Write A Brief Response To These Essay Questions

Write A Brief Response To These Essay Questions Responses Should Not

Write a brief response to these essay questions. Responses should not exceed 3 paragraphs. Cite relevant case and/or statute.

Paper For Above instruction

1. Discuss if information obtained through FISA can be used in criminal trials? Why or why not?

The Foreign Intelligence Surveillance Act (FISA), enacted in 1978, provides the legal framework for electronic surveillance and other espionage activities for national security purposes. Under FISA, intelligence agencies obtain warrants from a special court— the Foreign Intelligence Surveillance Court (FISC)— to conduct surveillance on foreign powers and agents within the United States. However, the use of evidence obtained via FISA in criminal trials is complex. According to the Supreme Court case Clapper v. Amnesty International USA, 568 U.S. 398 (2013), evidence obtained through FISA surveillance can be used in criminal proceedings provided that the surveillance complies with FISA's statutory procedures and constitutional protections. Nonetheless, FISA's primary focus is national security, and certain evidence may be classified, invoking the 'state secrets' privilege to limit its admissibility, as seen in United States v. Reynolds, 345 U.S. 1 (1953). Therefore, the admissibility hinges on whether the evidence was lawfully obtained and whether its disclosure would compromise national security interests.

2. Discuss the “state secrets” privilege and how it is used.

The 'state secrets' privilege is a common law privilege that allows the U.S. government to withhold information in legal proceedings to protect national security interests. Originating from the 1953 Supreme Court case United States v. Reynolds, this privilege prevents the disclosure of information when its revelation could jeopardize diplomatic relations, military operations, or intelligence sources. To invoke the privilege, the government must demonstrate that the information is essential to national security and that there are no less invasive alternatives to protecting it. This privilege has been used extensively in cases involving national security allegations, such as in lawsuits concerning surveillance programs or intelligence operations, where disclosure might reveal methods or sources. Critics argue that overuse of the privilege may impede justice, but courts generally uphold its application to safeguard vital national interests.

3. What is the "third party" doctrine and explain how it has been applied in the cases we have read this term.

The "third party" doctrine holds that individuals do not have a reasonable expectation of privacy in information voluntarily disclosed to third parties, such as banks, phone companies, or internet service providers. This doctrine was articulately analyzed in United States v. Miller, 425 U.S. 435 (1976), where the Court held that financial records shared with banks are not protected by the Fourth Amendment. Similarly, in Smith v. Maryland, 442 U.S. 735 (1979), the Court ruled that dialed phone numbers provided to telephone companies are not protected. These cases affirm that when individuals share information with third parties, they have diminished privacy expectations, thereby permitting law enforcement to obtain such data without a warrant. Recent technological advancements, however, challenge this doctrine, as exemplified by Carpenter v. United States, 138 S. Ct. 2206 (2018), which recognized that accessing historical cell-site location data warrants a warrant due to its sensitive nature.

References

• Clapper v. Amnesty International USA, 568 U.S. 398 (2013).
• United States v. Reynolds, 345 U.S. 1 (1953).
• United States v. Miller, 425 U.S. 435 (1976).
• Smith v. Maryland, 442 U.S. 735 (1979).
• Carpenter v. United States, 138 S. Ct. 2206 (2018).
• United States v. Reynolds, 345 U.S. 1 (1953).
• European Court of Justice, May 2014 decision involving Google.
• International Telecommunication Union Official Reports.
• Federal Information Security Management Act (FISMA), 44 U.S.C. § 3541 et seq.
• Legal research on national security and privacy laws – Journal of National Security Law & Policy.