: War Around the Edges
Eric T. Olson

Cables from the Field: A Diplomat’s Lessons from the Two Decades Since 9/11
Anne W. Patterson

Lessons Learned After Twenty Years of Hostilities: The Use of Force and the Law of Armed Conflict
Kenneth Watkin

Wielding the Tools of Economic Statecraft
Brent J. McIntosh

PART III: SURVEILLANCE, OVERSIGHT, SKEPTICISM, AND RACE

Lessons for the Next Twenty Years: What the Two Decades Since 9/11 Have Taught Us About the Future of Foreign Intelligence Surveillance Law
David S. Kris

Reflections on the IG’s Role, Stellarwind, and the Information Sharing Fiasco
Joel Brenner

Data Collection: Lessons of Cost-Benefit Analysis, Skepticism, and Legal Transparency
James X. Dempsey

Reflections on Security, Race, and Rights Twenty-Years After 9/11
Sahar F. Aziz

PART IV: DOMESTIC TERROR AND THE FIGHT TO SUSTAIN DEMOCRACY

Counterterrorism 2.0
Deborah Pearlstein

Lessons for Countering the Domestic Terrorism Threat 20 Years After 9/11
Mary B. McCord

Learning From Our Mistakes: How Not to Confront White Supremacist Violence
Mike German

Send Airplanes, Phones, and Money: Cautionary Lessons For the Post-1/6 World from the Post-9/11 World
Paul Rosenzweig

A Twenty-Year Lesson: The Role of Civil Rights in Securing Our Nation
Kareem W. Shora

FARA in Focus: What Can Russia’s Foreign Agent Law Tell Us About America’s?

In 2012, Russia passed its first-ever Foreign Agent Law, which western analysts described as an attempt to stymie civil society. Russia argued that it modeled its Law after the American Foreign Agents Registration Act (FARA).

Samuel Rebo describes how on their face the laws seem similar, while their implementation has differed. While Russia has actively used its Law, the US launched only a single criminal FARA prosecution from 1990 to 2010. However, since Russian interference in the 2016 US presidential election, DOJ prosecutors have brought more FARA cases (2016-2019) than they had in the past 50 years combined.

Comparing FARA to its Russian counterpart, Rebo notes that the Russian law contains significantly more substantive limitations on the functioning of “foreign agents” than does FARA. However, both laws are broad and can sweep in legitimate civil society groups. Thus, DOJ discretion is the main barrier stopping America from replicating Russia. Rebo argues that, given the First Amendment rights at stake, this reliance on the DOJ is insufficient, and Congress should amend FARA to narrow its breath and clarify its scope.

Is the Fourth Amendment Really for Sale? The Defense Intelligence Agency’s Purchase of Commercially Available Data

By US Army Maj. Steven Szymanski

Introduction

The commercial data market has exploded.  Data has even been dubbed “the oil of the 21st century.”[1]  Aiming to capitalize on this blossoming industry, data brokerage companies have emerged to collect, collate, and sell personal data from nearly everyone who uses the Internet.[2]  New online data auctions occur thousands of times per day, selling everything from users’ shopping preferences to their actual location.[3] 

Many Americans have experienced the eerie phenomenon of receiving advertisements for regional businesses during cross-country travel.  The realization that our smart phones and applications are tracking our movements is becoming common knowledge.  While discount offers for local steakhouses may be welcomed during road trips, serious questions have emerged about the lack of regulation in this new market and the potentially ominous uses of commercial cellular location data.  This piece focuses on a slice of this larger discussion by examining whether intelligence agencies should be permitted to purchase the commercial data without a court order.[4]   It concludes that policy makers should preserve the U.S. intelligence community’s (IC) ability to purchase this information, while imposing substantial oversight to ensure that American privacy interests are preserved.

In early 2021, Senator Ron Wyden queried the Defense Intelligence Agency (DIA) to confirm: (1) whether DIA purchases commercial location data from apps installed on consumers’ smart phones; and (2) whether the agency construes the landmark Carpenter v. U.S. decision as “only applying to location data obtained through compulsory legal process” and not to “data purchased by the government?”[5]  In January, the DIA affirmatively answered both questions, reasoning that Carpenter’s scope was limited to law enforcement and did not prohibit the IC’s authority to collect commercially available information to support intelligence requirements.[6] 

Likely and predictably dissatisfied with the DIA’s response, Senator Wyden introduced the “Fourth Amendment is Not for Sale Act” (hereinafter, the Act) on April 21, 2021.[7]  If passed, the Act would prohibit law enforcement and intelligence agencies from purchasing commercially available data without a court order or warrant.[8]  Though the bill has been met with bipartisan endorsement and heralded by privacy advocates, the DIA should petition Congress to preserve its nearly four-decade authorization to collect publicly available information (PAI) for intelligence purposes to support national security objectives. 

Part I of this article will briefly summarize the landmark Carpenter v. U.S. ruling.  Part II will analyze the DIA’s position that its purchase of commercial data is lawful.  Part III will describe the Department of Defense’s (DoD) current procedures to safeguard U.S. person information (USPI).  Part IV will examine the Act.  Finally, Part V will argue that prohibiting the DIA from purchasing commercially available data is imprudent and unnecessary.  Instead, Congress should direct that DoD’s existing privacy oversight mechanisms be supplemented by routine audits from the Privacy and Civil Liberties Oversight Board (PCLOB). 

I.  Carpenter v. United States

In 2018, Chief Justice John Roberts authored a 5-4 majority opinion in Carpenter v. U.S.[9]  According to the facts in the case, following the arrest of four suspects for a series of robberies, one suspect confessed and provided the FBI with his co-conspirators’ cell phone numbers.[10] The FBI then applied for three magistrate court orders to obtain “transactional records” which included their historic cellular cite location data (CSLI).[11]  The judges granted the orders, citing authority under the Stored Communications Act, finding that the government met its burden of providing “specific and articulable facts showing reasonable grounds to believe that the records sought were relevant and material to an ongoing criminal investigation.”[12]  On these grounds, the CSLI was admitted as evidence that Mr. Carpenter’s cell phone was in the vicinity of the crime scene during the date and time of the robberies.[13]

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