Volume 88, Issue 7

Symposium: Law at the Intersection of National Security, Privacy, and Technology

I. Accountability Mechanisms

It Came from Beneath the Twilight Zone: Wiretapping and Article II Imperialism
Prof. Heidi Kitrosser
88 Texas L. Rev. 1401

Professor Kitrosser analyzes the constitutional argument of “presidential exclusivity.”  Exclusivists argue that the President has substantial discretion to override statutory limits that he believes interfere with his ability to protect national security.  These arguments are typically supported by references to historical examples of other presidents exercising such discretion.  Professor Kitrosser examines these arguments through the lens of evolving history.  Ultimately, she finds the arguments to be fla
Deputizing Homeland Security
Prof. Jon D. Michaels
88 Texas L. Rev. 1435

In this Article, Michaels discusses participation of private actors in efforts to identify and counter threats of domestic terrorism.  Michaels attempts to explain the rise in participation as a result of awareness, interest, and ease of information acquisition by private actors in their local areas.  He explains the variety of ways citizens and corporations are becoming more involved and describes the legal uncertainties associated with these activities.  Michaels then assesses whether these activities ought to be acceptable.
The Case for Stewart over Harlan on 24/7 Physical Surveillance
Prof. Afsheen John Radsan
88 Texas L. Rev. 1475

Professor Radsan argues that some instances of physical surveillance can be intense enough to be considered a search under the Fourth Amendment.  As such, Radsan argues that the law of surveillance should change to better balance individual freedom against the government’s duty to protect against attacks.  In particular, Radsan compares the utility of the two tests announced by Justice Stewart and Justice Harlan in Katz v.
Terrorism Trials and the Article III Courts After Abu Ali
Prof. Stephen I. Vladeck
88 Texas L. Rev. 1501

Professor Vladeck examines the controversial question of whether civilian courts are able to effectively handle high-profile terrorism cases that raise novel logistical challenges.  For his analysis, Vladeck focuses on the post-September 11 trial of Ahmed Omar Abu Ali.  He examines specific procedural and evidentiary issues that were raised at trial and follows that with a discussion of the appellate review of those issues.  Ultimately, Vladeck concludes that Abu Ali is a great example of how civilian courts are capable of handlin

II. Cybersecurity and Network Operations

Cyber Warfare and Precautions Against the Effects of Attacks
Prof. Eric Talbot Jensen
88 Texas L. Rev. 1533

In this Article, Jensen discusses the intermixing of civil and military computer infrastructure.  Because the systems are almost completely intertwined, any attacks on military networks will cause damage to civilian networks and vice versa.  Jensen asserts that in order to combat this, there should either be separate systems or the burden of protection should be on the government.  Since segregation is not a realistic option, Jensen proposes six actions the government should take in order to protect the country’s computer infrastru
Sovereign Discourse on Cyber Conflict Under International Law
Sean Kanuck
88 Texas L. Rev. 1571

In this Article, Professor Kanuck attempts to raise awareness about some of the issues facing sovereigns in the area of cyber conflict.  He attempts to shed light on this area, first, by looking at how sovereigns are currently considering cyberspace and cyber conflict.  He then identifies unresolved areas of international law and moves on to describe the strategic dynamic of state practice as it pertains to cyberspace.  Kanuck ultimately concludes that the devastating effects of cyber conflict can be avoided only through comprehensive na

III. Focus on FISA

In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act: Judicial Recognition of Certain Warrantless Foreign Intelligence Surveillance
Matthew A. Anzaldi & Jonathan W. Gannon
88 Texas L. Rev. 1599

In this Article, Anzaldi and Gannon examine In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act—a case upholding the constitutionality of recent amendments to FISA.  In Directives, the FISA Court of Review recognized a foreign-intelligence exception to the warrant clause of the Fourth Amendment.  It also held that the warrantless surveillance in question was reasonable under the Fourth Amendment, even when the government acquired communications of U.S.
Programmatic Surveillance and FISA: Of Needles in Haystacks
Prof. William C. Banks
88 Texas L. Rev. 1633

Professor Banks argues that the basic framework of FISA should be refashioned.  The 2008 amendments to FISA permit broad, programmatic surveillance focused on patterns of suspicious activity and not on a specific individual.  Banks argues that this broad surveillance is potentially intrusive and unaccompanied by safeguards to protect those whose information is gathered as an incident to the sweeping surveillance.  As a result, he offers some benchmarks for rebuilding FISA that will both improve the efficacy of the surveillance programs a

IV. Investigations

The Modest Role of the Warrant Clause in National Security Investigations
Prof. Orin S. Kerr
88 Texas L. Rev. 1669

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

The Argument Against Technology-Neutral Surveillance Laws
Prof. Paul Ohm
88 Texas L. Rev. 1685

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
The Law of Homegrown (Counter)Terrorism
Prof. Samuel J. Rascoff
88 Texas L. Rev. 1715

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 feder

V. National Security, Privacy, and Technology

Choosing Both: Making Technology Choices at the Intersections of Privacy and Security
Alexander W. Joel
88 Texas L. Rev. 1751

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.
The Key Theory: Authenticating Decrypted Information in Litigation While Protecting Sensitive Sources and Methods
Nicholas J. Patterson
88 Texas L. Rev. 1767

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. 

Mending Walls: Information Sharing After the USA PATRIOT Act
Prof. Nathan Alexander Sales
88 Texas L. Rev. 1795

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 c
The Right to Privacy in Light of Presidents’ Programs: What Project MINARET’s Admissions Reveal about Modern Surveillance of Americans
Lisa Graves
88 Texas L. Rev. 1855

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.

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