Journal Article•
The Patriot Act and the Wall between Foreign Intelligence and Law Enforcement
22 Mar 2005-Harvard Journal of Law and Public Policy (Harvard Society for Law and Public Policy, Inc.)-Vol. 28, Iss: 2, pp 319
TL;DR: The primary purpose test was used by the United States Department of Justice as the foundation for the demolition of the Wall as discussed by the authors and was used in the case of In re SEALed Case.
Abstract: I LEGENDS OF THE WALL A Pre-FISA B FISA 1 Applications for FISA Surveillance Orders 2 Judicial Approval of FISA Surveillance Orders 3 The Govemment's Intended and Actual Use of FISA-Acquired Information a FISA Provisions Requiring a Certification About the Purpose of Proposed Surveillance and Authorizing Limited Judicial Review of That Certification b Minimization Procedures c Section 1806 of the FISA i Section 1806(a) ii Section 1806(b) C The "Primary Purpose" Test 1 Origin of the Primary Purpose Test 2 Linkage of the "Primary Purpose" Test to the FISA D The Department of Justice's Use of the Primary Purpose Test as the Foundation for the Wall E The Patriot Act's Supposed Demolition of the Wall II IN RE SEALED CASE A How the Case Arose 1 The FISA Trial Court Adopts the Attorney General's 1995 Procedures as Required "Minimization Procedures" 2 In 2002, the Department of Justice Changes Information Sharing Procedures To Implement the Patriot Act 3 The FISA Trial Court Rejects the Department's March 2002 Information Sharing Procedures 4 The Department of Justice Creates a Route for Appealing the FISA Trial Court's Opinion B The FISA Court of Review's Opinion 1 The Court of Review's Analysis of the Original FISA 2 The Court of Review's Analysis of the Patriot Act Amendments to the FISA 3 The Court of Review's Fourth Amendment Ruling 4 Summary of Court of Review's Opinion; Description of That Court's Disposition of the Case; Later Proceedings in the Case III ANALYSIS OF STATUTORY ISSUES AND THEIR TREATMENT BY THE FISA COURTS A Importance of Statutory Rulings in In re Sealed Case B Statutory Analysis of the Original FISA 1 The Purpose Provision of the Original FISA a Text of the Original FISA's Purpose Provision i The Primary Purpose Test's Defective Textual Interpretation ii The FISA Court of Review's Erroneous Conclusion That the Original FISA's Purpose Provision Did Not Limit the Government's Intended Prosecutorial Use of Foreign Intelligence Information iii The Requirement that Achievement of a Foreign Intelligence Purpose be the Primary Purpose for Seeking a FISA Surveillance Order iv The Permissibility, Under the Original FISA, of the Government's Using FISA Surveillance for the Primary (or Even the Sole) Purpose of Investigating and Prosecuting Crime of any Type When the Government Intended the Prosecution to Serve a Foreign Intelligence Purpose v Summary of Textual Analysis of the Original FISA's Purpose Provision b Legislative History of the Original FISA's Purpose Provision i Legislative History Showing that the FISA Purpose Provision Limits the Type of Information That can be Sought as Well as the Intended Use of That Information ii Legislative History Seemingly Supporting the "Primary Purpose" Test iii Legislative History on the "Noncriminal" Standard for FISA Surveillance iv Scarcity of Legislative History Citing Primary Purpose Case Law 2 Provisions on Minimization Procedures a Text of FISA Provisions on Minimization Procedures b Legislative History of Minimization Procedures C …
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30 Nov 2010
TL;DR: In this article, the compilation was prepared for the Dudley Knox Library, Naval Postgraduate School, Monterey, CA, USA, by the authors of the paper, "Naval Postgraduate Studies:
Abstract: This compilation was prepared for the Dudley Knox Library, Naval Postgraduate School, Monterey, CA.
73 citations
TL;DR: In this paper, the possibilities for the U.S. government to obtain access to information in the cloud from Dutch institutions on the basis of US law and international co-operation are discussed.
Abstract: Institutions have started to move their data and ICT operations into the cloud. It is becoming clear that this is leading to a decrease of overview and control over government access to data for law enforcement and national security purposes. This report looks at the possibilities for the U.S. government to obtain access to information in the cloud from Dutch institutions on the basis of U.S. law and on the basis of Dutch law and international co-operation. It concludes that the U.S. legal state of affairs implies that the transition towards the cloud has important negative consequences for the possibility to manage information confidentiality, information security and the privacy of European end users in relation to foreign governments.The Patriot Act from 2001 has started to play a symbolic role in the public debate. It is one important element in a larger, complex and dynamic legal framework for access to data for law enforcement and national security purposes. In particular, the FISA Amendments Act provision for access to data of non-U.S. persons outside the U.S. enacted in 2008 deserves attention. The report describes this and other legal powers for the U.S. government to obtain data of non-U.S. persons located outside of the U.S. from cloud providers that fall under its jurisdiction. Such jurisdiction applies widely, namely to cloud services that conduct systematic business in the United States and is not dependent on the location where the data are stored, as is often assumed. For non-U.S. persons located outside of the U.S., constitutional protection is not applicable and the statutory safeguards are minimal.In the Netherlands and across the EU, government agencies have legal powers to obtain access to cloud data as well. These provisions can also be be used to assist the U.S. government, when it does not have jurisdiction for instance, but they must stay within the constitutional safeguards set by national constitutions, the European Convention on Human Rights and the EU Charter.UPDATE (11.06.13): Recent leaks around the PRISM surveillance program of the National Security Agency seem to support that these legal possibilities are used in practice on a large scale. Therefore, the authors have decided to publish a draft of their update paper on SSRN under the title 'Obscured by Clouds or How to Address Governmental Access to Cloud Data from Abroad'. The analysis is updated and it includes regulatory and policy solutions to the current legal reality.
