I recently mentioned how much I like the Lawfare blog. That post led to an invitation to write for Lawfare, and I’ve decided to post there on occasion on national security law issues. My tentative plan is to link to those posts from here when I do. In that spirit, here are my first two Lawfare posts:
The Justice Department recently changed its policy on notice to criminal defendants about the use of evidence derived from surveillance under Section 702 of FISA. Press reports have treated the change as momentous, with the New York Times and the Associated Press predicting that the new policy will likely lead to a Supreme Court case on whether Section 702 violates the Fourth Amendment. I have a different view. My sense is that the notice is less significant than many believe, and that a future Supreme Court decision on the validity of Section 702 isn’t particularly likely in the short term—and maybe even in the long term. Here’s why.
2. “Should U.S. Law Protect the Privacy of Foreigners Abroad?” From the intro:
United States privacy law traditionally has only protected the privacy of those in the United States and U.S. citizens abroad. Over at Just Security, David Cole argues that this should change. Privacy is a human right, Cole argues, and U.S. law should protect the privacy of foreigners all around the world. David offers three pragmatic reasons for his approach, but I don’t find his arguments persuasive.