William Banks, a professor at Syracuse University Law School, discusses the House’s passage of an extension to the Foreign intelligence Surveillance Act, otherwise known as FISA, which has seen unsteady support from the President, who says he now supports the warrantless spying bill. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”
(Bloomberg Radio | Dec. 22, 2017) William Banks, a professor at Syracuse University School of Law, discusses whether or not Congress will vote to reauthorize the Foreign Intelligence Surveillance Amendments Act of 2008—and specifically FISA Section 702—which allows the NSA to collect emails and other communications from U.S. companies and persons while pursuing overseas foreign targets. He speaks with Bloomberg’s Michael Best on Bloomberg Radio’s “Politics, Policy, Power and Law.”
(WAER | Oct. 3, 2017) A Syracuse University Law Professor says President Trump’s appointment of new Supreme Court Justice Neil Gorsuch should not be significant in the Justice’s decisions moving into his official first term. Professor William Banks thinks that Gorsuch’s values will be much more impactful.
“I think Mr. Gorsuch is going to prove himself to be one of the most, if not the most conservative Justice on the court. Probably more conservative than Justice Scalia, or at least as conservative.”
Professor Banks adds that while the Supreme Court will face multiple important decisions down the line, a few already stick out to him.
“One that will decide the availability of remedies for big time political gerrymandering in legislative districts. Another one that will decide the rights of business owners to decline the rights of gay or lesbian customers.”
Banks feels even stronger about one particular topic than impacts most Americans, smartphones. This decision will decide if police are allowed to monitor the location of cell phone users through site location data, a decision Banks thinks could have a strong impact on recent law history.
“The Fourth Amendment case on cellphone site location – if it comes out in favor of those whose location was given up – is a change in Fourth Amendment doctrine that will turn about 50 years of law on its head” …
To read the full article, click here.
(TIME | Sept. 21, 2017) If you’ve ever walked into a hotel room and wondered if you’re being watched, you’re not alone.
Whether it’s an idle question or a gnawing paranoia, many Americans have considered whether hotels are spying on their guests in the digital age. The answer is generally no, since that would violate laws in more than a dozen states. But the issue is complicated on a federal level, and security experts also say rogue hotel employees could easily hide small cameras inside devices, like clocks and lamps …
… Under federal wiretapping statutes, it’s illegal in every state to audio record anybody without their knowledge, but there’s no federal law pertaining to hidden camera usage, according to Syracuse University law professor William Banks. Only about 13 states have made it illegal to install or use cameras in private places without authorization from recorded subjects, according to Sanchez and the Reporters Committee for Freedom of the Press. “This is obviously a really dynamic area of the law,” Banks said. “It’s a rapidly changing area of policy and law in states. It’s challenging for legislatures to keep up with the changes in technology — what you can do with your telephone or your gadget that’s hardly visible” …
To read the whole article, click here.
INSCT Director William C. Banks was one of the distinguished faculty at the June 16, 2017, New York County Lawyers Association Continuing Legal Education Institute short course “Cyber Warfare, Fake News, Corporate Data Collection, Wikileaks, Hacks, and Immigration: National Security in a Cyber World.”
The program informed members of the public, lawyers, corporations, and national security practitioners about the latest developments in the area of national security. Banks’ “conversation with the author” discussed his latest book, Soldiers on the Home Front. Other topics addressed in a busy schedule included:
Banks will be joined by Program Chair Mark B. Rosen, John Jay College of Criminal Justice; Brig. Gen. (Res.) Eli Ben Meir, Israeli Defense Forces Intelligence Corps; John Cronan, Chief, Terrorism and International Narcotics Unit, US Attorney’s Office Southern District of NY; Colleen C. Piccone, Associate Chief Counsel, US Customs and Border Protection; Bruce Schneier, Chief Technology Officer, IBM Resilient; and Patrick Toomey, ACLU National Security Project, among others.
In the wake of two surveillance-related stories in the past few days, the media have turned to the national security expertise of INSCT Director William C. Banks.
The first story concerns the explosive March 4, 2017, claim made by President Donald J. Trump on Twitter that former President Barack Obama personally ordered a “wiretap” of the Trump presidential campaign before the November 2016 election, presumably to ascertain links between the campaign and the Russian government. This claim led to media questions about how and why a wiretap of phones or electronic communications could be made by the government, the workings of the FISA court (where such a request might lawfully be made), and whether or not President Trump could find and release this information in order to quell confusion and concern. Banks addressed these issues nationally with CNN’s Erin Burnett Outfront (see video clip below); MSNBC’s The Rachel Maddow Show (on background); and the Sinclair Media Group (“Congress poised to investigate Trump’s wiretap claims”).
Secondly, on March 7, 2017, Wikileaks released thousands of documents that appeared to catalog the CIA’s domestic cybersurveillance and cyberespionage capabilities, and in particular new technology that enables the agency to surveil targets via personal electronic devices. Banks discussed this issue on Bloomberg Radio with fellow national security expert Steve Vladeck of the University of Texas School of Law (see audio clip below).
(CNN Erin Burnett Outfront | March 8, 2017)
(Bloomberg Radio | March 8, 2017) Stephen Vladeck, a professor at the University of Texas School of Law, and William Banks, Director of the Institute for National Security and Counterterrorism at Syracuse University College of Law, discuss new documents released by WikiLeaks, which, if true, show the extent of the CIA’s abilities to use personal technology devices to monitor seemingly private conversations and messages. They speak with June Grasso and Michael Best on Bloomberg Radio’s “Bloomberg Law.”