27 citations
Dissertation•
28 Sep 2009
TL;DR: The authors examines how metaphors of globalization shape the global governance of the Internet and shows that globalization has an important discursive dimension that works as a constitutive force not only in Internet governance, but in global governance more generally.
Abstract: My thesis examines how metaphors of globalization shape the global governance of the Internet. I consider how, in a short span of time, discussions of the Internet’s globalizing potential have gone from the optimism of the global village to the penchant of the global marketplace to the anxiety of the global war on terror. Building upon Rorty’s theory of metaphors and Foucault’s notion of productive power, I investigate how the shifts in these prevailing metaphors have produced and legitimated different frameworks of global governance. In considering how these patterns of governance have been shaped in the context of a familiar example of globalization, I demonstrate that globalization has an important discursive dimension that works as a constitutive force – not only in Internet governance, but in global governance more generally. By illuminating globalization’s discursive dimensions, this thesis makes an original theoretical contribution to the study of globalization and global governance. It demonstrates that globalization is more than a set of empirical flows: equally important, globalization exists as a set of discourses that reconstitute political legitimacy in more ‘global’ terms. This recasts the conventional understanding of global governance: rather than a response to the
26 citations
Cites background from "The Patriot Act and the Wall betwee..."
...See also discussion in Jaeger, Bertot and McClure (2003), Kerr (Kerr, 2003),Seamon and Gardner (2005), and Wong (2002)....
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Dissertation•
01 Jan 2017
TL;DR: In this article, the authors examined International Financial Institutions (IFIs) principles, standards and mandates designed to reduce the risk of financial crimes in the international financial system, and evaluated governance structure and decision-making processes with a main focus on compliance issues and how far these are implemented in practice.
Abstract: Financial crimes pose a serious threat to the stability and security of the financial system. Financial crimes are tackled via many channels, but a significant role is played by International Financial Institutions (IFIs), which are essentially dependent on the advancement of compliance and integrity-based culture that understands the threats, risks, and actions needed to decrease criminal interference with legitimate businesses and institutions. This thesis examines IFI’s principles, standards and mandates designed to reduce the risk of financial crimes in the international financial system. The prevention regime used by IFIs ranges from employing soft law to a legal framework that requires global cooperative measures and implementation of minimum levels of transparency. IFIs also work to compel disclosure to prevent financial crimes, promote stability and more importantly to create a culture of integrity rather than a culture of compliance. In order to do so, this thesis carries out an analysis of current policies and frameworks adapted by IFIs based on relevant and practical experience. It also evaluates governance structure and decision-making processes with a main focus on compliance issues and how far these are implemented in practice. This thesis also examines whether there is a real threat to the stability of the banking system, and failures of compliance and enforcement measures through a comparative analysis between the American and the British law dealing with financial market regulation and financial crime, through finding lacuna within both systems and evaluating the most rational solutions to promote stability and implement practical compliance. As an example of stability and prosperity in the financial system, this thesis examines the Islamic banking system and whether it is more resilient to financial crime. In conclusion, this thesis analyses the different legal mechanisms and compliance tools within financial institutions through sanctions and cross department regimes, and how far IFIs have the chance to concretely protect the global financial stability. At the end, an assessment and recommendations will be provided.
25 citations
Dissertation•
01 Jan 2015
TL;DR: In this article, an institutional costs approach for cooperative working in the intelligence and security spheres of governance is developed. But the analysis is limited to two cases of counterterrorism and defence intelligence in both the United Kingdom and the United States.
Abstract: The governmental functions of security and intelligence require a number of distinct organisations and functions to interact in a symbiotic way. Because the external environment is uncertain and complex, these organisations must constantly negotiate with each other to establish which of them addresses which issue, and with what resources. Coasian principles suggest that if there are no transacting costs and property rights are clear, then such negotiations should lead to an overall maximisation of the benefits gained (in this case better security and intelligence provision), yet this is rarely realised. By coupling the transaction cost theory devised by Oliver Williamson in 1975 with a range of alternate theoretical perspectives that impact on these areas of governance, an institutional costs approach is developed. By increasing the resolution of the analysis whilst still retaining a comprehensive overview, the frictions that hinder negotiated cooperation become apparent. The two cases of counterterrorism and defence intelligence in both the United Kingdom and the United States are then used to test and refine the institutional costs paradigm that results. These demonstrate that orthodox views of good cooperation in the former and poor cooperation in the latter are overly simplistic, as neither is necessarily more disposed to behave cooperatively than the other; rather, the institutional costs environment that their respective organisational architectures create incentivises different cooperative behaviour in different circumstances. The analysis also shows that the impact of the various factors that make up the institutional costs paradigm is in fact far more nuanced in these areas than is evident in earlier transaction costs scholarship. Their relevance differs by type as well as degree. Institutional costs analysis therefore provides the beginnings of a political economy for cooperative working in the intelligence and security spheres of governance.
24 citations