The Jainists of India have a parable. It is the story about the blind men feeling the elephant – each one feels something different. Watching the Federal government roll out a cyber “strategy” over the past couple of week has felt just that way. The cyber-elephant is a vast and ever-expanding body, and Washington is mucking around this way because of two basic problems. In its simplistic form, the first challenge is definitional and the second challenge is doctrinal.
Civil liberties and Privacy
April 26th, 2012 - by Sam Rosenfeld
Last fall, police used pepper spray during protests at the University of California-Davis, and afterwards, the Reynoso Task Force was tasked with investigating the incident and compiling a report. The lack of balance and impartiality in the Reynoso Task Force membership casts doubt onto its conclusions, some of which are valid. As a result, their report is distinctly one-sided, providing serious criticism of the police while not mentioning the roles and responsibilities of protesters and protest organizers.
December 5th, 2011 -
Here’s hoping TSA has a sense of humor in the stressful holiday travel season.
November 23rd, 2011 - by James Carafano
The first question asked in the Republican Presidential debate last night was on the Patriot Act—and all the candidates got it wrong. The investigative authorities in the act were described as something extraordinary—something special for the needs of national security. That is just incorrect. It is stunning that a decade after 9/11 so much misinformation about the act still pervades the public debate.
The newest threat to police from hardline protestors is “doxing” – the photographing of police and publishing their personal details, and sometimes that of their families, to the Internet. This tactic has been used to attempt to intimidate officers during events with protestors calling out officers’ names as they film and telling them they will be “doxed.” This tactic is an import from the hardline protest movements in Britain and should be of significant concern to police at all levels of operations and command, although it does have a very simple remedy.
Over the last few weeks, events have led people with interesting points of view to make claims of moral equivalence between actions in and by the United States and actions by others. The first is between the killing of Anwar al-Awlaki by a U.S. drone strike and the planned assassination of the Saudi Arabian Ambassador to the U.S. by agents of Iran. How can any reasonable person suggest that since the United States took out Awlaki, we have no business criticizing Iran for plotting to kill the Saudi Ambassador? Let’s make accurate comparisons and proper analyses as we evaluate events here and abroad.
September 27th, 2011 - by Justin Hienz
When the Transportation Security Administration (TSA) began using full-body scanners in airports, the now-iconic “naked” images spurred a public debate over privacy and security. As a result, TSA has started implementing new software in its Advanced Imaging Technology (AIT) machines, removing anatomical detail and automatically targeting concealed objects on a generic outline. This technology will have at least two notable ramifications: airport security infrastructure footprint should shrink and the debate over full body scanners will shift away from privacy concerns.
August 29th, 2011 - by Patrick Shen
As the 10th anniversary of the 9/11 attacks approaches, those of us who practice immigration law, in particular business immigration law, have seen substantial shifts in immigration enforcement at the worksite. Reports of Immigration and Customs Enforcement activities have sensitized employers to the need for strict employment eligibility verification. However, the employers often forget about another side to their compliance obligations – that of avoiding immigration-related unfair employment practices.
August 18th, 2011 - by Chris Battle
The Bay Area Transit Police, amusingly known as BART, show that law enforcement still doesn’t understand the value — and challenges — of social media. The police force reacted to planned flash mobs by shutting down cell phone service in the BART stations. Hey, if you can’t talk to one another, how are you going to organize, right? Thank God BART wasn’t around when the Founding Fathers were trying to hammer out the U.S. Constitution. Perhaps the transit agency would have drummed the unruly bastards out of Philadelphia before they could dream up the First Amendment.
August 3rd, 2011 - by Guest Contributor
By Rob Strayer
The decision from the U.S. Court of Appeals in a lawsuit challenging the Transportation Security Administration’s use of Advanced Imaging Technology machines is that they do not constitute an unreasonable search under the Fourth Amendment to the U.S. Constitution. What is significant is the D.C. Circuit’s holding that TSA failed to provide notice and solicit public comments on a new rule that passengers undergo a mandatory whole body scan or a pat down. The court’s decision will have potentially far ranging effects on the Department of Homeland Security and other agencies that seek to implement new security measures.
