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UNIT 13:
National Security; Foreign Intelligence
PONDERABLES:
What is national security in a globalized information environment? How to protect both national security and civil liberties? The intersectiobn of the First Amendment and espionage. When is espionage an act of war? Globalization and the network. The Cloud. "Ring fencing?
REQUIRED READING:
CASEBOOK: David J. Loundy, COMPUTER CRIME, INFORMATION WARFARE, AND ECONOMIC ESPIONAGE, Carolina Academic Press (2003) (ISBN:0890891109) read:
Chapter 16, National Security, pp. 591-684 (Snepp v. US, US v. HEINE, PHILLIPPI v. CIA, US v. MEGAHEY, In re All Matters Submitted to the FISC)
In re Sealed Cases, U.S. FISC of Review, 310 F.3d 717 (2002) (reversing In re All Matters Submitted to the FISA Court, 218 F. Supp. 2d 611 (U.S. FISC 2002) in the assigned text).
Foreign Intelligence Surveillance:
K. A. Taipale, Commentary (with James Jay Carafano), "Fixing Foreign Intelligence Surveillance," Wash. Times (Jan. 24, 2006).
K. A. Taipale, Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance, N.Y.U. Rev. L. & Sec. No. VII, Suppl. Bull. on L. & Sec. (Jun. 2006).
K. A. Taipale, Written Testimony on Foreign Intelligence Surveillance Act Modernization Before the House Permanent Select Committee on Intelligence (HPSCI), U.S. House of Representatives, July 19, 2006.
ACLU v. NSA, (ED-Mich Aug. 17, 2006) (ruling that the NSA Terorist Surveillance Program was unconstitutional and illegal) (District Court ruling PDF) (On October 4, 2006, a unanimous three-judge panel of the Sixth Circuit Court of Appeals stayed the District Court's ruling while the the government's appeal is considered by the Court of Appeals, "Court Allows Warrantless Wiretapping During Appeal," AP (Oct. 5, 2006): "In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides, and the public interest.").
K. A. Taipale, "The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance," 9 Yale J. L. & Tech. 128 (Spring 2007).
Testimony of Kim Taipale, executive director of the Center for Advanced Studies, Foreign Intelligence Surveillance Modernization: Reconciling Signals Intelligence Activity with Targeted Wiretapping, before the U.S. Senate Select Committee on Intelligence (SCCI) Hearing on The Foreign Intelligence Modernization Act of 2007 (May 1, 2007).
Commentary (with James Jay Carafano), "Free the Hostages: Continuing FISA Concerns," National Review Online (Oct. 24, 2007).
K. A. Taipale, Commentary, "Security vs. Privacy: Security," The Huffington Post (Nov. 9, 2007).
STATUTES:
THE NATIONAL SECURITY ACT OF 1947
50 U.S.C. § 402
Presidential Decision Directive (PDD) 62, Combating Terrorism (22 May 1998)
FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA),
50 U.S.C. § 1801, et seq.
Protect America Act of 2007, P.L. 110-55 (Aug. 5, 2007) (180 day sunset).
FISA Amendments Act of 2008 (also called the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, H.R. 6304, enacted 2008-07-10) Public Law No: 110-261
TITLE 18 > PART I > CHAPTER 37. ESPIONAGE AND CENSORSHIP
18 U.S.C. §§ 792-799.
18 U.S.C. § 798. Disclosure of classified information.
FISA Amendments (2008):
FISA Amendments Act of 2008 (also called the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, H.R. 6304, enacted 2008-07-10) Public Law No: 110-261
"Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009," Congressional Research Service R40138 (Jan. 6, 2009).
"Retroactive Immunity Provided by the FISA Amendments Act of 2008," Congressional Research Service RL34600 (Jul. 25, 2008)
"The Foreign Intelligence Surveillance Act: A Sketch of Selected Issues," Congressional Research Service RL34566 (Jul. 7, 2008).
"The Foreign Intelligence Surveillance Act: An Overview of Selected Issues," Congressional Research Service RL34279 (Jul. 7, 2008).
"The Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773," Congressional Research Service RL34533 (Jun. 12, 2008).
