The Foreign Intelligence Surveillance Act of 1978 (FISA) has played a prominent role in the legal response to terrorism after the September 11, 2001 attacks. Following the attacks, amendments to FISA became a high-profile part of the controversial Patriot Act. In December 2005, FISA regained the spotlight when the New York Times revealed that the Bush Administration had authorized the National Security Agency (NSA) to conduct domestic surveillance of international communications without obtaining FISA orders. In August 2007, FISA was in the headlines again when Congress passed a controversial amendment to the statute, the Protect America Act of 2007.
All of these controversies touched on different parts of the same question: is FISA outdated, and if it should be updated, how should it change? This broad question divides into two issues, the first relating to our basic values and the second relating to their implementation. The first question is whether FISA strikes the proper balance between privacy and national security. The second question is whether FISA implements its chosen balance in a way that accurately reflects the constitutional and technological realities of modern intelligence investigations. As often happens with matters of basic values, little headway can be made on the first question. Most of us have stubborn instincts about the severity of the terrorist threat on one hand and the threat to our civil liberties on the other. Barring another terrorist attack or disclosures of new privacy violations, individual views of what balance should be struck seem unlikely to budge.
This essay will focus on the second question, whether FISA’s design is well tailored to the technology and constitutional law of modern intelligence investigations. It argues that whatever balance FISA strikes, the statute must be rewritten to account for changes in both communications technology and Fourth Amendment doctrine over the last three decades. Like pet rocks and the Partridge Family, FISA’s approach seemed natural in the 1970s. Its design made considerable sense in light of the Fourth Amendment law and communications technology of the era. In the last three decades, however, the constitutional and technological terrain has shifted. No matter what specific balance FISA strikes, its approach must recognize the new legal and technological environment.