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On Oct. 30, the Biden administration released an Executive Order(EO) on Safe, Secure, and Trustworthy Artificial Intelligence. In part, the EO discusses the need for a bipartisan comprehensive federal privacy law. This is encouraging and adds to the much-needed dialogue for Congress to pass a privacy and security law that protects allAmericans.

There are concernsthat the EOs encouragement to regulatory agencies to wield their authority to protect Americans from privacy-related artificial intelligence (AI) risk could harm AI innovation. In past years, various federal regulatory agencies, such as the Federal Trade Commission, have already had broad interpretations of their authority. That is why a call from the Biden administration for a bipartisan comprehensive federal privacy law is a critical step toward mitigating Americans privacy and data risk with AI technologies. Because any regulatory enforcement action should come from guardrails that Congress setsnot wobbly legal interpretationsby regulatory enforcers to get their hand in the cookie jar.

This year, President Joe Biden released an AI Bill of Rightsand an op-edemphasizing the need for serious federal protections for Americans privacy. There was optimism that his 2023 State of the Union addressmight provide a clear path forward on a comprehensive federal privacy and security law. However, President Biden never illuminated a path forwardbeyond generic statements on Big Tech, privacy and protecting children.

Bipartisanship is essential in passing a comprehensive federal data privacy and security law

The EOs emphasis on bipartisanship is essential. Passing a comprehensive federal privacy and security law has been a decade-long journey with little output. R Streets Cyber team, looking for areas of bipartisan compromises on a comprehensive federal privacy and security law, extensively engagedwith over 130 stakeholders including Congress, the private sector, consumer groups and privacy advocates. We were encouraged that many of those compromises were included in the 117th Congresss American Data Privacy and Protection Act(ADPPA), including preemption with state action carve-outsand a limited private right of action. The ADPPA was a strong solution to promote global competitiveness, reduce data security and national security risks, and provide all Americans with privacy protections. Ultimately, the ADPPA never crossed the finish linebut if Congress chooses to act, there is no need to start from scratch since the ADPPA is a good bipartisan solution.

AI needs a comprehensive federal privacy and security law

AI has been used in our daily lives for yearsfrom assisting pilots with flyingus safely from the West Coast to the East Coast to helping drivers evade traffic jams safely. If we allow AI innovation to flourish, technology will exponentially benefit our society in ways we might not be able to imagine today. In order to mitigate AI risks, a comprehensive federal data privacy and security lawmust be passed to protect Americans data. It is an essential step toward harnessing the power of AI technologies while limiting exposure to privacy and national security risks.

Move beyond the AI panic with a nuanced approach to data protection and use

In addition to the call for a privacy law, the EO directs several actions to mitigate Americans privacy risks from emerging AI technology, including:

The Biden administrations focus on developing privacy-enhancing technologies (PETs) is an important approach. The innovation of PETs, coupled with a comprehensive federal privacy and security law, allows data to be utilized for societal good. A fearmongering approachto data collection often ignores the datas positive impacton society. Consumer data has fueled internet innovation, creating accessibility to information that was once only available to privileged individuals. For example, consumer health data significantly contributes to innovation in the health tech industryand brings vast health improvements to society. A smartwatch can save a life, a telehealth provider can reach rural areasvoid of health care options and online pharmaciescan provide high-cost prescription medication at a discount. Undoubtedly, there have been many failures by industryand governmentto protect sensitive data, and these failures should not be ignored. Researching the many forms of PETs, such as differential privacy, data clean roomsor unified ID 2.0, is a decisive step toward offering strong privacy protections while providing data utility to spur innovation.

However, many data privacy concerns exist outside of industries collection and use of personal data, including law enforcements access to data. The EOs directive to evaluate how federal agencies, such as law enforcement, utilize commercially available data is critical to protecting Americans constitutional rights. In a March Energy and Commerce Subcommittee on Innovation, Data, and Commerce hearing, Rep. Kelly Armstrong (RN.D.) commented on law enforcement purchasing data from data brokers and evading Fourth Amendment obligations. While noting that law enforcement should use every lawful tool available, he emphasized that Congress must set the guardrails on what tools are permitted. However, there are complexitiesto be considered when law enforcement accesses data, such as investigating crimes related to online sexual exploitation of a child using analytics tools powered by consumer data. Further, any comprehensive federal privacy and security law should take a nuanced approachto which third-party entities are considered data brokers.

This year, one narrative on these issues has held: data privacy and security legislation is popularamongst stakeholders of different political ideologies. Industry also understands that building consumer trust through data privacy and security is economically advantageous. Thus, getting an ADPPA-like bill across the finish line can be a political victory for Congress members willing to negotiate openly with industry, civil society and different-minded political opponents to reach a bipartisan solution to a comprehensive federal privacy and security law.

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The Biden administrations latest executive order calls for a ... - R Street

AUSTIN On Thursday, Oct. 26, 2023, the Texas Public Safety Commission (PSC), along with Texas Department of Public Safety (DPS) Director Steven McCraw, presented several prestigious awards to DPS personnel, including a Medal of Valor, two Purple Hearts, five Directors Citations, nine Lifesaving Awards and two Unit Citations. The Awards were presented at the Public Safety Commission meeting at DPS Headquarters in Austin. Four Directors Awards were also given to law enforcement personnel outside the department.

These awards are a testament to the courageous acts that take place every day by the men and women who serve Texas, said DPS Director Steven McCraw. To hear their stories and know the actions theyve taken in order to save a life and put others first is truly remarkable. It is an honor to be able to recognize them here today.

The following individuals were recognized:

Texas Ranger Thomas Arnold was awarded the Medal of Valor in recognition of his courage during a violent and life-threatening situation on Oct. 13, 1971. That night, a man wanted for assault with intent to commit murder, attempted to murder a Euless Police (EPD) Officer during a traffic stop. He fled the scene and went into a home in Bedford, taking the family inside hostage. A teenager inside was able to escape and alert authorities, leading to a standoff the following day.

