Section 702 of the Foreign Intelligence Surveillance Act (FISA) is up for reauthorization in 2017. An earlier version of the program was instituted after 9/11 by President George W. Bush. In 2007, Congress adopted the Protect America Act and one year later passed the FISA Amendments Act, which included Section 702. Section 702 allows the government to target for surveillance non-U.S. citizens “reasonably believed to be located outside the United States to acquire foreign intelligence information.” The authorization does not extend to non-citizens outside the country to gain information on citizens or permanent residents believed to be residing in the United States.
While proponents of the law argue it is necessary for national security, critics claim that U.S. citizens are too often incidentally swept into surveillance due to the nature of the “targeting procedures” employed by intelligence agencies, and therefore reforms are needed to protect their privacy. Our experts discussed reauthorization, what it would mean if Congress chose not to act, and what kinds of reforms are under consideration.
Adam Klein, Senior Fellow, Center for a New American Security
Kate Martin, Senior Fellow, Center for American Progress
The taking of private property for development projects has caused controversy in many nations, where it has often been used to benefit powerful interests at the expense of the general public. In their recent book, Eminent Domain: A Comparative Perspective (Cambridge University Press), editors Ilya Somin, Iljoong Kim, and Hojun Lee use a common framework to analyze the law and economics of eminent domain around the world. They show that seemingly disparate nations face a common set of problems in seeking to regulate the condemnation of private property by the state. They include the tendency to forcibly displace the poor and politically weak for the benefit of those with greater influence, disputes over compensation, and resort to condemnation in cases where it destroys more economic value than it creates. With contributions from leading scholars in the fields of property law and economics, the book offers a comparative perspective and considers a wide range of possible solutions to these problems. Professor Richard Epstein and Professor Ilya Somin joined us to discuss this interesting book.
Professor Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
Professor Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
A number of regulatory advocates assert that Title II of the Communications Act, enforced by the Federal Communications Commission, is the only way to protect net neutrality. Research by Roslyn Layton, PhD, who has studied net neutrality in 50 countries, suggests otherwise. Moreover, a layered model using existing antitrust and consumer protection laws enforced by the Federal Trade Commission, Department of Justice, and State Attorneys General may well provide more effective and less costly regulation. Alex Okuliar, formerly an advisor to FTC Commissioner (now Acting Chairman) Ohlhausen, interviewed Roslyn Layton about her research on these issues and the layered model of enforcement.
Roslyn Layton, Visiting Fellow, American Enterprise Institute
On March 24, 2016 the DOL’s Office of Labor-Management Standards (OLMS) issued the so-called “persuader rule” that would greatly inhibit the ability of businesses to rely on labor experts and the ability of employers to obtain legal advice in responding to union organizing campaigns. For nearly 50 years the DOL has recognized that advice, including legal advice, is excluded from reporting under federal labor law. The new persuader rule would have forced lawyers and law firms that counsel a business on most labor relations matters to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services. Several lawsuits were filed challenging this rule on statutory and First Amendment grounds. On June 27, 2016, a district court in Texas issued a preliminary injunction enjoining DOL from implementing the new rule. The district court then made that preliminary injunction permanent in November 2016, and DOL has appealed to the Fifth Circuit. While DOL’s appeal is pending, on June 12 DOL issued a proposal to rescind the rule.
Christopher C. Murray, a shareholder at Ogletree Deakins, represents some of the business groups in the Texas litigation who sued to stop the “persuader rule” from taking effect. He provided an update on the current state of play with regard to the litigation and proposed rulemaking.
Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
In recent years, there have been a growing number of cases where people have been freed from prison after they were exonerated or their convictions were overturned. Some states have statutes that provide compensation under some circumstances to such individuals, but the scope of those statutes and their applicability varies, with other states providing no means of compensation at all. A number of advocacy groups are pushing for changes. What, if anything, should be done? What kind of compensation are the wrongfully imprisoned entitled to? What kind of financial obligations for these cases can state treasuries bear? What is the perspective of law enforcement on these questions? This Teleforum explored these and related issues.
David LaBahn, President and CEO, Association of Prosecuting Attorneys
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University