The New Foreign Intelligence Surveillance Act

I have been following the new FISA Amendments Act of 2008, but I have refrained from chiming in, as many others have been doing terrific blogging on the issue. Of particular note:

* David Kris, A Guide to the New FISA Bill (I, II, III)

* Wes Alwan, Understanding Recent Changes to FISA — A Visual Guide (Flowchart)

* Orin Kerr, The New FISA Law and the Misleading Media Coverage of It

* Marty Lederman, The Privacy-Protective Components of the New FISA Law

* Jack Balkin, The New FISA Law and the Construction of the National Surveillance State

I’ve been particularly dismayed at the Democrats’ strategy in dealing with the FISA Amendments. Why bother to try to negotiate a FISA compromise with a presidential administration that has shown nothing but contempt for the law to begin with? The Bush Administration, instead of going to Congress and requesting a change in the FISA, went ahead and blatantly violated that law. And the Administration said it would continue to violate the law, so what’s the pressing need to fix the FISA, especially when negotiating with an Administration that only will meet you about 2% of the way? Why force Obama to make a difficult choice about voting on the law, risking either looking weak on security or like a sell-out? Why not wait a few months and then pass a law with a new administration, one that will hopefully be easier to negotiate with? And how is this law any more binding on a president who says he has the right to violate a law based on his Article II powers?

Future presidents can learn a lot from all this — do exactly what the Bush Administration did! If the law holds you back, don’t first go to Congress and try to work something out. Secretly violate that law, and then when you get caught, staunchly demand that Congress change the law to your liking and then immunize any company that might have illegally cooperated with you. That’s the lesson. You spit in Congress’s face, and they’ll give you what you want.

The past eight years have witnessed a dramatic expansion of Executive Branch power, with a rather anemic push-back from the Legislative and Judicial Branches. We have extensive surveillance on a mass scale by agencies with hardly any public scrutiny, operating mostly in secret, with very limited judicial oversight, and also with very minimal legislative oversight. Most citizens know little about what is going on, and it will be difficult for them to find out, since everything is kept so secret. Secrecy and accountability rarely go well together. The telecomm lawsuits were at least one way that citizens could demand some information and accountability, but now that avenue appears to be shut down significantly with the retroactive immunity grant. There appear to be fewer ways for the individual citizen or citizen advocacy groups to ensure accountability of the government in the context of national security.

That’s the direction we’re heading in — more surveillance, more systemic government monitoring and data mining, and minimal oversight and accountability — with most of the oversight being very general, not particularly rigorous, and nearly always secret — and with the public being almost completely shut out of the process. But don’t worry, you shouldn’t get too upset about all this. You probably won’t know much about it. They’ll keep the dirty details from you, because what you don’t know can’t hurt you.

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14 Responses

  1. Jason says:

    agreed, the expansion of the powers of the executive branch and the encroachment of our personal liberties is a trend that should not be ignored

  2. Orin Kerr says:

    Dan writes:

    That’s the direction we’re heading in — more surveillance, more systemic government monitoring and data mining, and minimal oversight and accountability — with most of the oversight being very general, [and] not particularly rigorous . . .

    Dan, I’m curious, how do you reconcile this statement with the fact that judicial review under the new law is dramatically stronger than with the protect america act last year — and in particular, that there is now de novo review of constiutionality, statutory compliance, and minimization by Article III judges? Do you have a standard of review that you think is more rigorous than de novo? Or did you prefer the clearly erroneous standard under the Protect America Act?

  3. Orin — Why is the Protect America Act the proper baseline? That Act was terrible, so it is easy to make an improvement over it. It was also a temporary measure with a very short lifespan.

    Although the standard of review is de novo, that doesn’t automatically make it rigorous. First of all, I don’t know what exactly the law is giving us if it allows for the review of constitutionality. That existed before the law, and the law can’t really take it away.

    The review that the law permits regarding statutory compliance and minimization depends upon the rigor of the standards the law requires. If statutory compliance is very easy, review and oversight isn’t going to mean all that much. In other words, “de novo review of constitutionality, statutory compliance, and minimization” does not mean, in and of itself, that there will be rigorous review or meaningful oversight. From what I have learned about the law, the scope of surveillance orders is incredibly broad; the standard for whether the person is located outside the US lacks much rigor; the review is of the minimization procedures occurs generally rather than in connection with particular orders; there is little restriction on what the government may do regarding retention and future use of the data; there isn’t much oversight of the implementation of the procedures.

    So the end result is that the Act is a way for the law to give its blessing on massive surveillance programs of communications with little to no particularized suspicion. The law requires some minimization, but on a program that is already so broad and sweeping in scope that minimization is but some minor nibbling around the edges.

    So I’m not really clear on how any of the review or oversight will have any meaningful teeth. It seems to me to be a case of “fill out the paperwork, submit the right forms, and then go forth, and do whatever the hell you want.”

  4. Orin Kerr says:

    Dan, you said the direction we’re heading in is less oversight. In fact, the direction we’re heading in is much more oversight. I thought it was worth pointing out the inconsistency, even if the new law (which I think you misdescribe) offers less oversight than you would personally like in a perfect world.

  5. Orin,

    I wasn’t talking about the direction in the short-term (i.e. over the past few months) — I was talking generally over the course of many years. It is true that in some ways the new Act is more protective than the Protect America Act. But I wasn’t just focusing on the changes between this Act and the PAA. I was focusing more broadly on the changes between this Act and the original FISA. I was also speaking broadly about the amount of surveillance undertaken by the Executive Branch since 9/11 and the extent to which it is subjected to oversight. There are many data mining programs that still occur largely in secret and that have little to no oversight.

    Many oversight regimes aren’t very meaningful. Take the Pen Register Act, an oversight regime that doesn’t have much meaning in my opinion. Or all the privacy oversight boards created by the Bush Administration that have little to no power (or that weren’t even staffed). These are mainly attempts to create a sense of legitimacy; they are largely cosmetic in nature. We can say that there is more “oversight” even if the oversight in question isn’t meaningful, but isn’t that just a game of semantics? It’s like saying that if an economy loses 1000 well-paying jobs with benefits and gains 2000 low-paying part-time jobs without benefits, there are more jobs. That’s technically true, but the important issue is *what kind of jobs.* To make another analogy, I can pour a glassful of beer, then water it down to make three glasses. Now you’ve got three glasses of beer instead of one. But are we better off? Is the number of glasses meaningful in this example? Isn’t the quality of the beer what matters? Technically, the three glasses are still beer, though would you want to drink them? Likewise for oversight.

  6. Orin — P.S. Maybe I’m missing something, but I’ve read your post, and I wish you had compared the new FISA not to the PAA but to the old FISA.

    Some questions for you:

    1. Do you think the new FISA’s oversight and privacy-protection regime is stronger than that of the old FISA (pre-PAA)?

    2. Is the new FISA generally (not comparing it to the old FISA) a good balance between privacy and government surveillance? Do you think that it adequately minimizes surveillance, addresses all of the privacy concerns well, and establishes a good level of oversight to ensure against abuses?

    3. Do you think that the new FISA is constitutional?

  7. Optimisation says:

    Daniel, I don’t think the new FISA is any stronger than the old one at all.

  8. Journalism Is Terrible says:

    I don’t have much of a substantive comment. But I want to congratulate Professor Solove for posting the actual text of relevant legislation and discussing that legislation in light of constitutional norms. More posts of such form would be appreciated.

  9. Journalism Is Terrible says:

    I don’t have much of a substantive comment. But I want to congratulate Professor Solove for posting the actual text of relevant legislation and discussing that legislation in light of constitutional norms. More posts of such form would be appreciated.

  10. Orin Kerr says:


    1. The current state of FISA seems plainly more privacy protective than under the original 1978 Act, which seems to be the period of conparison everyone us using. Compared to 1978, we now have a statutory warrant requirement for physical searches, a pen register court order requirement, and now, thanks to the latest change, a court order requirement for content surveillance of Americans overseas. I can’t imagine that any serious civil libertarian would want to go back to the original 1978 act, which only regulated content wiretapping of those in the U.S.

    2. It seems roughly right to me — or at least it’s at the point where I would need to be on the inside working with the statute in a classified capacity to get a sense of where it may be right or wrong.

    3. I can’t think of a particular argument based on existing caselaw or generally recognized legal principles that the new FISA is unconstitutional, so off the top of my head I would think it’s constitutional. I suppose there is room for the argument that the switch from “primary purpose” raises constitutional problems, but I’ve blogged about the possibility of that before.

  11. Country Bumpkin says:

    > I can’t think of a particular argument

    If somebody is looking through my correspondence without my permission, without a warrant, and in fact don’t even suspect I’ve done anything wrong, I’d say they are unreasonably searching my stuff.

    > off the top of my head I would think it’s constitutional

    What does “constitutional” mean to you?

    Here is a little excerpt from that quaint and long-forgotten document:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    I hope you won’t fault the Framers of 1791 too much for their non-technical knowledge of the internet and the way our “papers” now exist in cyberspace more than desk drawers. Although our “paper” technology is changing, the idea is the same – the gov’t has no business searching through the effects of innocents, and must get judicial permission to go through suspects’ stuff.

  12. Orin Kerr says:

    Country Bumpkin,

    I realize it’s really fun to raise the constitutional flag and declare to the world that you are bravely defending it. But it seems you have little idea of what the Constitution you claim to be defending actually means.

    In particular, the individuals monitored without a warrant under this law have no Fourth Amendment rights under United States v. Verdugo-Urquidez: They are indivdiuals who live abroad, are not U.S. citizens or permanent resident aliens, and who are located abroad, and therefore are not part of “the People” for Fourth Amendment purposes. See Verdugo.

    Of possible interest: the new law actually introduces a brand new first-ever warrant requirement for monitoring of US citizens abroad: courts have indicated that no warrant is needed in that setting, but Congress just added a warrant requirement anyway.

  13. Rich Hudson says:

    Interesting that although the Republicans never get tired of singing the praises of the corporate sector, they ignore one of the most important concepts of the corporation: The CEO is no dictator; he or she is hired by the shareholders to run the company for them. If he screws up, the board of directors can toss him out on his butt at any time.

    We Americans need to see our president and other elected politicians not as leaders to follow blindly but as what they actually are: paid employees hired to run our country for us.

    This concept is completely consistent with the Constitution, a fundamental tenet of which is that all power ultimately lies with the people and is delegated — not forfeited — to elected leaders.

  14. macsimcon says:


    From Justice Brennan’s dissent in Verdugo:

    “The Fourth Amendment contains no express or implied territorial limitations, AND THE MAJORITY DOES NOT HOLD THAT THE FOURTH AMENDMENT IS INAPPLICABLE TO SEARCHES OUTSIDE THE UNITED STATES AND ITS TERRITORIES” (emphasis mine).

    Moreover, the majority fails to cite The Federalist or any other supportive document in its definition of “the people.” Brennan makes the argument that if the Framers had desired to restrict the protections of the Fourth Amendment, they could have used the term “citizen” or “American people” but they chose to use the broader “people” instead.

    I found the majority’s argument unpersuasive, as if they were trying to fit the facts to achieve a desired conclusion (the legal prosecution of Verdugo) when compared to the logical and reasoned arguments presented in Brennan’s dissent.