NSA and the Foreign Intelligence Surveillance Act: A Need for Balancing

NSA and the Foreign Intelligence Surveillance Act: A Need for Balancing


Introduction. Since June 2013, Edward Snowden has been alleging that the National Security Agency has engaged in various forms of privacy-invasive conduct that may be – or perhaps should be -- unlawful. The statute underlying most of this conduct is the Foreign Intelligence Surveillance Act, which creates a shadowy court (the FISA court, or FISC) and deals with shadowy issues. An earlier article in Emerging Issues discussed the facts and legal ramifications attendant to NSA's acquisition of metadata about phone calls in the United States (What You Need to Know About NSA Mass Telephone Call Tracking). The instant article examines ways in which FISA, along with rules promulgated there under and implementing procedures might be modified to enhance privacy, while maintaining the government's ability to acquire and use information it needs to combat terrorism and acquire foreign intelligence.

Few dispute the need for the US government to act in the interest of national security. But balanced against this need are the privacy rights of hundreds of millions of individuals whose information finds its way into NSA databases, with the attendant possibility of government abuse. A collection of all of a person's phone contacts and e-mail messages may provide a full picture of that person's life. And historically, on some occasions the US government has unlawfully collected information and abusively used it. A New York Times editorial observed: "The question is whether the security goals can be achieved by less-intrusive or sweeping means, without trampling on freedoms and basic rights."

If change is to take place, it must come from the Executive and/or Legislative branches. If a government national security claim does not appear frivolous, it is a rare court that will rule against the government. The government will probably be able to make non-frivolous claims in connection with at least some of the conduct in question. If so, attention will then likely shift to procedures that can be taken to minimize (i)the intrusion on privacy, and (ii) the likelihood and extent of government abuse of the databases. What such procedures might be proposed?

Endeavors of the Privacy and Civil Liberties Oversight Board. There constituted five-member federal PCLOB held its first public meeting on July 9, 2013. Its purpose was to hear from legal experts, former government officials, and civil rights proponents about government programs that spy on the phone records and e-mails of US persons. One witness, former FISC Judge James Robertson, characterized that court as "one-sided" because only the government appears before it, and suggested appointment of an advocate to challenge the government at hearings; he said he left that court because he was concerned about the surveillance. Other panelists also favored a more adversarial process. But a lawyer who represented the government before the FISC was concerned that an adversarial process would increase the time necessary to obtain surveillance orders. [footnotes omitted] 

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