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Next Generation Foreign Intelligence Surveillance Law: Renewing 702 University of Richmond Law Review Volume 51 Issue 3 National Security in the Information Age: Are We Heading Toward Big Brother? Article 4 Symposium Issue 2017 3-1-2017 Next Generation Foreign Intelligence Surveillance Law: Renewing 702 William C. Banks Syracuse University College of Law Follow this and additional works at: https://scholarship.richmond.edu/lawreview Part of the Agency Commons, Law and Politics Commons, National Security Law Commons, and the President/Executive Department Commons Recommended Citation William C. Banks, Next Generation Foreign Intelligence Surveillance Law: Renewing 702, 51 U. Rich. L. Rev. 671 (2017). Available at: https://scholarship.richmond.edu/lawreview/vol51/iss3/4 This Symposium Articles is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized editor of UR Scholarship Repository. For more information, please contact [email protected]. NEXT GENERATION FOREIGN INTELLIGENCE SURVEILLANCE LAW: RENEWING 702 William C. Banks * Sometime before the end of 2017, Congress has to decide whether and then on what basis to renew the FISA Amendments Act ("FAA"),' a cornerstone authority for foreign intelligence sur- veillance that sunsets at the end of December 2017. The Privacy and Civil Liberties Oversight Board ("PCLOB") reported in 2015 that more than one quarter of the National Security Agency (the "NSA") reports on terrorist activities are derived, in whole or in part, from surveillance authorized by section 702 of the FAA, and that the percentage has increased every year since the enactment of the FAA.2 Although the bulk warrantless collection of commu- nications content enabled by the FAA was viewed as a scandalous overreach when the Bush Administration's then-secret program's existence was revealed by the New York Times in December 2005, 3 Congress approved substantially the same program on a temporary basis in 2007.4 Congress codified it in 2008,' extended it in 2012,6 and is almost certain to renew it next year. * Board of Advisers Distinguished Professor, Syracuse University College of Law; Director, Institute for National Security and Counterterrorism; Professor, Public and In- ternational Affairs, Maxwell School of Citizenship & Public Affairs, Syracuse University. The author thanks Taylor Henry, Syracuse University College of Law, J.D. 2018, for excel- lent research assistance. 1. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified as amended at 50 U.S.C. §§ 1881-1881g (2012 & Supp. 2015)). 2. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BD., REPORT ON THE SURVEILLANCE PROGRAM OPERATED PURSUANT TO SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 10 (2014) [hereinafter PCLOB 702 REPORT], https://www.pclob.gov/lib rary/702-Report.pdf. 3. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy- on-callers-without-courts.html?_r=0. 4. Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552. 5. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436. 6. FISA Amendments Act Reauthorization Act of 2012, Pub. L. No. 112-238, 126 Stat. 1631 (codified at 50 U.S.C. 1801 (2012 & Supp. 2015)). UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 51:671 My objectives in this article are to explain how and why the FAA and its authorization of bulk collection of content in section 702 came about, predict the main issues that will be considered in its renewal, and recommend reforms, for consideration in 2017 and beyond, that will better assure that bulk content collection does not undermine fundamental freedoms. Finally, I will remind us that the renewal and reform of the FAA only temporarily de- lays the need to confront the foundational and structural flaw in FISA and foreign intelligence surveillance law in general-that technological developments make it virtually impossible, in real time, to verify the location or nationality of a surveillance target. I. FROM RETAIL TO WHOLESALE ELECTRONIC SURVEILLANCE The FAA is part of the Foreign Intelligence Surveillance Act ("FISA"),7 which has authorized the means for electronic collec- tion of foreign intelligence since 1978. For a long time FISA served the intelligence community well. The basic idea was sim- ple. Government may conduct intrusive electronic surveillance of Americans or others lawfully in the United States without tradi- tional probable cause to believe that they had committed a crime if it could demonstrate to a special Article III court-the Foreign Intelligence Surveillance Court ("FISC")--that it had a different kind of probable cause: reason to believe that targets of surveil- lance were acting on behalf of foreign powers or international ter- rorist groups.' The FISA procedures were effective in regulating surveillance of known intelligence targets.'0 Foreign intelligence collection pursuant to FISA was always limited, however. As originally structured, FISA assumed that intelligence officials knew where the target was and what facilities the target would use for his communications." Being able to assert these facts in an applica- tion to the FISC enabled the government to demonstrate the re- 7. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 178 (codified at 50 U.S.C. §§ 1801-1885c (2012)). 8. Id. § 103(a), 92 Stat. at 1788. 9. Id. § 105(a), 92 Stat. at 1790. 10. See William C. Banks, The Death of FISA, 91 MINN. L. REV. 1209, 1233-39 (2007) (detailing the operation of FISA between 1978 and the early 1990s) [hereinafter Banks, Death of FISA]. 11. See id. at 1231-32. 20171 RENEWING 702 quired probable cause to obtain a surveillance order.12 Through- out this period FISA did not authorize intelligence collection for the purpose of identifying the targets of surveillance. Nor did it permit the government to collect aggregate communications traf- fic and then identify the surveillance target.13 Traditional FISA envisioned case-specific surveillance, not a bulk surveillance op- eration, and its mechanisms were geared to specific, narrowly targeted applications.14 FISA was also based on the recognition that persons lawfully in the United States have constitutional privacy and free expression rights that stand in the way of unfet- tered government surveillance. 5 The explosive growth of internet-based communications even- tually undermined the basic FISA plan. First, the internet broad- ened the scope of communications governed by FISA in unantici- pated ways. It had long been the case that foreign-to-foreign communications and even foreign to domestic communications that originated outside the United States were collected for for- eign intelligence purposes pursuant to more flexible standards in an executive order." FISA and its more elaborate procedures were thus inapplicable to a wide swath of foreign intelligence col- lection. Yet over time the pervasiveness of United States telecom- switching technology meant that even foreign-to-foreign commu- nications as well as foreign to domestic messages are often routed through the United States, making their collection subject to FISA procedures and requirements and thus more burdensome for the government.'7 Second, the basic prerequisite for applying 12. Id. at 1260. 13. Id. at 1276. 14. Id. 15. See ForeignIntelligence Surveillance Act of 1978: HearingBefore the Subcomm. on Criminal Laws and Proceduresof the S. Comm. on the Judiciary,95th Cong. 13, 23 (1977). 16. See Exec. Order No. 12,333, 46 Fed. Reg. 59, 941 (Dec. 4, 1981). 17. See William C. Banks, Programmatic Surveillance and FISA- Of Needles in Hay- stacks, 88 TEX. L. REV. 1633, 1638-39 (2010) [hereinafter Banks, ProgrammaticSurveil- lance]. FISA defines "electronic surveillance" as: (1) the acquisition by an electronic ... device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circum- stances in which a person has a reasonable expectation of privacy and a war- rant would be required for law enforcement purposes; (2) the acquisition by an electronic.., device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs within the United States... ; (3) the intentional acquisition by an electronic ... device of the contents of UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 51:671 FISA regulation-knowing the physical location of the surveil- lance target-became problematic. The rapid and widespread growth of web-based e-mail meant that it was often difficult to determine the location of one or both parties to a communica- tion." Further complicating matters, our domestic communica- tions, like foreign-to-foreign communications, traverse the globe instantaneously as packets of information. 9 These packets-some containing information content and others including information about the Internet Protocol ("IP") addresses of the sender and re- cipient, for example-are routed for speed and efficiency and may cross multiple international borders before they reach their des- tination. Wholly domestic messages may thus be routed through international servers. As such, targeting an individual or group for electronic surveillance at their known location and known communications
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