Is it Time to Repeal the Foreign Intelligence Surveillance Act?
A modest proposal that the answer may be “no,”
April 4, 2006
The Foreign Intelligence Surveillance Act (FISA) was created some decades ago as a safeguard against perceived excesses by intelligence officials during the previous century. It greatly restricted many of our nation’s intelligence activities, allowing techniques as communications intercepts to continue only under the supervision of secret courts. At that time, the restrictions of FISA were widely deemed to be necessary in order to curb admitted abuses by officials. Today, however, as the survival of our civilization appears inextricably linked to our success in the “war on terror,” the time may have come to examine whether these past abuses continue to be our overriding concern as we face the onslaught of international Jihadi terrorists. While FISA created a streamlined system for secretly obtaining court authorization for eavesdropping (even allowing “after the fact” warrants following periods of warrantless surveillance in certain situations), some would argue that it has outlived its usefulness today. We owe it to ourselves to examine whether or not FISA and other laws restricting the efforts of our national security officials need to be relaxed.
Today’s public controversy regarding secret National Security Agency (“NSA”) eavesdropping upon the international communications of Al Qaeda suspects who are American citizens provides an excellent platform upon which to begin this reexamination process. Does the program violate current law, as applied to new technological developments and security threats? And, if the program is illegal, is it important enough to our national security that our laws need revision in order to allow it? These issues deserve extensive public debate and urgent attention by legal scholars, since our physical safety for decades to come may depend upon our arriving at the correct answers.
Although the actual details of the Bush Administration’s program have not been made public, it seems reasonable to assume that it involves some sort of automated mass data filtration which locates that tiny fraction of communications which are of interest to anti-terrorism officials. Few would deny that the volume of telecommunications worldwide has increased geometrically in recent decades, to a point where many thousands of terabytes of data are processed daily over massive international telecommunications systems. The NSA’s techniques therefore probably involve automated filters which hunt for patterns or other indications within data as it crosses into America from overseas. If the content of a suspected Al Qaeda operative’s phone call or e-mail suggests to an NSA computer that it relates to terrorist activities, a digital trigger, probably alerts a human agent to examine whether or not it warrants further attention. This automated screening process, a virtual “sieve” through which many communications (even innocent ones) must pass, may be what makes compliance with current FISA rules impractical and illegal according to critics.
Are Current NSA Surveillance Techniques Illegal?
If the above scenario is an accurate understanding of the NSA’s efforts (a process which will necessarily involve a certain level of speculation for all of us who are not directly involved in the program), is it in fact illegal? Many “time honored” exceptions to normal search and seizure rules, when applied as a group to the totality of circumstances now present during the war on terror, suggest that such practices are not illegal.
Border Searches
“Border searches” of persons and objects are internationally recognized exceptions to normal domestic restriction upon searches and seizures. The voluntary crossing of an international border constitutes a waiver of whatever protections a citizen might normally expect to enjoy at home, and few would dispute the principal that all countries have a compelling national interest in controlling what or whom crosses in and out of their territory. It is reasonable to argue that a “border search” of data crossing our international borders really any different?
Profiling
Automated filtration of data is similar to other “profile” screening which has long been permitted by courts for investigating travelers. For example, “drug courier profiles” have long been permitted by courts, allowing officials to determine that reasonable suspicion exists to briefly detain for further investigation such travelers as are displaying patterns of behavior suggestive of drug smuggling. Is there really a sufficient difference between the NSA’s profile screening of publicly transmitted data and police drug profile screening of travelers to make the two techniques legally distinguishable? I would argue that a non-obtrusively low level of electronic data screening is not significantly different than the similar low level of visual screening to which all of us are routinely subjected every time we disembark from a commercial air flight. Why should an equally brief and non-intrusive automated examination of data which we transmit over public communications be entitled to different legal treatment?
Taking this comparison further, both techniques are “fishing expeditions,” not based upon any advanced suspicion, although both are used to develop that suspicion in certain circumstances. In both techniques, the government’s gaze falls upon the innocent far more frequently than it falls upon the guilty, but since the intrusion is minimal we put up with it without complaint. Since all of us concede that the “face” which we present to the general public in public locations such as airports is, by definition, the very opposite of private, few of us feel that our privacy is invaded by routine visual inspection by law enforcement officials while we are traveling. The same reduced expectations of privacy continue to expand into ever more intrusive techniques, such as X-ray screening of all luggage, walking through metal detectors, and passing drug sniffing dogs in a corridor.
