New draft article, “A Rule of Lenity for National Security Surveillance Law”

May 15, 2014

In our post-Snowden world, lots of folks have floated proposals to amend the Foreign Intelligence Surveillance Act (FISA). I recently posted a new draft article with my own idea for 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.

As always, comments are very much welcome.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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Eugene Volokh · May 15, 2014