VIII. Annotated Bibliography of Select Secondary Materials
Note: There are hundreds of secondary sources that address FISA and Foreign Intelligence collection in some form. Included here are some of the most rigorous, thoughtful, and/or useful analyses of FISA; FISC/FISCR; NSLs; EO 12,333; the history of intelligence collection; statutory and constitutional questions; and related areas, such as First and Fourth Amendment law, the communications infrastructure, and Internet technologies. If there are additional sources that you think should be included, please email me at email@example.com.
JAMES A. ADAMS & DANIEL D. BLINKA, ELECTRONIC SURVEILLANCE: COMMENTARIES AND STATUTES (2003). Short legal treatise published shortly after the 2001 USA PATRIOT Act to clarify changes to FISA and Title III. It covers passenger screening; wire, oral, and electronic communications intercepts; video surveillance; PRTT; mobile tracking devices and thermal imaging; and transactional records. Contains the text of the relevant Title 18 and 50 statutes.
JAMES BAMFORD, THE SHADOW FACTORY: THE ULTRA-SECRET NSA FROM 9/11 TO THE EAVESDROPPING ON AMERICA (2009). [ Law Library ] Bamford, author and journalist, describes the actions of 9/11 terrorists prior to the attacks, and information he believes the NSA knew prior to the attack and the lack of cooperation between the NSA and FBI that may have led to the failure of the government to stop the plot.
ELIZABETH BAZAN, THE FOREIGN INTELLIGENCE SURVEILLANCE ACT: OVERVIEW AND MODIFICATIONS (2008). Bazan, Legislative Attorney at CRS, examines the detailed statutory structure provided by FISA and related provisions of E.O. 12333.
LAURA K. DONOHUE, THE FUTURE OF FOREIGN INTELLIGENCE PRIVACY AND SURVEILLANCE IN A DIGITAL AGE (2016). [ Law Library ] Donohue, Professor of Law at Georgetown Law, argues that statutory alterations, novel legal interpretations, the structure of the global communications network, and new and emerging technologies have radically expanded the amount and type of information obtained under foreign intelligence surveillance law. Traditionally, for national security, the Courts have allowed weaker Fourth Amendment standards than those that mark criminal law. Information collected for foreign intelligence purposes, though, is now used for criminal prosecution. Donohue raises concern about the resulting impact on privacy and convergence of national security and criminal law. *Winner of the 2016 IIT Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize for the best book on the tension between civil liberties and national security in contemporary American society.
LAURA K. DONOHUE, THE COST OF COUNTERTERRORISM: POWER, POLITICS, AND LIBERTY (Cambridge University Press), 2008. [ Law Library ] Donohue writes that in the aftermath of a terrorist attack, the political stakes are high: legislators fear being seen as lenient or indifferent and often grant the executive broader authorities without thorough debate. The judiciary's role is restricted. The dominant “security or freedom” framework ignores expanding executive power that shifts the balance between branches of government and between the government and the people. The book warns that the proliferation of biological and nuclear materials, together with willingness on the part of extremists to sacrifice themselves, will drive the UK and US to take progressively expansive measures, shifting their political structures.
TIMOTHY H. EDGAR, BEYOND SNOWDEN: PRIVACY, MASS SURVEILLANCE, AND THE STRUGGLE TO REFORM THE NSA (2017). [ Ebook ] Edgar (former Director of Privacy & Civil Liberties for the White House national security staff 2009-10; Deputy DNI for Civil Liberties 2006-9) considers the NSA's programs a profound threat to the privacy of everyone in the world. At the same time, he suggests, mass surveillance programs can be made consistent with democratic values, if we make the hard choices needed to bring transparency, accountability, privacy, and human rights protections into complex programs of intelligence collection. Edgar suggests that the rules-most of which date from the 1970s-are inadequate for this century. Reforms adopted during the Obama administration are a good first step but, in his view, do not go nearly far enough. Simultaneously, Americans’ privacy must be protected. *Winner of the 2018 IIT Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize for the best book on the tension between civil liberties and national security in contemporary American society.
THE SNOWDEN READER (David P. Fidler ed., 2015). [ Ebook ] This edited volume considers Snowden's disclosures and their aftermath, raising historical, political, legal, and ethical concerns. Over forty documents are included, with introductory notes explaining their significance. The collection includes documents leaked by Snowden; responses from the NSA, the Obama administration, and Congress; statements by foreign leaders, their governments, and international organizations; FISC and other Article III judicial rulings; findings of review committees; and Snowden's own statements.
GLOBAL INTELLIGENCE OVERSIGHT: GOVERNING SECURITY IN THE TWENTY FIRST CENTURY (Zachary K. Goldman & Samuel J. Rascoff eds., 2016). [ Ebook ] This book is a comparative investigation of how democratic countries can govern their intelligence services so that they are effective but operate within legal/statutory/constitutional frameworks that are acceptable to their people in a complex and interconnected world. It considers the role of domestic institutions overseeing intelligence collection, as well as global technology companies and international courts.
JENNIFER STISA GRANICK, AMERICAN SPIES: MODERN SURVEILLANCE, WHY YOU SHOULD CARE, AND WHAT TO DO ABOUT IT (2017). [ Law Library ] Granick, Surveillance and Cybersecurity Counsel at the ACLU, catalogues the history of American surveillance through to the present day, arguing that mass surveillance and democracy are fundamentally incompatible. Even as technology has advanced, laws placing restraint on their use by the government have fallen behind. The book proposes concrete steps to rein in use of surveillance powers. *Winner of the 2016 IIT Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize for the best book on the tension between civil liberties and national security in contemporary American society.
ANTHONY GREGORY, AMERICAN SURVEILLANCE: INTELLIGENCE, PRIVACY AND THE FOURTH AMENDMENT (2016). [ Law Library ] Gregory suggests that the Fourth Amendment prohibiting unreasonable searches and seizures offers no panacea for combatting assaults on privacy—whether by the NSA, the FBI, local police, or more mundane administrative agencies. Given the growth of technology, together with the ambiguities and practical problems of enforcing the Fourth Amendment, advocates for privacy protections need to work on multiple policy fronts.
DAVID KRIS & J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS AND PROSECUTIONS (2d ed. August 2016 Update). [ Westlaw ] [ Law Library – 2012 ed. ] In this 2-volume treatise Kris (former AAG of DOJ NSD 2009-11) and Wilson present the law governing, and related to, national security investigations. The authors explore the full background of NSIs, both from a pre-9/11 and post-9/11 perspective. The book incorporates text of FISA, its subsequent amendments, and some related guidelines.
ROBERT TIMOTHY REAGAN, NATIONAL SECURITY CASE STUDIES: SPECIAL CASE-MANAGMENT CHALLENGES (6th ed. 2015). [ FJC ] [ Local ] Reagan documents methods federal judges have employed to meet the unusual and challenging case-management issues presented in national security law cases so that judges facing the challenges can learn from their colleagues’ experiences. Included are terrorism prosecutions, espionage prosecutions, Foreign Intelligence Surveillance Act litigation, the Guantánamo Bay habeas corpus cases, and other criminal and civil cases.
CHARLIE SAVAGE, POWER WARS: THE RELENTLESS RISE OF PRESIDENTIAL AUTHORITY AND SECRECY (rev. ed. 2017). Savage, Pulitzer-prize winning journalist at the New York Times, focuses on Stellarwind and NSA surveillance 1978-2009 as part of his examination of the changing nature of war. Chapter 8 turns to the problem of leaks leading up to Snowden. The following chapter addresses the secret interpretations of the USA PATRIOT Act. Chapter eleven focuses on institutionalized surveillance (2009-2017), focusing on misinformation provided by the intelligence community to Congress, the USA FREEDOM Act, programmatic collection, backdoor searches, and battles yet to come.
BRUCE SCHNEIER, DATA AND GOLIATH: THE HIDDEN BATTLES TO COLLECT YOUR DATA AND CONTROL YOUR WORLD (2015). Schneier, a cryptographer and computer security specialist, looks at the growth of big data from a commercial and governance perspective, arguing that political liberty and justice, commercial fairness and equality, business competitiveness, privacy, and security are all at stake. Schneier offers a series of principles to guide the future evolution of data generation, collection, and analysis.
B. BOOK CHAPTERS AND ARTICLES
Matthew A. Anzaldi & Jonathan W. Gannon, In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act: Judicial Recognition of Certain Warrantless Foreign Intelligence Surveillance, 88 TEX. L. REV. 1599 (2010). [ Westlaw ] [ Lexis ] [ Hein ] Authors evaluate the 2007 PAA, its legislative history, and its implementation. They review the FISCR’s decision to uphold the PAA, creating a foreign intelligence exception to the Fourth Amendment Warrant Clause.
Axel Arnbak & Sharon Goldberg, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad, 21 MICH. TELECOMM. & TECH. L. REV. 317 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Authors discuss legal and technical loopholes that intelligence agencies of the U.S. government could use to circumvent 4th Amendment and statutory safeguards for Americans by collecting their network traffic abroad. Their central hypothesis is that there are several loopholes (e.g., interception in the Intradomain, in the Interdomain, and on foreign soil, and deliberate BGP and DNS manipulations to divert U.S. traffic abroad) that can be exploited for largely unrestrained surveillance.
Michael Avery, The Constitutionality of Warrantless Electronic Surveillance of Suspected Foreign Threats to the National Security of the United States, 62 U. MIAMI L. REV. 541 (2008). [ Westlaw ] [ Lexis ] [ Hein ] Avery explores the constitutional issues involved in warrantless wiretapping under the Terrorist Surveillance Program (TSP). He concludes that the President did not have inherent authority or authority under the AUMF to engage in surveillance without a warrant. Further, even with Congressional amendments to FISA in place, warrantless electronic surveillance violates the Fourth Amendment.
Marcus M. Baldwin, Note, Dirty Digits: The Collection of Post-Cut-Through Dialed Digits Under the Pen/Trap Statutes, 74 BROOKLYN L. REV. (2009). [ Westlaw ] Baldwin analyzes the interplay between two criminal PRTT provisions [18 USC § 3121 and § 3123(7)], which have given rise to conflicting interpretations, concluding that PRTT should not be viewed as authorizing PCTDDs containing content in light of 4th Amendment doctrine and the canon of constitutional avoidance.
William C. Banks, The Death of FISA, 91 MINN. L. REV. 1209 (2007). [ Westlaw ] [ Lexis ] [ Hein ] Banks, founding Director of the Institute for National Security and Counterterrorism and Professor of Law Emeritus at Syracuse University College of Law, suggests that the 1978 compromise that led to enactment of FISA is crumbling under the weight of changes in technology, slapdash amendments, and the TSP’s circumvention of the statute. He continues by suggesting that forms are needed to control programmatic surveillance and to lessen the chance of over-collection and lack of oversight.
William C. Banks, Is the FISA Amendments Act of 2008 Good Policy? Is It Constitutional?, 35 WM. MITCHELL L. REV. 5007 (2011). [ Westlaw ] [ Lexis ] [ Hein ] Banks examines stresses on the original FISA architecture, TSP, efforts to fold TSP into FISA, the 2007 PAA, and construction of the 2008 FAA. Highlighting the significance of the changes made in the FAA to traditional FISA, Banks raises questions about potential further concerns related to § 702.
