The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance

TABLE OF CONTENTS INTRODUCTION I. FOREIGN INTELLIGENCE SURVEILLANCE: A BRIEF OVERVIEW II. CHANGING BASE CONDITIONS A. THE CHANGING NATURE OF THE THREAT AND THE SHIFT TO PREEMPTION B. THE NEED FOR SURVEILLANCE C. THE DISSOLVING PERIMETER OF DEFENSE III. THE EAR OF DIONYSUS A. FISA IS INADEQUATE B. TRANSIT INTERCEPTS: FROM CIRCUIT-BASED TO PACKET-BASED COMMUNICATION NETWORKS C. COLLATERAL INTERCEPTS: THE GLOBALIZATION OF COMMUNICATIONS D. AUTOMATED ANALYSIS: CONTENT FILTERING, TRAFFIC ANALYSIS AND LINK OR PATTERN ANALYSIS IV. FIXING FOREIGN INTELLIGENCE SURVEILLANCE CONCLUSION INTRODUCTION As the 110th Congress begins to flex its atrophied oversight muscle, (1) it bears remembering that, in the ongoing debate over who should have the authority to authorize and oversee foreign intelligence surveillance programs, (2) someone must, (3) and the existing mechanisms, in particular, the Foreign Intelligence Surveillance Act of 1978 ("FISA") (4) and its related procedures, are no longer adequate and must be updated. The FISA simply did not anticipate the nature of the current threat to national security from transnational terrorism, nor did it anticipate the development of global communication networks or advanced technical methods for intelligence gathering. New technologies do not determine human fates, but they do alter the spectrum of potentialities within which people act. (5) This article examines how technology and certain related developments have enabled new threats and new response mechanisms that challenge existing policy constructs and legal procedures in the context of foreign intelligence surveillance. (6) This article does not argue that these developments justify abandoning long-held bedrock principles of democratic liberty--nor even that some new "balance" between security and liberty need be achieved (7)--rather, it argues that familiar, existing oversight and control mechanisms--including FISA--or their analogues can be applied in these novel, technologically-enabled circumstances, but only if the challenges and opportunities are better understood and the laws and procedures updated to accommodate needed change. This article is intended neither as critique nor endorsement of any particular government surveillance program or action; (8) rather, it attempts to highlight certain issues critical to a reasoned debate and democratic resolution of these issues. Further, this article does not address directly whether the President currently has inherent or statutory authority to approve any specific operational program (9) nor whether press disclosure of classified government programs is appropriate or justified. (10) This article is organized into six parts: this Introduction, four descriptive sections, and a brief Conclusion. Section I: Foreign Intelligence Surveillance: A Brief Overview provides a very brief introduction to the relevant parts of the FISA regime; Section II: Changing Base Conditions describes the changing nature of the threat, the shift to preemptive strategies in response, and the need for surveillance to support preemption; Section III: The Ear of Dionysus describes the nature of modern communication networks and certain related technology developments, and examines how three situations--transit intercepts, collateral intercepts, and automated monitoring--cannot be accommodated by FISA as currently constituted (this section also briefly speculates on certain aspects of the TSP); and, Section IV: Fixing Foreign Intelligence Surveillance suggests some potential solutions that preserve existing Fourth Amendment principles and protections while still addressing these failures. Finally, the Conclusion reiterates the need to get beyond backward looking recriminations and to craft progressive consensual solutions. I. FOREIGN INTELLIGENCE SURVEILLANCE: A BRIEF OVERVIEW Of relevance to the discussion in this Article, (11) FISA generally prescribes procedures requiring a court order for conducting electronic surveillance to gather "foreign intelligence information" (12) when such surveillance targets United States persons (13) or is conducted within the United States. …