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Full-Text Articles in National Security Law
Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue
Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …
Resisting Face Surveillance With Copyright Law, Amanda Levendowski
Resisting Face Surveillance With Copyright Law, Amanda Levendowski
Georgetown Law Faculty Publications and Other Works
Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …
Trademarks As Surveillance Transparency, Amanda Levendowski
Trademarks As Surveillance Transparency, Amanda Levendowski
Georgetown Law Faculty Publications and Other Works
We know very little about the technologies that watch us. From cell site simulators to predictive policing algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to engage in meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including contract and intellectual property law. But the public needs a free, public, and easily accessible source of information about corporate technologies that might be used to watch us. To date, the literature has overlooked a free, extensive, and easily accessible source of information about surveillance technologies hidden in plain sight: …
Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue
Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …
Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue
Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …
The Trickle-Down War, Rosa Brooks
The Trickle-Down War, Rosa Brooks
Georgetown Law Faculty Publications and Other Works
The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …
Neo-Democracy, National Security, And Liberty, David Cole
Neo-Democracy, National Security, And Liberty, David Cole
Georgetown Law Faculty Publications and Other Works
In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions …
Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole
Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole
Georgetown Law Faculty Publications and Other Works
In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …
Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue
Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …
Anglo-American Privacy And Surveillance, Laura K. Donohue
Anglo-American Privacy And Surveillance, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears …