Echelon's Effect: The Obsolescence of the U.S. Foreign Intelligence Legal Regime

I. INTRODUCTION II. CONSTRUCTION OF U.S. FOREIGN INTELLIGENCE SURVEILLANCE LAW A. Pre-FISA B. FISA C. FISC D. Ambiguities and Loopholes III. THE ECHELON INTERCEPTION SYSTEM A. Overview and Capabilities B. Interaction with Foreign Intelligence Legal Regime 1. Shared and Incidentally Obtained Information 2. Information Sharing and the Fourth Amendment IV. CONCLUSION I. INTRODUCTION In December of 2005, the New York Times first reported that President George W. Bush had secretly authorized the National Security Agency ("NSA") to conduct warrantless domestic surveillance in an effort to combat terrorism. (1) Almost immediately, the story ignited controversy and national debate over the program and whether it violated any of a number of statutes, orders, and federal court decisions which make up the U.S. foreign intelligence legal regime. This Note discusses this regime and the capabilities of the agencies which operate under its purview. Part II gives an outline of the regime and the context in which it developed. Particular emphasis is given to the Foreign Intelligence Surveillance Act ("FISA") and the enigmatic court which interprets it. Part III describes the Echelon Interception System and the manner in which the United States gathers and shares foreign signals intelligence. Part III then goes on to discuss the implications of intelligence sharing and concludes that some aspects of the current practice are incompatible with the principles, if not the jurisprudence, of the Fourth Amendment. This Note does not seek to argue that the type and degree of foreign intelligence surveillance currently being undertaken by the federal government is illegal, oppressive, or unwise. Rather, it seeks to point out how technological advancements have rendered America's foreign intelligence legal regime irrelevant by causing a massive disconnect between its goals and its real world impact. II. CONSTRUCTION OF U.S. FOREIGN INTELLIGENCE SURVEILLANCE LAW A. Pre-FISA Presidents going back as far as Abraham Lincoln have claimed that the Constitution confers upon their office the "inherent authority" to conduct warrantless surveillance for the purposes of national security and foreign affairs. (2) Beginning most notably with the Roosevelt administration, "presidents have claimed the right to conduct warrantless electronic surveillance in matters involving the defense of the nation, with each successive administration continuing to broaden this amorphous 'national security exception' to the warrant requirement of the Fourth Amendment." (3) In an effort to clarify Executive authority, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"). (4) Title III was the first piece of legislation to require the President to obtain a court order before conducting electronic surveillance. (5) The statute sought to distinguish criminal from foreign surveillance, and in fact began with an explicit disclaimer stating: Nothing contained in this chapter ... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack ... of a foreign power, [or] to obtain foreign intelligence information deemed essential to the security of the United States.... (6) Title III thus validated presidential authority to conduct warrantless surveillance for the purposes of national security, but it did not consider any applicable limits to such authority. The unchecked and expansive power over surveillance granted to the President under Title III led inevitably to its exploitation. Media investigations of the 1960s and 1970s alarmed Americans by uncovering numerous incidents of abuse by a government that seemed to have become fundamentally unconcerned with many of the civil liberties guaranteed by the Constitution. …