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FISA Destroys the Rule of Law

Surveillance cameras and barbed wire obscure the American flag.

In the famous Greek myth, Pandora, the first woman on Earth, is given a box by the gods and told to keep it closed no matter what. However, overcome by curiosity, she eventually succumbs and opens the box, releasing all the evils and miseries of the world into the human realm.

Such has been the path of the Foreign Intelligence Surveillance Act (FISA), a Pandora’s box of nearly limitless surveillance capabilities opened in 1978, which has only grown in its abuse and was reauthorized by Congress last month.

FISA was created to strike a balance between national intelligence gathering on foreign actors and the constitutional rights of Americans. To achieve this, it established a new court called the Foreign Intelligence Surveillance Court (FISC) to review warrant applications for foreign surveillance that may involve the communications of American citizens. The court operates differently than others, however, as its evidence and decisions cannot be challenged by opposing counsel and are highly classified. Over time, this has resulted in the drone-like “rubber stamping” of warrants by the FISC and warrantless surveillance conducted without oversight or challenge.

As Robert Bork warned in a 1978 article:

The bill pretends to create a real set of courts that will bring ‘law’ to an area of discretion. In reality, it would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. What ever that may be called, it debases an important idea to term it rule of law; it is more like the uninformed, unknown, and uncontrolled exercise of discretion.

While FISA is intended to capture communications between foreign-based non-Americans, the government admits that it incidentally collects communications on American citizens when such non-US citizens contact them. Because of the lack of accountability, the volume of abuse has grown over time. One source indicates that from 1979 to its peak in 2007, the number of surveillance orders increased from 250 to almost 2500, a nearly 10x increase. That same data indicates that few to zero orders were rejected by the court until 2014. Other reports estimate that in 2020 alone, over 200,000 American citizens had their communications monitored without a warrant, with potentially millions more being swept up and analyzed by intelligence agencies under questionable warrants and intelligence practices.

Through FISA, agencies deploy a “dragnet” intelligence method, where as much information as possible is collected with a wide net, even on innocent, unsuspecting Americans, in order to find the “needle” of bad actors in the haystack. This approach places greater importance on national security than personal freedom, yet there is no assurance that it will effectively safeguard us. Proper foreign intelligence may be needed for national security, but it must not come at the expense of the Constitution, or else there may be no private space in America left to defend.

This practice of secretive courts and abusive intelligence gathering blatantly violates the Fourth Amendment protection against warrantless searches. Congress should act immediately to bring an end to these warrantless searches and increase FISA transparency while preserving necessary intelligence operations.

Yet the ramifications of Section 702 extend beyond the erosion of individual privacy rights. Indeed, the compliance burdens imposed on companies forced to participate in these surveillance programs are staggering. Under the law, telecommunications and internet service providers are compelled to hand over vast quantities of user data to intelligence agencies, upon request and without judicial oversight. Companies must invest heavily in developing and maintaining infrastructure capable of intercepting and monitoring vast quantities of digital communications. This includes deploying sophisticated surveillance technologies and hiring specialized personnel trained in the intricacies of electronic eavesdropping, a costly endeavor that can quickly drain financial resources.

In 2013, in the only instance since FISA Section 702 was put into place in 2008, the government reimbursed several tech companies for costs they incurred running an illegal spying operation through a program called PRISM. But some companies say they never got the money or were never even offered. While the government claims it has shut down PRISM, the language in the recently reauthorized FISA allows for the exact same kind of behavior and likely places secretive burdens on tech companies, who are not authorized to disclose the information to the public.

FISA may also produce a chilling effect on innovation and entrepreneurship in the digital economy. By compelling companies to hand over user data to government agencies, often without adequate safeguards or oversight, FISA undermines consumer trust in online services and stifles the free flow of information essential for fostering innovation. This, in turn, threatens to dampen economic growth and hamper technological progress, a heavy toll to pay in the name of national security.

In light of these concerns, the excesses of Section 702 should be reined in, and the balance between national security and privacy rights should be restored. This means imposing strict limitations on the scope of surveillance authorized under the provision, enhancing non-judicial oversight mechanisms to prevent abuses, requiring warrants for American data, and increasing transparency in the FISC process. Declassifying court appointment decisions, significant opinions and actions of the court should be part of this reform, alongside the appointment of independent advocates to represent the interests of privacy and civil liberties before the court.

Bork predicted in 1978 that FISA would “promise permanent damage to constitutional procedures and institutions,” and time has proven him mostly correct. Thomas Jefferson is (perhaps spuriously) quoted as saying that “eternal vigilance is the price of liberty.” Vigilance demands that the American people should not be subject to warrantless surveillance under FISA.

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