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Impractical and Unconstitutional: The Stored Communications Act Post-Carpenter

Richard McCutcheon*1 [This essay is available in PDF at this link] Introduction The Stored Communications Act (SCA)[1] has generated numerous practical headaches for academics and judges as digital technology advances in scope and importance.[2] Created in 1986 as part of the Electronic Communications Privacy Act (ECPA), the SCA established the statutory regime that governs access to stored electronic communications by the government and third parties.[3] The SCA has been repeatedly criticized for being outdated and ill-suited for modern technology.[4] Despite a decade of continuous efforts to reform the SCA, none have been successful.[5] Certain provisions of the SCA are not only unintuitive and confusing […]

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National Security and Domestic Terrorism: The Legal and Legal Policy Implications of Creating a Domestic Terrorism Organization List

Thomas Edward Brzozowski[1]* [This essay is available in PDF at this link] I. Introduction The terrorist attacks of 9/11 radically altered the U.S. counter-terrorism apparatus and resulted in the creation of a host of new governmental departments and agencies tasked with safeguarding the country against the scourge of international terrorism. By many accounts, however, domestic terrorism remains the greater threat. According to a recently released Office of the Director of National Intelligence (ODNI) report on domestic violent extremism, domestic violent extremists “pose an elevated threat to the Homeland in 2021.”[2] During his testimony before the House Judiciary Committee in February 2020, FBI

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Exploring the Application of Force Majeure for AI Mistakes in Armed Conflict

Fatemah Albader[*] [This essay is available in PDF at this link] Introduction With the fast-evolving and increasing reliance on artificial intelligence (AI) technology in armed conflict, the question of when a state may be held responsible for AI mistakes is no longer a question for science fiction. Today, every sector – public or private – displays some dependency on AI. The healthcare industry utilizes AI to perform surgical tasks.[1] The education sector uses AI to provide individualized education to students.[2] On the more controversial front, AI is being developed to fuel the next generation of combatants, otherwise known as lethal autonomous

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Expanding Lawful Influence Operations

Justin Malzac[*] [This essay is available in PDF at this link] “It’s always easier to stamp out a small ember than to put out a raging fire.” [1] — Lloyd Austin, Secretary of Defense Introduction Influence operations, including propaganda and psychological operations, have been a central aspect of international rivalry for over a century. Emphasis on this particular form of grey zone diplomacy and competition faded after the fall of the Soviet Union and the end of the Cold War, but we have witnessed a resurgence in recent years. The Center for American Progress notes that “[w]hile foreign influence operations

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The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability, Part IV: Questions for the Record—Federal Government Response to Coronavirus and U.S. Public Health Leadership Role

Chimène Keitner[*] [This essay is available in PDF at this link] Introduction On June 23, 2020, the Senate Judiciary Committee held a hearing on “The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability.”[1] Professor Chimène Keitner submitted written testimony, answered questions at the hearing, and provided written responses to follow-up Questions for the Record from committee members. This is Part IV in a series of works by Professor Keitner that the Harvard National Security Journal has published over the past year. Part I memorialized Professor Keitner’s prepared written testimony.[2] This Part is the third and final installment containing Professor Keitner’s detailed responses to

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3D Printed Speech: 3D-Printer Code Under Constitutional Scrutiny

Andrew Huang[*] [This article is available in PDF at this link] I. Introduction In May 2013, at a remote firing range deep in central Texas, there was silence. Then, a sharp crack reverberated across the prairieland as engineers led by then-25-year-old Cody Wilson successfully test-fired the world’s first entirely 3D-printed gun for the very first time.[1] “Fuckin’ A!” they exclaimed; not quite the Bhagavad Gita verse recalled[2] by Robert Oppenheimer after the Trinity nuclear test, but the euphoria was no less palpable.[3] The small, single-shot pistol was dubbed the “Liberator,” named after the weapon manufactured by the US military and

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