Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance

Abstract

In the current debate over whether the President has the inherent power to authorize the National Security Agency to monitor international communications with suspected terrorists, one thing is clear - even the most strident opponents concede the need to identify and monitor the communications of terrorists and stop them before they can act.

Preempting terrorist attacks requires uncovering information useful to anticipate and counter future events. Automated data analysis technologies can help by monitoring communications and revealing evidence of organization, relationships, or other relevant patterns of behavior indicative or predictive of potential threats, thus allowing law enforcement or security resources to be focused more effectively on likely targets.

This essay examines certain implications of employing these techniques for foreign intelligence surveillance and suggests that the Foreign Intelligence Surveillance Act ("FISA") is inadequate to address recent technology developments, including: the transition from circuit-based to packet-based communications; the globalization of communications infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis.

Keywords: foreign intelligence, surveillance, FISA, data mining, wiretaps