Posted: September 16th, 2017
Discussion in Cyber Law
The privacy laws of the United States only protect those people who live in the United States or its citizens’ abroad (Aid, 2009). According to David Cole argument, the law should protect all foreigners all around the world. The reality according to Orin is that even though NSA leads in surveillance in terms of technological capacity, other countries might not be so far behind. France spies on U.S. the same way they do.Members of Congress question whether the NSA acted beyond the bounds of Patriot Act Section 215 on the issue of metadata collection which collects business records. The act specifies that only people under investigation should be targeted. Lawmakers believe that the government and the FISA court collaborated to authorize the metadata program (Karake-Shalhoub, 2010).
To balance the need to protect liberties and also permit effective detection and surveillance of potential threats, I would recommend Feinstein’s reforms. The reforms include;regulating the extent of time the administration can accumulate the data it gathers to 5years, with the endorsement of the attorney general mandatory to search histories that are more than 3years old. It necessitates regularreportage to Congress on all violations involving FISA. In addition, the billcalls for the NSA to unveil to the community yearly the total number of times the organisation searched its phone metadata databank (Boggs, 2013). In this case both NSA and the general public are looked after.
The public needs to know what the government is doing to make sure that it is following the right track. This prevents the government from getting away with illegal deeds. Diffusion of responsibility is also essential (Aid, 2009). Through holding individuals in
Discussion in CyberLaw3
authority responsible for their junior’s actions, they become more aware and strict on daily operations.
References
Karake-Shalhoub, Z., & Al, Q. L. (2010).Cyber law and cyber security in developing and emerging economies. Cheltenham, UK: Edward Elgar.
Aid, M. M. (2009).The secret sentry: The untold history of the National Security Agency. New York, NY: Bloomsbury Press.
Boggs, C. (2012). Ecology and revolution: Global crisis and the political challenge. New York, NY: Palgrave Macmillan.
Karake-Shalhoub, Z., & Al, Q. L. (2010).Cyber law and cyber security in developing and emerging economies. Cheltenham, UK: Edward Elgar.
Aid, M. M. (2009).The secret sentry: The untold history of the National Security Agency. New York, NY: Bloomsbury Press.
Boggs, C. (2012). Ecology and revolution: Global crisis and the political challenge. New York, NY: Palgrave Macmillan.
Professor Post 1:
A few things to keep in mind.
First, the difference between the role of law enforcement and the role of intelligence. Law enforcement is reactive – it seeks to gather evidence about a crime that has already occurred, so that the guilty can be caught and punished. Intelligence seeks to prevent a threat to the nation from occurring – whether or not the person or persons are caught, it is the prevention of an attack that is the goal. Where the goal is prevention, is there an argument that the government needs more flexibility than might be needed in the gathering of evidence? What values are involved? What are the stakes of delay?
Second – the law on the 4th amendment – laws such as those discussed in Orin Kerr’s article on the Third Party doctrine – arose in the light of the law enforcement function – and generally allowed the police to use these techniques in the gathering of evidence because either there was not a search or seizure involved, because there was no expecattion of privacy, or the search/seizure was deemed reasonable. NONE of these cases was held applicable to the intelligence function – it was the statutory enactment of FISA that put any restrictions at all on the intelligence function.
Look at the law, at the policies in writing, and the purposes – what are the implications of applying a law enforcement paradigm to the intelligence function?
Finally – where technology is involved – can technical protections be put in place (or are they perhaps already in place) to protect the legitimate privacy interests of US persons? How should those technological protections weigh in consideration of what laws to enact?
Professor Post 2:
Thanks for jumping in – a LOT more activity since yesterday.
Take the time to look over each others’ posts. Do you understand the points they are making? If not, ask for amplification or clarification. Do you have a different viewpoint? Than offer it and ask the classmate’s response to YOUR position.
Finally – look over the Congressional testimony and the specific posts by the legal scholars. Tie your opinions to those of the experts – learn to support everything you say with something one of these has stated.
