And if You Really Do Want to Understand the FISA Debate

[ProSense]

Saturday, December 01, 2007

And if You Really Do Want to Understand the FISA Debate

Marty Lederman

I wrote last week that, because the NSA's techniques are classified, and because FISA and its fixes are intentionally "written in such enigmatic terms that only those who have been briefed in executive session will understand them," it is extremely difficult to get a fix on exactly what the Administration's proposed amendments would authorize.

Well, there is one place you now can go to get a good sense of what is probably at stake: this monograph by David Kris, which is surely the most comprehensive and careful treatment publicly available. Highly recommended.

Excerpt:

VI. CONCLUSION

This paper focused on the problem of determining the location of communicating parties, and the resulting consequences for FISA modernization. Despite the government’s exaggerated historical claims, discussed in Part II, it is clear that (apart from the short-term amendments made by the PAA) FISA regulates more today than it did in 1978, at least with respect to surveillance of e-mail. As a practical matter, if not a legal one, the statute has expanded its scope, as explained in Part III. The expansion has created operational difficulties for the U.S. Intelligence Community, as explained in Part IV.

Those difficulties are in need of a legislative remedy. However, the current FISA amendments and bills – the PAA, the FAA, and the RESTORE Act – probably represent only interim solutions. That is because they continue to rely, at least to some degree, on the location of the FISA target. In our highly dynamic global communications environment, an interim solution may be the best we can do. In that spirit, Part V of the paper tried to identify how the FAA and RESTORE Act would function, and to suggest some possible improvements; the appendix contains more detailed analysis of both bills.

For the long run, however, we may need more radical change. This is true for at least three reasons. First, if the government genuinely cannot determine anything about a person’s location, it makes no sense to use geography as a trigger for FISA’s warrant requirements. In those circumstances, a geographical approach will always be too broad or too narrow – treating all communicating parties, or none, as if they were in the United States.

Second, I believe the government faces, and will continue to face, a similar problem with respect to determining nationality and identity, which are also triggers for FISA’s warrant requirements. In 1978, a person’s location gave rise to reasonable presumptions about his status as a United States person.213 Today, even if location can be ascertained, the rise of global travel makes such a presumption far less defensible.