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Professor Kerr discusses the Warrant Clause and how it applies to national security investigations. The Supreme Court has declared that domestic searches without judicial permission are per se unreasonable, but this is not the case in national security law. Kerr suggests this may be a result of separation-of-powers concerns as courts are hesitant to infringe on the President’s national security powers. However, Kerr mainly argues that the reason the Warrant Clause is limited in national security investigations is because courts recognize they are ill equipped to decide when a warrant is reasonable, given the context of national security investigations. Because courts lack expertise in such investigations and given the sensitive nature of national security investigations, courts have taken a narrow interpretation of the Warrant Clause in national security cases.
In this Article, Professor Ohm considers whether laws passed by Congress regulating the use of technology should be technology specific or neutral. Ohm asserts that the overwhelming opinion is that technology-neutral laws are superior because they address concerns such as responsiveness to evolving technology. However, Ohm argues that this belief is misguided especially in areas of government search and surveillance. According to Ohm, technology-specific laws are superior because it forces the Executive Branch to consult Congress when technology changes. This will increase the role of the Legislature in national security and restore an important check on the Executive’s power.
Professor Rascoff discusses the proper role of local law enforcement in domestic-intelligence gathering to combat “homegrown terrorism.” Rascoff posits that relying exclusively or even extensively on federal modalities is a mistaken approach by the federal government. He begins by examining the comparative strengths of local law enforcement, including area expertise, as well as the limitations, such as analytic capacity. Rascoff concludes by proposing a collaborative structure that will emphasize shared roles between federal and local law enforcement agencies.
In this Article, Joel examines the tenuous relationship between protecting national security and maintaining civil liberties. Joel argues that the two are not necessarily mutually exclusive. New technologies in surveillance can be narrowly tailored to achieve security goals while counterbalancing protections can be created for privacy concerns. Thus, rather than weigh security against liberty, Joel argues that efforts should made to maintain an equal balance between the two.
In this Article, Patterson discusses how the government might introduce deciphered encrypted information into evidence without being forced to expose sources or methods of deciphering. Patterson proposes a “key theory” where the government would only need to provide a key to decipher the information to the court but not have to reveal how the key was obtained or how it works. He describes the historic methods of encryption and the problems associated with introducing such evidence in the context of a specific espionage case. Patterson then describes applicable rules of evidence and how the key theory works within them.
In this Article, Sales discusses information walls in federal statutes such as the USA PATRIOT Act that prevent sharing between agencies and federal/state law enforcement. Sales identifies the costs and benefits of information sharing, acknowledging the potentially high costs of mishandling sensitive information. He then points out the statutory restrictions that prevent information sharing and the policy reasons behind these restrictions. Sales ends by attempting to merge the two and describe how the benefits of information sharing can be realized while upholding the policy reasons to protect sensitive information.
In this Article, Graves questions what the phrase “reasonable expectation of privacy” means in the national security context after changes made by the Bush Administration. Graves argues that recent amendments to FISA allow the government to monitor U.S. based internet service providers in search of foreign-intelligence information. In the process, “incidental” information about Americans is gathered as well. Graves questions the constitutionality of such collections and argues that this activity demonstrates the fundamental failure of a reasonableness test to protect the privacy interests of Americans.
Responding to Professor Lee, Guha Krishnamurthi argues that Lee's objections to the Bad Character, Notice, and Disobedience accounts are unpersuasive. As a result, Krishnamurthi argues that Lee's own account, Recidivism as Omission, does not have any of the advantages over the competing accounts that Lee claims it has. He argues that there are further detractions to Recidivism as Omission that make it implausible and possibly redundant. Finally, he contends that the Notice account best explains the intuition that the recidivist deserves more punishment.
