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High Technology, Consumer Privacy, and U.S. National Security : Hearing Before the Subcomm. On Commerce, Manufacturing, and Trade of the H. Comm. On Energy and Commerce, 113th Cong., September 17, 2014 (Remarks by Professor Laura K. Donohue, Geo. U. L. Center)
Get PDFDocuments released over the past year detailing the National Security Agency’s telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) directly implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. firms, the economy, and U.S. national security.
The first Snowden documents, printed June 5, 2013, revealed that the U.S. government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had intercepted international content under Section 702 of the FISA Amendments Act. The type of information obtained ranged from E-mail, video and voice chat, videos, photos, and stored data, to Voice over Internet Protocol, file transfers, video conferencing, notifications of target activity, and online social networking details. The companies involved read like a who’s who of U.S. Internet giants: Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple.
More articles highlighting the extent to which the NSA had become embedded in the U.S. high tech industry followed. In September 2013 ProPublica and the New York Times revealed that the NSA had enjoyed considerable success in cracking commonly-used cryptography. The following month the Washington Post reported that the NSA, without the consent of the companies involved, had obtained millions of customers’ address book data: in one day alone, some 444,743 email addresses from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail, and 22,881 from other providers. The extent of upstream collection stunned the public-–as did slides demonstrating how the NSA had bypassed the companies’ encryption, intercepting data as it transferred between the public Internet and the Google cloud.
Further documents suggested that the NSA had helped to promote encryption standards for which it already held the key or whose vulnerabilities the NSA understood but not taken steps to address. Beyond this, press reports indicated that the NSA had at times posed as U.S. companies—without their knowledge—in order to gain access to foreign targets. In November 2013 Der Spiegel reported that the NSA and the United Kingdom’s Government Communications Headquarters (GCHQ) had created bogus versions of Slashdot and LinkedIn, so that when employees from the telecommunications firm Belgacom tried to access the sites from corporate computers, their requests were diverted to the replica sites that then injected malware into their machines.
As a result of growing public awareness of these programs, U.S. companies have lost revenues, even as non-U.S. firms have benefited. In addition, numerous countries, concerned about consumer privacy as well as the penetration of U.S. surveillance efforts in the political sphere, have accelerated localization initiatives, begun restricting U.S. companies’ access to local markets, and introduced new privacy protections—with implications for the future of Internet governance and U.S. economic growth. These effects raise attendant concerns about U.S. national security.
Congress has an opportunity to redress the current situation in at least three ways. First, and most importantly, reform of the Foreign Intelligence Surveillance Act would provide for greater restrictions on NSA surveillance. Second, new domestic legislation could extend better protections to consumer privacy. These shifts would allow U.S. industry legitimately to claim a change in circumstance, which would help them to gain competitive ground. Third, the integration of economic concerns at a programmatic level within the national security infrastructure would help to ensure that economic matters remain central to national security determinations in the future
Household Regulation and European Integration: The Family Portrait of a Crisis
Get PDFThis article develops a theoretical framework for analyzing the regulation of the household and its effects on the economy. Incorporating insights from family economics, comparative family law, legal realism, political economy and feminism, it describes the array of different legal regimes that can affect household composition and function. The article then analyzes the case of Greece using this framework. It argues that the role of households organized as families was a central element in the Greek debt crisis, overlooked by scholars and policymakers alike. It identifies the host of legal regimes that helped consolidate families as the main providers of both welfare and employment and analyzes the consequences of this organization for Greece’s economy. Finally, the article argues that a household based analysis offers useful comparative insights in the context of the euro crisis and its management. More specifically, it elucidates how the structural reforms now required through the European Semester necessitate a dramatic transformation of basic schemes of welfare provisioning. It argues that without additional support these transformations are likely to fail or have dramatic unintended consequences