William C. Banks, Next Generation Foreign Intelligence Surveillance Law: Renewing 702, 51 U. RICH. L. REV. 671 (2017). [ Westlaw ] [ Lexis ] [ Hein ] Banks explains how and why the 2008 FAA and its authorization of bulk collection of content in § 702 came about, predicts the main issues that will be considered in its renewal, and recommends reforms to ensure that bulk content collection does not undermine fundamental freedoms. It argues that renewal and reform of the FAA only temporarily delays 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.
William C. Banks, Programmatic Surveillance and FISA: Of Needles in Haystacks, 88 TEX. L. REV. 1633 (2010). [ Westlaw ] [ Lexis ] [ Hein ] Banks evaluates the implementation of the 2008 FAA, arguing that FISA has become so complex that the law further occludes informed policy choices suggesting that the basic architecture of FISA should be recast.
Ryan Beckstrom & Kyle Petersen, US Intelligence Laws & EU Data-Transfer Requirements: Tools for Assessing Us Law & Implementing Supplementary Measures to Meet EU Protection Levels, UTAH B.J., Jan./Feb. 2023. [ Westlaw ] [ Lexis ] [ Hein ] This article examines EU restrictions on data transfers to foreign countries and gaps between EU privacy laws and US privacy protections. The article cites a recent case in the Court of Justice of the European Union, which held that companies transferring data from the EU to the US must provide a verification that US law ensures adequate protection for transferred data. Specifically, the article highlights FISA Section 702 and Executive Order 12333 as sources of concern for data transfers into the US.
Sarah Beller, 401-Forbidden: An Empirical Study of Foreign Intelligence Surveillance Act Notices, 1990-2020, 13 HARV. NAT'L SEC. J. 158(2022). [ Westlaw ] [ Lexis ] Law clerk Beller evaluates FISA notices issued over the last 30 years. She argues that Muslim Americans and Chinese-Americans are overrepresented among notice recipients and suggests that this population represents the only people challenging FISA’s constitutionality after Clapper.
Patricia L. Bellia, The 'Lone Wolf' Amendment and the Future of Foreign Intelligence Surveillance Law, 50 VILL. L. REV. 425 (2005). [ Westlaw ] [ Lexis ] [ Hein ] Bellia, Professor of Law at the University of Notre Dame Law School, begins with Moussaoui case/introduction of the lone wolf provision in 2004 IRTPA, using it as a way to get at the constitutional questions that mark the piecemeal evolution of FISA and arguing that Congress must develop new approaches and policies for ensuring congressional and public accountability.
Emily Berman, When Database Queries are Fourth Amendment Searches, 102 MINN. L. REV. 577 (2017). [ Westlaw ] [ Lexis ] [ Hein ] Berman, an Assistant Professor of Law at University of Houston Law Center, acknowledges the aggregation problem entailed in the deeper privacy interests at stake in the accumulation of data, arguing that when the type of information revealed would, in the absence of aggregation, require a warrant, then government access to the query of databases should be subject to constitutionally-based limits. In adopting this approach, Berman argues for a 4th Amendment use (in addition to access) restriction. Because digitization means that more details can be extracted, even as the costs of storage and analysis have plummeted, the constitution requires recognition of the deeper privacy interests at stake.
Emily Berman, Quasi-Constitutional Protections and Government Surveillance, 2016 B.Y.U. L. REV. 771 (2016). [ Westlaw ] [ Lexis ] [ Hein ] Berman notes that FISC’s role has changed over time and highlights the court’s use of minimization to protect constitutional values despite third party doctrine.
Scott A. Boykin, The Foreign Intelligence Surveillance Act and the Separation of Powers, 38 U. ARK. LITTLE ROCK L. REV. 33 (2016). [ Westlaw ] [ Lexis ] [ Hein ] Boykin, Associate Professor of Political Science at Georgia Gwinnett College, considers FISA a narrative of largely unsuccessful efforts to monitor and limit executive branch agencies’ intelligence-gathering activities. He argues that FISC/FISCR have little control over the executive branch’s surveillance and intelligence-gathering programs and provide a minimal check on executive power. He concludes with separation of powers concerns and ways in which FISA has contributed to a decades-long trend of increasing concentration of power in the executive branch.
Gregory Brazeal, Mass Seizure and Mass Search, 22 U. PA. J. CONST. L. 1001 (2020). [ Westlaw ] [ Lexis ] [ Hein ] Brazeal proposes ways in which the courts might subject digital mass surveillance by state actors to judicial scrutiny under the Fourth Amendment. The article provides a roadmap for arriving at reasonable constitutional restrictions on digital mass surveillance using existing Fourth Amendment doctrine.
Joel Brenner, Reflections on the IG's Role, Stellarwind, and the Information Sharing Fiasco, 12 J. NAT'L SECURITY L. & POL'Y 119 (2021). [ Westlaw ] [ Lexis ] [ Hein ] Brenner, current senior research fellow at MIT’s Center for International Studies, became the NSA’s inspector general in April 2002. He writes about his experience with the NSA’s Stellarwind program which he recognizes as a facial violation of FISA. Brenner argues that public knowledge of this program along with Chelsea Manning’s cable leaks damages public trust in intelligence institutions and that trust will be difficult or impossible to rebuild.
Alan Butler, Standing Up to Clapper: How to Increase Transparency and Oversight of FISA Surveillance, 48 NEW ENG. L. REV. 55 (2013). [ Westlaw ] [ Lexis ] [ Hein ] Butler, Senior Counsel at the Electronic Privacy Information Center (EPIC), considers proposals to increase transparency and oversight of FI surveillance. Butler considers the Court's standing analysis in Clapper and argues that the current proposals do not do enough to reform the current FISA system. He proposes additional transparency and oversight procedures, including additional public reporting on the scope of FISA surveillance, mandatory public disclosure of FISC decisions, and adversarial briefing at FISC.
Nicole B. Cásarez, The Synergy of Privacy and Speech, 18 U. PA. J. CONST. L. 813 (2016). [ Westlaw ] [ Lexis ] [ Hein ] Cásarez, an attorney and Professor of Communications at the University of St. Thomas, argues that First and Fourth Amendment analyses should be jointly considered in determining the constitutionality of FISA and 12333 surveillance, pointing out how the latter, together with DOD Directive 5240.1-R, provides a legal loophole. The article critiques the USA FREEDOM Act for failing to resolve the metadata debate, leaving intact the government’s theory that contact chaining lays outside constitutional constraints.
Fred H. Cate, Government Data Mining: The Need for a Legal Framework, 43 HARV. C.R.-C.L. L. REV. 435 (2008). [ Westlaw ] [ Lexis ] [ Hein ] Cate, Professor of Law at Indiana University Bloomington Maurer School of Law, highlights the volume and variety of personal information which the government has access to through regulatory and administrative programs and private industry. He argues there is an absence of meaningful limits on data mining, leading to compromises in individual privacy and national security and underscoring the need for Congressional action.
Robert Chesney, No Appetite for Change: The Supreme Court Buttresses the State Secrets Privilege, 136 HARV. L. REV. 170 (2022). [ Westlaw ] [ Lexis ] Chesney focuses on two Supreme Court cases decided in the 2022 term; US v. Husayn and FBI v. Fazaga. The article highlights both problems with the Court’s analysis in both cases and the intersection of the state secrets privilege with FISA section 106. Particularly, Chesney explores the idea presented by the plaintiffs in Fazaga whether Congress implicitly overrode the state secrets privilege when it enacted Section 106.
Simon Chin, Note, Introducing Independence to the Foreign Intelligence Surveillance Court, 131 YALE L.J. 655 (2021). [ Westlaw ] [ Lexis ] [ Hein ] Chin, a J.D. student at Yale, conducted interviews with certain FISC judges and amici, subsequently claiming “an insiders’ view of FISC proceedings.” Concludes that amicus participation (a) has not substantially interfered with the timely collection of FI; and (b) has had a limited impact on privacy and civil liberties. Argues that there are significant structural limitations to what incremental reforms to the existing amicus panel can accomplish. Recommends that Congress create a FISA special advocate who would be charged with overseeing approved FISA applications.
Kendall Coffey, Standing Up to Hackers: Article III Standing for Victims of Data Breaches, 77 U. MIAMI L. REV. 295 (2023) [ Westlaw ] [ Lexis ] Coffey addresses the Clapper case and uses it to set up a discussion on the issue of Article III standing in data breach cases.
Ctr. for Democracy & Tech., Minimization Cannot Be Relied Upon to Protect the Rights of Americans Under a Warrantless Surveillance Program (Sept. 17, 2007), https://perma.cc/8T5L-WNYZ . CDT argues (contra the Executive branch) that relying on minimization will not address the deficiencies in the PAA: (a) even if it meant that the gov’t would discard all USP communications intercepted (which it doesn’t), it fails to address the privacy violation of the initial collection; (b) the minimization rules allow for the retention, analysis, and dissemination of the communications of individuals inside the U.S. incidentally collected.
Jennifer Daskal, The Un-territoriality of Data, 125 YALE L. J. 326 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Daskal, Professor of Law at American University Washington College of Law, considers how territorial assumption in Fourth Amendment doctrine proves inapposite in a digital age. Although not directly on FISA, the article highlights challenges going forward for FI collection.
Ashley S. Deeks, Secret Reason-Giving, 129 YALE L.J. 612 (2020). [ Westlaw ] [ Lexis ] In this article, Deeks, a chaired Professor of Law at University of Virginia Law School, looks at the audiences for judicial and agency reason-giving and its associated virtues: improving the quality of the decisions, promoting government efficiency, constraining decision-makers, strengthening decision-makers’ legitimacy, and fostering accountability. It then considers secret judicial, Congressional, and Executive reason-giving, with a particular emphasis on FISC/FISCR, before moving to discussion of Secret intra-Executive reason-giving (i.e., vertical and horizontal, as well as the different audiences, such as executive actors, foreign allies, international officials, and the notional public). Deeks concludes the article with looking at how Congress and the Courts can foster the use of secret reason-giving to strengthen governance.
Laura K. Donohue, The Evolution and Jurisprudence of the F oreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review, 12 HARV. NAT'L SEC. J. 198 (2021) [ Westlaw ] [ Hein ] Donohue highlights four key areas that dominate the FISC/FISCR jurisprudence: (1) its position as a specialized, Article III court; (2) the effort to understand the existing statutory language in light of new and emerging technologies; (3) the tension among constitutional rights, the need for information, and the implications of increasingly broad surveillance programs; and (4) the court’s growing role in conducting oversight and having to respond to Executive Branch errors, noncompliance, and misrepresentations.
Laura K. Donohue, The Fourth Amendment in a Digital World, 71 NYU ANN. SURV. AM. L. 533-685 (2017) [ Westlaw ] [ Lexis ] [ Hein ] Donohue notes that Fourth Amendment doctrines created in the 1970s and 1980s no longer reflect how the world works. The formal legal distinctions on which they rely—(a) private versus public space, (b) personal information versus third party data, (c) content versus non-content, and (d) domestic versus international—are failing to protect the privacy interests at stake. Simultaneously, reduced resource constraints are accelerating the loss of rights. The doctrine has yet to catch up with the world in which we live. A necessary first step for the Court is to reconsider the theoretical underpinning of the Fourth Amendment, to allow for the evolution of a more effective normative framing. Failure to do so will mean the continued retraction of Fourth Amendment protections.
Laura K. Donohue, The Original Fourth Amendment, 83 UNIV CHICAGO L. REV. 1181 (2016), PP. 1193-1324 [ Westlaw ] [ Lexis ] [ Hein ] The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action--perhaps nowhere more so than in regard to the Fourth Amendment. At the time it was adopted, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner's wishes to search for or to seize persons, papers, or effects, absent a specific warrant. Consistent with English common law, the notable exception was when law enforcement or citizens were pursuing a known felon. Outside of such circumstances, search and seizure required government officials to approach a magistrate and, under oath, to provide evidence of the suspected offense and to particularly describe the place to be searched and persons or things to be seized. Scholars' insistence that the Fourth Amendment does not entail a general protection against government entry into the home without a warrant does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met before the government may intrude. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment and for ensuring a doctrine that reflects fidelity to the founding principles.
Laura K. Donohue, Bulk Metadata Collection: Statutory and Constitutional Considerations, 37 HARV. J.L. & PUB. POL’Y 757 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Donohue argues that the § 215 bulk telephony metadata program runs contrary to FISA’s purpose and violates the statutory language by (a) failing to satisfy the requirement that records sought be “relevant to an authorized investigation”; (b) violating the requirement that information otherwise be obtainable via subpoena duces tecum; and (c) bypassing the statutory framing for pen registers and trap and trace devices. The article suggests that under Katz, Smith and Miller are inapplicable to the digital age. The article rejects the government’s “automation exception” argument, calling for an end to the telephony metadata program, the use of new technologies, and use of adversarial counsel in the FISA process to heighten protections for U.S. persons.
Laura K. Donohue, The Dawn of Social Intelligence (SOCINT), 63 DRAKE L. REV. 1061 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Donohue argues that the collection of SOCINT, which can be combined with other information and queried to produce knowledge, and which is vulnerable to manipulation, presents a new form of intel. The article posits three characteristics: non-traditional; employed to engage in social order analytics; and useful to neutralize actors or effect large-scale social, political, and economic change. The article argues that that SOCINT requires a stronger statutory framing, removing it from the sole domain of Executive Order 12333 or an ancillary to FISA §702.
Laura K. Donohue, FISA Reform, 10 I/S: J.L. & POL’Y FOR INFO. SOCIETY (ISJLP) 599 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Donohue offers a taxonomy for FISA reform based on how technology has impacted the information available and its transmission and storage. It suggests five primary types of data: personal, transactional, relational, locational, and content. Set against the five categories are six methods of access, transmission, and storage: audio/visual observation, communications networks, papers, hard drives and independent electronic devices, remote servers and cloud technologies, and social media. Using the distinctions, the article divides FI collection between front-end collection and back-end analysis and use, noting that each category contains a counterpoise structured to ensure the appropriate exercise of authorities. For the front-end, this means balancing the manner of collection with requirements for approval. For the back-end, this means offsetting implementation with transparency and oversight. The typology provides a structure for comprehensive reform.
Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 HARV. J.L. & PUB. POL’Y 117 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Donohue discusses the evolution of § 702 and argues that the NSA has sidestepped the statutory restrictions related to targeting via the “to, from, or about” nomenclature, created a presumption of non-U.S. person status, and failed to adopt minimum standards that would require the agency to ascertain whether a target is within domestic bounds. The paper considers the purpose of analysis, the scope of the minimization procedures, and the use of U.S. person information to query the data and recombinant information. Donohue argues that both areas, as well as the NSA’s retention and dissemination of data practices, raise Fourth Amendment concerns.
Laura K. Donohue and Jeremy McCabe, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art II(1), Adjudication, 71 CATH U. L. REV. 543 (2022). [ Westlaw ] [ Perma ] Professor Donohue and Jeremy McCabe, a research librarian, underscore the paucity of analysis on the several types of federal courts derived from Article III, Section 1 [both geographic and specialized courts, like the FISC/R]; Article I, Section 8; Article IV, Section 3; Article II, Section 2/Article I, Section 8, Clause 3; and Article II, Section 1. They argue that the distinctions matter for defining jurisdiction and understanding the scope of the authorities—and constitutional protections—that apply. They note that the failure of scholars to take into account the panoply contributes to inaccurate analyses and cabins debates. The Article details the courts' constitutive elements and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of U.S. federal courts.
April Falcon Doss, Data Privacy & National Security: A Rubik's Cube of Challenges and Opportunities That Are Inextricably Linked, 59 DUQ. L. REV. 231 (2021) [ Westlaw ] [ Lexis ] [ Hein ] Authored by April Falcon Doss, formerly at the NSA and now the Director of the Technology Institute at Georgetown Law, this article discusses how data privacy, consumer protection and national security – once-separate realms – now intersect. Professor Doss explains how technology convergence was a common refrain at the 2007 FISA modernization hearings. NB: I recommend using Hein to view this article because it includes an image that will not appear in West or Lexis.
Sasha Dudding, Spinning Secrets: The Dangers of Selective Declassification, 130 YALE L.J. 708 (2021) [ Westlaw ] [ Lexis ] [ Hein ] Student Note exploring selective declassification (defined in terms of its misleading effects and distinguished from leaks and plants) in three contexts: President Bush in the NIE disclosures before vote authorizing force in Iraq; Obama prior to Osama Bin Laden Raid; and Trump in relation to Carter Page, arguing that declassification authority was being used to shape politics and public opinion in the Executive’s favor, as part of broader, largely successful public-relations campaigns. Article argues, counter to the transparency narrative, that selective declassification is more damaging than information remaining classified. Article turns to First Amendment theory and political science literature to suggest that “declassification has a unique ability to distort the marketplace of ideas by authoritatively spreading inaccurate information.” Article concludes with potential remedies, advocating that Congress order declassification, FOIA be strengthened, a shield law enacted, and the Espionage Act reformed.
Stephen Dycus, Congress’s Role in Cyber Warfare, 4 J. NAT’L SECURITY L. & POL’Y 155 (2010). [ Westlaw ] [ Lexis ] [ Hein ] Dycus, Professor of Law at Vermont Law School, argues that the future of the United States may depend on our ability to use cyber weapons wisely. He outlines the Congressional intel oversight structure, urges collaboration amongst the various intelligence agencies, and suggests the need for Congress to establish its role in the development of policies for war on a digital battlefield.
Mark Eckenwiler & Scott McCulloch, National Security Cyber Investigations: Considerations and Challenges, U.S. ATT’YS BULL., Feb. 2019, at 43. [ Westlaw ] [ Hein ] Eckenwiler (Attorney Advisors at the Office of Law and Policy, DOJ NSD) and McCulloch (Traial Attorney, Counterintelligence and Export Control Section DOJ NSD), discuss how the FBI transitioned in 2013 from an enterprise-focused investigation model (starting from an identified cyber-intrusion), to a strat-tac model, in which a single office with a demonstrated experience or expertise in tracking a particular intrusion set (or type of threat) is designated as a strategic office with the lead role for that threat. Because the strat office may be physically remote from the districts with current or future victims, or need other support, up to four additional field offices may be designated to provide support (tactical aid) to the strat field office. (So the strat offices are assigned based on ability/capacity—not likelihood of bringing criminal charges). Because of this approach, over the past few years, the frequency of US Attorney Offices working with case officers outside their districts has increased. Authors suggest that while the model is better than the prior enterprise model, it isn’t without its challenges.
Danna Z. Elmasry, Fighting Global Surveillance: Lessons from the American Muslim Community, 55 U. MICH. J. L. REFORM 885 (2022) [ Westlaw ] [ Lexis ] Elmasry starts from the premise that the growing surveillance state poses a substantial problem, particularly for Muslims, which has gone largely unaddressed by Congress since the Snowden leaks exposed its scope. After examining the relevant laws, including FISA and Executive Order 12,333, and the disproportionate wielding of surveillance strategies on Muslim-Americans, Elmasry argues for reform to the standing doctrine by implementing a broad private right of action in surveillance cases that meets the requirements for Article III standing.
Mieke Eoyang, Beyond Privacy and Security: The Role of the Telecommunications Industry in Electronic Surveillance, 9 J. NAT'L SECURITY L. & POL'Y 259 (2017). [ Westlaw ] [ Lexis ] [ Hein ] Eoyang, Vice President for Third Way’s National Security Program, frames issues related to the 2008 FAA and electronic surveillance programs authorized by § 702, which were set to expire in December 2017. It focuses on telecoms, ISPs, and electronic communications service providers, as well as surveillance authorities used to target overseas persons for FI purposes. It does not cover electronic surveillance in domestic law enforcement or data handling by private entities for commercial purposes.
Adina Feder, A Bull in A China Shop: How CFIUS Made TikTok A National Security Problem, 5 CARDOZO INT'L & COMP. L. REV. 627 (2022) [ Westlaw ] [ Lexis ] Feder is most concerned in this article about the Committee on Foreign Investment, and the issues posed by the popular social media app TikTok in foreign intelligence gathering. In briefly mentioning FISA, the article notes that even FISA does not define “national security.” However, the article provides broader insight into the concerns related to national security in the data age.
Dan Feldman & Eldar Haber, Measuring and Protecting Privacy in the Always-On Era, 35 BERKELEY TECH. L.J. 197 (2020). [ Westlaw ] [ Lexis ] [ Hein ] Feldman & Haber introduce legal and computational methods that could be used by Internet of Things (IoT) service providers and can optimally balance the tradeoff between data utility and privacy. Further discussion includes the protection of privacy under the sectoral approach, privacy protection in the “always-on” era, and technology as a solution to the current regulatory framework which is severely limited in protecting individuals’ privacy. The authors note the limitations of anonymization, k-anonymity, encryption (generally), and homomorphic encryption, proposing in their stead differential privacy using coresets.
Mark Fenster, Populism and Transparency: the Political Core of an Administrative Norm, 89 U. CIN. L. REV. 286 (2021). [ Westlaw ] [ Lexis ] [ Hein ] University of Florida College of Law Professor Mark Fenster takes a theoretical stance in his examination of the tensions between transparency and populism. He considers this tension within the context of FOIA and the Trump administration.
Jordan L. Fischer, The U.S. Perspective on Schrems II: The Challenges of the Extraterritorial Application of the EU Perspective, 51 SETON HALL L. REV. 1565 (2021) [ Westlaw ] [ Lexis ] Fisher, a Professor of Law at Drexel University, provides a short overview of Schrems II, in which the European Court of Justice found that Exec. Order 12333 and FISA §702 are incompatible with EU data protection requirements. The Article also highlights the White Paper issued by the DNI in the wake of Schrems II, defending U.S. surveillance practices.