July 15th, 2011 - by Stewart Verdery
Yesterday, TSA Administrator John Pistole announced the first step in what is hopefully a lengthy process to reorient TSA’s airport checkpoint screening in a more risk-based manner. He announced a limited partnership with two airlines and four airports where travelers selected by the airlines will be asked to opt-in to a new screening program. This “proof of concept” is mainly designed to ascertain the changes that need to be made at airports to provide a more risk-based approach to aviation security.
At an airport security checkpoint last week, a TSA officer guided a 95-year-old cancer patient to a private room to investigate “something suspicious on her leg.” It turned out to be a wet adult diaper, which she was asked to remove. TSA offered no apology and stood by protocol. This was another missed opportunity. Sometimes, even when we do the “right” thing, we should apologize. Instead, we now have a “viral” episode that places another brick on the wall between the public and the security agencies charged with protecting them.
There are now criminal turf wars going on over the thousands of computers that comprise botnets across America and the world. This “invisible” conflict is unknown to most computer users in America. Botnets can be used to search for and steal money, financial data, passwords, and intellectual property. The size of some of the botnets out there rival and surpass the capabilities of most nation states, and the guys who control them are NOT the good guys.
June 15th, 2011 - by Robert Blitzer
The media is reporting changes to the Attorney General Guidelines. it looks like expanded authority to conduct physical surveillances, polygraphs of informants and limited attendance at public functions is not much change in terms of intrusion into the civil liberties of our population. I understand that some people may be alarmed; however, I know that the FBI’s agents charged with collecting intelligence within the United States are closely supervised – I was one of them.
April 28th, 2011 - by Edward Alden
The Department of Homeland Security is finally eliminating one of the worst vestiges of the immediate aftermath of 9/11 – the National Security Entry-Exit Registration System (NSEERS) that required special travel procedures for those coming from more than two dozen countries that raised terrorism concerns. NSEERS was an understandable, but nonetheless counterproductive, response to the fears of the post-9/11 environment.
April 4th, 2011 -
ABC News Video: In a sharp reversal of the Obama administration’s policy on trying Sept. 11 suspects in U.S. courts, mastermind Khalid Sheikh Mohammed and four co-conspirators will be tried in a military commission at Guantanamo Bay.
March 28th, 2011 - by Asa Hutchinson
I recently joined the board of directors for The Constitution Project, a think tank that provides scholarship and bipartisan policy recommendations on constitutional issues in the criminal justice and rule of law arenas. Maintaining an effective criminal justice system and upholding the Constitution requires a collective effort from throughout the public and private sectors, and the Constitution Project supports this.
March 14th, 2011 - by Steve Serrao
How should law enforcement respond to “threats” against government officials, particularly when the “threats” do not rise to the level of criminal activity? Law enforcement has made great strides in collecting data on incidents and behaviors that are suspicious in nature. The advent of Fusion Centers and the Nationwide Suspicious Activity Reporting Initiative (NSI) has laid the framework. If we do not begin to look at the threats against our institutions by people who are aggrieved, violently inclined, or mentally ill, then we will likely see more of this kind of crime.
March 9th, 2011 - by Chris Battle
We’ve got anti-Muslim accusations. We’ve got anti-American accusations. We’ve got anti-Peter King accusations. We’ve got charges of bigotry, racism and religious intolerance. We’ve got a New York Times magazine writer asserting that “America is a tinderbox of prejudice and fear.” In short, we’ve got a lot of hysteria.
March 3rd, 2011 - by Steven Bucci
The Supreme Court decision to uphold the right of the members of the Westboro Baptist Church to protest at the funerals of fallen service members reminds us: Even hurtful speech is protected. As a career Army Officer, what these protesters do at ceremonies personally sickens and angers me, but I thank God that I can be counted as a U.S. citizen, and I am glad I was willing to lay down my life so the Westboro Baptist crowd can desecrate the memory of my comrades.