Ranger Arnold was involved with the all-night manhunt for the suspect, and when he got information about the standoff in Bedford, headed toward the scene. Prior to the Rangers arrival, the suspect forced the family into their vehicle at gunpoint and ordered the mother to drive. Still on his way, Ranger Arnold became involved in the pursuit of the vehicle, which eventually ended when an EPD officer blocked the road. Ranger Arnold disregarded his own safety and parked his DPS vehicle directly behind the hostage vehicle in order to communicate with the suspect. The mother, a 5-year-old child and the father were all in the vehicle, with the suspect holding a sawed-off shotgun to the back of the fathers head.

Officers tried but failed to negotiate the safe release of the hostages. Ranger Arnold realized the suspect had no intention of surrendering, so he positioned himself in the right spot in order to minimize the risk to the hostages if he was indeed forced to take a shot on the suspect. As the situation deteriorated, the suspect became distracted and momentarily moved the shotgun from the fathers head. Ranger Arnold seized the opportunity and fired one round through the rear windshield, striking the suspect. Ranger Arnold left cover and moved toward the vehicle while drawing his sidearm and placing himself between the suspect and fleeing hostages. Ranger Arnold instinctively, and with steadfast resolve, fired three shots into the suspect, ending the terrifying incident and allowing the family to escape unharmed. For his heroic actions, Ranger Arnold is awarded posthumously the Medal of Valor. Ranger Arnolds widow, Martha, and his son, Tom Jr., were present to accept the award.

Senior Trooper Kenneth Pittman, Training Operations Division Tactical Training Center, was awarded a Purple Heart in recognition of his great personal sacrifice and professional performance during which he sustained serious injury. On Jan. 11, 1987, Trooper Kenneth Pittman was on routine patrol in Midland County when he became involved in a vehicle pursuit. During the pursuit, the assailants opened the back doors of the van and fired a shotgun, striking the windshield of Trooper Pittmans patrol unit. The broken glass injured Trooper Pittmans eyes and impaired his vision, causing him to drive off the road and through a fence. Once his vehicle stopped, the assailants drove up to the crash site and fired two additional rounds at Trooper Pittman, one striking the drivers side window and the other hitting the left rear of the patrol unit. Trooper Pittman was able to exit the vehicle and return fire despite his impaired vision, striking one of the assailants. That person was helped back into the van and the assailants fled the scene.

Trooper Pittman was transported to Midland Memorial where he underwent treatment to remove the glass fragments from his eyes, as well as treatment for several bruised ribs and a twisted knee. Approximately one month later, Trooper Pittman returned to full duty.

Trooper Curtis Putz, Texas Highway Patrol Division Corsicana, was awarded a Purple Heart. On Jan 31, 2023, Trooper Curtis Putz was seriously injured in the line of duty due to icy road conditions in the North Texas Region. As he was applying personal protective equipment outside of his patrol unit at the scene of a crash, another vehicle lost control on the ice and collided with Trooper Putzs patrol unit, putting him between his vehicle and the concrete barrier. The crash caused the patrol unit to run over Trooper Putz and pin him underneath. Fellow Troopers, firefighters and tow truck operators who were already on scene, used various tools to raise the patrol unit off Trooper Putz and ease his breathing. Then, additional resources deployed to extricate him from under the unit and triage his condition until he could be transferred to the hospital for continued treatment. Trooper Putz has undergone numerous surgeries and a tremendous amount of rehabilitation on his road to recovery.

In recognition of his personal sacrifice and professional performance in which he sustained serious bodily injuries, Trooper Curtis Putz is hereby awarded the Purple Heart.

John Burris, Tierra Caradine, Steven Hill, John Lockhart, Driver License Division Dallas South, and Frank Pritchett, Driver License Division Rockwall, received a Directors Citation for their decisive action and response in a life-threatening situation. On May 9, 2023, License and Permit Specialist Shireda Lewis was processing a customer for an identification renewal when external checks indicated the customer had a warrant for assault with a deadly weapon. The team informed Texas Highway Patrol Trooper Stephen Lister of the active warrant, and as he attempted to make the arrest, the subject tried to escape. As Trooper Lister pursued the subject, both fell to the floor and Trooper Lister suffered a broken kneecap, rendering him incapacitated. Driver License employees Frank Pritchett, Tierra Caradine, John Lockhart, John Burris and Steven Hill immediately came to his aid and assisted in apprehending the subject. The employees detained the subject, who made two more attempts to flee before other law enforcement officers arrived at the office to take the subject into custody. For their quick actions, these employees are awarded a Directors Citation.

Trooper Brandon Aquino, Texas Highway Patrol Division Port Lavaca, Trooper Cole Duvall, Texas Highway Patrol Division Mineral Wells, were awarded a Lifesaving Award, and Deputy Elizabeth Aguirre, Kinney County Sheriffs Department was awarded a Directors Award. On May 9, 2022, Trooper Brandon Aquino assisted the Kinney County Sheriffs Department with a vehicle pursuit that ended with shots being fired. The subject sustained multiple gunshot wounds, some causing arterial bleeding. Trooper Aquino, along with Trooper Cole Duvall and Kinney County Sheriffs Deputy Elizabeth Aguirre, provided lifesaving efforts without hesitation. Trooper Aquino assisted in successfully applying multiple tourniquets and chest seal bandages, stabilizing the subject until EMS personnel arrived on the scene. These three individuals are recognized for their decisive and professional response to a life-threatening situation which resulted in the saving of a life

Trooper Crystal Hall, Texas Highway Patrol Division Burnet, was awarded a Lifesaving Award, and Officer Ashley Doran, Llano Police Department, Doctor Richard Debehnke, M.D. and Tristan Monks, Lake Travis Fire Department were awarded Directors Awards. On Jan. 13, 2023, Trooper Crystal Hall responded to a radio broadcast of an 83-year-old female that was choking at a local restaurant. When Trooper Hall arrived, Lake Travis Firefighter and Paramedic Tristan Monks, Doctor Richard Debehnke and Llano PD Officer Ashley Doran were already performing chest compressions on the victim. Trooper Hall immediately collaborated with these personnel to continue lifesaving medical attention. When EMS arrived, they employed a CPR machine and a four-lead ECG cardiac monitor. With continued medical treatment, the victims pulse returned, and she became alert and began communicating with personnel. The victim was flown to a medical center where she made a full recovery.

