Emory Law Journal

Volume 66Issue 3
The 2016 Randolph W. Thrower Symposium, Redefined National Security Threats: Tensions and Legal Implications

Keynote Address: The Emerging Law of 21st Century War

Harold Hongju Koh | 66 Emory L.J. 487 (2017)

What exactly is the emerging law of the twenty-first century war? That question breaks into three, which organize this lecture. First, what basic rules govern these twenty-first century tools? Second, what principles of law are emerging in particular areas of modern armed conflict, namely, interrogation, detention, special operations, drones, robots, cyber war, and private security contractors? Third, how are these emerging law of war principles implicated by the great crisis of today, Syria, which raises such intertwined issues as mass migration, humanitarian intervention (or Responsibility to Protect), and the crime of aggression?

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Cyber Espionage and Electronic Surveillance: Beyond the Media Coverage

William C. Banks | 66 Emory L.J. 513 (2017)

Espionage and intelligence collection are part of the national security apparatus of every state. Cyber espionage involves deliberate activities to penetrate computer systems or networks for obtaining information resident on or transiting through these systems or networks. A pertinent subset is economic espionage, where a state attempts to acquire secrets held by foreign companies. Of course, states conducted economic espionage before the Internet, but the availability of cyber exploitation rapidly and significantly expanded the activity. But today, traditional state-sponsored surveillance and espionage have been transformed into high-tech and high-stakes enterprises. Some of the cyber activity is electronic surveillance for foreign intelligence purposes, mimics traditional spying, and services a range of what most of us would concede are legitimate national security objectives. However, a good deal of the cyber sleuthing involves economic matters, and is undertaken by states or their proxies to secure comparative economic advantage.

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Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public

Rachel Levinson-Waldman | 66 Emory L.J. 527 (2017)

Over the last several decades, the range and capabilities of easily available technologies have expanded at an astonishing pace. The beeper gave way to the flip phone, which has largely been replaced by the “smartphone,” a mini-computer that fits in the palm of your hand and is more powerful than the desktop machine of the 1980s. Paper maps are increasingly rare, replaced by built-in Global Positioning System (GPS) devices or the ubiquitous smartphone. These and other technologies, which are valuable to civilians and law enforcement alike, also enable a granular view of citizens’ movements and associations in public over long periods of time at a relatively cheap cost. Where law enforcement is involved, these powerful new technologies also raise questions about how their use can be harmonized with the U.S. Constitution.

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How Both the EU and the U.S. Are “Stricter” Than Each Other for the Privacy of Government Requests for Information

Peter Swire & DeBrae Kennedy-Mayo | 66 Emory L.J. 617 (2017)

Law enforcement access to personal data presents a paradox at the heart of debates between the European Union (EU) and the United States (U.S.) about privacy protections. On the one hand, the comprehensive privacy regime in the EU contains many requirements that do not apply in the United States. On the other hand, the United States also sets requirements that do not exist in the EU. Thus, both are stricter in important ways when setting standards for law enforcement access to personal data. The fact that both sides are stricter in significant respects is important to two distinct topics: how to reform the system of Mutual Legal Assistance (MLA), and whether the United States provides “adequate” protection for personal data under EU law. The relative strictness of standards for law enforcement access is central to understanding current obstacles to reforming the MLA system.

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Is Immigration Law National Security Law?

Shoba Sivaprasad Wadhia | 66 Emory L.J. 669 (2017)

The debate around how to keep America safe while welcoming newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali, and inside the United States, have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War. This Article is based on remarks delivered at the Emory Law Journal’s annual Thrower Symposium on February 11, 2016. The Article explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress, and the states and considers the moral, legal, and practical implications of these proposals. Finally, this Article examines the parallels between these proposals and immigration policies enacted after September 11, 2001.

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Biometric Cyberintelligence and the Posse Comitatus Act

Margaret Hu | 66 Emory L.J. 697 (2017)

This Article addresses the rapid growth of what the military and intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s mass-integrative systems. It then argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult to enforce to protect against militarized cyberpolicing and cybersurveillance harms that may generate from the domestic use of military grade cybersurveillance tools. The Posse Comitatus Act and constitutional protections such as the Fourth Amendment’s privacy jurisprudence, therefore, must be reinforced in the digital age to appropriately protect citizens from militarized cyberpolicing: the blending of military/foreign intelligence tools, and homeland security/domestic law enforcement tools.

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