Bart Forsyth, Banning Bulk: Passage of the USA Freedom Act and Ending Bulk Collection, 72 WASH. & LEE L. REV. 1307 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Forsyth, Congressman Jim Sensenbrenner’s Chief of Staff at the time of the Snowden leaks, discusses the standard of production for tangible things under § 501 of FISA, criticizing the government’s overbroad interpretation. The article argues against the FISC/FISCR applying the doctrine of ratification in the context of national security legislation, stating that because the judicial and administrative interpretations are classified/not public, it is not reasonable to assume that members of Congress are aware of statutory interpretation prior to passing legislation. It discusses legislative responses to the leaks and passage of the USA FREEDOM Act, evaluating how the USA FREEDOM Act ends bulk collection.
Susan Freiwald, Nothing to Fear or Nowhere to Hide: Competing Visions of the NSA’s 215 Program, 12 COLO. TECH. L.J. 309 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Friewald, Professor of Law, University of San Francisco School of Law, focuses on how differently proponents of the § 215 bulk collection program (considering it vital/legal) and opponents (considering it unauthorized/unconstitutional, yielding minimum benefits and subject to significant abuses and insufficient oversight) conceive it. She focuses on differing views of what constitutes abuse (with proponents viewing it narrowly and opponents understanding it as not following procedures, mission creep, and possessing data without authorization), raising questions about the absence of further insight because of the classified nature of related data. The article concludes that the lack of a common understanding of costs and benefits, the legal framing, and what constitutes abuse will continue to exacerbate differences.
William Funk, Electronic Surveillance of Terrorism: The Intelligence/Law Enforcement Dilemma – A History, 11 LEWIS & CLARK L. REV. 1099 (2007). [ Westlaw ] [ Lexis ] [ Hein ] Funk, Distinguished Professor of Law Emeritus at Lewis and Clark Law School, argues that the original purpose of FISA was to gather foreign intelligence, not to obtain evidence for criminal trials. Subsequent misinterpretations by DOJ and FISC led to the creation of the wall, which was contrary to the original intent of the statute. Attempts to clarify this requirement under the USA PATRIOT Act were unnecessary and gave rise to other constitutional issues.
Jonathan Gannon, From Executive Order to Judicial Approval: Tracing the History of Surveillance of U.S. Persons Abroad in Light of Recent Terrorism, 6. J. NAT'L SECURITY L. & POL'Y 59 (2012). [ Westlaw ] [ Lexis ] [ Hein ] Gannon, previously DOJ NSD and now Assistant Vice President and Senior Legal Counsel at AT&T, notes that counterterrorism investigations involving the activities of USPs abroad are on the rise. He examines the history of surveillance, the power vested in the Attorney General in EO 12333 to authorize overseas surveillance (at issue in U.S. v. Bin Laden), and §§ 703 and 704 of the 2008 FAA.
Aram A. Gavoor & Timothy M. Belsan, The Forgotten FISA Court: Exploring the Inactivity of the ATRC, 81 OHIO ST. L.J. 139 (2020). [ Westlaw ] [ Lexis ] [ Hein ] Gavoor (a Professorial Lecturer in Law at GW Law) & Belsan provide a critical inquiry into the Alien Terrorist Removal Court, which was established in 1996 to provide a forum to prosecute the most difficult immigration removal cases while protecting classified information. It provides a comprehensive analysis of the ATRC, explaining why the court has never heard a case, its continued legitimacy, and dynamic history. They conclude by proposing legislative revision to render the court and a viable national security law enforcement tool.
Scott J. Glick, FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security, 1 HARV. NAT'L SEC. J. 87 (2010). [ Westlaw ] [ Lexis ] [ Hein ] Glick, Senior Counsel at DOJ NSD’s Office of Law and Policy 2011-17, examines the FISCR’s decision to let stand certain restrictions on the government’s use of FISA. He argues that the court reached an erroneous conclusion in regard to the scope of the government’s power. Article legislative history of FISA’s purpose requirement, both before and after In re Sealed Court, proposing removing restrictions imposed by FISCR.
Elizabeth Goitein, Another Bite out of Katz: Foreign Intelligence Surveillance and the “Incidental Overhear” Doctrine, 55 AM. CRIM. L. REV. 105 (2018). [ Westlaw ] [ Lexis ] [ Hein ] Goitein, Co-Director of the Brennan Center for Justice’s Liberty and National Security Program, observes that after DOJ began notifying criminal defendants in 2013 (from the post-Clapper debacle) that evidence used in their trials derived from FISA, regular Article III courts began considering incidental acquisition. Looking at the arguments presented in U.S. v. Mohamud (9th Cir. 2016), U.S. v. Hasbajrami (E.D.N.Y. Mar. 8, 2018); and U.S. v. Muhtorov (D.Colo. 2015), she argues that under Katz, the § 702 acquisition of USP communications fails to meet the reasonableness requirement.
Jennifer Stisa Granick, The Language of Intelligence: How Word Games Hide Surveillance From Public Oversight (2019 Update) 76 N.Y.U. ANN. SURV. AM. L. 423 (2021). [ Westlaw ] [ Lexis ] [ Hein ] ACLU attorney Granick writes about how the federal government uses “word games” to avoid public scrutiny of their information gathering practices. She applies this premise to “the way in which intelligence agencies have misinterpreted FISA in a manner that enables them to withhold notice to defendants who have been surveilled by foreign intelligence authorities.”
David A. Hoffman, Schrems II and TikTok: Two Sides of the Same Coin, 22 N.C.J. L. & TECH. 573 (2021). [ Westlaw ] [ Lexis ] Hoffman, a Professor of Cybersecurity Policy at the Duke University Sanford School of Public Policy and Associate General Counsel and Senior Director of Data Policy Strategy at Intel Corporation, notes that the ECJ as twice ruled against the U.S., finding that it does not provide sufficient protection for personal data. The Article discusses the origins of Schrems I, the Privacy Shield, Schrems II, and the DNI White paper in response before moving to the problems stemming from the U.S. government’s ability to access information from social media platforms under § 702 (PRISM). It then addresses U.S. efforts to prohibit TikTok from transferring citizens’ personal data to China through Trump’s IEEPA and CFIUS Orders and parallel statutes in China that provide authority to access consumer data. The article addresses recent efforts by the Organization of Economic Cooperation to develop a model for collection and transfer of personal data.
Beryl A. Howell, Seven Weeks: The Making of the USA PATRIOT Act, 72 GEO. WASH. L. REV. 1145 (2004). [ Westlaw ] [ Lexis ] [ Hein ] Howell, who in 2001 was serving as General Counsel of the Senate Committee on the Judiciary for Committee Chair Senator Patrick Leahy (D-VT), outlines the compromises made during passage of the USA PATRIOT Act, noting that due to the expediency of the process, there was little chance to build public understanding of, or confidence in, the statute—heightening the need for continued public discussion of the legal implications of the law.
Margaret Hu, Bulk Biometric Metadata Collection, 96 N.C. L. REV. 1425 (2018). [ Westlaw ] [ Lexis ] [ Hein ] Hu, Associate Professor of Law at Washington and Lee University School of Law, argues that bulk biometric metadata collection likely falls outside the protections embedded in the USA FREEDOM Act.
Margaret Hu, Small Data Surveillance v. Big Data Cybersurveillance, 42 PEPP. L. REV. 773 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Hu focuses on construction of digital avatars made possible by the fusion of biometric and biographic data, 24/7 monitoring, and 360º biographic surveillance. She looks at the role that data science logic and reasoning and big data policy rationales are playing in driving the expansion of big data cybersurveillance, arguing for further inquiry into the scientific validity the data science that informs big data cybersurveillance and mass dataveillance. Drawing on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), she suggests that to the extent that covert intelligence gathering relies upon data science, a Daubert-type inquiry is helpful for conceptualizing the proper analytical structure necessary for assessing and engaging in oversight of mass surveillance methods. The article stops short of addressing whether such an inquiry could be integrated into a Fourth Amendment analytical framework, instead concentrating on why integrating such an analysis would be useful for evaluating the legality/constitutionality of the types of programs at issue in FISC-related matters.
Isaac G. Inkeles, Note, Targeted Killing and Credibility Signaling, 15 NYU J.L. & LIBERTY 523 (2022). [ Westlaw ] [ Lexis ] [ Hein ] Inkeles, a J.D. student at NYU, argues that the scholarship evaluating the processes undergirding targeted killing and drone strikes have failed to take account of procedures that Presidents have voluntarily adopted limited their power to conduct such killings as well as the “potential political restraints to limit the president.” Author looks to corporate reforms instituted in 2002 by the Sarbanes-Oxley Act as a tool to evaluate the monitoring measures implemented in the targeted killing context, focusing on what is certified and how it is certified, underscoring the extent to which political risk shapes Presidential decisions for what and how to reveal information. Author concludes that in the targeted killing context, presidents have implemented self-restraints as a form of credibility signaling. Although the author does not directly draw the point, there are intriguing parallels to the FISA context.
Mark M. Jaycox, No Oversight, No Limits, No Worries: A Primer on Presidential Spying and Executive Order 12,333, 12 HARV. NAT’L SEC. J. 58 (2021). [ Westlaw ] [ Lexis ] [ Hein ] Jaycox, the former Civil Liberties Legislative Lead at the Electronic Frontier Foundation, discusses the various declassifications, disclosures, legislative investigations, and new reports concerning Executive Order 12,333 to provide greater understanding for how the Executive implements the order and the surveillance program it authorizes. Article notes, “Section 309 of the Intelligence Authorization Act for Fiscal Year 2015 imposes minimization procedures similar to the ones used for section 702 of FISA” on all 12333-acquired information. Incidental collection has to be deleted after 5 years unless meets certain exceptions (although quite broad: e.g., encrypted info can be kept indefinitely). Briefly summarizes regulatory documents related to 12333. Concise discussion of EO 12333 programs that have been leaked as well as permissive processing procedures. The Article proposes “reforms to the existing policy framework, including narrowing the aperture of authorized surveillance, increasing privacy standards for the retention of data, and requiring greater transparency and accountability.”
Anunay Kulshrestha and Jonathan Mayer, Estimating Incidental Collection in Foreign Intelligence Surveillance: Large-Scale Multiparty Private Set Intersection with Union and Sum 31st USENIX SECURITY SYMPOSIUM, (2022). [ Usenix ] [ Local ] Princeton Professor Jonathan Mayer (joint appt Computer Science and School of Public and Int’l Affairs) and computer science doctoral candidate Anunay Kulshestha note that for more than a decade members of Congress and civil society organizations have called on the IC to estimate the scale of incidental collection under §702. Senior intelligence officials have acknowledged the value of quantitative transparency for incidental collection, but the IC has not identified a satisfactory estimation method that respects individual privacy, protects intelligence sources and methods, and imposes minimal burden on IC resources. The authors that this can be done using secure multiparty computation (MPC). The IC possesses records about the parties to intercepted communications, and communications services possess country-level location for users. By combining these datasets with MPC, they argue that is possible to generate an automated aggregate estimate of incidental collection that maintains confidentiality for intercepted communications and user locations.
