Thoughts on a Blue-Sky Overhaul of Surveillance Laws: Conclusion

David Kris
Tuesday, May 21, 2013, 7:00 AM
Editor's Note: below you'll find a fourth and final post in our series by David Kris, on possible reforms to surveillance statutes.

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[Editor's Note: below you'll find a fourth and final post in our series by David Kris, on possible reforms to surveillance statutes.  The first post, an introduction, can be found here; two posts, on current challenges and a possible approach to reform, respectively, are here and here.]  

I need to make two points in closing.  First, of course, the profusion of possible values-based distinctions itself threatens another important value – simplicity.  As discussed above, intolerable complexity is the most likely spur for a blue-sky project.  But simplicity will require limiting governmental authority.  At the extreme, the simplest set of collection rules, applicable to any kind of collection, is also the most restrictive.  If we want one set of rules governing both non-consensual collection of content from the home of a U.S. person in the United States, and consensual collection of metadata from a non-U.S. person abroad, we will be using the more restrictive rules in both cases.  This tension between simplicity and maximum authority is, I believe, not always understood by government officials who decry the complexity of the current regime.  The balance between the two may be out of whack, but a balance will have to be struck.

Second, if a blue-sky project proceeds, the final challenge – perhaps the hardest of all – will be to escape, wherever possible, the zero-sum game between liberty and security.  There are certainly times when those values conflict, and we simply need to plant our flag and take a position somewhere along the continuum between them.  But there are also times, I believe, when changes in rules can enhance both values.  For example, I have argued that lowering the so-called FISA “wall,” which kept intelligence and law enforcement officials separated, enhanced both liberty and security.[1]  The best blue-sky approach would look hard for these win-win possibilities.  But that, like the rest of the project, will not be easy.

David Kris is a founder of Culper Partners, with more than 30 years of experience in the private sector, government, and academia. He has been a corporate director, general counsel, deputy general counsel, and chief compliance officer; assistant attorney general for national security, associate deputy attorney general, and a trial attorney at the Justice Department. He serves on advisory boards for several government agencies and as a FISA Court amicus curiae. He is the author or co-author of several works on national security and teaches national security law. He is a member of the board of directors of Lawfare.

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