Monday, September 28, 2020
Peter Margulies (Roger Williams University School of Law) has posted Searching for Accountability Under FISA: Internal Separation of Powers and Surveillance Law on SSRN. Here is the abstract:
The Foreign Intelligence Surveillance Act (FISA) has never been more controversial. Enacted to bolster surveillance's institutional framework after the excesses of J. Edgar Hoover's FBI, FISA's deficits have been front and center due to 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. This paper suggests that current problems have their roots in the failure of both the FBI and the Department of Justice (DOJ) to learn the lessons of FISA's origins and history.
Reading the pre-history of FISA requires a look at the troubled history of FBI-DOJ interaction on surveillance. From World War II to the wiretap on Dr. Martin Luther King, Jr. in the 1960s, the Justice Department has acquiesced in regulatory capture by the FBI. Under Hoover, the FBI used its information advantage and edge in personal relationships with the politically powerful to ramp up its surveillance mechanism. FISA was supposed to restore the institutional balance between DOJ and the FBI, but without commitment in practice FISA is just a flow chart. The Foreign Intelligence Surveillance Court (FISC) can reinvigorate dialogue between DOJ and the FBI, but it can do so only if DOJ and the FBI cooperate to provide the FISC with accurate information. That paradox has created an impasse that the Carter Page FISA request and § 702 querying excesses have highlighted.
To remedy the regulatory capture that continues to afflict the FISA process, this paper 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. These measures will not eliminate the risk of regulatory capture. But they will spur cultural change, enabling the gatekeeping framework of FISA to better balance liberty and security.