Reauthorizing the FISA Amendments Act: A Blueprint for Enhancing Privacy Protections and Preserving Foreign Intelligence Capabilities
Journal of Business & Technology Law, Forthcoming
32 Pages Posted: 10 Dec 2016
Date Written: December 9, 2016
The reauthorization of § 702 of the FISA Amendments Act will prompt robust debate about both national security and privacy. Under the statute, the Foreign Intelligence Surveillance Court (FISC) approves procedures for targeted collection of communications, 1) that are likely to produce foreign intelligence information, and, 2) in which one party is reasonably believed to be located abroad. Independent agencies such as the Privacy and Civil Liberties Oversight Board have acknowledged the security benefits of § 702. However, civil liberties advocates worry about § 702’s costs to privacy, particularly when the government uses queries based on U.S. persons to search data incidentally acquired in targeting foreign sources. Because of these privacy costs, some wish to either allow § 702 to sunset in 2017 or require a court order for U.S. person queries of the § 702 database.
This Article argues that sunsetting § 702 would sacrifice substantial security benefits, while requiring a court order for all U.S. person queries would unduly hamper intelligence and law enforcement agencies from “connecting the dots” on future terror attacks. However, even without these steps, there is ample room for reform of the statute. Congress should require, 1) the best feasible technology to limit the incidental collection of U.S. person data, particularly through so-called “upstream” collection at internet hubs, (2) scientific validation of search techniques, and (3) due diligence to determine whether a target is physically located in the United States. Congress should also enhance the transparency introduced after Edward Snowden’s disclosures and establish a full-time public advocate at the FISC to test the government’s legal and factual claims. These measures will further government accountability and protect privacy, while preserving § 702’s benefits for national security.
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