The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance

Abstract

As the 110th Congress begins to flex its atrophied oversight muscle it bears reminding in the ongoing debate over who should have the authority to authorize and oversight foreign intelligence surveillance programs, that someone must, and the existing mechanisms, in particular, the Foreign Intelligence Surveillance Act of 1978 ("FISA") and its related procedures, are no longer adequate and must be updated. The FISA simply did not anticipate the nature of the current threat to national security from transnational terrorism, nor did it anticipate the development of global communication networks or advanced technical methods for intelligence gathering.

New technologies do not determine human fates but they do alter the spectrum of potentialities within which people act. This article examines how technology and certain related developments have enabled new threats and new response mechanisms that challenge existing policy constructs and legal procedures in the context of foreign intelligence surveillance. This article does not argue that these developments justify abandoning long-held bedrock principles of democratic liberty - nor even that some new "balance" between security and liberty need be achieved - rather, it argues that familiar, existing oversight and control mechanisms - including FISA - or their analogues can be applied in these novel, technologically-enabled circumstances, but only if the challenges and opportunities are better understood and the laws and procedures updated to accommodate needed change.

This article is organized into six parts: this Introduction, four descriptive sections, and a brief Conclusion. Section I: Foreign Intelligence Surveillance: A Brief Overview provides a very brief introduction to the relevant parts of the FISA regime; Section II: Changing Base Conditions describes the changing nature of the threat, the shift to preemptive strategies in response, and the need for surveillance to support preemption; Section III: The Ear of Dionysus describes the nature of modern communication networks and certain related technology developments, and examines how three situations - transit intercepts, collateral intercepts, and automated monitoring - cannot be accommodated by FISA as currently constituted (this section also briefly speculates on certain aspects of the NSA Terrorist Surveillance Program and the January 10, 2007 FISC orders); and, Section IV: Fixing Foreign Intelligence Surveillance suggests some potential solutions that preserve existing Fourth Amendment principles and protections while still addressing these failures. Finally, the Conclusion reiterates the need to get beyond backward looking recriminations and to craft progressive consensual solutions.

Keywords: foreign intelligence surveillance, FISA, FISC, counterterrorism, electronic surveillance