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From a social science viewpoint, that the United States courts keep drawing on Katz v. United States in their rulings about whether or not privacy has been violated is difficult to comprehend. This legal case is clearly based on untenable sociological and psychological assumptions. Moreover, many fine legal scholars have laid out additional strong reasons that establish beyond a reasonable doubt that it is unreasonable to draw on “the reasonable expectations of privacy” as a legal concept. Continuing to draw on this concept, especially in the cyber age, undermines the legitimacy of the courts and hence of the law. This article reviews these arguments in order to further nail down the lid on Katz’s coffin so that this case — and the privacy doctrine that draws on it — will be allowed to rest in peace.
In a previous paper, I outlined a privacy doctrine — a cyber age privacy doctrine, or a CAPD — that seeks to account for important differences between the paper age and the digital one. This paper attempts to show that the CAPD provides a coherent normative doctrine that can be employed by the courts and legislatures and that is more systematic, less subjective, and at least as operational as the prevailing privacy doctrines. It deals with the right to privacy vis-à-vis the United States government rather than as a protection from intrusions by private actors such as corporations. Part I summarizes and develops the previously-published doctrine. Part II compares the coherence and objectivity of the CAPD to those of other doctrines and indicates the ways the CAPD can be operationalized.
In May 2013 the Pentagon released an unclassified summary of the top-secret Air-Sea Battle (ASB) Concept. ASB serves to focus the Pentagon’s efforts to organize, train and equip the armed forces against advanced weapons systems that threaten the US military’s unfettered freedom of access and action in the global commons. While officials claim ASB is merely improve service interoperability and could be applied in any number of conflict situations, this article argues that in fact the doctrine represents the Pentagon’s plan for confronting China’s increasingly capable and confident military. This raises two urgent questions: how does ASB fit into an overall US foreign policy toward China – and, if a military confrontation cannot be avoided, are there less risky alternatives, such a maritime blockade, that can achieve the same ends as ASB?
In response to China’s military modernization and growing anti-access/area denial capabilities, the US military has adopted an ‘‘Air Sea Battle’’ (ASB) concept entailing extensive strikes on the Chinese mainland. ASB has been embraced at the Pentagon and increasingly affects procurement decisions. Critics argue that ASB creates grave escalation risks and may incite an expensive arms race. Less discussed, but also of serious concern, is that ASB was adopted with little to no civilian oversight, in a case of ‘‘structural inattention.’’ This failure of civil–military relations derives from institutional factors such as the nature and composition of the White House staff, as well as from the administration’s pragmatic rather than strategic approach to China. It has also been facilitated by ‘‘subterranean factors’’ including the interests of influential military contractors and the military’s own inclination toward conventional warfare.