Orin S. Kerr, The Modest Role of the Warrant Clause in National Security Investigations, 88 TEX. L. REV. 1669 (2010). [ Westlaw ] [ Lexis ] [ Hein ] Kerr, now Professor of Law at USC Gould School of Law, grapples with the modest role played by the Warrant Clause in national security cases, attributing judicial reluctance to enforce it to the lack of legislative guidance, diplomatic implications, difficulty harmonizing disparate legal regimes, and uncertainty.
Robert Knowles, Delegating National Security, 98 WASH. U.L. REV. 117 (2021). [Westlaw] [Lexis] Knowles, an Associate Professor at University of Baltimore School of Law, observes that conservative scholars and a Supreme Court majority support reviving the nondelegation doctrine as a way to downsize the administrative state; however, these proposals maintain an exception for national security. Knowles argues a national security exception defeats the nondelegation doctrine’s goals of preserving the separation of powers and individual liberty.
David S. Kris, On the Bulk Collection of Tangible Things, 7 J. NAT’L SECURITY L. & POL’Y 209 (2013). [ Westlaw ] [ Lexis ] [ Hein ] Kris, AAG of NSD while the § 215 bulk telephony program was in place, analyzes five related legal issues that arose post-Snowden: NSA dependence on the theory as to the “relevance” to an FBI terrorism “investigation”; direction from FISC to produce metadata to the NSA, not to the FBI; the timing of the production required from the provider (daily and ongoing); restrictions on the use and dissemination of the data (including the RAS query standard); and whether and to what extent the legal arguments in support of bulk telephony metadata collection could apply to other kinds of business records.
David S. Kris, Modernizing the Foreign Intelligence Surveillance Act, (Brookings Inst., Geo. U. L. Ctr. & Hoover Inst. Counterterrorism and Am. Statutory L. Working Paper, 2008), https://perma.cc/C25A-HKAL . Kris discusses the justification for and meaning behind the PAA, the Responsible Surveillance that is Overseen, Reviewed and Effective (RESTORE) Act, and the FAA. The paper argues for a new approach to communications that takes account of new technologies and increased globalization. Note: paper also appears in a slightly updated version in Legislating the War on Terror: An Agenda for Reform, Benjamin Wittes, ed., Brookings Press (2009).
David S. Kris, The Rise and Fall of the FISA Wall, 17 STAN. L. & POL’Y REV. 487 (2006). [ Westlaw ] [ Lexis ] [ Hein ] Kris provides a history of the rise and fall of the wall. He argues that security and liberty can be better protected with the wall down than with the wall up as foreclosure of the use of civilian courts may elicit the use of less desirable remedies.
David S. Kris, Trends and Predictions in Foreign Intelligence Surveillance: The FAA and Beyond, 8 J. NAT'L SECURITY L. & POL'Y 377 (2016). [ Westlaw ] [ Lexis ] [ Hein ] Kris makes predictions about political and technological trends that will have the biggest impact on surveillance. This includes increasing pressure on FISA's "technical assistance" provisions, a growing but unmet need for international agreements to resolve cross border data requests, the increasing indeterminacy of location on the internet and the increasing availability of open source and social media, which creates significant problems and opportunities for U.S. intelligence and counter-intelligence.
Meenakshi Krishnan, The Foreign Intelligence Surveillance Court and the Petition Clause: Rethinking the First Amendment Right of Access, 130 YALE L.J.F. 723 (2021). [ Westlaw ] [ Lexis ] Krishnan, an associate at Davis Wright Tremaine LLP who previously worked on FISC access litigation, discusses the FISC’s determination that there is no First Amendment right of public access its judicial opinions. She argues the right of access not only ensures transparency, but also is an individual right that gives meaning to the Petition Clause. The author proposes adding a third, rights-oriented prong to the experience-and-logic test.
Susan Landau & Asaf Lubin, Examining the Anomalies, Explaining the Value: Should the USA Freedom Act’s Metadata Program Be Extended, 11 HARV. NAT’L SEC. J. 308 (2020). [ Westlaw ] Landau and Lubin analyze how forty orders from the FISC in 2016 and 2017 might have led to a collection of several million Call Detail Records (CDRs), and provide an explanation of what might have caused the NSA’s “technical irregularities” leading to the purge of these records. The authors postulate that at the time of passage of the USA FREEDOM Act, a changing terrorist threat environment and changing communications technologies effectively eliminated the value of a CDR collection, and conclude with recommendations on conducting intelligence oversight.
Diana Lee, Paulina Perlin & Joe Schottenfeld, Gathering Intelligence: Drifting Meaning and the Modern Surveillance Apparatus, 10 J. NAT’L SECURITY L. & POL’Y 77 (2019). [ Westlaw ] [ Lexis ] [ Hein ] The article, which focuses on Executive Order 12333, delves into interagency distinctions in the use of technical words (collection, acquisition, and targeting) that define the appropriate bounds of intelligence gathering and argues that discretion, dispersion, and drift help to account for the differences. Authors propose that the executive standardize vital definitions across agencies and create an external oversight body, and “that Congress act to establish the meanings and concepts in a more durable way.”
Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951 (2003). [ Westlaw ] [ Lexis ] [ Hein ] Lerner, Professor of Law at George Mason University Antonin Scalia Law School, observes problem with Rowley Memo (critiquing FBI HQ decision not to pursue Mousaoui) was disparate views of probable cause, arguing against an absolute rule in favor of a PC balancing test. The Article explores the history of PC.
Eric Manpearl, Adapting U.S. Electronic Surveillance Laws, Policies, and Practices to Reflect Impending Technological Developments, 69 CATH. U. L. REV. 53 (2020). [ Westlaw ] [ Lexis ] [ Hein ] DoD Attorney Eric Manpearl recounts the history of Section 702 and how SIGINT collection under 702 operates. He then describes the developments in technology that effect SIGINT moving forward, including addressing anonymity and location-spoofing technologies. After proposing an enhancement to Executive Order 12333, the article concludes by recommending reform of SIGINT laws and procedures to further protect national security interests.
Peter Margulies, Searching for Accountability Under FISA: Internal Separation of Powers and Surveillance Law, MARQ. L. REV. 1155 (2021). [ Westlaw ] [ Lexis ] [ Hein ] Margulies, a Professor of Law at Roger Williams University School of Law, argues that FISA’s historical deficits are epitomized by the Justice Department Inspector General’s report on the flawed Carter Page FISA request and disclosures of excessive FBI querying of U.S. person information under § 702 of the FISA Amendments Act. To remedy the regulatory capture that continues to afflict the FISA process, Margulies proposes a public advocate at the FISC, de novo high-level administrative review of FISA requests, introduction of machine learning models for quality control, and appointment of a special master for technology.
Peter Margulies, Legal Dilemmas Facing White House Counsel in the Trump Administration: The Costs of Public Disclosure of FISA Requests, 87 FORDHAM L. REV. 1913 (2019). [ Westlaw ] [ Lexis ] [ Hein ] Margulies, Professor of Law Roger Williams University School of Law, distinguishes between insular and lifeboat lawyering, addressing the legal opinions underpinning the Terrorist Surveillance Program and the decision in the Trump Administration to release the Carter Page FISA application.
Peter Margulies, Defining “Foreign Affairs” in Section 702 of the FISA Amendments Act: The Virtues and Deficits of Post-Snowden Dialogue on U.S. Surveillance Policy, 72 WASH. & LEE L. REV. 1283 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Margulies states that the “foreign affairs” prong of “foreign intelligence information” under § 702 deals largely with matters ancillary to diplomacy, arguing for recognition of this interest. He notes the impact of PPD 28 and argues for the inclusion of amici at the FISC.
Peter Margulies, Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection After Snowden, 66 HASTINGS L.J. 1 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Margulies argues that the fiduciary concept of relevance was a reasonable interpretation of § 215 in light of the history of government secrecy and that a “dynamic conception” of surveillance authorities would better integrate secrecy, deliberation, and strategic advantage.
Peter Margulies, Reauthorizing the FISA Amendments Act: A Blueprint for Enhancing Privacy Protections and Preserving Foreign Intelligence Capabilities, 12 J. BUS. & TECH. L. 23 (2016). [ Westlaw ] [ Lexis ] [ Hein ] Margulies urges legislative changes to enhance technological safeguards and use of public advocate as an adversarial party (in addition to amici) at FISC, simultaneously arguing against the use of warrants for querying U.S. person information collected downstream (via ISPs).
Peter Margulies, Surveillance by Algorithm: The NSA, Computerized Intelligence Collection, and Human Rights, 68 FLA. L. REV. 1045 (2016). [ Westlaw ] [ Hein ] Margulies agrees with surveillance critics that the ICCPR applies extraterritorially. Machine access to data can cause both ontological harm, stemming from individuals’ loss of spontaneity, and consequential harm, stemming from errors that machines compound in databases such as no-fly lists. Schrems went too far, though, by failing to acknowledge that human rights law provides states with a measure of deference in confronting threats such as ISIS.
Emily A. Martin, Article III Standing but Add A Little Bit of 21st Century Spice: How Data Breaches Illuminate the Continuously Contradictory Rulings of the Supreme Court, 83 LA. L. REV. 703 (2023). [ Westlaw ] [ Lexis ] Martin is concerned in this article about constitutional standing in data breach cases. He references, very briefly, the Clapper case, in which the Supreme Court held that plaintiffs lacked standing to challenge the constitutionality of FISA.
Valsamis Mitsilegas, Surveillance and Digital Privacy in the Transatlantic “War on Terror”: The Case for a Global Privacy Regime, COLUM. HUM. RTS. L. REV., Spring 2016, at 1. [ Westlaw ] [ Lexis ] [ Hein ] Mitsilegas, Professor of European Criminal Law at Queen Mary University of London School of Law, analyzes U.S. and EU law, noting the latter’s greater privacy protections. He examines the governance structures adopted to take account of the differences as part of the evolution of transatlantic counterterrorism cooperation and argues that, in light of the increasingly globalized nature of mass surveillance, states should work toward the establishment of a global privacy regime. Article addresses TFTP, PNR, MLATs, SWIFT, and the Microsoft case.
Andrew E. Nieland, Note, National Security Letters and the Amended Patriot Act, 92 CORNELL L. REV. 1201 (2007). [ Westlaw ] [ Lexis ] [ Hein ] Nieland discusses the evolution of NSLs, arguing that the USA PATRIOT Improvement and Reauthorization Act of 2005 failed to accomplish meaningful reform.
Paul Ohm, The Argument Against Technology-Neutral Surveillance Laws, 88 TEX. L. REV. 1685 (2010). [ Westlaw ] [ Lexis ] [ Hein ] Ohm, Professor of Law at Georgetown Law, provides the strongest arguments in favor of technology-neutral statutes, and the underappreciated counterarguments, ultimately making a case for Congress to shift to a tech-specific approach.
