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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire February 28, 2011 [February 10, 2011]
From the Document: "Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on February 28, 2011. The three sunsetting amendments expanded the scope of federal intelligence-gathering authority following the 9/11 terrorist attacks. Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include 'any tangible thing.' It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the 'lone wolf' provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Although these provisions are set to sunset, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date."
Library of Congress. Congressional Research Service
Liu, Edward C.
2011-02-10
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Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015 [June 16, 2011]
From the Document: "The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which government agencies may, when gathering foreign intelligence investigation, obtain authorization to conduct electronic surveillance or physical searches, utilize pen registers and trap and trace devices, or access specified business records and other tangible things. Authorization for such activities is typically obtained via a court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created to act as a neutral judicial decision maker in the context of FISA. Shortly after the 9/11 terrorist attacks, Congress enacted the USA PATRIOT Act, in part, to 'provid[e] enhanced investigative tools' to 'assist in the prevention of future terrorist activities and the preliminary acts and crimes which further such activities.' That act and subsequent measures amended FISA to enable the government to obtain information in a greater number of circumstances."
Library of Congress. Congressional Research Service
Liu, Edward C.
2011-06-16
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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire May 27, 2011 [May 13, 2011]
From the Document: "Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on May 27, 2011. The three sunsetting amendments expanded the scope of federal intelligence gathering authority following the 9/11 terrorist attacks. Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include 'any tangible thing.' It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the 'lone wolf' provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Although these provisions are set to sunset, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date."
Library of Congress. Congressional Research Service
Liu, Edward C.
2011-05-13
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CRS Issue Statement on Civil Liberties and National Security [January 13, 2010]
From the Document: "Tactics employed to detect national security threats continue to implicate individuals' civil liberties. Electronic surveillance of communications to and from foreign intelligence targets can also capture innocent conversations and chill the exercise of First Amendment rights. New technologies may more effectively screen for explosives or other weapons, but simultaneously produce more revealing images of passengers' bodies. The broadened use of national security letters can provide investigators with a fuller picture to better allocate resources toward more serious threats, but also subject a larger universe of private financial or personal documents to disclosure. As Congress attempts to strike an appropriate balance between the need to detect and thwart activities that pose a threat to U.S. national security and the need to safeguard the civil liberties of U.S. persons, the following issues are likely to remain of interest."
Library of Congress. Congressional Research Service
Liu, Edward C.
2010-01-13
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Closing the Guantanamo Detention Center: Legal Issues [September 14, 2009]
"This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck . . .
2009-09-14
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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire in 2009 [October 29, 2009]
"Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on December 31, 2009. S. 1692, a bill reported favorably by the Senate Judiciary Committee with an amendment in the nature of a substitute, would extend the sunset date by four years and make various modifications to existing authorities. H.R. 3845 would likewise establish a new sunset of December 31, 2013, but it would reauthorize only two of the three expiring provisions. The three sunsetting amendments expanded the scope of federal intelligence-gathering authority following the 9/11 terrorist attacks. Two were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include 'any tangible thing.' It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Protection Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the 'lone wolf' provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization."
Library of Congress. Congressional Research Service
Henning, Anna C.; Liu, Edward C.
2009-10-29
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State Secrets Privilege and Other Limits on Litigation Involving Classified Information [May 28, 2009]
"The state secrets privilege is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during litigation, if there is a reasonable danger that such disclosure would harm the national security of the United States. The Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds. In its opinion, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court. […]. Congressional action may affect the operation or coverage of the state secrets privilege. In 2008, a federal district court held that the Foreign Intelligence Surveillance Act supplanted the state secrets privilege with respect to civil claims of unlawful electronic surveillance. In the 111th Congress, House and Senate versions of bills entitled 'the State Secrets Protection Act,' H.R. 984 and S. 417, have been introduced to codify the privilege."
Library of Congress. Congressional Research Service
Liu, Edward C.
2009-05-28
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Pandemic Flu and Medical Biodefense Countermeasure Liability Limitation [February 12, 2010]
"Division C of P.L. 109-148 (2005), 42 U.S.C. §§ 247d-6d, 247d-6e, also known as the Public Readiness and Emergency Preparedness Act (PREP Act), limits liability with respect to pandemic flu and other public health countermeasures. Specifically, upon a declaration by the Secretary of Health and Human Services of a public health emergency or the credible risk of such emergency, Division C would, with respect to a 'covered countermeasure,' eliminate liability, with one exception, for the United States, and for manufacturers, distributors, program planners, persons who prescribe, administer or dispense the countermeasure, and employees of any of the above. The exception to immunity from liability is that a defendant who engaged in willful misconduct would be subject to liability under a new federal cause of action, though not under state tort law, if death or serious injury results. Division C's limitation on liability is a more extensive restriction on victims' ability to recover than exists in most federal tort reform statutes. However, victims could, in lieu of suing, accept payment under a new 'Covered Countermeasure Process Fund,' if Congress appropriates money for this fund."