Duke Law’s Center on Law, Ethics and National Security (LENS) held its annual national security conference from Feb. 24-25, 2017, at Duke Law School. The 2017 LENS conference was titled “Cyber, Security & Surveillance: Truth & Consequences.”
Moderator: Maj. Gen. Charlie Dunlap, USAF (Ret.), LENS Executive Director
Moderator: Erin Wirtanen ((JD/MPA ’98), Central Intelligence Agency
(CNET | Feb. 15, 2017) It’s been a year since Apple fought the FBI over data privacy, and we’ve barely heard a peep from either side on the issue. So everything’s fine, right?
Uh, no.
The FBI’s attempt to force Apple to unlock an iPhone used by a terrorist set up a grand legal battle between security and privacy. On one side is a massive tech company envisioning a future similar to the setting in George Orwell’s “1984” (which, coincidentally, has become a bestseller again after President Donald Trump’s inauguration). On the other is the world’s most powerful government dangling the threat of a terrorist attack if it can’t get access to vital information.
The stakes were sky-high. Cybersecurity experts said the dispute could have far-reaching implications for everything from how private our personal photos are to how tech companies operate in other countries.
Both were poised to head to court, and then a funny thing happened: The FBI suddenly said it didn’t need Apple’s help, and the whole affair just faded away.
But that doesn’t mean everything is hunky-dory.
Because the battle never went to court, we never got an answer on whether security or privacy takes priority. A year later, the only thing that’s clear from the public battle is just how hazy everything still is. And the conflict isn’t going away anytime soon, especially if there’s another terrorist attack.
“This past year was kind of a missed opportunity to work this thing out,” said William Snyder, visiting assistant professor of law at the Syracuse University College of Law. “It hasn’t gone away. The question is whether you deal with it now when things are calm or later when the stakes are high” …
To read the complete story, click here.
The expertise of INSCT Director William C. Banks is in high demand as the United States prepares itself for the transfer of power to a new presidential administration. In January and February 2017 he will be speaking at the following events:
• AALS Annual Conference, San Francisco, Jan. 6
Panel Presentation: Domestic Responses to National Security Emergencies
• Connecticut Law Review Symposium, Jan. 25-26
The Future of Surveillance and Privacy (panel presentation on surveillance reform, plus an essay for the University of Connecticut Law Review)
• Emory University, Jan. 30-31
Book talk, with Prof. Mary Dudziak, on Soldiers on the Home Front, and a guest lecture on national security law with Prof. Laurie Blank.
• University of Texas School of Law Robert Strauss Center, Feb. 6-7
Panel presentation on attribution of cyber attacks and the new Tallinn 2.0 Manual (plus an essay for Texas Law Review), and a guest lecture on Counterterrorism Law, with professors Robert Chesney and Stephen Vladeck.
• Duke Law Annual Law, Ethics, and National Security Law Conference, Feb. 25-26
Panel presentations on civil/military relations and surveillance law, plus a book talk on Soldiers on the Home Front.
In addition, on Sept. 14-15, 2017, Banks will be the guest of theGerman Comparative Law Society and its bi-annual Congress in Basel, Switzerland. His talk on the US approaches to domestic deployment of the military and militarization of the police also will be the subject of a forthcoming book chapter.
By Ryan White
(Re-published from Crossroads: Cybersecurity Law and Policy, Nov. 9, 2016) The pending December 2016 amendments to Rule 41 of the Federal Rules of Criminal Procedure have caused quite a stir.
Summary of Rule Changes
The first change occurs in subsection (b), where “Authority to Issue a Warrant” is changed to become “Venue to Issue a Warrant.” This change summarizes the main reason why these amendments do not create any concerns: the changes are procedural, not substantive.
The second two changes are substantive additions in which “venue to obtain a warrant” is expanded. A new subsection (b)(6) states the following:
(A) the district where the media or information is located has been concealed through technological means; or
(B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.
The third change occurs in section (f)(1)(C), which adds one sentence to cover the receipt of a warrant in circumstances defined in (b)(6):
The full text of what Rule 41 will look like in December can be read here, with additions and changes highlighted in yellow.
Commentary: What Do These Rule 41 Amendments Mean?
Opponents of the rule claim it creates a vast authority for law enforcement and government officials to access almost any computer. They pose hypotheticals where victims of cybercrime and hacks will be preyed on even further by the government if these amendments were to go into effect. The Electronic Frontier Foundation poses such scenarios here, and Slate chronicles other companies’ concerns here.
In my view, I highly value privacy, and I am all in favor of holding the government to the constitutionally imposed standards before intruding into citizens’ lives. These amendments, however, do not amount to the Doomsday scenarios that critics claim. In fact, the amendments do not create any new authority for law enforcement officers or prosecutors, nor do they expand any existing authority.
The changes for Rule 41 simply broaden the number of places law enforcement can go to have a warrant signed. It expands which magistrate judges have the authority to sign a warrant under certain circumstances. The jurisdictional problems posed by the internet and computer crimes are widespread. This subtle change to one procedural part of the warrant process is just one minor step to address some of those problems. Further, these procedural changes only operate under relatively narrow circumstances …
To read more, click here.
Ryan White is a JD/MPA candidate (2018) at Syracuse Law and the Maxwell School, a former clerk in the US Attorney’s Office, and a former intern at Homeland Security Investigations.