Why then should officials be denied the same privilege to minimally survey the travels of international data? In today’s world, where electronic perception has become nearly as ubiquitous as visual perception, I would submit that there is no longer a good reason to distinguish the two, and that the difference between one’s visual “public appearance” and one’s electronic "public appearance" is not as significant as it once was.
Limited Expectations of Privacy
Our 4th amendment constitutional right to free from unreasonable searches only applies only to activities carrying a “reasonable expectation of privacy.” Unfortunately, reasonable expectations of privacy as to our electronic communications have also diminished in recent years. This erosion of our digital privacy has occurred for reasons unrelated to government or law enforcement activities, but rather due to the activities of commercial vendors and advertisers.
For example, the non-consensual implantation of commercial spyware on our computer hard drives is commonplace, allowing vendors, advertisers, and hackers to monitor our browsing habits for marketing purposes and for the less scrupulous to gain control of our data for nefarious purposes. Computer “worm” viruses, transmitted through e-mails and websites, surreptitiously wrench control over millions of privately owned desktops from their owners and convert them into robot (“Bot”) computers for the mass transmission of “spam” emails without the owner’s consent. Publicity regarding the latest mass exploitation of new security weaknesses in the ubiquitous Microsoft Windows operating system by criminals is commonplace. And, even for secured communications, the advantage of the latest encryption over the latest decryption technology available to the general public is constantly narrowing.
In fact, any savvy computer or telephone user today knows that no electronic communication over shared public networks is ever truly secure in the absence of elaborate measures. Even in the face of elaborate security, hackers with sufficient resources and determination continue to penetrate financial industry servers, leading to thefts of customer information, money and identity theft. Even secret government information systems are sometimes successfully attacked. The safest and most reasonable course for preserving one’s digital privacy is therefore to avoid exposure of one’s truly private communications to public networks, unless the possibility that the entire world might someday see them is acceptable.
“Plain View”
In legal and judicial scholarship, “reasonable expectations of privacy” always evolve along with society and technology. Legally protected expectations of privacy have never been applied to features which are within the “plain view” of the general public. Technological innovations allow law enforcement to analyze what is within “plain view” in ever more revealing detail, and, as a result, judicial case law has continued to relax the definition of what can reasonably be considered private, with the sole limitation that new more intrusive equipment used by law enforcement must be widely available to the general public. For example, initial privacy litigation concerned whether surveillance with binoculars rather than the naked eye was legal. We have since moved on to whether or not information gathered via infrared scanners, which can effectively see through walls, or satellite imagery is within “plain view,” and therefore denied legal protection. Id. A core inquiry in evaluating the legality of the NSA’s surveillance is therefore whether or not telecommunications and internet activity in today’s world is also within “plain view,” and therefore not subject to a reasonable expectation of privacy. The more one reads daily mass media reports of data security scandals, the more the answer to the question is, unfortunately, “no.” However, even if the information gathered by the NSA is not effectively within “plain view,” other long established legal exceptions would still tend to indicate that it perfectly legal surveillance, even without search warrants.
“Exigent Circumstances” and other Emergency Related Exceptions
Another constitutional exception allowing invasions of one’s privacy which would otherwise be protected by the fourth amendment is the rule of “exigent circumstances” and other emergency related exceptions. These allow warrantless intrusions in situations where evidence is likely to be destroyed, such as the taking of involuntary blood samples from a suspected drunk driver before alcohol disappears due to normal effects of the suspect’s digestive system. Other exceptions include circumstances where a speedy response is required in order to prevent injury or death, i.e., during a hostage situation, or to avoid the escape of a suspect during a “hot pursuit.” Aside from the fact that Congress has specifically granted authority to the executive branch to use “all necessary force” to protect America during the war on terror, we should also therefore consider whether or not the prevention of terrorist attacks falls within the many emergency related exceptions to normal requirements for search warrants. After all, within the last few months Al Qaeda leaders have again publicly repeated their many announcements that their next mass act of terrorism against America is immanent. Even without the many executive privileges which the constitution bestows upon the President during times of war, these traditional emergency related exceptions may well apply to the NSA’s activities.