A Writing Revolution: Using Legal Writing\u27s \u27Hobble\u27 to Solve Legal Education\u27s Problem
Get PDFThe attached article responds to a 2011 article by John Lynch, published in the Journal of Legal Education, that urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article builds on the work of Carol McCrehan Parker and others interested in writing across the curriculum and argues that the only way to reduce legal writing’s “hobble” and to solve legal education’s problem is to create a six-semester writing requirement. The reason law students are graduating without adequate preparation for practice is that law schools have failed to commit to teaching writing. Most law students graduate having been required to take only an introductory course that teaches practice-related writing skills and an upper-class seminar with a scholarly writing requirement. Law schools can no longer afford to rely on a small percentage of faculty or externships to teach the most important skill law students have to offer on graduation. Because matriculating students have less writing skill and experience than they did even a decade ago, the need for a six-semester writing requirement is that much greater. This article then discusses a proposed writing curriculum that would not unduly burden law schools or their faculty and concludes with additional, specific recommendations for incorporating writing across the curriculum—in doctrinal and writing courses—to improve students’ metacognitive skills and their ability to transfer those skills to practice
Fiscal Federalism as Risk-Sharing: The Insurance Role of Redistributive Taxation
Get PDFIn addition to funding government and redistributing income, a redistributive tax-and-transfer system, and a progressive income tax in particular, provides insurance against the risk of uncertain future income. By providing for high taxes for high incomes, and low taxes, exemptions, and transfers for low incomes, a progressive income tax lowers the volatility of potential after-tax income relative to a lump-sum tax. This insurance function is distinct from the redistributive function of the system, since it provides a direct risk-mitigation benefit to the taxpayer himself, rather than simply redistributing income from one taxpayer to another.
This article analyzes the question of at what level of government to assign the income tax role in a federal system, given both its redistributive and insurance functions. The standard view in the literature is that redistribution is best done centrally, and thus that an income tax is best used by the federal government, rather than by state governments. Yet recent work suggests that states can effectively have some role in redistribution. Income insurance, however, can be more effectively done by the federal government, because of its larger risk pool and better ability to handle revenue volatility.
This article argues that states will, and likely should, use progressive income taxes as a tool of greater redistribution. At the same time, the insurance function of a progressive income tax can still be nationalized through policies that resemble re-insurance. In particular, this article looks at the idea of a multi-state rainy-day fund as a form of pooled state revenue insurance, as well as federal policies that may achieve some of the same benefits
Future Oversight of Recombinant DNA Research: Recommendations of an Institute of Medicine Committee
Get PDFThe National Institutes of Health (NIH) established the Recombinant DNA Advisory Committee (RAC) in 1974 in response to public concerns about the safety of manipulating genetic material through recombinant DNA. The accumulation of 40 years of experience with gene transfer research has led to a better understanding of the risks. Yet, as gene transfer research has matured, the complexity of the overall regulatory environment has remained. Gene transfer research continues to be subjected to multiple layers of review: the Food and Drug Administration (FDA), institutional review boards, institutional biosafety committees, and the RAC. It is within the context of overlapping regulatory authority and improved scientific understanding and social acceptance that the NIH commissioned the Institute of Medicine (IOM) to assess whether gene transfer research continues to warrant additional oversight.
The overarching goal of the IOM was to ensure patient safety and the ethical conduct of research, while not subjecting scientists to unnecessary regulatory burdens, which can impede or delay scientific exploration and medical innovation. The IOM Committee recommended that the RAC should review individual protocols only if other regulatory authorities could not adequately do so, and the study meets one of the following criteria: (1) the protocol uses a new vector, genetic material, or delivery methodology representing a first-in-human experience; (2) the protocol relies on preclinical safety data obtained using a new preclinical model system of unknown and unconfirmed value; or (3) the protocol involves a vector, gene construct, or method of delivery associated with possible toxicities that are not widely known.
