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What role does the judiciary play in shaping U.S. intelligence in cyberspace? How have courts historically shaped intelligence collection and operations? How have recent rulings and decisions impacted intelligence activities in cyberspace?

The Judiciary plays a central role in the shaping the boundaries of acceptable U.S. cyber intelligence activities, helping to mediate the tension between the Executive branch actions as it performs its national defense responsibilities and the Congressional oversight of those activities. In addition, the Judiciary is at the forefront of ensuring civil liberties are protected.

The judiciary has historically shaped intelligence collections and operations through jurisprudence related to the Fourth Amendment. More recently, recognizing that definitive resolution of determining the explicit rules for cyber intelligence collection in each and every situation remained unachievable due to the continuous changes in technology, and the salutary tension between the various branches of government, Congress established the Foreign Intelligence Surveillance Court (FISC) through the Foreign Intelligence Surveillance Act (FISA). FISA provided a way for Congress to assert its prerogatives in the area while simultaneously recognizing the Executive’s powers as enumerated in Article II of the Constitution.

As Medine points out,

In essence, FISA represented an agreement between the executive and legislative branches to leave that debate aside and establish a special court to oversee foreign intelligence collection. While the statute has required periodic updates, national security officials have agreed that it created an appropriate balance among the interests at stake, and that judicial review provides an important mechanism regulating the use of very powerful and effective techniques vital to the protection of the country. (Medine, 2014, p. 174)

 

The development of the FISA activities after 9/11 supports the contention in the An Assessment of International Legal Issues in Information Operations that the judiciary plays a backward facing role in formulating legal treatment of newly emerging situations. “It seldom happens that a legislature foresees a problem before it arises and puts into place a legislative solution before it is needed. More typically, legislators react to a problem that has already manifested itself.”(An Assessment of International Legal Issues in Information Operations, 1999, p. 464) (464)

The tension between civil liberties, cyber intelligence and government activities in cyberspace as they relate to individuals illuminates this lagging. This lag requires continuous emphasis on the protection of civil liberties even as technology changes. the Executive Order 12333 governing United States Intelligence Activities puts the necessity to protect civil liberties at the forefront of the text. It says, “The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.” (Obama, p. 1)

Recent rulings and decisions continue to impact the day to day work associated with cyber intelligence. The legal doctrines concerning the Fourth Amendment considerations on unlawful search and seizure developed when the capability to search was limited by physical proximity. The necessity for physical access bounded the scope of the search problem space (this is legitimate to search, this search requires a warrant) in ways that were especially clear. Even with the development of telephone communications, the link between the physical entry and exit points of the communication were readily determined. The development of the cyber domain has changed these factors, and the law has not yet caught up. Therefore, the tension between civil liberties and the access required for cyber intelligence to achieve its mission of informing policy makers in order to provide decisional advantage will likely persist.

 

 

 

References

 

 

An Assessment of International Legal Issues in Information Operations. (1999). Washington, DC: DoD Office of General Council.

Medine, D. (2014). Report on the Telephone Records Program Conducted under Section 215of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court Retrieved from Washington, DC:

Obama, Barak. Executive Order 12333 United States Intelligence Activities (As amended by Executive Orders 13284 (2003), 13355 (2004) and 13470 (2008)) (1981). Washington, DC: White House.