Dealing With Uncertainty

Waiting is hard.

Good Evening:

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Today on #DogShirtTV, the estimable Alicia Wanless and I welcomed the estimable Professor Kate Sweeny, who woke up at 5:00 am to talk to us about the psychological effects of uncertainty and how the current political environment fosters prolonged uncertainty.

Alicia and I also had a prolonged argument about the War of 1812. Because it’s a revolution in morning television and no one can stop us. And she started it.

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Today On Lawfare

Compiled by the estimable Caroline Cornett

The Dangers Lurking in the U.K.’s Plan for Electronic Eavesdropping

Susan Landau evaluates the United Kingdom’s demand for access to iCloud data—which threatens Apple’s end-to-end encryption of data via Advanced Data Protection for iCloud (ADP)—and Apple’s subsequent decision to strip ADP protections from U.K. users. Landau warns that this bulk communications collection will weaken security and create new vulnerabilities:

This would set a terrible precedent for cybersecurity. It is, however, the U.K. law. So Apple has responded in the only sensible way it could: new U.K. users no longer have access to ADP protection and current ones will lose ADP protections soon. This doesn’t necessarily satisfy the U.K. requirements, which is access to iCloud data for any user in the world. But if the U.K. government is able to receive the data with the electronic protections stripped off, then so is any other nation in the world. History shows that if a backdoor is put into a “secured” communications system, then adversaries can find a way in. Two instances are wiretap-compliant switches in Greece and a commercial firewall—but there are many, many more. Our partners across the pond appear not to have taken to heart those lessons or that of Salt Typhoon.

Who Is Running the U.S. DOGE Service?

Anna Bower reports from a preliminary injunction hearing in Alliance for Retired Americans v. Bessent, which concerns the Department of Government Efficiency’s (DOGE) access to sensitive Treasury Department systems. Bower highlights the government’s inability to answer questions about the structure and leadership of the U.S. DOGE Service, as well as concerns about DOGE’s transparency and constitutionality:

Judge Kollar-Kotelly’s grilling of Humphreys has received significant attention, in part because the lack of information stands in stark contrast to Musk’s claims that DOGE is “maximally transparent.” But the questions posed by the judge also suggest that, as the New York Times puts it, “there could be problems looming for Mr. Musk’s organization.” Specifically, the judge raised doubts about the constitutionality of DOGE’s structure and operations under the Appointments Clause.

There is No Puzzle About Birthright Citizenship

Chris Mirasola responds to Randy Barnett’s and Ilan Wurman’s claim that there is a legal conundrum about how to apply the Fourteenth Amendment to children of U.S. citizens born in occupied territory or children born to foreigners on foreign-flagged vessels in U.S. waters. Mirasola argues that the limits of states’ jurisdiction over occupied military territory and territorial waters is enshrined in international law, thus debunking Barnett and Wurman’s theory that birthright citizenship is conditional upon allegiance to the sovereign:

Barnett and Wurman rest their theory of the Fourteenth Amendment on a legal conundrum which did not exist at the time that the amendment was debated and enacted. Occupied military territory and the territorial sea were understood to be zones of limited jurisdiction for the occupying power and littoral state, respectively. In this way, they are consistent with the other ways in which the “jurisdiction of the United States” is understood to be limited (interpretations with which, again, Barnett and Wurman have no issue). The conundrum certainly does not exist today, either under the law of war or under the UN Convention on the Law of the Sea. If they are serious that this conditional theory of birthright citizenship is only necessary because of an inscrutable puzzle about the bounds of state jurisdiction under international law, it is a debate for nought.

District Court Judge Rules FISA 702 Queries Required Warrant

Preston Marquis discusses Judge LaShann DeArcy Hall’s ruling in United States v. Hasbajrami, which found that the U.S. government violated the Fourth Amendment when conducting U..S. person queries under Section 702 of the Foreign Intelligence Surveillance Act (FISA) without a warrant. Marquis breaks down key parts of the opinion, including Judge Hall’s finding that the exception to querying did not apply and refusal to exclude the unlawfully obtained evidence according to the good-faith exception:

The ruling gives a “win” to both sides of the debate about requiring the FBI to get a warrant before conducting U.S. person queries.

Proponents of a warrant requirement can point to a favorable ruling in an as-applied challenge to warrantless U.S. person querying under Section 702. This win, although it has no precedential value, will animate renewed calls for Congress to change the law.

Opponents may find solace in Judge Hall’s respect for the FISC’s programmatic approval of Section 702 lawful collection procedures, on which the government reasonably relied when running queries. She also underscored that some circumstances may, in fact, sanction warrantless queries. The court’s analysis supports the government’s continued use of Section 702 as a foreign intelligence tool.

Podcasts

On Lawfare Daily, Alexandra Reeve Givens, Courtney Lang, and Nema Milaninia join Kevin Frazier to discuss whether the Paris Artificial Intelligence (AI) Action Summit marks a formal pivot away from AI safety to AI security, and if so, what an embrace of AI security means for domestic and international AI governance:

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Today’s #BeastOfTheDay is a duo. The tortoise and the hare have worked out their differences and pledged bipartisan cooperation henceforth. Hallelujah:

Image Source

In honor of today’s Beasts, pick a thorn out of lion’s paw or something.

In further honor of today’s Beasts, please enjoy these medieval depictions of various hares playing various musical instruments.

A hare playing the flute, c. 1260: