Elizabeth Goitein

Elizabeth Goitein is co-director of the Liberty and National Security program at the Brennan Center for Justice at NYU School of Law.

Recent Articles

Trump and the Dangers of Secret Law

Disclosure of secret U.S. government laws is especially urgent now that an admirer of Vladimir Putin is ascending to the presidency.

AP Photo/Charles Dharapak, File
President-elect Trump has disdained the rule of law when it comes to national security, vowing to reinstitute torture and suggesting that the military should target terrorists’ families. In response, President Obama recently released a report describing the legal and policy framework for United States military operations. The idea is simple: If the rules are made public, it will be easier to hold the Trump administration accountable for violations—or to spot when the rules have changed. Obama is undoubtedly correct in calculating that legal transparency will help safeguard the rule of law. But his initiative begs the question: why stop at military operations? Since the attacks of 9/11, every area of national security policy has increasingly been regulated by secret law. For instance, much of the authority to conduct mass surveillance, and the limits that apply, are set forth in classified orders of the Foreign Intelligence Surveillance Court (or “FISA Court”)...

Why Surveillance Won't Prevent Cyber Attacks

A new Senate bill would dramatically expand surveillance to prevent cyber attacks, but real security is about minimizing risk. 

Sipa via AP Images
Sipa via AP Images President Barack Obama delivers remarks at the National Cybersecurity and Communications Integration Center (NCCIC) in Arlington, Virginia on January 13, 2015. The debate over cybersecurity legislation the Senate will soon consider suffers from a lack of truth in advertising, beginning with the bill’s name: the “Cybersecurity Information Sharing Act.” The legislation would do little to improve cybersecurity, conspicuously lacking the basic measures that security experts agree are necessary. Instead, it drives a hole through existing privacy laws, allowing the government to access private citizens’ personal information without their knowledge or consent—the kind of “information sharing” usually described as “surveillance.” Leveraging Threats to Expand Powers CISA is not the first legislation to leverage a security threat in service of intelligence and law enforcement agencies’ continual quest for more leeway...

Why Your New iPhone Has Law Enforcement In a Tizzy

Apple’s move won’t lead to terrorist attacks or unsolved kidnappings; it will simply make FBI investigators’ jobs a bit harder.

iStock/07-12-09 © billyfoto
The debut of a new iPhone is always big news, but this time it’s surrounded by unusual controversy. That’s because the iPhone6 automatically encrypts the phone’s contents. Decrypting requires a code that the user sets and does not share with Apple—which means that, if the FBI orders Apple to turn over data kept on the customer’s phone, the company will produce data that amount to “gibberish” (as the New York Times reported ). The FBI then will have to decrypt the data—a process that could take years—or try to compel the user to reveal the code. FBI director James Comey responded with outrage, claiming that companies like Apple are “marketing something expressly to allow people to hold themselves beyond the law.” Other law enforcement officials have made similar pronouncements. Yet the law doesn’t give the government any right to the contents of your phone. It’s more accurate to say that, in recent years, the...

Our Privacy and Liberty Still At Risk, Even If Leahy NSA Bill Passes

Under the USA Freedom Act, the executive branch could exploit the absence of a bright-line restriction to engage in collection that is far broader than necessary.

AP Photo/J. Scott Applewhite
After a brief hiatus, legislative reform of the NSA’s bulk collection program appears to be back on track. Thanks to skillful negotiations on the part of Senator Patrick Leahy, Democrat of Vermont, and other cosponsors, the version of the USA Freedom Act that was unveiled in the Senate last week restores many of the protections that House leadership and administration officials stripped out of the House version in secret, last-minute talks. Most notably, the Senate bill clearly would prohibit the bulk collection of Americans’ telephone records and other types of information. And yet, even if the Senate version becomes law, Americans’ private information will remain vulnerable—under both the domestic programs addressed by the bill and other, much larger, programs nominally targeted at foreigners. As Leahy acknowledged when introducing the bill, much more remains to be done to protect the privacy and civil liberties of law-abiding Americans. The good news first:...