Symposium Book 2017 | University of Richmond Law Review

The Digital Forevermore

Thomas J. Ridge *

We now live in what I call the “digital forevermore.” It was not that long ago that the original computer base data transmission protocol was created simply to facilitate telecommunications between the United States Department of Defense and research universities. While certainly primitive compared to the digital global ecosystem that drives commerce and culture throughout the world today, its core features remain the same. The Internet is an open system based on anonymity. It was never designed to be a secure communication platform. The opportunities and vulnerabilities within this global network, with electrons racing everywhere, much of it with personal information about all of us, are probably beyond our individual comprehension. The ubiquity of the Internet is its strength, and the ubiquity of the Internet is its weakness. And we are all potentially exposed to the potential malignant use of the Internet and the nefarious use of our information that is on it.

* Secretary of the Department of Homeland Security, 2003–05. This speech was delivered by Thomas J. Ridge at the 2016 University of Richmond Law Review Symposium, National Security in the Information Age: Are We Heading Towards Big Brother, on October 28, 2016, at the University of Richmond School of Law.

Next Generation Foreign Intelligence Surveillance Law: Renewing 702

William C. Banks *

Sometime before the end of 2017, Congress has to decide whether and then on what basis to renew the FISA Amendments Act (“FAA”), a cornerstone authority for foreign intelligence surveillance that sunsets at the end of December 2017. The Privacy and Civil Liberties Oversight Board (“PCLOB”) reported in 2015 that more than one quarter of the National Security Agency (the “NSA”) reports on terrorist activities are derived, in whole or in part, from surveillance authorized by section 702 of the FAA, and that the percentage has increased every year since the enactment of the FAA. Although the bulk warrantless collection of communications content enabled by the FAA was viewed as a scandalous overreach when the Bush Administration‘s then-secret program‘s existence was revealed by the New York Times in December 2005, Congress approved substantially the same program on a temporary basis in 2007. Congress codified it in 2008, extended it in 2012, and is almost certain to renew it next year.

* Board of Advisers Distinguished Professor, Syracuse University College of Law; Director, Institute for National Security and Counterterrorism; Professor, Public and In- ternational Affairs, Maxwell School of Citizenship & Public Affairs, Syracuse University. The author thanks Taylor Henry, Syracuse University College of Law, J.D. 2018, for excel- lent research assistance.

Preventing an Air Panopticon: A Proposal for Reasonable Legal Restrictions on Aerial Surveillance

Jake Laperruque *

Imagine a world where a small plane flies miles above a city, effectively invisible to its inhabitants, but looking down on them. Meanwhile, a series of drones, controlled in a semi-automated pattern by a single operator, hover over the surrounding suburbs. A select group of monitors—no more than a dozen members of the local police force—pinpoint areas of interest in real time, including a large protest, several doctors’ and lawyers’ offices, and a mosque. These officers are able to zoom in from cameras on the high-flying aircraft to identify individuals by their faces and log their activities. Meanwhile, a small group of federal agents review footage from these planes recorded over the course of the last sixth months, creating a precise map of the movements of hundreds of “persons of interest” over that entire period, and cataloging the places they visited and people they interacted with. Using automated identification tools, this process is rapid and simple. The agents will soon move on to a new set of targets, ensuring the government has a complete movement log of a huge portion of the metro area‘s population in time to repeat the process for the next six-month period.

* Senior Counsel, The Constitution Project, Washington, D.C. J.D., 2013, Harvard Law School; B.S., 2010, Washington University in St. Louis.

COMMENT: The 2016 Amendments to Criminal Rule 41: National Search Warrants to Seize Cyberspace, “Particularly” Speaking

Devin M. Adams*

George Orwell‘s dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents—under a single warrant—to “remotely access,” and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device‘s location is obscured through “technological means,” or if agents are investigating computer crimes in five or more districts—regardless of whether the locations of the innumerable search targets are known. Absent clairvoyance, this begs the question of how Fourth Amendment warrant requirements are applied to such a sweeping search.

* J.D. Candidate 2017, University of Richmond School of Law. B.S., 2012, Utah Valley University. I owe a great debt of gratitude to Professor John G. Douglass for his invaluable feedback over the numerous discussions we had throughout the course of this project, and above all, for inspiring me as a writer and advocate. The quality of this piece is especially credited to phenomenal editors, like Katherine Lehnen, and the exemplary members of the University of Richmond Law Review who have made this project possible.

COMMENT: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law‘s Need to Evolve

Justin Hill *

Law enforcement agencies consistently utilize Cell Site Location Information (“CSLI”) generated by a suspect‘s cell phone to place that suspect at the scene of a crime. Despite the widespread use of these tactics, consensus in the legal realm regarding the Fourth Amendment‘s protection of CSLI remains unrefined. The most recent federal circuit courts to address the issue have each applied the third-party doctrine to find no Fourth Amendment protection of the CSLI information in question.1 However, this apparent uniformity is deceptive. Two of those circuits came to opposite conclusions before the panel opinions were reversed en banc. Each decision has also been met with vociferous opposition within the circuit. Furthermore, the Third Circuit, the first to address the issue, found that the third-party doctrine did not apply at all. Adding fuel to the fire, three state high courts have taken on the issue and found the gathering of at least some forms of CSLI without a search warrant unconstitutional on state grounds. Twelve additional states have statutorily insured privacy protection in at least some forms of CSLI data.

* J.D. 2018, University of Richmond School of Law. B.A., 2014, American Military University; A.A., 2011, Defense Language Institute. I would like to extend a special thank you to Professor Clark Williams for his invaluable guidance and support. I would also like to thank my mother for giving me the strength to change; without it, I would not be here.

“I Want My File”: Surveillence Data, Minimization, and Historical Accountability

Douglas Cox *

Revelations of secret National Security Agency (:NSA”) intelligence collection programs and other federal and state surveil- lance programs have reignited the debate over the relative value of individual privacy rights and national security. This article argues that in this debate greater attention must be paid to the “right to know” both the individual‘s “right to know” what records the government collects on them and the public’s “right to know” the scope of government surveillance programs—and that federal recordkeeping laws are the appropriate legal mechanism to ensure both long-term government accountability and the historical record.

* Attorney and Law Library Professor, City University of New York School of Law. The author previously worked in intelligence while serving in the United States Army. This article underwent prepublication review by the National Security Agency and was cleared for publication. The views expressed are only those of the author.