Trooper Troy Bridier, Texas Highway Patrol Division Stephenville, was awarded the Lifesaving Award for his response to a life-threatening situation on March 3, 2022. That day, Trooper Bridier responded to the scene of a male subject experiencing serious bleeding following a job site injury. The victim was lying on his back with his feet elevated and a co-worker was applying pressure to the wound located on the subjects right inner thigh when Trooper Bridier arrived. He immediately applied a tourniquet and continued to monitor the subject while communicating to responding personnel. Shortly after, Bluff Dale Volunteer Fire Department EMTs arrived and assisted in applying a second tourniquet. Erath EMS then arrived on the scene to continue medical care and transported the victim to a local hospital for additional care.

Trooper Justin Craig, Texas Highway Patrol Division Longville, received a Lifesaving Award for his actions on Dec. 26, 2022. Trooper Craig overheard a report from the Longview Police Department regarding a drug overdose in progress. He was nearby and was the first on the scene when he discovered an unconscious subject in the drivers seat of an SUV. As a drug recognition expert, Trooper Craig realized the subjects cold clammy skin, shallow breathing and pulse, and extremely constricted pupils were indications of a narcotics-related overdose. Trooper Craig administered Narcan to the subject as quickly as possible. When Longview PD Officers arrived, Trooper Craig requested assistance to remove the subject from the vehicle and placed him on the ground in a recovery position. When the subjects symptoms did not subside, he administrated additional Narcan. EMS personnel arrived shortly thereafter and transported the subject to a medical center. While in transport, the subject began to regain consciousness, and by the time Trooper Craig arrived at the medical center, the subject was fully alert and able to communicate.

Trooper Toby Clifton, Texas Highway Patrol Division Henderson, was awarded the Lifesaving Award for his actions on Jan. 19, 2023. Trooper Clifton arrived on the scene to assist Rusk County Sheriffs Deputies with a welfare check of a suicidal subject. He observed Deputies struggling with the subject who was covered in blood. After assisting, Trooper Clifton noticed the subject had arterial bleeding from his right forearm. Without hesitation, Trooper Clifton applied a tourniquet to the upper bicep, which significantly slowed the loss of blood. Trooper Clifton also applied a pressure dressing to further address the injury. Ultimately, the subject became somewhat compliant and was able to be transported to a local hospital where physicians were able to repair the artery.

Trooper Stephen Cantu, Texas Highway Patrol Division Rio Grande City, Trooper Sandra Mendoza, Texas Highway Patrol Division Luling, and Trooper Ramon Martinez, Texas Highway Patrol Division Brownsville, were all awarded Lifesaving Awards for their quick-thinking actions on Jan. 29, 2023. That day, Trooper Martinez was conducting a commercial vehicle inspection when a bus driver approached and requested assistance with a passenger displaying erratic behavior. The subject was escorted off the bus and Trooper Martinez requested EMS assistance as he suspected a drug overdose. Five minutes later, the subject lost consciousness. Troopers Cantu and Mendoza arrived on the scene and assisted Trooper Martinez with administering Narcan. The subject regained consciousness and stopped the erratic behavior. Trooper Mendoza remained with the subject until EMS personnel arrived and could provide additional medical attention. The subject told paramedics he had consumed a substance containing fentanyl. The Troopers quick actions likely saved the mans life. (Trooper Martinez was not present at the ceremony today.)

Texas Ranger Jesse Perez, Texas Rangers Division San Antonio, was presented a Lifesaving Award for his actions on May 2, 2023, during Operation Lone Star. Ranger Perez was assigned to the Unmanned Aircraft Systems (UAS) Team to support the Texas Rangers Special Operations Group in the Eagle Pass rail yard. Ranger Perez heard radio traffic from a US Border Patrol Agent regarding an undocumented female that had been struck by a northbound train, which amputated her leg. He immediately responded and began providing first aid, applying his DPS-issued tourniquet to her upper left leg. Ranger Perez placed the subject into the recovery position until other resources could arrive; however, due to the rural area and the lack of a level one trauma center, Ranger Perez requested a medical air evacuation. While waiting for EMS, Ranger Perez obstructed the subjects view of the injury and began talking with her to keep her calm and control her breathing. SRT-5 members arrived on the scene and prepared to safely transport the injured subject from the elevated bridge, down a steep embankment and across a field to a waiting EMS unit. After transport, SRT- 5 members secured a landing zone for the incoming aircraft, and Ranger Perez escorted the EMS unit to the landing zone. The subject was flown to a hospital in San Antonio for continued treatment.

Two Unit Citations were also awarded during the ceremony. The following units were recognized:

The Northwest Texas Regions Sergeant Area 5A11 are Troopers strategically stationed throughout the regions 71 counties, focusing criminal interdiction efforts on those smuggling narcotics and other contraband across Texas.

