Thursday, March 19, 2015
The Brennan Center just released What Went Wrong with the FISA Court?, a history and analysis of the FISA court, its problems, and some suggested solutions, penned by Elizabeth Goitein and Faiza Patel.
The report walks through the history of FISA to show just how the law, technology, and the FISA court itself changed to create the conditions for the bulk, or programmatic, surveillance programs that we have today. The report argues that current programmatic surveillance programs raise significant Article III and Fourth Amendment problems. In order to solve these, the report suggests the following:
- End programmatic surveillance by prohibiting bulk surveillance under Section 215 and replacing Section 702 with a regime that would require an individualized court order for surveillance.
- Enact additional reforms and processes, including adding an adversarial process (an advocate against the government before the FISA court) and increasing transparency.
- Enact additional Fourth Amendment reforms, including restoring the requirement that the surveillance target is a foreign power or its agent, narrowing the definition of "foreign intelligence information," and restoring the test that requires that obtaining foreign intelligence information is the "primary purpose" of the surveillance.
- Reform programmatic surveillance, if it must continue.