FISA: Reform

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

By Orin Kerr
Sunday, May 11, 2014, 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 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.