FISA Amendments (2007):
"P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act," Congressional Research Service RL34143 (updated Feb. 14, 2008)
"On August 5, 2007, the Protect America Act of 2007, P.L. 110-55, was enacted into law with a 180 day sunset provision, providing a temporary solution to concerns raised by the Director of National Intelligence. Both the House and the Senate have considered or are considering possible legislation to provide a longer-term statutory approach to these concerns. On November 15, 2007, the House of Representatives passed H.R. 3773, the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007 or the RESTORE Act of 2007. On October 26, 2007, Senator Rockefeller reported S. 2248, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or the FISA Amendment Act of 2007, an original bill, from the Senate Select Committee on Intelligence. S. 2248 was referred to the Senate Judiciary Committee on November 1, 2007. On November 16, 2007, S. 2248 was reported out of the Senate Judiciary Committee by Senator Leahy with an amendment in the nature of a substitute. Each bill includes amendments to the Foreign Intelligence Surveillance Act." RL34277 p. 1-2.
"The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues," Congressional Research Service RL34279 (Dec. 7, 2007).
"The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee," Congressional Research Service RL34277 (Dec. 6, 2007).
"Bush and Congress Set to Fight on FISA," U.S. News & World Report (Jan. 3, 2008) ("President Bush's demand that the Senate swiftly approve an overhaul of the Foreign Intelligence Surveillance Act doesn't seem to be prompting any significant action in the Senate, where Democrats withdrew it from floor action amid opposition from liberal members of the party. The House already approved a version that has provoked a veto threat. The Senate appeared ready to OK one more acceptable to Bush but yanked it instead and voted to grant an extension until February 1. GOP and White House sources said that the battle may become a major topic in Bush's State of the Union address, slated for January 28.")
ADDITIONAL READING:
SEE ALSO:
Anthony H. Cordesman, CYBER-THREATS, INFORMATION WARFARE, AND CRITICAL INFRASTRUCTURE PROTECTION: DEFENDING THE US HOMELAND (2002) (ISBN:0275974235).
Markle Task Force on National Security in the Information Age, "Mobilizing Information To Prevent Terrorism: Accelerating Development Of A Trusted Information Sharing Environment," THIRD REPORT (2006).
Markle Task Force on National Security in the Information Age, "Creating a Trusted Network for Homeland Security," SECOND REPORT (Dec. 2003).
Markle Task Force on National Security in the Information Age, "Protecting America's Freedom in the Information Age," FIRST REPORT (Oct. 2002).
ALSO RELATED:
Kim Taipale and Kate Martin, director of the Center for National Security Studies, debate the NSA surveillance programs on WHHY Radio Times, National Public Radio (NPR) (May 16, 2006). [Listen to the show via RealAudio or Streaming MP3] (1 hr.)
Kim Taipale and Marc Rotenberg, director of the Electronic Privacy Information Center (EPIC), discussed the role of technology in government surveillance efforts in the Wall St. J. Online (May 16, 2006). Their exchange is linked here.
BACKGROUND READING:
Cliff Stoll, THE CUCKOO'S EGG (1989) (ISBN:0743411463).
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Course Outline/Class Units
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- Overview, What is Cybercrime?
- Computer Intrusions and Attacks (Unauthorized Access)
- Computer Viruses, Time Bombs, Trojans, Malicious Code (Malware)
- Online Fraud and Identity Theft; Intellectual Property Theft; Virtual Crime
- Online Vice: Gambling; Pornography; Child Exploitation
- International Aspects and Jurisdiction
- Infrastructure and Information Security; Risk Management
- Investigating Cybercrime: Digital Evidence and Computer Forensics
- Interception, Search and Seizure, and Surveillance
- Information Warfare, Cyberterrorism, and Hacktivism
- Terrorism, Radicalization, and The War of Ideas
- Trade Secret Theft and Economic Espionage
- National Security
- Case Study: CALEA, VoIP
Course Information
- PAPER RESEARCH
- USEFUL LINKS FOR DEFINING TECHNICAL TERMS
- COURSE SUBTEXT AND OPTIONAL BACKGROUND MATERIAL
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