This is your replay on the main discussion topic
The privacy laws of the United States only protect those people who live in the United States or its citizens’ abroad (Aid, 2009). According to David Cole argument, the law should protect all foreigners all around the world. The reality according to Orin is that even though NSA leads in surveillance in terms of technological capacity, other countries might not be so far behind. France spies on U.S. the same way they do.Members of Congress question whether the NSA acted beyond the bounds of Patriot Act Section 215 on the issue of metadata collection which collects business records. The act specifies that only people under investigation should be targeted. Lawmakers believe that the government and the FISA court collaborated to authorize the metadata program (Karake-Shalhoub, 2010). To balance the need to protect liberties and also permit effective detection and surveillance of potential threats, I would recommend Feinstein’s reforms. The reforms include;regulating the extent of time the administration can accumulate the data it gathers to 5years, with the endorsement of the attorney general mandatory to search histories that are more than 3years old. It necessitates regularreportage to Congress on all violations involving FISA. In addition, the billcalls for the NSA to unveil to the community yearly the total number of times the organisation searched its phone metadata databank (Boggs, 2013). In this case both NSA and the general public are looked after. The public needs to know what the government is doing to make sure that it is following the right track. This prevents the government from getting away with illegal deeds. Diffusion of responsibility is also essential (Aid, 2009). Through holding individuals in authority responsible for their junior’s actions, they become more aware and strict on daily operations. References Aid, M. M. (2009). The secret sentry: The untold history of the National Security Agency. New York, NY: Bloomsbury Press. Boggs, C. (2012). Ecology and revolution: Global crisis and the political challenge. New York, NY: Palgrave Macmillan. Karake-Shalhoub, Z., & Al, Q. L. (2010).Cyber law and cyber security in developing and emerging economies. Cheltenham, UK: Edward Elgar.
Replay from one of the students:
In Orin’s argument, you said that he talks about the law protecting all foreigners all around the world. Honestly, for this argument, I don’t believe that the law would be able to protect everyone. If it did, every country would have to be in agreement; therefore, I highly doubt that a county that has totally opposite views of the U.S. would allow for the United States to use our laws. I like that you mentioned that France spies on the United States. Sometimes it seems as if the United States is the one who is getting looked at for spying, but in reality probably every country spies. I don’t like the idea of accumulating data for only a specified amount of time. There might be a time when the United States needs to recall information for national security reasons. I do agree with the comment that the bill keeps the total number of times using the database. There has to be some type of oversight to keep government from doing whatever they please just to get a job done. American’s deserve to know what is going on within their government.
A replay is needed here….
Now the below are the students replays on the main topic
Student1
I believe it is not necessary to have any additional statutory measures be amendment because the protection of civil liberties and National Security surveillance are at a good balance with each other. I agree with Mr. Grassley that we do not want another intelligence failure due to additional rules and laws. Mr. Grassley uses the Clintons Administration as an example because of the “wall between intelligence and law enforcement” has caused the National Intelligence community to fail to connect the dots to prevent 9/11 (Time Change, 2013). My concerns with additional statutory measures, it could lead to another wall of intelligence failure.
James Coil believes we achieved a right balance because of the three branches of government having a significant role; Judicial courts authorizing programs/overseeing, Executive conducts internal reviews to insure compliance, and Congress determines weather or not to dismiss or reauthorize forms (Time Change, 2013). This protects civil liberties while having effective surveillance. But I agree with Mr. Leahy for more transparency, which will give civilians understanding and less questioning. It is important to have trust of the American people (Time Change, 2013). As Obama has said, we don’t live in a world that has 100% security and 100% privacy; there has to be a balance of the two.
TIME CHANGE AND LOCATION CHANGE: Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs (2013). Retrieved from http://www.senate.gov/isvp/?comm=judiciary&type=live&filename=judiciary073113
A replay is needed here….
Student2
The U.S society has recently experienced the convergence of the law enforcement paradigm and intelligence in the area of counter-terrorism. The convergence was a result of 9/11. Federal agencies are now busy using advanced intelligence tactics to police the globe and local police units have adopted counter-terrorist strategies to enforce security locally. Due to the larger cities being the most prominent terrorist targets, the police in those areas have been the first to adopt counter-terrorism tactics within the units. The same intelligence practices employed to neutralize Al-Qaeda can now be used to neutralize drug cartels. The fear-based reaction from 9/11 has encouraged an environment where police agencies can erode the rights granted by the Fourth Amendment. This is evidenced by the wire tapping, search warrants issued without probable cause, and the extension of the sunset clause used by the government under the Patriot Act. Fortunately for liberty, Federal courts have judged many of the provisions under the Patriot Act to be unconstitutional. The consequence of the convergence between policing and intelligence is that it will erode liberties over time. The assumed tradeoff is that in order to be safe people have to give up their constitutional rights. I couldn’t disagree more with the momentum and direction of our fear-based society.
A replay is needed here….