Sergeant Area 5A11 is comprised of one sergeant, one corporal and seven Troopers that support criminal interdiction operations throughout the region including narcotic detector canine handlers. From Jan. 1, 2021, through Dec. 31, 2022, this area had 735 canine deployments for illicit drugs and currency, which resulted in the seizure of more than 7,300 pounds of marijuana, more than 4,000 pounds of THC products, nearly 500 pounds of methamphetamine, nearly 400 pounds of cocaine, 11 pounds of heroin, 30 pounds of fentanyl, nearly 225 pounds of PCP and over 1 million dollars. Sergeant Area 5A11 Troopers credit their success to their criminal interdiction techniques such as roadside interview, vehicle searches and their knowledge of fourth amendment search and seizure case law. They are recognized statewide for their expertise in canine handling and successful drug and illicit currency seizures. Several Troopers have also placed in the states top ten canine teams.

Those being recognized for their tremendous work and dedication include Sergeant Tony Miller, Corporal Shane Bearden, Trooper Jerome Ingle, Trooper Shannon Tanck, Trooper Chase Neville, Trooper Christopher Lambert, Trooper Darik Heider, Trooper Clayton Blacksher, and Trooper Donald Strange.

A second Unit Citation was given for the extraordinary work done in Criminal Investigations Area 1C4. It began after an incident the morning of Oct. 9, 2020, when a female was found murdered in her home in New Boston, Texas. The victim was 35 weeks pregnant, and after she was viciously beaten, but still alive and conscious, her baby was cut from the womb. The New Boston Police Department requested assistance from the DPS CID and the Texas Rangers.

CID Lieutenant Andrew Venable assembled his personnel and coordinated with Texas Rangers Josh Mason and Chris Baggett to assist. A suspect was identified, and they discovered that a Texas Highway Patrol (THP) Trooper had conducted a traffic stop on the suspect that same morning, shortly after the murder. The suspect had the baby and claimed she had just given birth and was on her way to a hospital. EMS personnel transported the suspect and baby to a nearby Oklahoma hospital. Authorities contacted officers from the Idabel Oklahoma Police Department and Special Agents from the Oklahoma State Bureau of Investigation to detain the suspect there. Texas DPS CID Special Agent Dustin Estes obtained preservation orders for the suspects and victims social media accounts, other CID and THP personnel began a canvas of the area in a search for witnesses and evidence, and local officers and Ranger Mason traveled to Idabel, Okla. to interview the suspect. She confessed to being involved in the mothers murder.

DPS CID personnel did extensive work on social media accounts, phone records and online searches. They discovered the suspects research regarding how to fake a pregnancy, C-section deliveries and how to care for a newborn infant. They also found GPS information that proved the suspect had conducted surveillance at teen pregnancy centers and womens clinics, and evidence that the suspect performed vehicle registration inquiries on potential victims.

Due to the exemplary performance of DPS CID personnel, the Bowie County District Attorney requested that DPS CID remain involved in the remainder of the investigation, grand jury proceedings, court preparation and additional endeavors. The evidence gathered by these personnel all proved to be extremely invaluable contributions to the successful outcome of the investigation and ultimate conviction of the suspect. The outstanding collaboration, teamwork and dedication exhibited by these officers and prosecutors is to be commended.

Due to this tremendous work, CID Lieutenant Andrew Venable, CID Special Agent Briscoe Davis, CID Special Agent Eric Estes, CID Special Agent Dustin Estes, CID Special Agent Chris Barker, CID Special Agent Ben Allison (retired), Texas Ranger Joshua Mason, Bowie County Assistant District Attorney Kelley Crisp, Bowie County Assistant District Attorney Lauren Richards and District Attorney Investigator Lance Cline are hereby awarded a Unit Citation.

Please join us in congratulating all of the award recipients for their work in making Texas a safer place. Additional photos can be found on the DPS Facebook page.

###(HQ 2023-062)

Originally posted here:
DPS Presents Purple Hearts, Medal of Valor and Other Prestigious ... - the Texas Department of Public Safety

Washington, D.C. U.S. Senator Katie Britt (R-Ala.), a member of the Senate Committee on Banking, Housing, and Urban Affairs, has joined forces with Senator John Kennedy (R-La.) to request that the Government Accountability Office (GAO) conduct an investigation into the potential risks, constitutional issues, and privacy concerns raised by the Securities and Exchange Commissions (SEC) Consolidated Audit Trail (CAT).

The CAT, a system designed to track trades across American markets, has been in operation for over a decade, offering regulators access to valuable investor information and trade activity data. However, among the vast amounts of data collected by CAT, there lies a critical concern the personally identifiable information (PII) of every investor trading on U.S. stock exchanges. The collection of such sensitive information raises substantial consumer privacy concerns, as it can be employed to construct a comprehensive profile of an individuals trading activity and may be vulnerable to potential data breaches.

In their letter addressed to Gene Dodaro, the Comptroller General, Senators Britt and Kennedy have called for a comprehensive GAO investigation to report on various key aspects of the CAT, including the constitutionality and legality of the collection of personal and financial information, the cyber vulnerabilities associated with the CAT database, and an estimation of the number of individuals who will have regular access to the information stored in the database.

The Senators have expressed their concerns over the CATs collection of PII, as it poses potential threats to Fourth Amendment protections against unreasonable search and seizures. The mandated production of certain information, as per the Fourth Amendment, has previously been a matter of legal contention. The Senators contend that there are legitimate reasons for individuals not to want their financial transactions regularly submitted to a government registry, and they believe the SEC has not adequately addressed these concerns.

The GAOs forthcoming report, as requested by Senators Britt and Kennedy, will delve into several critical dimensions:

An analysis of the constitutionality and legality of collecting American investors personal and financial information by a regulator in a centralized database without evidence of wrongdoing. An examination of the cyber vulnerabilities associated with the CAT database. An estimation of the total number of individuals with regular access to data collected under CAT, their professional affiliations, and the screening or background check processes implemented by the SEC and FINRA to vet those with access to the CAT database. A comprehensive list of publicly reported cyberattacks on federal government agencies over the last three years and an analysis of compromised or potentially compromised American investors PII, including the cost associated with repairing the identities of affected individuals. An analysis of the legal entities that retail investors may hold liable for a cyberattack on the CAT, should such an incident result in the theft of American investors account numbers, identities, and/or securities holdings, along with an assessment of the potential costs based on previous identity theft data.

The Senators have requested a response from the GAO no later than November 15, 2023, emphasizing the importance of this matter. This collaborative effort by Senators Britt and Kennedy underscores the significance of safeguarding the privacy and constitutional rights of American investors in the digital age.

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Senators Katie Britt and John Kennedy Call for Investigation into ... - Calhoun County Journal

Academicians, lawyers, elections officials, pundits and politicians are presently ensconced in the problem of Donald Trumps continuing constitutional qualification for presidential office. Although he plainly meets Article II of the United States Constitutions three qualifications at least 35 years old, natural born citizen, sufficient residence in the United States Trump arguably runs afoul of a more recent disqualification added in 1868 by way of Section 3 of the Fourteenth Amendment.

That provision was added following the Civil War to keep former state and federal officeholders who had joined the Confederacy from once again rising to state and federal office. Its terms are broad and all-encompassing, with no apparent temporal limit, such that even today [n]o person shall hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as an officer of the United States to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. Its being cast in general terms arguably makes it applicable to the events of January 6, 2021, as at least one court has already concluded. If the assault on the Capitol was an insurrection or rebellion against the Constitution, then any of its participants who had previously taken an oath to uphold the Constitution could be thereafter disqualified from holding state or federal office.

There is little precedent on how Section 3s disqualifying provision works and to whom it applies. Confederates were plainly subject to its terms, though Congress for the most part granted them amnesty in the years following the Civil War. Whether Section 3 was applied by elections officials to disqualify non-Confederate candidates in later elections is not clear. I have yet to find any examples that pre-date the events of January 6, 2021. But then again there has been nothing like the events of January 6, 2021 since the end of the Civil War.

As one might suspect, legal questions have emerged over the precise meaning of Section 3s terms. Even assuming that then-President Trump was culpably involved in the January 6 assault on the Capitol, for example, would his actions fall within the reach of Section 3s terms? More precisely, does Section 3s disqualification from holding any office cover the Presidency? Does its inclusion of officer[s] of the United States on the list of those who are disqualified because of having previously sworn to uphold the Constitution include those who took Article IIs presidential oath as opposed to that required of everyone else in Article VI? And what exactly is an insurrection. Meaty questions like these have no definitive answers (yet).

Seizing on definitional questions like these, some, like Professor Lawrence Lessig, have argued that section 3 should not be applicable to President Trumps involvement in the events that transpired on January 6. Worrying about the proverbial slippery-slope, Professor Lessig asks, What is the line that would divide insurrectionists from protesters?

Professor Steven Calebrisi now insists (after a change of heart) that Section 3 simply does not apply to the office of the President. Professors Josh Blackman and Seth Barrett Tillman add that not only does Section 3 not apply to the Presidency, it is not enforceable at all without congressional action.

Rejecting all of Lessigs, Calebrisis and Blackman/Barretts positions, Professors William Baude and Michael Stokes Paulsen argue in their upcoming Pennsylvania Law Review article that Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as aid or comfort. And in particular, it disqualifies former President Donald Trump because of his] participation in the attempted overthrow of the 2020 presidential election. President Trump is covered because he swore, as President, to uphold the Constitution. Section 3 applies to the Presidency as an office of the United States. Further, Section 3 is fully enforceable with or without congressional action.

Because I am not an expert on Section 3s application to insurrections and rebellions (is anyone?) and I profess no special knowledge about whether the office of the President qualifies as an office of the United States under Section 3 (though I think it does), I address my focus here on something that is within my wheelhouse: the enforceability of constitutional norms, particularly those found in Section 1 of the Fourteenth Amendment. Specifically, I explore whether congressional legislation was considered necessary in 1868 (when Section 3 was ratified) to enforce the Fourteenth Amendments restrictions. If true of Section 1, then a much stronger argument can be made that the disqualification provision in Section 3 was also meant to require enabling legislation. If not, then the argument that Section 3 was not considered directly enforceable (as Justice Salmon Chase argued in In re Griffin) loses some weight.

In sum, I am confident that Section 1 of the Fourteenth Amendment was understood by the framers of the Fourteenth Amendment and the legal community to be fully enforceable without congressional enabling legislation. As I explain below, direct, positive enforcement of constitutional provisions was the norm.

Toward this end, I would first like to add a word about legalese. Unlike discussions about state constitutional laws, which frequently include digressions into whether provisions are self-executing, federal constitutional discussions rarely (if ever) use that term. Instead, federal constitutional analyses inquire whether powers have been exercised, whether limitations apply, and generally whether the Constitution is enforceable. Addressing the Fourteenth Amendment as self-executing is therefore a non-starter, whether in todays terms or across history. It may be unenforceable without a statutory vehicle, or it could present a non-justiciable political question, but neither of these equates with its being non-self-executing. The question is whether it is enforceable without congressional support. And to that problem I now turn.

In support of their claim that Section 3 requires congressional support, Professors Josh Blackman and Seth Barrett Tillman argue for a distinction between defensive and offensive enforcement. Although a defensive use of the constitutional constraints found in the Fourteenth Amendment is always permissible, they claim, the offensive use of the Fourteenth Amendments limitation (including those in Section 3) is not. As a general matter, to sue the federal government or its officers, a private individual litigant must invoke a federal statutory cause of action. It is not enough to merely allege some unconstitutional state action in the abstract. The same is true for suits against states and their officers, they claim. Section 1983, including its statutory antecedents, i.e., Second Enforcement Act a/k/a Ku Klux Klan Act of 1871, is the primary modern statute that private individuals use to vindicate constitutional rights when suing state government officers. Tying this into a historical thread, they then assert that [c]onstitutional provisions [including Section 3] are not automatically self-executing when used offensively by an applicant seeking affirmative relief, with the implication being that it has always been that way. It is in this latter regard that they are mistaken.

Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.

But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, positive, direct, offensive constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. Throughout the nineteenth century, both before and after Reconstruction, she explains, the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it. Consequently, much of the Supreme Courts development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as 1983, but rather under the rubric of diversity jurisdiction. Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance.

This remained true in 1868 when the Fourteenth Amendment was ratified. The Supreme Court in 1978 explained in Monell v. New York Department of Social Services that at the time the Fourteenth Amendment and section 1983 were put in place it had already granted unquestionably positive relief in Contract Clause cases, the question being simply whether there had been a violation of the Constitution. It added that federal courts found no obstacle to awards of damages against municipalities for common-law takings at this time, either, citing an 1873 case as an example.

So-called confiscatory challenges under the Fourteenth Amendments due process clause were heard in federal court in the late nineteenth century through the early twentieth century, too, with one of the better-known examples being the 1908 case of Ex parte Young, which remains a cornerstone of modern constitutional litigation. There the Supreme Court concluded that the presence of constitutional claims under section 1 of the Fourteenth Amendment, when coupled with federal question jurisdiction, was enough all by itself to support a federal courts entertaining a positive constitutional challenge to Minnesotas confiscatory rates. No statutory vehicle, like section 1983, was discussed. None was needed.

In 1946 the Supreme Court in Bell v. Hood, without mention of any statutory enforcement mechanism, observed that it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the state to do. In support of this established practice the Bell Court cited to late nineteenth century and early twentieth century precedents under constitutional provisions including the Fourteenth Amendment.

None of this was changed by the additions of section 1983 in 1871 and the advent of federal question jurisdiction in 1875.Although having maintained a constant presence in the United States Code, albeit in various different subsections (such as 8 U.S.C. 43 when Bell v. Hood and Brown v. Board of Education (1954) were decided), section 1983 remained little-used until the 1960s. Justice Scalia observed in his dissent in Crawford-El v. Britton that section 1983 produced only 21 cases in the first 50 years of its existence. In the collection of the cases that make up Brown v. Board of Education, for example, most of the plaintiffs did not mention section 1983s ancestor, 8 U.S.C. 43, at all in their pleadings, and not one mentioned it before the Supreme Court as a basis for the suit. Judge Marsha Berzon was thus certainly correct to state in her 2008 Madison Lecture at NYU Law School that in Brown the plaintiffs grounded their claim for relief directly in the Fourteenth Amendment. Constitutional scholars, I think, tend to agree.

Professors Blackman and Tillman are thus wrong to suggest that the Fourteenth Amendment somehow distinguished or was meant to distinguish between positive (using the Amendment as a sword) and negative (using it as a shield) uses. Calling this an American constitutional tradition and claiming that the Fourteenth Amendment was meant to be wielded as a shield without legislation but not self-executing in court [for] affirmative relief unless Congress provides for its enforcement is far-fetched to say the least. It is not a tradition and has no basis in the many cases that were directly raised under the Fourteenth Amendment throughout the late nineteenth and early twentieth centuries. The Fourteenth Amendment was directly used as a sword and a shield for more than eighty years without need of a congressional enforcement mechanism. The generation that framed the Fourteenth Amendment must have known all this. It would not have expected the Fourteenth Amendments terms to lie moribund until Congress took action.

So what happened to change all this? Why are Professors Blackman and Tillman correct about the lay of the constitutional land today? Why are statutory remedial vehicles like section 1983 now needed? The question is a difficult one with no ready answer. The short (and admittedly incomplete) answer is that in 1961 the Supreme Court in Monroe v. Pape breathed new life into section 1983 by allowing it to be used against unauthorized governmental actions. Before that happened section 1983s under color of law requirement had been interpreted to required authorized governmental wrongs. When attorneys fees were added to section 1983 in 1976 that pretty much sealed the switch from direct constitutional litigation to section 1983, with the latter now being both available and preferred by the plaintiffs bar.

Not that this killed off all direct constitutional litigation. Far from it. The Supreme Court in 1971 in Bivens v. Six Unknown Named Agents of Bureau of Narcotic recognized a direct constitutional cause of action for damages under the Fourth Amendment against federal agents, and extended this rationale in 1979 and 1980 to cover violations of the Fifth and Eighth Amendments. While it seems plain that no more direct constitutional actions will be recognized today, and in 2010 the Supreme Court put the final kibosh on attempts to circumvent section 1983 with direct constitutional logic, this most recent history demonstrates how powerful and lasting was the traditional use of direct constitutional causes of action.

In the end, how direct, positive, offensive constitutional actions came to be replaced by actions based on congressional legislation should prove unimportant to the debate over Section 3s enforceability. The point is that Section 3 could not have been considered offensively unenforceable as part of some traditional view. No such tradition had ever existed. Section 1 of the Fourteenth Amendment, like just about every other constitutional provision (such as the Contracts Clause in Article I, 10) was expected to be enforced directly in state and federal court. Further, to the extent congressional support for Section 3 is needed it is today readily found in section 1983, which has been extended to cover just about every constitutional provision worth litigating. Whether the dormant Commerce Clause, the First Amendment, the Fourth Amendment, or the Fourteenth Amendments limits in Section1, section 1983 has been recognized as an available vehicle. There is no apparent reason that it could not be used with Section 3 of the Fourteenth Amendment if that became necessary (though I think it should not).

