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Legal and policy debates about privacy revolve around conflicts between privacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a privacy-privacy tradeoff arises. This Essay introduces the phenomenon of privacy-privacy tradeoffs, with particular attention to their role in NSA surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA's defenders appeal not only to a national-security need but also to a privacy-privacy tradeoff. An appreciation of these tradeoffs, the Essay contends, illuminates the structure and the stakes of debates over surveillance law specifically and privacy policy generally.

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define \"territoriality\" in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years.

This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement. In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced. By way of method, this Essay adopts Professor James Gibson's influential theory of affordances. Originating in psychology, and famous everywhere but in law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This Essay leverages these concepts to lend structure to an otherwise-haphazard inquiry into the capabilities of citizens to perceive and affect surveillance. This Essay contributes to affordance theory by insisting that law itself represents an important affordance.

Today's national-security state is increasingly highly concentrated, centralized, and consolidated across at least three dimensions: the public-private divide, the federal-state divide, and the political-civil servant divide within government agencies. Each of these dimensions of concentration, centralization, and consolidation has been individually examined. Yet notwithstanding careful study, there has been little appreciation of the potentially reinforcing effects of consolidation occurring along any two, let alone all three, of the relevant dimensions. That is to say, scholars and policymakers have generally zeroed in on only one dimension of consolidation at a time—and they have assessed the pros and cons of public-private, federal-state, or intra-agency consolidation against what they treat as an otherwise static backdrop. This Essay insists that we need to think more capaciously and systemically—to take stock of all of the moving parts and gauge how they work together. We need to do so for purposes of smarter, more careful institutional design that accounts for the multiple dimensions on which federal executive power has become concentrated and consolidated. What's more, we need to do so for reasons pertaining to constitutional separation of powers. The public-private, federal-state, and intra-agency lines of separation are each constitutionally salient. Even if the weakening or collapsing of any one of those lines of separation does not by itself rise to the level of a constitutional transgression, the weakening or collapsing of multiple lines of separation within a given substantive policy domain may well threaten our constitutional order. In short, this Essay proffers a multidimensional, aggregate-effects theory of constitutional structure. The sum total of individually minor incursions (on private, state, and bureaucratic autonomy) might constitute a major one as the president and her agency heads accumulate power along multiple dimensions, picking up bits and pieces from dragooned corporations, from co-opted states and municipalities, and from a defanged federal workforce effectively serving at the pleasure of the Administration.

Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on US checks and balances. New national-security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean that far more information is publicly available about intelligence missions. And robust legal rules now bind the United States and other Western intelligence services. These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the executive or the allocation of power among the three branches of the US government. First, some of these foreign influences can trigger the traditional operation of checks and balances in the US system. Second, these foreign actions simulate some of the effects produced by US checks and balances, even if they do not stimulate the US system to act endogenously. Whether one views these foreign constraints as positive or detrimental, understanding them is critical to an informed conversation about the extent to which the executive is truly unfettered in the national-security arena.

In the domain of national security, many people favor some kind of precautionary principle, insisting that it is far better to be safe than sorry and contending that a range of important safeguards, including widespread surveillance, is amply justified to prevent the loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a precautionary principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that, as in the environmental context, a precautionary principle threatens to create an unduly narrow viewscreen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For some problems in the area of national securìty, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) break-even analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people's private lives); and (4) maximin, which counsels in favor of eliminating or reducing the risk of the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.

In this Essay, we examine some of the factors that make developing a \"science of security\" a significant research and policy challenge. We focus on how the empirical hurdles of missing data, inaccurate data, and invalid inferences can significantly impact—and sometimes impair—the security decisionmaking processes of individuals, firms, and policymakers. We offer practical examples of the sensitivity of policy modeling to those hurdles and highlight the relevance of these examples in the context of national security.

This Essay explores an entanglement of ends and means between two seemingly disparate parts of the Constitution: the Fourth Amendment and the separation of powers. Not only do these two elements of the Constitution share a common ambition; they are also intertwined in practical operation. The vindication of Fourth Amendment interests, however defined, depends on a measure of institutional differentiation between the branches of government. That predicate, however, has eroded over time. In its absence, difficult questions arise about how Fourth Amendment values are best implemented and whether their realization will in the end hinge on private rather than on state action.

Institutional practices evolve to fill gaps in all constitutional blueprints. One of the underappreciated features of the initial constitutional settlement of war powers was the accountability of the executive through the process of budgetary authorization and the corresponding need for Congress to answer to the citizenry for the tax implications of military expenditures. This political accountability is more complex than often described, consisting not merely of the division of the Declare War and Commander-in-Chief Clauses of Article I and Article II, but also of the temporal limitation of the budgetary power for the army and a variety of practical and political obstacles to prevent the president from going it alone in warfare. The thesis of this Essay is that critical features of the ensuing constitutional equilibrium, which largely controlled the war power even in the absence of formally declared hostilities, have come undone as a result of the declining social and economic costs of modern forms of warfare, the development of the permanent and socially insular standing army, and the rise of its associated military-industrial complex as an independent institutional actor. The combination of an enormous, permanent military budget and the elimination of conscription has eroded the effectiveness of the institutional division of authority over war that emerged in the earliest days of the republic. This broader phenomenon of constitutional disequilibrium, in which constitutional doctrines and settlements prove dependent on the existing state of technology and institutional arrangements, in turn highlights the difficulty of managing today's warfare in a fashion that avoids executive unilateralism.

For decades, the American intelligence community has adhered to a norm against spying for the sake of enriching private firms. More recently, the norm has figured in a prominent presidential directive as well as in various international agreements. But notwithstanding its durability and its newfound renown, the norm has largely eluded scholarly consideration. In this Essay, I aim to address that gap by showing how theories of agency capture and institutional culture can help make sense of the norm's past and inform judgments about its future.