Conclusions
Despite accusations of illegality by critics such as Wisconsin’s Senator Russ Feingold, recent poling has shown that the majority of the public supports the Bush administration’s al Qaeda surveillance program. Even Democrat Senators who are normally outspoken critics of the administration, such as California’s Nancy Pillozi, have declared the program “essential to America’s national security” and ceased to criticize it once they have been briefed in depth on it.
If the critics are correct and the surveillance is indeed illegal, compliance with FISA will cost American lives in the future, just it and the general anti-intelligence furor of the past century cost American lives on September 11, 2001, which was only the most recent of a long string of Jihadists attacks against American interests. A brief list of these attacks includes the following: Iran Embassy Hostages, 1979; Beirut, Lebanon Embassy 1983; Beirut, Lebanon Marine Barracks 1983; Lockerbie, Scotland Pan-Am flight to New York 1988; First New York World Trade Center attack 1993; Dhahran, Saudi Arabia Khobar Towers Military complex 1996; Nairobi, Kenya US Embassy 1998; Dares Salaam, Tanzania US Embassy 1998; Aden, Yemen USS Cole 2000; New York World Trade Center 2001; Pentagon 2001. In fact, during the period from 1981 to 2001 there were 7,581 terrorist attacks worldwide. The time may therefore have arrived for congress to act in fashion which will make this important program legal.
Fiscal constraints upon government will always limit the number of human agents security agencies can afford to employ. As our collective memory of 911 fades and our security forces face ever more strident attacks by civil libertarians, Congressional reductions of security budgets are only likely to become worse. Security officials will therefore need more, not less, automation in order to meet increasing expectations the face of diminishing resources. Automated data screening is therefore a “force multiplier” for every human agent employed, and security officials will lose one of their most cost effective tools in the war on terror if all mass automated communications data screening in the absence of individualized probable cause is prohibited.
The effectiveness of telecommunications surveillance is diminished any time that it is limited to the communications of specific persons or phone lines (as is generally required for obtaining surveillance warrants today). Since we can never know whose hands might be on the keyboard when an email goes out to a terrorist network; whose internet link a terrorist might be using; or to whom otherwise innocent cell phone may be handed to plan a terrorist attack, the “what” of what that is being said during a data transmission is now more important than the “whom.” Current law dwells upon the “whom,” and unless a person is already under suspicion, it is difficult to obtain a surveillance warrant, meaning that the vast majority of terrorist communications will remain undetected.
We must also ask ourselves whether we want our limited number of operatives in the war on terror to use up their time taking every lead before the FISA court or to use that time in to advance investigations. Regardless of how streamlined the FISA court system may be, the available time of our agents will always be greedily consumed by any litigation process. This assertion is easily verified by talking with any experienced law enforcement officer. Since court time is time which could otherwise be spent preventing an attack, we must recognize that every due process hoop through which our security officials must jump eventually has a price in American lives.
The Bush administration’s position seems to be that today’s anti-terrorism surveillance must go beyond the “whom” and focus instead upon the “what” of a data stream if we are to catch terrorists and prevent attacks. Knowing that it is impractical to obtain surveillance authorization within the more traditional context of “who” is communicating (or which phone or computer they are using), officials appear to have switched gears in order to screen larger amounts of data for “what“ is being said. There are strong arguments that this decision is a lawful one under authority of the many legal exceptions to traditional privacy protections discussed above. In short, security officials have been forced, by a change in circumstances and the presence of new and unforeseen threats, to move on an emergency basis beyond the restrictions of an antiquated statute in order to protect us from a proven lethal threat. Most Americans support this decision. It is therefore time that we undertook a concerted effort to bring FISA, as well as any other legislation which is applicable to the war on terror “up to speed.”
Is it Time to Repeal the Foreign Intelligence Surviellance Act? is authored by PAI’s Legal Fellow, a former prosecutor who has worked as a private criminal defense attorney and bankruptcy practitioner in Racine WI since 1984. © PAI 2006.