Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection After Snowden
57 Pages Posted: 27 Feb 2014 Last revised: 6 Oct 2015
Date Written: February 24, 2014
Sensational disclosures often signal change. Edward Snowden’s revelations are no exception. A Senate bill modifying § 215 of the USA Patriot Act, introduced by Senator Patrick Leahy, appears headed toward passage; it would end the government’s bulk collection of telephony metadata. Debate continues on changes to § 702 of the FISA Amendments Act that would end the collection of content “about” (as opposed to “to or from”) overseas targets and limit the querying of the § 702 database for U.S. persons, although the Leahy bill does not address these issues. The proposed legislation provides for the appointment of amici curiae by the Foreign Intelligence Surveillance Court (FISC), although it steers clear of a more robust, institutionalized public advocate.
This Article charts the history of the § 215 and § 702 programs, and offers a comprehensive analysis of evolving standards in collection and surveillance in the wake of Snowden’s revelations. The analysis hinges on a dynamic conception, which should pivot toward further tailoring and external constraints. That analysis cautions against an unduly narrow reading of the “specific selection term” that the government will have to cite to obtain metadata from telecom companies. Because tailoring should not undermine the purpose of intelligence collection, courts should construe the proposed language in the Leahy bill as permitting government access to large sets of records that the government has previously obtained via subpoena. Similarly, both “about” collection under § 702 and querying of § 702 data to obtain foreign intelligence information about U.S. persons are legal under the current statute. However, Congress should impose more specific criteria on querying § 702 data.
The Article also analyzes institutional reforms to the FISC process, such as the Leahy bill’s provision for appointment of amici curiae. That reform will not produce the comprehensive change that privacy and civil liberties advocates seek, because it is too dependent for its implementation on the FISC itself, which has been wary of altering its ex parte procedures. The certification procedure in the Leahy bill that triggers appellate review of FISC decisions is constitutional but futile, because of the prudential barriers to certification that the Supreme Court has erected.
The Article defends a more robust public advocate on policy grounds, as a means for ensuring debate at the FISC. A more robust public advocate could also withstand constitutional objections based on Article III and the Appointments Clause, because it would emerge from congressional efforts invited by the Supreme Court in the Keith case. These institutional reforms would complete the dynamic conception’s pivot toward tailoring and external constraints, while ensuring the effectiveness and legitimacy of collection and surveillance programs.
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