Panel One: Classification and Access to National Security Information, 19 FIRST AMEND. L. REV. 222(2021). [ Westlaw ] [ Lexis ] [ Hein ] Professor Mary-Rose Papandrea of the University of North Caroline School of Law moderated a panel composed of Professors Margaret Kwoka of the University of Denver School of Law, David Pozen of Columbia School of Law, and Stephen Vladeck of the University of Texas Austin School of Law. The panelists discussed access to national security information within the context of the First Amendment and FOIA.
Deborah Pearlstein, Before Privacy, Power: The Structural Constitution and the Challenge of Mass Surveillance, 9 J. NAT'L SECURITY L. & POL'Y 159 (2017). [ Westlaw ] [ Lexis ] [ Hein ] Pearlstein, Professor of Law at Cardozo Law School, argues that the structural approach undergirding broad readings of sovereign state conduct in external affairs bears little relation to the type of authority exercised under Exec Order 12,333 and that, while functional necessity is an important structural purpose, it cannot be evaluated independent of the parallel goal of preserving a free society—an interest at the heart of bulk collection. Article notes that the Court’s 1972 recognition of executive power was narrowly framed: domestic surveillance “necessary to protect the nation” from attack, in which particular individuals would be targeted for surveillance (not whether authority extends to collecting transmissions along an entire channel of communications, to include “incidental” collection of an unidentifiably large quantity of Americans’ domestic communications). The classic constitutional case for executive power here (based on text, case law, functional necessity, historical practice, and congressional acquiescence) does not support the claim that Article II authorizes E.O. 12333-type bulk collection without either front-end congressional authorization or back-end judicial review.
Richard J. Peltz-Steele & Robert Steinbuch, Transparancy Blind Spot: A Response to Transparency Deserts, 48 RUTGERS L. REC. 1 (2021). [ Westlaw ] [ Lexis ] [ Hein ] Professor Peltz-Steele of the University of Massachusetts Law School and Professor Steinbuch of The University of Arkansas School of Law write in response to UC Berkeley Fellow Christina Koningisor’s article Transparency Deserts 114 Nw. U. L. Rev. 1461. They critique Koningisor for her failure to consider the scholarship concerning state FOIA laws. Peltz-Steele and Steinbuch cite to numerous publications discussing state FOIA law.
Paulina Perlin, Note, Defense and Deference: Empirically Assessing Judicial Review of Freedom of Information Act’s National Security Exemption 11 HARV. NAT'L SEC. J. 257 (2020). [ Westlaw ] The author empirically tests the claim that courts rubberstamp the government’s Exemption 1 arguments to FOIA requests. The study finds that that 76.2% of such claims were upheld despite substandard submissions, and that submission quality did not impact case outcome in any statistically significant way. The primary threat to transparency and democratic values though is not the asymmetry of the outcomes, but the inadequacy of the process employed. The article presents a probability reporting requirement as a solution to not only encourage more meaningful review, but also to incentivize the government to more carefully consider what information merits continued classification.
James Petrila, A Brief History of Programmatic Collection Pre-Section 702, LAWFARE (APRIL 12, 2023). Lawfare blog The author argues that a radical reduction in the ability of the intelligence community to collect critical foreign intelligence would occur if Congress allowed Section 702 to expire.
Rebecca Reeves, F.B.I. v. Fazaga: The Secret of the State-Secrets Privilege, 17 DUKE J. CONST. L. & PUB. POL'Y SIDEBAR 267 (2022). [ Westlaw ] [ Lexis ] Reeves, a student at Duke Law School, lays out the arguments by the parties in FBI v. Fazaga. The article is mostly a summation of the case and arguments. However, Reeves clearly takes the position that the Court ought to hold that the state secrets privilege was displaced when Congress enacted FISA, because holding so “would honor Congress’s intent behind FISA and allow Respondents to move forward” in their case. The Court evidently held otherwise when it decided the case.
Daphna Renan, The FISC’s Stealth Administrative Law, in GLOBAL INTELLIGENCE OVERSIGHT: GOVERNING SECURITY IN THE TWENTY-FIRST CENTURY 121 (Zachary K. Goldman & Samuel J. Rascoff eds., 2016). [ Ebook ] Renan, Assistant Professor of Law at Harvard Law School, using § 702 as a case study, looks at FISC’s increasing reliance on administrative rules to provide context for 4th Amendment reasonableness and proposes that institutions like PCLOB ensure more transparent and participatory rulemaking.
Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101 (2008). [ Westlaw ] [ Lexis ] [ Hein ] Rubenfeld, Professor of Law at Yale Law School, argues that the 4th Amendment has been misconstrued to guarantee a right to privacy but instead establishes a right of security. This construct rejects special needs doctrine, warrantless interception of domestic and international communications, and incidental collection.
Dakota S. Rudesill, Nuclear Command and Statutory Control, 11 J. NAT'L SECURITY L. & POL'Y 365 (2021). [ Westlaw ] [ Lexis ] [ Hein ] University of Ohio Law Professor Rudesill uses FISA as an example of a statutory scheme upon which to base legislation limiting the executive’s control over nuclear weapons. He heavily draws from Section 702.
Theodore W. Ruger, Chief Justice Rehnquist’s Appointments to the FISA Court: An Empirical Perspective, 101 NW. U. L. REV. 239, 244 (2007). [ Westlaw ] [ Lexis ] [ Hein ] Ruger, Professor of Law at University of Pennsylvania Law School, assesses Rehnquist’s 25 appointments to FISC and finds a conservative cohort inclined to favor the government on 4th Amendment issues—an approach consistent with the majority of judges on the inferior federal bench. FISCR reflected a more hegemonic pattern, with a more uniformly conservative bench.
Margo Schlanger, Intelligence Legalism and the National Security Agency's Civil Liberties Gap, 6 HARV. NAT’L. SEC. J. 112 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Schlanger, Professor of Law at the University of Michigan Law School, argues that the intelligence legalism embedded in FISA, EO 12333, and NSA’s compliance and oversight institutions reinforces compliance with existing oversight but does not create more protections for privacy and civil liberties. The question is “Can we do x?,” consistent with law, not “Should we do x?” in light of interests and the risks posed to rights.
Paul M. Schwartz, Reviving Telecommunications Surveillance Law, 75 U. CHI. L. REV. 287 (2008). [ Westlaw ] [ Lexis ] [ Hein ] Schwartz, Professor of Law at UC Berkeley School of Law, highlights gaps in the Wiretap Act, Pen Register Act, Stored Communications Act, FISA, and NSL provisions and considers NSA domestic surveillance, suggesting that the collection of telecommunications statistics is largely ritualistic, a form of privacy theater that perpetuates the myth of oversight. The article argues for provisions that will minimize the impact of surveillance on civil liberties and maximize its efficacy for law enforcement purposes.
Paul M. Schwartz, Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’s Jorde Lecture, 97 CAL. L. REV. 407 (2009). [ Westlaw ] [ Lexis ] [ Hein ] Schwartz argues that for there to be participation in a democracy, individuals must have an underlying capacity for self-determination provided by some personal privacy. Therefore, private liberty is a precondition for public liberty. As such, information must be adequately protected from government intrusion.
Richard Henry Seamon, Domestic Surveillance for International Terrorists: Presidential Power and Fourth Amendment Limits, 35 HASTINGS CONST. L.Q. 449 (2008). [ Westlaw ] [ Lexis ] [ Hein ] Seamon, Professor of Law at the University of Idaho College of Law, argues that the President has inherent authority and congressionally irreducible power to respond to true national security threats outside of FISA, but that this power does not justify the continuance of TSP beyond the weeks immediately following 9/11.
Shirin Sinnar, A Label Covering a “Multitude of Sins:” The Harm of National Security Deference, 136 HARV. L. REV. F. 59 (2022). [ Westlaw ] [ Lexis ] Sinnar argues that the decisions in United States v. Husayn and FBI v. Fazaga perpetuate the Supreme Court's practice of insulating national security abuses from meaningful judicial review. She agrees with Professor Robert Chesney that these decisions reflect a status quo orientation toward the state secrets privilege and reinforce deference to the executive branch in the name of national security. She argues, however, that Chesney's analysis understates both the problems with these decisions and the harm of judicial deference, especially for racialized communities long construed as national security threats.
Shirin Sinnar, Separate and Unequal: The Law Of “Domestic” And “International” Terrorism, 117 MICH. L. REV. 1333 (2019). [ Westlaw ] [ Lexis ] [ Hein ] Sinnar, a professor at Stanford Law, maps the divergence in the investigation, prosecution, and punishment of domestic versus international terrorism, refuting the three leading rationales for the divide: (1) civil liberties; (2) federalism; and (3) the magnitude of the threats. She argues that, once the law divides threats into the “domestic” and “international,” the latter category will predictably expand to cover U.S. individuals perceived as “foreign,” even if they are citizens with negligible relationships abroad and calls for policy makers to reject the legal divide as both incoherent and invidious. She calls for a ratcheting down of the approach to international terrorism to make more accountable and just.
Christopher Slobogin, Cause to Believe What? The Importance of Defining a Search’s Object-Or, How the ABA would Analyze the NSA Metadata Surveillance Program, 66 OKLA. L. REV. 725 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Slobogin, a Professor of Law at Vanderbilt University Law School, raises question about how probable cause and reasonable suspicion relate to the object of a search (e.g., that a search “might lead” versus “will produce” evidence of wrongdoing), highlighting the tangential nature of the § 215 telephony metadata program. He applies the ABA’s Criminal Justice Standards on Law Enforcement Access to Third Party Records (LEATPR Standards) to the program.
Daniel J. Solove, Data Mining and the Security-Liberty Debate, 75 U. CHI. L. REV. 343 (2008). [ Westlaw ] [ Lexis ] [ Hein ] Solove, a Professor of Law at George Washington Law School, faults the analytical construct applied to data mining for adopting a utilitarian approach that undervalues the myriad liberty interests involved, skewing the analysis in favor of greater government power.
Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 GEO. WASH. L. REV. 1264 (2004). [ Westlaw ] [ Lexis ] [ Hein ] Solove analyzes the scope, standards, and enforcement mechanisms embedded in ECPA, the Wiretap Act, the Stored Communications Act, the Pen Register Act, and FISA, as well as more deep-rooted and systematic concerns, concluding that surveillance law is overly intricate and complex, has failed to keep pace with new technologies, and lacks sufficient judicial and legislative oversight.
Geoffrey R. Stone, The NSA’s Telephone Meta-data Program: Part I, HUFFINGTON POST (Dec. 24, 2013),
________. The NSA’s Telephone Meta-data Program: Part II, HUFFINGTON POST (Dec. 28, 2013), https://perma.cc/HP4S-D9JR .
________. The NSA’s Telephone Meta-data Program: Part III, HUFFINGTON POST (Dec. 31, 2013), https://perma.cc/J79M-WKN2 .
________. Is the NSA’s Bulk Telephony Meta-data Program Constitutional?, HUFFINGTON POST (Jan. 3, 2014), https://perma.cc/CQ7B-XLZ5 .
________. Is the NSA’s Bulk Telephony Meta-Data Program Constitutional: Part II, HUFFINGTON POST (Jan. 6, 2014), https://perma.cc/UMQ4-G6S9
________. The NSA’s Telephone Meta-data Program Is Unconstitutional, HUFFINGTON POST (Jan. 9, 2014), https://perma.cc/BGY8-LPKR .
