A Rule of Lenity for National Security Surveillance Law

32 Pages Posted: 9 May 2014 Last revised: 9 Feb 2015

Orin S. Kerr

The George Washington University Law School

Date Written: October 20, 2014

Abstract

This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “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 decision maker to balance privacy and security when technology changes, limiting the rulemaking 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.

Keywords: surveillance, FISA, Snowden, NSA

JEL Classification: K1, K42

Suggested Citation

Kerr, Orin S., A Rule of Lenity for National Security Surveillance Law (October 20, 2014). 100 Virginia Law Review 1513 (2014); GWU Law School Public Law Research Paper No. 2014-29; GWU Legal Studies Research Paper No. 2014-29. Available at SSRN: https://ssrn.com/abstract=2434326

Orin S. Kerr (Contact Author)

The George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)

HOME PAGE: http://www.law.gwu.edu/orin-s-kerr

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