Library of Congress. Congressional Research Service
Liu, Edward C.
2010-02-12
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Government Collection of Private Information: Background and Issues related to the USA PATRIOT Act Reauthorization [March 2, 2010]
"Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. [...] Subsequent measures made most of the USA PATRIOT Act changes permanent. However, three authorities affecting the collection of foreign intelligence information are set to expire on February 28, 2011: the lone wolf, roving wiretap, and business record sections of FISA. The 111th Congress replaced an earlier expiration date with the 2011 date. Before that change was made, the impending expiration prompted legislative proposals which revisit changes made by the USA PATRIOT Act and related measures. [...] This report surveys the legal environment in which the legislative proposals arise."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Doyle, Charles; Henning, Anna C. . . .
2010-03-02
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Government Access to Phone Calling Activity and Related Records: Legal Authorities [February 2, 2010]
"Public interest in the means by which the government may collect telephone call records has been raised by ongoing revelations regarding alleged intelligence activity by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). According to a USA Today article from May 11, 2006, the NSA allegedly sought and obtained records of telephone numbers called and received from millions of telephones within the United States from three telephone service providers; a fourth reportedly refused to provide such records. Additionally, a series of reports issued by the Department of Justice's Office of the Inspector General (DOJ OIG), most recently in January of 2010, indicate that, between 2002 and 2006, consumer records held by telephone companies had been provided to the FBI through the use of 'exigent letters' and other informal methods that fell outside of the national security letter (NSL) process embodied in statute and internal FBI policies." This report discusses several statutory provisions that relate to this case, including "'Pen Registers and Trap and Trace Devices for Foreign Intelligence and International Terrorism Investigations under FISA; Pen Registers or Trap and Trace Devices Generally, and for Use in an Ongoing Criminal Investigation; Access to Business Records for Foreign Intelligence and International Terrorism Investigations; Access to Stored Electronic Communications and Transactional Records;' and the 'Communications Act of 1934.'"
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Stevens, Gina Marie; Liu, Edward C.
2010-02-02
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Closing the Guantanamo Detention Center: Legal Issues [April 14, 2009]
"The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different than the protections owed to persons held at Guantanamo or elsewhere. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. Notably, some detainees might qualify for asylum or other protections under immigration law. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer or release of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought to the United States. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, courtmartial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Liu, Edward C.
2009-04-14
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009 [March 16, 2009]
From the Document: "Several recent amendments to the Foreign Intelligence Surveillance Act (FISA) will sunset on December 31, 2009. H.R. 1467, introduced in the 111th Congress, would extend these three provisions until December 31, 2019. Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (IRTPA), also known as the 'lone wolf' provision, changed the rules regarding the types of individuals that could be targets of FISA-authorized searches. It permits surveillance of non-U.S. persons engaged in international terrorism, without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Section 206 of the USA PATRIOT ACT amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 of the USA PATRIOT ACT enlarged the scope of documents that could be sought under FISA, and lowered the standard required before issuance of a court order compelling the production of documents. While these provisions will cease to be prospectively effective on December 31, 2009, a grandfather clause permits them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date."
Library of Congress. Congressional Research Service
Liu, Edward C.
2009-03-16
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Closing the Guantanamo Detention Center: Legal Issues [January 22, 2009]
"On January 22, 2009, President Barack Obama issued an Executive Order requiring the Guantanamo detention facility to be closed as soon as practicable, and no later than a year from the date of the Order. [...]. The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different than the protections owed to persons held at Guantanamo or elsewhere. [...]. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer or release of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought to the United States. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, courtmartial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Liu, Edward C.
2009-01-22
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009 [January 6, 2009]
This report discusses the impending expiration of the Foreign Intelligence Surveillance Act and the expected consequences on the law following its expiration. "Several recent amendments to the Foreign Intelligence Surveillance Act (FISA) will sunset on December 31, 2009. Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (IRTPA), also known as the 'lone wolf' provision, changed the rules regarding the types of individuals that could be targets of FISA-authorized searches. It permits surveillance of non-U.S. persons engaged in international terrorism, without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Section 206 of the USA PATRIOT ACT amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 of the USA PATRIOT ACT enlarged the scope of documents that could be sought under FISA, and lowered the standard required before a court order could be issued compelling the production of documents. While these provisions will cease to be prospectively effective on December 31, 2009, a grandfather clause permits them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date."
Library of Congress. Congressional Research Service
Liu, Edward C.
2009-01-06
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Government Access to Phone Calling Activity and Related Records: Legal Authorities [February 2, 2009]
"Media disclosures regarding an alleged National Security Agency (NSA) program designed to collect and analyze information on telephone calling patterns within the United States have raised interest in the authorities under which the government may collect such information. Numerous lawsuits have been filed by civil liberties groups against federal defendants and several telecommunications companies on behalf of their customers and subscribers, for violations of the plaintiffs' constitutional and statutory rights. On September 19, 2008, while these cases were still being litigated, U.S. Attorney General Mukasey moved to dismiss the causes of action against the telecommunications defendants, pursuant to a retroactive immunity provision enacted as part of the FISA Amendments Act of 2008. The disposition of that motion to dismiss is still pending. The Supreme Court has held that there is no Fourth Amendment protection of telephone calling records held in the hands of third party providers, where the content of any call is not intercepted. However, this report summarizes existing statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, it also discusses statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Stevens, Gina Marie; Liu, Edward C.
2009-02-02
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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire May 27, 2011
"Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on May 27, 2011. The three sunsetting amendments expanded the scope of federal intelligencegathering authority following the 9/11 terrorist attacks. Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include 'any tangible thing.' It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the 'lone wolf' provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization."
Library of Congress. Congressional Research Service
Liu, Edward C.
2011-05-20
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Tax Issues and the Gulf of Mexico Oil Spill: Legal Analysis of Payments and Tax Relief Policy Options [July 15, 2010]
"The explosion of the Deepwater Horizon oil rig and subsequent oil spill into the Gulf of Mexico has led to substantial damages, particularly in the form of lost wages and income. BP has begun to make interim payments to compensate for lost income resulting from the oil spill. Given the magnitude of the economic disruption resulting from the spill, however, policymakers may consider exploring alternative mechanisms for providing relief to the affected region. One option is to provide relief through the tax code by adopting measures similar to those employed following past major disasters. BP is currently making interim payments to claimants 'who are not receiving their ordinary income or profit' during the cleanup phase. The IRS [Internal Revenue Service] has released guidance regarding the tax treatment of these payments in an effort to help taxpayers understand the tax implications of receiving claims payments from BP. This report provides a legal analysis of the tax status of payments received from BP by Gulf Coast victims under current law, and discusses potential legal distinctions between payments received for lost income versus those that may be received to compensate for property loss and physical injuries. Further, this report comments on the tax implications in the event a federal disaster declaration is issued with respect to this incident."
Library of Congress. Congressional Research Service
Lunder, Erika; Liu, Edward C.; Sherlock, Molly F.
2010-07-15
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State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation [July 13, 2011]
"The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of 'United States v. Reynolds', 345 U.S. 1 (1953). In 'Reynolds', the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect […] The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. Most recently, in May of 2011, the Supreme Court held that the valid invocation of the state secrets privilege could render a defense contracting dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial remedies to enforce the contract. This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice."
Library of Congress. Congressional Research Service
Garvey, Todd; Liu, Edward C.
2011-07-13
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Government Access to Phone Calling Activity and Related Records: Legal Authorities [November 9, 2011]
"Public interest in the means by which the government may collect telephone call records has been raised by revelations in recent years regarding alleged intelligence activity by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). According to a 'USA Today' article from May 11, 2006, the NSA allegedly sought and obtained records of telephone numbers called and received from millions of telephones within the United States from three telephone service providers; a fourth reportedly refused to provide such records. Additionally, a series of reports issued by the Department of Justice's Office of the Inspector General (DOJ OIG), most recently in January of 2010, indicate that, between 2002 and 2006, consumer records held by telephone companies had been provided to the FBI through the use of 'exigent letters' and other informal methods that fell outside of the national security letter (NSL) process embodied in statute and internal FBI policies. […] Required disclosure of customer records to the government under certain circumstances is addressed under 18 U.S.C. Section 2703, including, among others, disclosure pursuant to a warrant or grand jury or trial subpoena. 18 U.S.C. Section 2709 is a national security letter provision, under which a wire or electronic service provider may be compelled to provide subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession. Finally, Section 222 of the Communications Act of 1934, as amended, protects customer proprietary network information, and violations of pertinent provisions of law or regulation may expose service providers to criminal sanctions, civil penalties, and forfeiture provisions."
