Putting Fisa into practice

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　　　Putting Fisa into practice
        　　    After months of negotiations and wrangling, the blogosphere is exploding with commentary pro and con over the recent
        　　    passage of the Foreign Intelligence Surveillance Act of 2008 (Fisa). Critics of the act have focused on several
        　　    issues: the retroactive civil and criminal immunity granted to telecommunications corporations for compliance with
        　　    executive requests that arrived without court orders; the more restricted certification process for the reviewing
        　　    Fisa court; the broader "dragnet" broadband authorisation for information; and the expanded reporting time granted
        　　    the government. Defenders of the legislation emphasise the clear statement that Fisa is the "exclusive means" for
        　　    intercepting electronic communications; increased congressional oversight; the enhanced protections for Americans
        　　    living overseas; and the new enhanced role of the inspector general to review the government's actions.
        　　    As expected, each side contends that the other's justifications are flawed and miss the mark. This debate becomes
        　　    highly technical, in which the trees obscure the forest. The controversy is further fuelled by the fact that the
        　　    presumed Democratic presidential nominee, Barack Obama, reversed his original position in opposition to the act and
        　　    voted for it, while Hillary Clinton, the defeated Democratic hopeful, continued to oppose the act. The Republican
        　　    candidate, John McCain, was a strong supporter of the act. Hence the evocative language of the blog postings -
        　　    "shameless capitulation", "false compromise" and "betrayal".
        　　    Regardless of where one breaks on the issues, there appears to be a consensus that Fisa needed to be modernised to
        　　    account for the new technologies and developments in the communications arena. The "old" Fisa of 1978 was written
        　　    for a world of phones, routers and telegraphs with limited traffic capacities and specific locations whereby one
        　　    could clearly delineate foreign and domestic. The brave new world of web-based communications has revolutionised
        　　    technical mechanisms, delivery modes, locations, storage banks and volume. The lapsing stop-gap Protect America Act,
        　　    the limited fix to Fisa, recognised that something new was needed.
        　　    Knowable individualised surveillance versus general broadband collection is an essential part of the debate – who
        　　    will authorise the broadband collection, by what standards, and who will review the authorisation and monitor the
            
            

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        　　    collection? This is often referred to as the "minimisation" issue - in short how and who will keep the executive
        　　    accountable. As David Kris, a former associate deputy attorney general who has written extensively on national
        　　    security issues and surveillance, has pointed out: "Fisa has three essential substantive requirements: first, a
        　　    target that is a foreign power or an agent of a foreign power; second, a facility being used by that target; and
        　　    third, minimisation. To satisfy these requirements without sacrificing speed and agility, it is necessary to
        　　    identify the broadest possible target and facility, which will yield the broadest possible authorisation order,
        　　    which will require the fewest possible court orders for the most surveillance."
        　　    These facilities or international gateway switches have enormous amounts of data and traffic. But the status of the
        　　    origin of the communication, the nationality of the communicator and storage location of the data challenged the old
        　　    Fisa categories of target and facility. What are domestic-to-domestic versus international-to-domestic versus
        　　    international-to-international communications? Imagine an American traveller who lends his iPhone to a French friend
        　　    to make a call from Germany to his friend in Yemen. (This call would now require a Fisa warrant if the American was
        　　    a target.)
        　　    The Bush administration, confronted with the problem of identifying the nationality of the communicator, the
        　　    location of the communicator, the place of the "facility" and volume of the data, chose to ignore the old Fisa. It
        　　    asserted executive presidential prerogative to use the foreign power/foreign origin of the communication to assert
        　　    that it did not need a Fisa warrant to secure the data from the owners of the international gateway switches and
        　　    stored data banks. The potential threat, the administration reasoned, warranted swift action.
        　　    The next step was to use "filters" or "data searches" to find the communication network needle in the haystack.
        　　    Under the minimisation doctrine and the new act, the government is to "minimise the acquisition and retention, and
        　　    prohibit the dissemination, of non-publicly available information concerning unconsenting United States persons."
        　　    But if the data is "foreign intelligence information" or is "evidence of a crime which has been, is being, or is
            
            

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        　　    about to be committed," it can be retained and acted upon. This has raised concerns in the civil liberty community.
        　　    How much information will these sweeps gather up?
        　　    The new Fisa is an attempt to bring back accountability and review of governmental action in this complex technical
        　　    area of electronic surveillance in the digital age. But as this brief review has highlighted it is the technology
        　　    that has made obsolete so many of the categories of the old Fisa. The concept of US citizen is harder to determine
        　　    in this interconnected world of mobile communications and storage capacities. The modern world is creating enormous
        　　    data banks of information controlled by the private sector. The government is only a warrant or a subpoena away from
        　　    this vast ocean of information on its citizens and visitors. All governments are wrestling with the problem of how,
        　　    under the rule of law, information should be obtained, searched, protected and not be the subject of governmental
        　　    abuse. The new Fisa statue is the most recent attempt to resolve these problems but many questions remain to be
        　　    answered as the intelligence community begins to "operationalise" the new rules.
        　　    The data is there in the private sector. Technology allows for more extensive and detailed searches. The goal is to
        　　    prevent the threats, and the government is being held accountable for failures. As one can see, the Fisa debate is
        　　    about technology, modern surveillance, executive accountability, the erosion of citizenship as a shield to
        　　    government intrusion and what privacy means in the new age. Congress has entered the fray again with more review,
        　　    the IGs are part of the process and the Fisa court has its authority reinstated. The hope is that more judicial
        　　    review will provide enough accountability. But a new president will have to see if the framework is adequate.