Stone, Professor of Law and former Dean of the University of Chicago Law School and member of the President’s Review Board, writes a six-part blog post discussing the contours and constitutionality of the § 215 program, concluding that it is unconstitutional.
Geoffrey R. Stone, The NSA, the Metadata Program, and the FISC, 76 N.Y.U. ANN. SURV. AM. L. 599 (2021). [ Westlaw ] [ Lexis ] [ Hein ] Professor Stone of the University of Chicago provides a narrative account of his time with the Review Group that President Obama appointed to review the NSA following Snowden revealing classified information.
Katherine Strandburg, Membership Lists, Metadata, and Freedom of Association’s Specificity Requirement, 10 I/S: J.L. & POL'Y FOR INFO. SOC'Y (ISJLP) 327 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Strandburg, Professor of Law NYU School of Law, emphasizes the importance of the First Amendment in assessing the legality of the collection and analysis of metadata that includes associational information. She proposes three specific requirements to pass constitutional muster (promotion of a specific compelling government interest; a sufficiently close nexus to that specific interest; and necessary in that there are no substantially less burdensome means to achieve that specific interest) and applies them to the NSA’s § 215 telephony metadata program.
Mariska Suparman, The Constitution: A Blueprint for American Data Privacy Law, 29 WIDENER L. REV. 71 (2023). [ Westlaw ] This article very briefly mentions the Supreme Court case Clapper v. Amnesty International USA. In that case, the Court held that the plaintiffs lacked standing to challenge the constitutionality of FISA. Suparman uses the case to set up the broader discussion regarding constitutional standing in the data privacy context.
Peter Swire, The System of Foreign Intelligence Surveillance Law, 72 GEO. WASH. L. REV. 1306 (2004). [ Westlaw ] [ Lexis ] [ Hein ] Swire, Professor of Law at the Ohio State University Moritz College of Law, provides a thoughtful analysis of the history and theory of the U.S. system of foreign intelligence surveillance law and proposals for reform.
K.A. Taipale, Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data, 5 COLUM. SCI. & TECH. L. REV. 2 (2003). [ Westlaw ] [ Lexis ] [ Hein ] Taipale, Executive Director of the Stilwell Center for Advanced Studies in Science and Technology Policy, argues that new technologies can provide security for privacy by building in rule-based processing, selective revelation, and strong credential and audit features.
K.A. Taipale, The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance, 9 YALE J.L. & TECH 128 (2007). [ Westlaw ] [ Lexis ] [ Hein ] Taipale considers how transit intercepts, collateral intercepts, content filtering, traffic analysis, and link or pattern analysis relate to the statutory language of FISA and proposes new language to address deficiencies in the law.
Richard C. Tallman & Tania M. Culbertson, Holding the Delicate Balance Steady and True”: The History of FISA’s Grand Bargain, 80 MONT. L. REV. 137 (2019). [ Westlaw ] [ Lexis ] [ Hein ] Tallman, Senior U.S. Circuit Judge for the Ninth Circuit and Judge on the Foreign Intelligence Surveillance Court of Review, and Culbertson, Clerk to Judge Tallman, note that FISC/R “were created to provide an important check on executive power,” arguing that the role is just as (if not even more) relevant today than in 1978. The article argues that the grand compromise and give and take among the branches that marked the creation of FISA continues in light of new and emerging technologies.
Anthony John Trenga, What Judges Say and Do in Deciding National Security Cases: The Example of the State Secrets Privilege, 9 HARV. NAT'L SEC. J. 1 (2018). [ Westlaw ] [ Lexis ] [ Hein ] E.D.V.A. Judge Anthony Trenga, prior to his appointment to the FISC, responds to disclosures that government litigators’ state secrets assertions may have been “overstated or, in fact, baseless” by examining judicial treatment of the government’s state secrets claims. Interviews district and circuit court judges on what factors they consider, including (1) the extent to which judges apply the principles and procedures reflected in case law; (2) the relevance, if any, of a judge's background to his or her disposition to the privilege; (3) the differences among judges concerning the level of deference a judge affords an assertion of the privilege; (4) the practical influences on judges deciding state secrets privilege issues; and (5) the common values, beliefs, and expectations of judges in approaching an assertion of the state secrets privilege. The analysis is relevant to the numerous cases that straddle FISA and SSP.
Mark A. Visger, Seeing and Connecting the Dots: Legal Challenges to Countering Foreign Cyberattacks Launched from Within U.S. Domestic Cyberspace, 24 N.C. J. L. & Tech. 85 (2022). [ Westlaw ] [ Lexis ] This article arises out of a recent cyber-attack believed to be conducted by Russian-backed hackers. The “SolarWinds” attack consisted of a Russian hacker using Amazon Web Services (operating in US cyberspace) to access information of several thousand customers, including US government agencies. The article examines the Fourth Amendment and FISA implications of military operations targeting companies operating in US cyberspace when these companies are used as vehicles for foreign-originated cyber-attacks.
Stephen I. Vladeck, The FISA Court and Article III, 72 WASH. & LEE L. REV. 1161 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Vladeck, Professor in Law, University of Texas School of Law, looks at the evolution of FISC from its founding through 2015, arguing that the orders for bulk or programmatic collection of foreign intelligence surveillance do not, in any meaningful way, resemble a warrant, which means that an alternative Article III justification (which has not yet been provided) must be established for them. While Congress provided for adversarial process, the fact that it had seldom been used opened the door to Constitutional challenge.
Patrick Walsh, Stepping on (or Over) the Constitution’s Line: Evaluating FISA Section 702 in a World of Changing “Reasonableness” Under the Fourth Amendment, 18 N.Y.U. J. LEGIS. & PUB. POL’Y 741 (2015). [ Westlaw ] [ Lexis ] [ Hein ] Walsh, Associate Professor at the Judge Advocate General’s School, reviews judicial decisions and PCLOB findings concerning § 702 that have thus far upheld the program’s constitutionality but with significant reservations and limitations and discusses relevant Fourth Amendment case law that courts have not yet considered in the context of § 702. The Article concludes that jurisprudence has laid the groundwork that a future court may use to find that FISA § 702 violates the Fourth Amendment’s prohibition on unreasonable searches.
Kimberly L. Wehle & Jackson Garrity, Executive Accountability Legislation from Watergate to Trump-and Beyond, 7 U. PA. J.L. & PUB. AFF. 37 (2021). [ Westlaw ] Professor Wehle of the University of Baltimore School of Law argues that the legislative branch must take steps to hold the executive accountable. She reviews an array of post-Watergate legislative reforms meant to curb the power of the executive including FISA and FOIA. She recommends amending some of the PATRIOT Act changes to foreign intelligence law.
Michael J. Woods, Counterintelligence and Access to Transactional Records: A Practical History of the USA PATRIOT Act Section 215, 1 J. NAT’L SECURITY L. & POL’Y 37 (2005). [ Westlaw ] [ Lexis ] [ Hein ] Woods, former chief of the FBI’s National Security Law Unit, analyzes § 215 in light of the counterintelligence needs of law enforcement to obtain transactional data. He proposes two changes to address civil liberties and counterintelligence: (a) limiting its application to transactional records that are truly relevant to authorized investigations by certain language; and (b) inserting the notice requirements from FISA’s electronic surveillance, physical search, and PRTT provisions into § 215 (i.e., requiring notice where the government intends to “enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court” information so obtained), and giving the aggrieved party a procedure to challenge its use in a criminal proceeding.
John Yoo, The Legality of the Nationality Security Agency’s Bulk Data Surveillance Programs, 37 HARV. J.L. & PUB. POL'Y 901 (2014). [ Westlaw ] [ Lexis ] [ Hein ] Yoo, former Deputy Assistant Attorney General at the Office of Legal Council (2001-03) and Professor of Law at UC Berkeley Law School, discusses the evolution of al Qaeda and argues that the § 215 program meets statutory and constitutional requirements.
Anette Yospe, Comment, The Classified Information Procedure Act: Effects on the Entrapment Defense at the Expense of Defendants, 10 NAT’L SECURITY L.J. 38 (2023). [ Westlaw ] This Comment discusses the constitutional issues that arise when a defendant who asserts entrapment as a defense must operate under CIPA procedures. Under CIPA, for the defendant to access any information from the investigation, the information must, at the very least, be proven relevant to their defense under the Federal Rules of Evidence. However, circuits diverge when applying relevancy rules in admitting evidence. CIPA emphasizes that defendants must be afforded “substantially the same ability to make his defense as would disclosure of the specific classified information.” This Comment describes how a CIPA proceeding functions, including the processes followed by the prosecution and defense. The background section also explains the entrapment defense and why asserting the entrapment defense is more difficult with CIPA in play.
Monika Zalnieriute, Big Brother Watch and Others v. the United Kingdom. App. Nos. 58170/13, 62322/14, 24960/15. Judgment. at Http://hudoc.echr.coe.int/eng?i=001-210077. European Court of Human Rights (Grand Chamber), May 25, 2021, 116 AM. J. INT'L L. 585 (2022). [ Westlaw ] [ Lexis ] [ Cambridge ] NOTE: Unavailable through Hein until 2023. University of New South Wales Professor Zalnieruiute contends that the European Court of Human Right’s decision in Big Brother Watch represents a “highly permissive approach to government surveillance” despite the contest program being found to be in violation of the Convention on procedural grounds. Argues that the Court has endorsed mass-surveillance as acceptable in principle, by holding that that bulk interception was not per se disproportionate, and that judicial authorization was not a requisite for the legality of bulk surveillance, which “is of vital importance to Contracting States in identifying threats to their national security” (noting only one dissent).
C. CONGRESSIONAL RESEARCH SERVICE REPORTS
ELIZABETH B. BAZAN, CONG. RES. SERV., RL30465, THE FOREIGN INTELLIGENCE SURVEILLANCE ACT: AN OVERVIEW OF THE STATUTORY FRAMEWORK AND U.S. FOREIGN INTELLIGENCE SURVEILLANCE COURT AND U.S. FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW DECISIONS (2007). [ FAS ] [ Local ] Comprehensive (103 page) report recounts the history of FISA and subsequent amendment of the statute via the 2001 USA PATRIOT Act, the 2002 Homeland Security Act, the 2002 Intelligence Authorization Act, the Intelligence Reform and Terrorism Prevention Act, the 2005 USA PATRIOT Improvement and Reauthorization Act, and the 2006 USA PATRIOT Act Additional Reauthorizing Amendments Act. Report also addresses FISC’s publicly-available opinions as well as Exec. Order 12333.
ELIZABETH B. BAZAN ET AL., CONG. RES. SERV., RL33424, GOVERNMENT ACCESS TO PHONE CALLING ACTIVITY AND RELATED RECORDS: LEGAL AUTHORITIES (2007). [ FAS ] [ Local ] Addresses recently-released public information about NSA collection programs and progress of related litigation, as well as statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices.