Library of Congress. Congressional Research Service
Liu, Edward C.; Stevens, Gina Marie
2011-11-09
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Requiring Individual to Obtain Health Insurance: A Constitutional Analysis [November 15, 2011]
"As part of the Patient Protection and Affordable Care Act (PPACA), P.L. 111-148, as amended, Congress enacted a 'minimum essential coverage requirement,' a provision compelling certain individuals to have a minimum level of health insurance (i.e., an 'individual mandate'). Individuals who fail to do so may be subject to a monetary penalty, administered through the tax code. Although the federal government provides health coverage for individuals through federal programs such as Medicare, it had never before required individuals to purchase health insurance. This report analyzes certain constitutional issues raised by compelling individuals to purchase health insurance. It addresses the authority of Congress to pass a law of this nature under its taxing power or its power to regulate interstate commerce. With regard to the taxing power, the requirement to purchase health insurance might be construed as a tax and upheld so long as it was found to comply with the constitutional restrictions imposed on direct and indirect taxes. […] On August 12, 2011, the Eleventh Circuit held that the minimum essential coverage requirement is unconstitutional. Conversely, the Sixth Circuit in 'Thomas More Law Center v. Obama' upheld the minimum essential coverage requirement as a constitutional exercise of the Commerce Clause. Other courts, such as the Fourth Circuit in 'Virginia v. Sebelius and Liberty University v. Geithner', dismissed these challenges, not based on the merits of the case, but for procedural reasons. Several petitions for Supreme Court review were filed, and on November 14, 2011, the Supreme Court agreed to hear the appeal in the Florida case. Oral arguments in this case are expected to take place in March 2012."
Library of Congress. Congressional Research Service
Staman, Jennifer A.; Brougher, Cynthia M.; Liu, Edward C.
2011-11-15
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State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation [August 16, 2011]
"The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of 'United States v. Reynolds', 345 U.S. 1 (1953). In 'Reynolds', the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department that has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very matter the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by a court. […] Recently, the privilege has been characterized by a number of highprofile assertions--including invocation of the privilege to defend against claims arising from the government's 'extraordinary rendition' practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. Most recently, in May of 2011, the Supreme Court held that the valid invocation of the state secrets privilege could render a defense contracting dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial remedies to enforce the contract. This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice."
Library of Congress. Congressional Research Service
Garvey, Todd; Liu, Edward C.
2011-08-16
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Cybersecurity: Selected Legal Issues [July 23, 2012]
"The federal government's role in protecting U.S. citizens and critical infrastructure from cyber attacks has been the subject of recent congressional interest. Critical infrastructure commonly refers to those entities that are so vital that their incapacitation or destruction would have a debilitating impact on national security, economic security, or the public health and safety. This report discusses selected legal issues that frequently arise in the context of recent legislation to address vulnerabilities of critical infrastructure to cyber threats, efforts to protect government networks from cyber threats, and proposals to facilitate and encourage sharing of cyber threat information among private sector and government entities. This report also discusses the degree to which federal law may preempt state law. […] Private entities that share information may also be concerned that sharing or receiving such information may lead to increased civil liability, or that shared information may contain proprietary or confidential business information that may be used by competitors or government regulators for unauthorized purposes. Recent legislative proposals would seek to improve the nation's cybersecurity, and may raise some or all of the legal issues mentioned above. Some would permit information sharing between the public and the private sectors, while others would require all federal agencies to continuously monitor their computer networks for malicious activity and would impose additional cybersecurity requirements on all federal agencies and critical infrastructure networks. This report provides a general discussion of the legal issues raised by these proposals; however, a detailed description and comparison of these legislative proposals is beyond the scope of this report."
Library of Congress. Congressional Research Service
Liu, Edward C.; Stevens, Gina Marie; Ruane, Kathleen Ann
2012-07-23
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Reauthorization of the FISA Amendments Act [September 12, 2012]
"Reauthorizations of expiring provisions of the Foreign Intelligence Surveillance Act (FISA) have been an annual occurrence in Congress since 2009. Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). Most recently, in 2011, these three provisions were extended until June 1, 2015. For a more detailed discussion of these three provisions, see CRS [Congressional Research Service] Report R40138, 'Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015,' by Edward C. Liu."
