Issues with Designating Election Infrastructure as Critical Infrastructure

By Daniel Patrick Shaffer

Critical Infrastructure and the Power of the Executive Branch

Department of Homeland Security Secretary Jeh Johnson recently proposed the idea of designating election infrastructure as “critical infrastructure.” Critical infrastructure includes pieces of infrastructure that are so vital to the United States, that their destruction would have a crippling effect on our economy, health, and security. This currently includes infrastructure like dams, the power grid, and financial institutions. The Secretary has cybersecurity concerns, citing the recent cyber-attacks on the Democratic National Committee database, and the possibility of more destructive attacks in the future. Pursuant to the Homeland Security Act of 2002, The President and Secretary of DHS both have the power to designate critical infrastructure. The President did this in the Presidential Policy Directive-21, Critical Infrastructure Security and Resilience. The Directive says that department heads are in charge of working with the Secretary of Homeland Security to ensure security in their respective critical infrastructures. The Department of Justice, a part of the executive branch, has jurisdiction to monitor, investigate, and Continue reading “Issues with Designating Election Infrastructure as Critical Infrastructure”

Could Qaddafi’s downfall be the last nail in the coffin for the War Powers Resolution?

As negotiations continue for the surrender of the few cities where deposed tyrant Col. Muammar el-Qaddafi could be hiding, how peaceful the endgame turns out to be may impact the rhetoric surrounding President Obama’s decision to enter the fray in the first place. Part of that discussion will undoubtedly concern the War Powers Resolution (“WPR”), the post-Vietnam legislation that promised to hold future presidents accountable to Congress when engaging in international conflicts. The law has been largely ignored by past commanders in chief, and no Congress has ever enforced the act. Although Obama has claimed that the WPR does not apply to US involvement in Libya, a successful intervention could make the legislation even less potent than it is now. Continue reading “Could Qaddafi’s downfall be the last nail in the coffin for the War Powers Resolution?”

The Third Party Records Doctrine and Privacy in the Digital Age and Its Role in National Security

Everyday that passes the expectation of privacy of individuals diminishes. The newest technological crazes revolve around monitoring our day-to-day activities and maximizing every second we have. From wristwatches that measure your heart rate and let you read email or text messages at the same time, to smart meters installed at our houses collecting minute-by-minute data about energy consumption to transmit it back to energy companies for more accurate billing.[1] Everywhere we go and in everything we do there seems to no longer be a way to avoid transmitting some our most personal and private details of our life to a third party through the use of technology. In taking into account this reality it’s hard to accept the fact that just by making use of this existing technology we’ve inadvertently renounced to our privacy rights over some of our most personal information that was never intended to be public. Continue reading “The Third Party Records Doctrine and Privacy in the Digital Age and Its Role in National Security”

Supreme Court Approves Change to Rule 41 Search and Seizure Warrants for Electronic Property

On Thursday, April 28, Chief Justice John Roberts submitted to Congress, the amendments to the Federal Rules of Criminal Procedure that have been adopted by the Supreme Court.[1] The Supreme Court amended Rule 41(b), governing ‘Search and Seizure’ by expanding the scope of venue in which a warrant could apply.[2] Under certain circumstances, a federal judge could issue a warrant that would allow law enforcement to hack into a computer that may be located outside the district in which the warrant is being sought.[3] The rule states: Continue reading “Supreme Court Approves Change to Rule 41 Search and Seizure Warrants for Electronic Property”

Stopping Terrorism at the Border

Are the U.S. borders the last stop before both foreigners and citizens are entitled to the constitutional rights generally afforded to all within the United States? Terrorists have long been recruiting Americans whose outward appearance matches the local population to make their war against the non-believers more effective and inconspicuous. A limit on search and seizure to the standard of reasonable suspicion allows these “typical Americans” to cross the U.S. land borders without any additional scrutiny; meanwhile, those who fit the terrorist stereotype are subject to interrogation. Perhaps security measures at a land border and other checkpoints should mimic those at the airport to prevent a lapse in judgment or a border guard from overlooking a subtle red flag.

Should only an act of suspicion trigger a search and seizure at the U.S./Mexico and U.S./Canada borders, or should border guards subject all travelers to the same kinds of security measures as those in an airport? Ahmed Ressam, commonly known as the Millennial Bomber, attempted to enter the U.S. from Canada via a ferry.[1] When Ressam reached Port Angeles, Washington, U.S. Customs and Border (CBP) officers performed a standard search of the vehicle he brought with him.[2] Officials found nothing during this search, but a border guard decided to give him additional scrutiny based on his body language and facial expressions.[3] A more thorough search of Ressam’s car then produced explosives hidden in the spare tire well.[4] Should we always wait for that act of suspicion to occur, and if not, then how thorough should a required search and seizure be? The routine search and seizure of Ressam’s car failed to yield results since CBP officers did not check the trunk’s spare tire well.[5] Without another agent’s shrewd assessment of Ressam’s body language, perhaps Ressam would have been able to successfully bomb the Los Angeles Airport.[6]

The fourth amendment protects Americans from unlawful search and seizure; however at the border, should national security rely solely on CBP officers to determine who receives a more stringent search?[7] Perhaps stricter searches will lead to capturing others like Ressam and remove the element of human judgment while simultaneously treating all travelers equally. In U.S. v. Ramsey, the Supreme Court held that border searches are considered reasonable due to the fact that the person or item of interest entering the U.S. is from the outside.[8] As a result, the border represents the best and final opportunity for CBP officers to secure our borders before domestic law enforcement has to allocate limited resources in an effort to protect American citizens from those who breezed across the border with the sole intent to do substantial harm to the U.S. and its people.

Lastly, racial profiling and other stereotypes will not be a point of contention if everyone is required to be thoroughly searched. In 2004, CBP officers detained five American Muslims returning from an Islamic revival conference in Canada.[9] Although they did not have criminal records, they were questioned, patted-down, fingerprinted, and photographed by CBP officers over the course of several hours.[10] The court held that in Tabbaa v. Chertoff, searches and detentions constituted the least restrictive means to protect the nation from terrorism.[11] Given the recent surge of terrorist activities in Europe, the court’s opinion has merit. Despite the inconvenience of a detailed search, the time lost is a small price to pay for the safety of the country.

 

 

[1] United States v. Ressam, 474 F.3d 597 (9th Cir. 2007).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] United States v. Ressam, 474 F.3d 597, 600 (9th Cir. 2007).

[7] U.S. Const. amend. IV.

[8] United States v. Ramsey, 431 U.S. 606, 619 (1977).

[9] Tabbaa v. Chertoff, 509 F.3d 89, 92 (2d Cir. 2007).

[10] Id.

[11] Id.