Regulating Domestic Intelligence Collection

Table of ContentsI. Introduction 5 II. The FBI's Domestic Intelligence-Collection Powers 12 A. The Scope of the FBI's Intelligence-Collection Powers 16 B. Existing Failures of Intelligence-Collection Governance 28 1. Intelligence Collection and Practical Constraints 30 2. Intelligence Collection and Judicial or Political Constraints 32 3. Intelligence Collection and Structural Constraints 38 III. Administrative Strategies as Governance 42 A. Preliminary Questions 43 B. Reason-Giving as Constraint 49 1. The Downsides of Discretion 49 2. Channeling Discretion into Reasoned Decision-Making 51 C. Participatory Policymaking 58 1. Administrative Agencies' Democracy Deficit 59 2. Increasing Democracy, Increasing Participation 60 D. Reconciling Conflicting Missions 66 1. Juggling Mandates 662. Relieving the Tension Among Multiple Missions 67IV. Theoretical and Practical Objections 76A. Distinguishing Alternative Proposals 77B. Oversight of Procedural Requirements 85V. Conclusion 90I IntroductionIn the summer of 2013, former National Security Agency contractor and Central Intelligence Agency employee Edward Snowden shook the world with revelations of extensive United States government surveillance activities-including surveillance of American citizens.1 The revelations sparked a renewed debate about the proper scope of intelligence collection in a democracy. What has gone unaddressed in this debate, however, is the vast investigative powers conferred on America's domestic surveillance agency-the Federal Bureau of Investigation (FBI). And unlike the foreign-intelligence programs disclosed by Snowden's leaks, some of the FBI's most powerful domestic intelligence-collection authorities include neither statutory limits nor judicial oversight.2If the FBI determines that an individual's daily life is relevant to a terrorism investigation, it can easily draw a detailed picture of that life.3 With no reason at all for suspicion and no judicial approval, agents can follow the individual around the clock to ascertain where he goes. They can ask his neighbors about their conversations with him, or dispatch an informant to his house of worship to report on the individual's religious observance. With the minimal process associated with issuing an administrative subpoena,4 the government can establish a record of the individual's movements and social dealings by acquiring financial and employment records, a list of email addresses with which he has corresponded, and a list of phone numbers he has dialed.These broad investigative powers operate in tension with fundamental rights. Collecting extensive personal information about innocent Americans raises concerns about privacy; about impact on freedoms of expression, association, and religious practice; and to the extent that such activity is disproportionately focused on particular communities, it can raise equal protection concerns as well.5 The challenge, then, is how to mitigate these civil liberties threats without unduly interfering with the FBI's ability to prevent terrorist attacks.This Article argues that administrative law strategies suggest several measures that, taken together, would represent a domestic intelligence governance regime better equipped to safeguard civil liberties. This argument bridges a gap between two growing areas of literature. The first, which I label "riskmanagement literature," advocates taking a regulatory approach to the threat of terrorism-to treating it not as an enemy to defeat, but, like environmental or health and safety risks, as a chronic problem to be assessed and managed. …