Library of Congress. Congressional Research Service
Liu, Edward C.
2012-09-12
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Reauthorization of the FISA Amendments Act [January 2, 2013]
"Reauthorizations of expiring provisions of the Foreign Intelligence Surveillance Act (FISA) have been an annual occurrence in Congress since 2009. Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). Most recently, in 2011, these three provisions were extended until June 1, 2015. […] In contrast, the reauthorization debated and passed in 2012 deals with Title VII of FISA, as added by the FISA Amendments Act of 2008. Title VII is only tangentially related to the subjects of the previous years' debates in that it amends the same statute. Therefore, the legislative activity in prior years should be conceptually separated from the current debate and legislation that would address the expiration of Title VII of FISA at the end of this year. This report describes the changes that were made by the FISA Amendments Act within the context of the government's authority to conduct surveillance for foreign intelligence purposes."
Library of Congress. Congressional Research Service
Liu, Edward C.
2013-01-02
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2013 Cybersecurity Executive Order: Overview and Considerations for Congress [March 1, 2013]
The federal legislative framework for cybersecurity is complex, with more than 50 statutes addressing various aspects of it either directly or indirectly. Many observers do not believe that the current framework is sufficient to address the growing concerns about the security of cyberspace in the United States. However, no major cybersecurity legislation has been enacted since 2002. Several legislative proposals were made during the 112th Congress to close the gaps, but none were enacted. On February 12, 2013, President Obama issued Executive Order 13636, 'Improving Critical Infrastructure Cybersecurity'. The issuance of the executive order in the absence of congressional action raises several questions that are addressed in this report: [1] What are the kinds of threats to the national security and economic interests of the United States that the executive order is intended to address? [2] What steps does it take to address those threats? [3] What is the legislative and constitutional authority for the executive order? [4] How do its provisions relate to those in the major legislative proposals in the 112th and 113th Congresses?"
Library of Congress. Congressional Research Service
Fischer, Eric A.; Liu, Edward C.; Rollins, John . . .
2013-03-01
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Smart Meter Data: Privacy and Cybersecurity [February 3, 2012]
"Fueled by stimulus funding in the American Recovery and Reinvestment Act of 2009 (ARRA), electric utilities have accelerated their deployment of smart meters to millions of homes across the United States with help from the Department of Energy's Smart Grid Investment Grant program. As the meters multiply, so do issues concerning the privacy and security of the data collected by the new technology. This Advanced Metering Infrastructure (AMI) promises to increase energy efficiency, bolster electric power grid reliability, and facilitate demand response, among other benefits. However, to fulfill these ends, smart meters must record near-real time data on consumer electricity usage and transmit the data to utilities over great distances via communications networks that serve the smart grid. Detailed electricity usage data offers a window into the lives of people inside of a home by revealing what individual appliances they are using, and the transmission of the data potentially subjects this information to interception or theft by unauthorized third parties or hackers. Unforeseen consequences under federal law may result from the installation of smart meters and the communications technologies that accompany them. This report examines federal privacy and cybersecurity laws that may apply to consumer data collected by residential smart meters. It begins with an examination of the constitutional provisions in the Fourth Amendment that may apply to the data. As we progress into the 21st century, access to personal data, including information generated from smart meters, is a new frontier for police investigations. The Fourth Amendment generally requires police to have probable cause to search an area in which a person has a reasonable expectation of privacy. However, courts have used the third-party doctrine to deny protection to information a customer gives to a business as part of their commercial relationship. This rule is used by police to access bank records, telephone records, and traditional utility records. Nevertheless, there are several core differences between smart meters and the general third-party cases that may cause concerns about its application. These include concerns expressed by the courts and Congress about the ability of technology to potentially erode individuals' privacy."
