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Posts by Orin Kerr

Orin Kerr is the Fred C. Stevenson Research Professor of Law at the George Washington University Law School and is a nationally recognized scholar of criminal procedure and computer crime law. Before joining the G.W. faculty in 2001, Professor Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the U.S. Department of Justice, as well as 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. Full bio »

New Draft Article, “A Rule of Lenity for National Security Surveillance Law”

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Sunday, May 11, 2014 at 4:37 PM

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 . . .
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New Draft Article, “The Fourth Amendment and the Global Internet”

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Thursday, April 24, 2014 at 12:32 PM

I have a new forthcoming article that may be of interest to readers: The Fourth Amendment and the Global Internet, forthcoming in the Stanford Law Review. Here’s the abstract: This article considers how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet . . .
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Did the CIA Violate the Computer Fraud and Abuse Act by Accessing Intelligence Committee Computers?

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Wednesday, March 12, 2014 at 7:27 AM

Senator Feinstein recently claimed that the CIA may have violated the federal computer hacking statute, the Computer Fraud and Abuse Act, by searching computers used by the Intelligence Committee to conduct CIA oversight. Based on the facts we know so far, I’m skeptical of the claim that the CIA violated the statute. This post explains . . .
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More on the (Alleged) Global Right to Privacy

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Monday, December 2, 2013 at 1:28 AM

Over at EJILTalk!,  Marko Milanovic has a five-part series considering the possibility of a global right to privacy against government surveillance   Milanovic’s posts are in part a response to posts by Ben and me, so I thought I would  offer just two quick thoughts in response: 1) In response to Ben’s question about what this right . . .
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Problems with the FISC’s Newly-Declassified Opinion on Bulk Collection of Internet Metadata

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Tuesday, November 19, 2013 at 2:35 AM

Yesterday afternoon, the DNI declassified an 87-page FISC opinion authored by Judge Kollar-Kotelly that had allowed a bulk Internet metadata collection under FISA’s version of the Pen Register statute, 50 U.S.C. 1842. In plain English, the government published a previously-secret opinion that had allowed for the bulk collection of non-content Internet metadata under a statute . . .
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More on the Rule of Lenity: A Reply to Vladeck

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Sunday, November 10, 2013 at 2:20 PM

On Friday, Steve Vladeck responded to my post from last Tuesday on how a rule of lenity could help the law of national security surveillance. Here are three replies to Steve’s post: (1) Steve argues that a rule of lenity may be necessary but isn’t itself sufficient to cure FISA’s problems. To be clear, I . . .
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The Rule of Lenity as a Tool to Regulate National Security Surveillance

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Tuesday, November 5, 2013 at 3:20 PM

At yesterday’s hearing of the Privacy and Civil Liberties Oversight Board, I argued that a “rule of lenity” for foreign intelligence surveillance law could be a helpful way to regulate national security surveillance. I thought I would say more about the idea in this post. First, some context. The FISA statute is based largely on . . .
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A Reply to David Cole on Rights of Foreigners Abroad

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Saturday, November 2, 2013 at 1:54 AM

A few days ago, I posted a response to David Cole’s Just Security post that had argued for U.S. law protecting the privacy of foreigners abroad. David has generously replied with an amusingly-titled post, We Are All Foreign Nationals — Even Orin Kerr. I suspect that our differences reflect our priors, which in turn are . . .
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Should U.S. Law Protect the Privacy of Foreigners Abroad?

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Friday, November 1, 2013 at 12:04 AM

United States privacy law traditionally has only protected the privacy of those in the United States and U.S. citizens abroad. Over at Just Security, David Cole argues that this should change. Privacy is a human right, he argues, and U.S. law should protect the privacy of foreigners all around the world. David offers three pragmatic . . .
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Is the Supreme Court Likely to Rule on FISA Section 702?

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Tuesday, October 29, 2013 at 7:00 AM

The Justice Department recently changed its policy on notice to criminal defendants about the use of evidence derived from surveillance under Section 702 of FISA. Press reports have treated the change as momentous, with the New York Times and the Associated Press predicting that the new policy will likely lead to a Supreme Court case . . .
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