Gene transfer research no longer stands alone as the only human application of an emerging technology that could benefit from additional oversight. Consequently, the IOM Committee recommended that the NIH Director charge a standing or new committee to examine the need for additional or different oversight for clinical applications of emerging novel technologies
The Global Health Security Agenda in an Age of Biosecurity
Get PDFHistorically, the Oval Office has been a leader in global health assistance. From the President’s Emergency Plan for AIDS Relief (PEPFAR) and the President’s Malaria Initiative (PMI) under the Bush Administration, to the Global Health Initiative launched by President Obama in 2009. However, unlike PEPFAR and PMI, the Global Health Initiative met an untimely end with the launch of a bold new global health measure by the Obama Administration: the Global Health Security Agenda (GHS Agenda). The GHS Agenda aims to “accelerate progress toward a world safe and secure from infectious disease threats” through a US-led diplomatic collaboration with 30 countries, international organizations, nongovernmental organizations, and public/private entities.
The intertwining of global health and security follows a line of international agreements, including the revised International Health Regulations (2005), aimed at improving surveillance and response to public health emergencies of international concern. By mid-2012 however, only 22% of WHO member states had implemented the required core competencies. The GHS Agenda aims to address these global deficiencies in infectious disease preparedness. In doing so, the United States faces formidable obstacles including America’s lack of legal legitimacy in setting global norms, as well as the same domestic coordination difficulties that resulted in the dissolution of the Global Health Initiative, and the potential impediment of passing the President’s budget through a hostile Congress. While the securitization of global health has its criticisms, it also has the potential to be transformative, succeeding where international organizations have not always been able to, building a safer and healthier world
Overrides: The Super-Study
Get PDFOverrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters of those overrides. When the Supreme Court rejects the statutory interpretations of agencies, supported by the Solicitor General, it does so at its peril. This suggests that the common wisdom—that agencies often have a better handle than courts on Congress’s meaning because of their closer connections with Congress (through oversight, expertise about the statute, informal communications, etc.)—is true. It also suggests that broad congressional delegation to agencies—traditionally viewed with suspicion by lawyers—may come with a silver interpretive lining.
The author makes no attempt to survey the richness of this gargantuan study nor the extraordinary effort it must have taken. It should be of interest to readers of court–congress interaction, students of agency action, scholars of statutory interpretation, and the separation of powers. Her aim is not to repeat the study, or even to summarize it, but to provide a parsimonious and helpful lens through which we may understand its intellectual assumptions and accomplishments. In part I, the author addressees its methodological virtues and vices. In part II, she posits a fairly parsimonious model that helps to explain the rich Christiansen and Eskridge findings. In part III, the author provides a brief comment on the authors’ recommendations for future action
\u3ci\u3eBond v. United States\u3c/i\u3e: Concurring in the Judgment
Get PDFBond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress
Filling in the Blanks on Reducing Tobacco Product Addictiveness in the FCTC Partial Guidelines for Articles 9 & 10
Get PDFThe existing Partial Guidelines for Implementation of Articles 9 & 10 of the WHO Framework Convention for Tobacco Control includes a strategy for regulating tobacco products to reduce their attractiveness, but does not yet provide any guidance for reducing either the toxicity or the addictiveness of tobacco products. Section 1.2.1.2, “Addictiveness (dependence liability),” states only that: “This section has been left blank intentionally to indicate that guidance will be proposed at a later stage.” A related footnote says that the blanks will be filled “as new country experience, and scientific, medical and other evidence become available. . . [and] will also depend on the validation of the analytical chemical methods for testing and measuring cigarette contents and emissions.”
This article details that sufficient evidence and accurate testing methods are now available to begin providing useful guidance to countries that have the capacity to implement new measures to reduce the addictiveness of tobacco products and enforce compliance. Using the format of the existing partial guidelines, this working paper suggests possible draft text for the blank “Addictiveness” section, followed by a concise summary of supporting research and analysis
Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues
Get PDFThis article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability. However, for the reasons stated, these issues are not presented in detail here