None of this is meant to suggest that anybody and everybody is free to sue in state or federal court to force Trumps name from ballots. In federal court Article III standing presents a huge obstacle, as does the political question doctrine (though I think the latter is overstated). State courts have their own restrictions on who may sue for what violation. Section 3 of the Fourteenth Amendment does not override any of this. Suffice it to say that enough water has flowed under a sufficient number of bridges to prove that state elections officials and state courts generally have the authority to entertain challenges to and remove potential federal candidates from ballots for a number of reasons, such as not having paid the required fees, not properly collecting signatures and not being qualified under Article I of the federal Constitution. States, moreover, have disagreed to the point that some presidential candidates, like Ralph Nader, have been disqualified in some states but not others. I dont see that Section 3s disqualification provision being applied to Trump should be any different.

Mark Brownis alawprofessor and the Newton D. Baker/Baker & Hostetler Chair atCapitalUniversityLawSchool.

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Trump and Section 3 of the Fourteenth Amendment: An Exploration ... - JURIST

Editors Note: This is part of a multi-part series on theFISA Section 702reauthorization and reform debate.

Q. There are loud voices on either end of the spectrum with regard to Section 702 of the Foreign Intelligence Surveillance Act (FISA), the intelligence authority set to expire at the end of the year unless reauthorized by Congress. The Biden administration and other supporters of the Section 702 program argue that it should be reauthorized as is; others believe that it should be overhauled (if not allowed to sunset). Where do you fall on this debate? From your experience investigating and litigating prominent national security cases and as an intelligence operations attorney, do you think Section 702 is as imperative as the Executive branch has stated? And likewise, do you think any reforms to the program are necessary or appropriate?

Yes I think it is imperative to reauthorize Section 702. It is a fast and efficient way to obtain important national security information in a manner that complies with the Constitution. But I do want to distinguish Section 702, which is a foreign intelligence tool, from a classic criminal investigative tool. I worked in the Department of Justices National Security Division in three capacities: as a FISA operations and oversight attorney, as a national security policy counsel, and as a cyber and counterespionage prosecutor. My views on Section 702 which are my own and not those of any employer, past or present come more from my experience as an operations and oversight attorney and policy counsel than my time as a national security prosecutor.

And I also think it should be updated, consistent with the history of updates to FISA as the technology, scale, use, and public perception of foreign intelligence surveillance have evolved. In particular, because of the global nature of communications and travel, the built-in safeguards to prevent targeting of U.S. persons and people within the United States have to be periodically updated. And because law enforcement officers and intelligence officers are always thinking of new ways to use the information and systems available to them for good-faith reasons related to keeping the nation safe it is important to keep tabs on, and think critically about, those new uses.

Queries of previously collected information are a great example. At first, for many it was hard to see how searching information that had already been collected pursuant to court-approved procedures would cause a problem. As the practice became more widespread, however, public concerns grew about reverse targeting or routine checks for U.S. person information. This all happened as storage capacity and search capability continued their exponential expansion. New technology and new practices led to new concerns, which led to new rules. That is entirely appropriate.

To me, the important lesson here is that the system worked. The oversight mechanisms built into Section 702, which involve all three branches of government, provided the insight and transparency necessary to surface the issue and address it. That oversight distinguishes Section 702 from many historical and non-U.S. intelligence collection programs.

Q. Thats an important insight on intelligence programs and their oversight structures changing over time as communications and technology evolve. Can you provide some further context on changes to FISA over time and how Section 702 fits into this picture?

I started working on FISA operations in 2005, before Section 702 existed. People may not remember how intense the pace of global counterterrorism efforts was at that time. If you look at publicly available statistics, you can see the drop in full-blown individually targeted FISA orders that occurred after Section 702 became law. If we can infer that this drop is at least partly due to the governments new authority to target, without a particularized warrant or order, the communications of people who are neither U.S. persons nor present within the United States, this makes a lot of sense. There is no Constitutionally based reason to apply Fourth Amendment protections such as particularized findings of probable cause to that group (that is, non-U.S. persons located abroad), and there is a limit to how many individual FISA applications DOJ, the FBI, and the FISA court can process and oversee. So, it is reasonable to come up with a new system that applies Constitutional protections to those who are entitled to them, imposes court supervision over Executive branch activities, and allows for policy-based limitations such as those contained in Executive Order 14086.

Much of the opportunity and need for Section 702 is based on technological change. When FISA was enacted in the 1970s, most international communications were transmitted by radio transmissions. Those communications were exempt from FISA as long as they did not target a U.S. person in the United States and included a party outside the United States. The U.S. government could therefore use technical means to collect those communications with no court oversight at all. Signals intelligence collection can sometimes be unreliable and risky, and if you go visit the NSA museum you will see a memorial wall that shows just how dangerous it could be. But as technology developed, the same foreign communications that the government used to try to pull from the air are increasingly transmitted over the wire and through the United States, where the U.S. government can often acquire them more reliably and safely.

That change in some ways enhances intelligence agencies technical ability to safely acquire those foreign communications. Because people around the world, including in the United States, often use the same infrastructure and services to communicate, it also increases the risk of acquiring communications of U.S. persons or people within the United States. Thats one big reason that close court supervision is required but that oversight can be accomplished without requiring lengthy factual declarations and individualized findings of probable cause.

Q. On that note, lets discuss in more detail one of the proposed reforms: a warrant requirement to query the database of information already collected under Section 702 for U.S. person information. Is there precedent for imposing such a requirement? Do you think it would be a valuable modification to the program?

Requiring a warrant to search previously collected data for U.S. person information is a good idea. I dont think its clear that the Constitution requires it. But thats not the end of the inquiry.

For example, when the Electronic Communications Privacy Act was enacted, there was not general agreement that the Constitution required a warrant to search the contents of email messages a user stores with their service provider, but Congress nonetheless imposed a statutory requirement to provide the same level of protection based on a policy goal of extending a Fourth Amendment level of protection to electronic communications.