Student3
The role of NSA surveillance programs cannot be underestimated in their efforts of ensuring that all civilians are protected as Wittes et al (2013) illustrates in their discussion on the program’s value. Perhaps the employment of the surveillance program is the most effective strategy in ensuring both external and internal threats to the country are detected in time. However, civil liberties are a must as mandated by the constitution. Provided that people progress to feel that NSA’s programs infringes on civil liberties, then the controversy over the programs is a long way from ending. In response, the government should clearly stipulate what information is to be gathered and monitored. There should be a balance between civil liberties and ensuring security (Wittes, 2013). An effective strategy of ensuring the balance can be effectively achieved through the introduction of sanctions, which approves what NSA does. NSA should not have the total authority to introduce programs, through which it gathers and monitors telephony metadata and differing electronic material. Another organization in charge of ensuring that civil liberties are maintained should be established. NSA must then report its operations to the established organization and upon consensus settle on what public information to monitor. The established group will progressively monitor NSA’s operations in ensuring that breaches to individual rights are avoided.
A replay is needed here….
Student4
Statutory measures that would be most appropriate to deal with NSA surveillance program are statutes that provide an effective balance of civil liberties and security. It is not practical to have both domains work in correspondence. America cannot have 100% civil liberties and 100% security simultaneously; both domains conflict each other. The American people must be willing to give up few of their rights in order to have security. Balancing United States civil liberties and security is a difficult task that requires statutes restrictions to be modified for the best interest of the people. SSCI Section 215, the controversial use of business records as a tool for the NSA surveillance program best describes that balance of interest between civil liberties and security. Unlike the Patriot Act, that breached peoples’ civil liberties entirely, NSA collected a metadata of unidentified telephone numbers that gathered call durations and locations. This allowed a larger collection of data for domestic purposes to prevent potential threats instead of only international, which was only a small percent. This allowed the NSA surveillance program to be able to work effectively and to avoid intelligence failure such as September 11, 2001. The telephone metadata gathered breached less civil liberties compared to information that can be collected from postal mail, which consists the identity of a persons name and written thoughts. In addition, the collected metadata imposed strict restrictions of the time length the collection of data could be stored for. Domestic collections of metadata are important in the United States to prevent from many of the internal threats. As long the proper safeguards and restrictions are implemented in the statutes, protect civil liberty, it would be in the best interest of the peoples’ security. This could be done by Adam Schiff suggestion of having a Civil Liberties Over Site Board. In addition, include a reasonable disclosure and transparency provision between the people and FISA in order to inform the people that their civil liberties are still being protected.
http://www.lawfareblog.com/2013/11/an-overview-of-fisa-reform-options-on-capitol-hill/
A replay is needed here….
Student5
Section 215
Feinstein-Chambliss recommend that collection of bulk telephone metadata should be allowed but discourage bulk collection of communication content under the business records provision. Collected metadata is to be kept safely by imposing stricter limits. The collected metadata held for more than five years by the government requires the attorney’s consent to access it and this enhance the security of data collected. Allowing for collection of bulk telephone metadata without stipulating limits breaches the privacy rights of the concerned individuals or organization. Therefore I would advocate for a law that protects individuals from having their personal privacy rights violated. The law would uphold discretion and allow for collection of bulky telephone Meta data only at times when the U.S security is under threat. The individual rights are protected by the 5 USC § 552a law that protects records maintained on individuals.
Feinstein-Chambliss recommend that collection of bulk telephone metadata should be allowed but discourage bulk collection of communication content under the business records provision. Collected metadata is to be kept safely by imposing stricter limits. The collected metadata held for more than five years by the government requires the attorney’s consent to access it and this enhance the security of data collected. Allowing for collection of bulk telephone metadata without stipulating limits breaches the privacy rights of the concerned individuals or organization. Therefore I would advocate for a law that protects individuals from having their personal privacy rights violated. The law would uphold discretion and allow for collection of bulky telephone Meta data only at times when the U.S security is under threat. The individual rights are protected by the 5 USC § 552a law that protects records maintained on individuals.
The Leahy-Sensenbrenner bill aims at imposing tighter rules on the collection of information. The bill advocates for higher standard that will govern the collection of information under Section 215. The Leahy-Sensenbrenner bill would require the government to furnish a statement to FISC that determines the need for collecting the desired information. The disclosure of information between government agencies is essential and helps both agencies conduct investigation easily. Assessments conducted after the September 11 terrorist attack indicated that failure to share information between government agencies complicated the investigation conducted by the intelligence. Therefore information disclosure is essential between government agencies when carrying out investigations.
A replay is needed here….
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