New Draft Article, "A Rule of Lenity for National Security Surveillance Law"
I recently posted a new draft article on FISA reform, A Rule of Lenity for National Security Surveillance Law, forthcoming in the Virginia Law Review. Here's the abstract:
This essay argues that Congress should adopt a rule of lenity for the interpretation of national security surveillance statutes.
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I recently posted a new draft article on FISA reform, A Rule of Lenity for National Security Surveillance Law, forthcoming in the Virginia Law Review. Here's the abstract:
This essay argues that Congress should adopt a rule of lenity for the interpretation of national security surveillance statutes. Under the rule of lenity, ambiguity in the powers granted to the Executive Branch in the sections of the United States Code on national security surveillance should trigger a narrow judicial interpretation in favor of the individual and against the state. A rule of lenity would push Congress to be the primary decisionmaker to balance privacy and security when technology changes, limiting the rule-making power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.Comments on the draft are very welcome. Regular readers may recall a preview of the article here at Lawfare back in November.
Orin Kerr is a Professor at the University of California, Berkeley School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.
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