By Jennifer Granick on November 7, 2012 at 3:09 pm
Taking a close look at the Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) renewal helps explain why some lawmakers erroneously believe that the statute only incidentally affects Americans, and can clarify the true effect of the law on communications privacy. Both known and unknown knowledge gaps plague Congress' effort to craft a balance between national security and foreign intelligence needs and Americans' privacy. Not much is publicly known about the operation of the FAA, and FISA more generally, because of secrecy -- some necessary, some not -- surrounding the practice of spycraft, minimization and targeting procedures, the legal opinions issued by the Foreign Intelligence Surveillance Court (FISC) and guidance provided by the Department of Justice.
But some of the misconceptions are the wholly unnecessary result of inaccuracies in the use of terms of art under the statute, which are misleading to those lawmakers and citizens who are not experts in the arcane statutory scheme that constitutes FISA. For example, the congressional debate over the FAA renewal has been infused with misleading information about whether, when and how the statute authorizes surveillance of U.S. persons. Unlike many public interest debates, the argument over the FAA is not so much one of reasonable people disagreeing over what the right policy would be, than reasonable people disagreeing over what the current policy is. A little time and attention to the statute and to the existing expert treatises about it, in particular Kris, David and Wilson, J. Douglas, National Security Investigations & Prosecutions 2d, (2012), can help clear away some of the fog. In an effort to shed light on some of the misconceptions in the public debate on FAA renewal, I examined the Senate Intelligence Committee’s majority report in favor of the FAA extension, and made notations where the report could be more clear about how the FAA operates. Those comments are available here.
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