Its also helpful to remember that the U.S. government was conducting national security surveillance before FISA without orders, warrants, or any other involvement of judges. When Congress first enacted FISA, there was no consensus that the Executive branch required a warrant to conduct foreign intelligence surveillance. People dont appreciate this now, but FISA brought national security surveillance under judicial supervision. So while the Constitution sets a minimum standard when it comes to civil rights and limits on the government, Congress can go further, and has done so for policy reasons in the past.

There is a case for Congress to do that now. It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies commitment to protecting Americans rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for a U.S. persons communications within previously collected material would bolster that confidence and is a relatively light burden on the government.

Yes, search warrants take time, and FISA search warrants can be onerous to draft (which is in part the responsibility of DOJ to fix). But when you think about how much 702-acquired data the government may be sitting on and how long it may keep it, you can see how practitioners and the public alike would be concerned that collecting all of that information without probable cause or a warrant based on targeting of non-U.S. persons, and then searching that information for U.S. person information with no further approvals, could be seen as an end-around the warrant requirement. I dont personally see it that way, but a warrant requirement (with an emergency exception) is a small price to pay to earn and maintain the confidence of the American people in their national security institutions.

Q. Some have argued that imposing a warrant requirement for U.S. person queries of the Section 702 database is too onerous. Given your extensive experience in obtaining both FISA and non-FISA warrants, can you walk us through what this would really mean in practice?

Obtaining a criminal search warrant is usually a fairly straightforward process. When I was a local and federal prosecutor, my detective or agent and I would draft an affidavit that was accurate and established probable cause. For physical search warrants, such as a search of a residence, there might be discussions with supervisors about officer safety, means of entry, strategic considerations about alerting the target, the permissible scope of the search, or the potential for media attention. Other than my first several warrants as a junior Assistant District Attorney, I dont remember having a supervisor flyspeck an affidavit or ask for more factual detail. For search warrants targeting electronic communications accounts like email and social media, the process and timeframe for obtaining a warrant were quick and smooth.

In contrast, it is well-known that writing a FISA application and getting it approved for submission is hard and takes a long time. Part of this is by design, and is a purposeful safeguard given the classified nature of the proceedings. Every FISA application has to be approved by the Attorney General (AG), Deputy Attorney General (DAG), or Assistant Attorney General (AAG) for National Security, and has to be certified by the FBI Director or a similar official at an intelligence agency. The legislative history from the 1970s indicates that part of the reason for the high-level approvals is to ensure quality control as well as individual accountability; no one wants to bring a substandard or under-investigated application to a high-level official.

Another reason for this difference is that criminal search warrants are much more likely than FISA orders to be unsealed and revealed to the target at some point. If the execution of a criminal warrant reveals evidence that is later used to charge and prosecute a defendant, the affidavit and warrant are disclosed to the defendant, who can challenge their sufficiency in a motion to suppress evidence. Criminal warrants to search premises or physical property are often provided to the target at or near the time of a search. Criminal warrants to search electronic communications accounts may be subject to non-disclosure orders, but those orders are usually not indefinite and most providers will notify targets when a non-disclosure order elapses and is not renewed. FISA orders, in contrast, usually do not produce evidence that is used in criminal cases and by default remain classified. In fact, even when evidence acquired through a FISA order is used in a criminal case, the order and supporting materials are neither provided to the defendant nor made available to the public. Rather, if a defendant moves to suppress FISA-acquired evidence, the judge who hears the motion reviews the FISA materials without the involvement of the defense.

As a result of these considerations, lessons learned from negative experiences, and, to an extent, bureaucratic inertia, the amount of detail that FISA applications contain has grown to far exceed what would be included in an ordinary criminal search warrant application. This comes at a cost. DOJ attorneys and FBI agents spend substantial time taking questions from supervisors, finding answers, and incorporating new facts into lengthy declarations. And every new detail is an opportunity for an inaccurate or unsupported statement, whether or not the statement is material. Successive rounds of editorial and supervisory reviews add additional time to the process. Each extra requirement, whether official or unofficial, comes from a good place a desire to avoid mistakes, an appropriate response to prior errors, anticipating supervisors questions ,, but they add up can result in extremely lengthy applications that take weeks to prepare. In short, there are some good reasons to have more controls and more review for FISA applications than criminal ones, but it would be worth stepping back and revisiting whether the current system is optimal.

In any event, if Congress does add a warrant requirement, it is likely to contain an emergency exception. In fact, the PCLOB recently recommended individualized judicial review and authorization by the FISC for all U.S. person queries with exceptions limited to consenting U.S. persons or exigent circumstances. Moreover, FISA itself allows the AG, DAG, or AAG to authorize emergency authorities under specific conditions and seek retroactive approval from the court. Fourth Amendment jurisprudence provides an additional exception to the warrant requirement under circumstances such as imminent threats to life and safety. It would therefore be important and reasonable for a new warrant requirement to allow law enforcement to move quickly in the event of an imminent threat.

In that regard, it is important to bear in mind that Section 702 targets overseas threats to U.S. security such as international terrorism. If investigators urgently need to access a U.S. persons communications that were collected under Section 702, that could mean that a potential terrorism threat is crossing the border into the United States (physically, electronically, or otherwise). That is the exact situation in which we need an efficient process in place to allow law enforcement to get the information they need consistent with Constitutional considerations.

A warrant requirement that contained an emergency provision with retroactive approval would provide the accountability needed to maintain public confidence. If configured and implemented properly, it would allow officers to obtain the information they need and move as quickly as necessary, just as they have historically done in the criminal law enforcement sphere.

4th Amendment, Biden administration, communications, Congress, Department of Justice (DOJ), Federal Bureau of Investigation (FBI), FISA Section 702, Foreign Intelligence Surveillance Act (FISA), intelligence community, national security, Right to Privacy, Surveillance, United States

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Expert Q&A with David Aaron on FISA Section 702 Reauthorization ... - Just Security