Library of Congress. Congressional Research Service
Murrill, Brandon J.; Liu, Edward C.; Thompson, Richard M., II
2012-02-03
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Cybersecurity: Selected Legal Issues [March 14, 2012]
"The federal government's role in protecting U.S. citizens and critical infrastructure from cyber attacks has been the subject of recent congressional interest. Critical infrastructure commonly refers to those entities that are so vital that their incapacitation or destruction would have a debilitating impact on national security, economic security, or the public health and safety. This report discusses selected legal issues that frequently arise in the context of recent legislation to address vulnerabilities of critical infrastructure to cyber threats, efforts to protect government networks from cyber threats, and proposals to facilitate and encourage sharing of cyber threat information amongst private sector and government entities. This report also discusses the degree to which federal law may preempt state law. It has been argued that, in order to ensure the continuity of critical infrastructure and the larger economy, a regulatory framework for selected critical infrastructure should be created to require a minimum level of security from cyber threats. On the other hand, others have argued that such regulatory schemes would not improve cybersecurity while increasing the costs to businesses, expose businesses to additional liability if they fail to meet the imposed cybersecurity standards, and increase the risk that proprietary or confidential business information may be inappropriately disclosed. […] Several bills in the 112th Congress would seek to improve the nation's cybersecurity, and may raise some or all of the legal issues mentioned above."
Library of Congress. Congressional Research Service
Liu, Edward C.; Stevens, Gina Marie; Ruane, Kathleen Ann
2012-03-14
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Cybersecurity: Selected Legal Issues [April 20, 2012]
"The federal government's role in protecting U.S. citizens and critical infrastructure from cyber attacks has been the subject of recent congressional interest. Critical infrastructure commonly refers to those entities that are so vital that their incapacitation or destruction would have a debilitating impact on national security, economic security, or the public health and safety. This report discusses selected legal issues that frequently arise in the context of recent legislation to address vulnerabilities of critical infrastructure to cyber threats, efforts to protect government networks from cyber threats, and proposals to facilitate and encourage sharing of cyber threat information among private sector and government entities. This report also discusses the degree to which federal law may preempt state law. It has been argued that, in order to ensure the continuity of critical infrastructure and the larger economy, a regulatory framework for selected critical infrastructure should be created to require a minimum level of security from cyber threats. On the other hand, others have argued that such regulatory schemes would not improve cybersecurity while increasing the costs to businesses, expose businesses to additional liability if they fail to meet the imposed cybersecurity standards, and increase the risk that proprietary or confidential business information may be inappropriately disclosed."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann; Stevens, Gina Marie; Liu, Edward C.
2012-04-20
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Stem Cell Research: Science, Federal Research Funding, and Regulatory Oversight [January 17, 2012]
"On March 9, 2009, President Barack Obama signed Executive Order 13505, 'Removing Barriers to Responsible Scientific Research Involving Human Stem Cells.' The Obama executive order permits the Secretary of HHS [Health and Human Services] through NIH [National Institutes of Health] to 'support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law' and directed NIH to review existing guidelines and 'issue new NIH guidance on such research' within 120 days of the date of the executive order. The Obama decision allows scientists to use federal funds for research using the many human embryonic stem cell lines that have been created since the Bush 2001 policy. The Obama policy also eliminates the need to separate federally funded research from research conducted with private funds on cell lines that were previously ineligible for federal funding under the Bush policy; this often required building new but duplicative laboratories under the Bush policy using funds that could have been spent on actual research. Draft NIH guidelines were released on April 23, 2009. Final guidelines were issued on July 6, 2009. The Obama decision allows scientists to use federal funds for research on stem cell lines 'that are posted on the new NIH Registry or they may establish eligibility by submitting an assurance of compliance' with the July 2009 guidelines. […] This report provides background information on stem cell research and its potential applications as well as a history of federal policy decisions related to research on human embryos and stem cells."
Library of Congress. Congressional Research Service
Johnson, Judith A. (Judith Ann), 1957-; Liu, Edward C.
2012-01-17
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Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act [April 2, 2012]
"A criminal prosecution involving classified information may cause tension between the government's interest in protecting classified information and the criminal defendant's right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as 'graymail,' led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information. The Classified Information Procedures Act (CIPA) provides criminal procedures that permit a trial judge to rule on the relevance or admissibility of classified information in a secure setting. It requires a defendant to notify the prosecution and the court of any classified information that the defendant may seek to discover or disclose during trial. During the discovery phase, CIPA authorizes courts to issue protective orders limiting disclosure to members of the defense team that have obtained adequate security clearances, and to permit the government to use unclassified redactions or summaries of classified information that the defendant would normally be entitled to receive. If classified information is to be introduced at trial, the court may allow substitutes of classified information to be used, so long as they provide the defendant with substantially the same ability to present a defense and do not otherwise violate his constitutional rights."
Library of Congress. Congressional Research Service
Liu, Edward C.; Garvey, Todd
2012-04-02