ELIZABETH B. BAZAN, CONG. RES. SERV., RL34143, P.L. 110-55, THE PROTECT AMERICA ACT OF 2007: MODIFICATIONS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (2008). [ FAS ] [ Local ] Discusses alterations made to FISA by the PAA of 2007 and their potential impact on and parallels to existing law, as well as recent legislative developments.
VIVIAN S. CHU, CONG. RES. SERV., R43534, REFORM OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS: SELECTION OF JUDGES (2014). [ FAS ] [ Local ] Responding to increasing attention paid 2013-14, the report considers various Congressional proposals to change the manner in which judges are appointed to FISC/FISCR.
JARED P. COLE & ANDREW NOLAN, CONG. RES. SERV., R43451, REFORM OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS: A BRIEF OVERVIEW (2014). [ FAS ] [ Local ] Identifies potential legal questions related to a range of Congressional proposals introduced post-§ 215 to alter FISC/FISCR: public advocates, amicus curiae, en banc panels, voting rules, selection of FISC/FISCR judges; mandatory disclosure of court opinions.
CHARLES DOYLE, CONG. RES. SERV., RL33320, NATIONAL SECURITY LETTERS IN FOREIGN INTELLIGENCE INVESTIGATIONS: LEGAL BACKGROUND (2015). [ FAS ] [ Local ] Doyle discusses early judicial reaction to the PATRIOT Act, inspector General's Reports on NSL Amendments, Post-Amendment Judicial Action, and the recommendations of the President's Review Group.
EDWARD C. LIU, CONG. RES. SERV., R40138, AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) EXTENDED UNTIL JUNE 1, 2015 (2011). [ FAS ] [ Local ] Discusses extension of three FISA-related provisions: USA PATRIOT Act Section 206 (amending FISA to permit roving wiretaps); USA PATRIOT Act § 215 (tangible goods); and the Intelligence Reform and Terrorism Prevention Act § 6001(a) (amending FISA to permit “lone wolf” targeting).
EDWARD C. LIU & CHARLES DOYLE, CONG. RES. SERV., R40980, GOVERNMENT COLLECTION OF PRIVATE INFORMATION: BACKGROUND AND ISSUES RELATED TO THE USA PATRIOT ACT REAUTHORIZATION (2011). [ FAS ] [ Local ] Discusses controversial aspects of the USA PATRIOT Act and exploring the arguments that undergirded support for and opposition to the measures.
EDWARD C. LIU ET AL., CONG. RES. SERV., R43459, OVERVIEW OF CONSTITUTIONAL CHALLENGES TO NSA COLLECTION ACTIVITIES (2015). [ FAS ] [ Local ] Describes § 215 bulk telephony metadata program and § 702 interception of Internet-based communications targeted at foreigners underseas that inadvertently acquires U.S. persons’ communications. Addresses constitutional challenges to both programs at FISC, as well as civil actions or criminal proceedings in non-specialized Article III courts.
EDWARD C. LIU, CONG. RES. SERV., R42725, REAUTHORIZATION OF THE FISA AMENDMENTS ACT (2013). [ FAS ] [ Local ] Discussing H.R. 5949 (which extended Title VII of FISA until Dec. 31, 2017), and addressing the contours of Title VII, as well as the subsequent litigation.
EDWARD C. LIU, CONG. RES. SERV., R44457, SURVEILLANCE OF FOREIGNERS OUTSIDE THE UNITED STATES UNDER SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) (2016). [ FAS ] [ Local ] Edward Liu discusses the use and implementation of § 702. Specifically, the scope of acquisitions, certifications procedures, exigent circumstances, and constitutional challenges.
ANDREW NOLAN ET AL., CONG. RES. SERV., R43260, REFORM OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS: INTRODUCING A PUBLIC ADVOCATE (2014). [ FAS ][ Local ] Considers the legal nature of the office of a public advocate, Article II’s Appointments Clause, and Article III restrictions.
ANDREW NOLAN & RICHARD M. THOMPSON II, CONG. RES. SERV., R43362, REFORM OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS: PROCEDURAL AND OPERATIONAL CHANGES (2014). [ FAS ] [ Local ] Addresses host of bills designed to make procedural and operational changes to FISC including amicus curiae, en banc proceedings, voting rules requiring between 60 and 100% of the judges to concur.
D. ADDITIONAL SOURCES
U.S. DEP’T OF JUSTICE, ADMINISTRATION WHITE PAPER: BULK COLLECTION OF TELEPHONY METADATA UNDER SECTION 215 OF THE USA PATRIOT ACT (Aug. 9, 2013). [ WWW ] [ Perma ] White paper explaining the government's legal basis for the NSA's FISA program enacted as part of 215 of the Patriot Act.
BRENNAN CTR. FOR JUSTICE, COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD RE: SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (Nov. 4, 2022). [ WWW ] [ Local ] The Brennan Center submitted comments recommending that the PCLOB use its investigative powers to uncover exactly how many communications involving Americans are collected under Section 702, as well as to investigate certain aspects of the government’s targeting decisions and uses of Section 702. In addition, the Brennan Center urged the PCLOB to propose legislative reforms to Section 702 that would narrow the permissible pool of targets; shore up protections for Americans’ data; extend the reach of FISA to overseas surveillance that affects Americans’ privacy; and enhance transparency and accountability.
ELEC. PRIVACY INFO. CTR., COMMENTS OF THE ELECTRONIC PRIVACY INFORMATION CENTER TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD ON NOTICE OF THE PCLOB OVERSIGHT PROJECT EXAMINING SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) (Nov. 4, 2022). [ WWW ] [ Local ] The Electronic Privacy Information Center (EPIC) submits these comments in response to the Privacy and Civil Liberties Oversight Board’s (PCLOB) Notice of the PCLOB Oversight Project Examining Section 702 of the Foreign Intelligence Surveillance Act (FISA). EPIC applauds the PCLOB’s decision to examine FISA Section 702 ahead of its reauthorization deadline at the end of 2023. The PCLOB’s investigations and recommendations are of vital importance to the American public and Congress in determining whether to renew Section 702 and, if it is renewed, what additional safeguards are necessary.
1. Online discussion of 702 Renewal
Elizabeth Goitein, The Year of Section 702 Reform, Part I: Backdoor Searches, JUST SECURITY (FEB. 13, 2023). [ Just Security ] [ Perma ] Goitein, co-Director of the Brennan Center’s Liberty and National Security Program (previously counsel to Senator Feingold), focuses on biannual DNI/AG report, annual transparency report, and recently-released FISC opinions, to consider backdoor issues. Notes 2-yr FBI delay in meeting congressional requirement for USP query terms, 3.4 million queries in 2021, broad domestic use of 702 during early stages of investigations, FBI failure to obtain court order when queried as part of predicated crim invest unrelated to natsec (statutory req)—despite accessing it more than 100 times; also notes failure of FBI to fix technical issues for nearly 2 years. Underscores that despite low bar (USP queries must be reasonably likely to retrieve foreign intel or evidence of a crime), FISC opinions from 2018, 2019, 2020 show widespread violations: e.g., searching for comms of workers undertaking repairs at FBI; business, religious, community leaders who applied to participate in FBI’s “citizens Academy”; college students in collegiate academy; individuals who entered the field office to provide a tip/report they were the victim of a crime; police officer candidates, colleagues and relatives of FBI agent performing search. Notes FBI batch queries (thousands/10s of thousands of USP comms searched at one time). Highlights 24th semiannual assessment, which revealed FBI personnel searching 702 database using “only the name of a US congressman”; “names of a local political party” (although connection to FI was “not reasonably likely). Also search following report of an “individual of Middle Eastern descent”, whom a witness claimed “sped” into a parking lot before honking his horn. “A second individual of Middle Eastern descent” then began loading boxes into a second vehicle. Proposes that Congress: (a) impose a warrant req prior to 702 search for USP comms; (b) close gaps in law permitting collection/use of USP comms/4th A protected info; (c) limit permissible pool of 702 targets to individuals who might reasonably have info about foreign threats (would in turn limit incidental collection of USP comms); (d) remove barriers to existing judicial review mechanisms.
Adam Klein, FISA Section 702 (2008-2023?),LAWFARE (Dec. 27, 2022, 8:30 AM) [ Lawfare ] [ Perma ] Klein, former Chair of PCLOB, argues for the necessity of 702 as well as the importance of the IC acknowledging serious concerns about how FISA has operated, including Carter Page/Title I. Klein proposes (a) adding a category of “Sensitive Investigative Matter” to FISA’s categories; (b) requiring amici to be appointed in cases with heightened civil liberties concerns; (c) requiring the executive to give U.S. citizens equal access to any remedies available to non citizens (as in Exec. Order 14086); (d) requiring full-file “completeness” reviews to check for omissions in sensitive FISA apps and report to Congress on the filings; (e) requiring renewal-specific findings before approving apps to renew surveillance on USPs; (f) requiring renewals return to the same FISC judge who considered the initial app; and (g) providing for transparency around unmasking during presidential transition periods. Klein also advocates rethinking FISA structure, e.g., (a) replacing ELSUR definition with a simpler approach; (b) adding stringer protections for USPs; (c) making it less burdensome to initiate surveillance of foreign gov’ts, entities “directed and controlled by a foreign gov’t”, and AFPs who are not USPs.
- Remarks: April Doss (GC, NSA), Paul Nakasone (DIRNSA)
- Panel 1: Julian Sanchez (Cato); Jeremie Scott (EPIC); Chris Fonzone (ODNI),
- Panel 2: Cindy Cohn (EFF), Mike Herrington (FBI), Jeff Kosseff (U.S. Naval Academy), Jonathan Mayer (Princeton);
- PCLOB Board: Sharon Bradford Franklin (Chair), Beth Williams, Ed Felten, Travis LeBlanc, Richard DiZinno
Most Recent Submissions
Brennan Ctr. for Justice, Comments to the Privacy and Civil Liberties Oversight Board re: Section 702 of the Foreign Intelligence Surveillance Act (2022-11-04)The Brennan Center submitted comments recommending that the PCLOB use its investigative powers to uncover exactly how many communications involving Americans are collected under Section 702, as well as to investigate certain ...
Electronic Privacy Information Center, Comments of the Electronic Privacy Information Center to the Privacy and Civil Liberties Oversight Board on Notice of the PCLOB Oversight Project examining Section 702 of the Foreign Intelligence Surveillance Act (FISA) (2022-11-04)The Electronic Privacy Information Center (EPIC) submits these comments in response to the Privacy and Civil Liberties Oversight Board’s (PCLOB) Notice of the PCLOB Oversight Project Examining Section 702 of the Foreign ...
Estimating Incidental Collection in Foreign Intelligence Surveillance: Large-Scale Multiparty Private Set Intersection with Union and Sum, 31st USENIX Security Symposium (2022) (2022-08-10)Princeton Professor Jonathan Mayer (joint appt Computer Science and School of Public and Int’l Affairs) and computer science doctoral candidate Anunay Kulshestha note that for more than a decade members of Congress and ...
(2022-01-07)Law clerk Beller evaluates FISA notices issued over the last 30 years. She argues that Muslim Americans and Chinese-Americans are overrepresented among notice recipients and suggests that this population represents the ...