Surveillance, State Secrets, and the Future of Constitutional Rights

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light of the information available and the programmatic nature of collection. In response, the government has crafted a new state secrets analysis, raised the privilege early in litigation to have suits dismissed, broadened its assertion to encompass entire categories of information, and claimed as an Article II constitutional power what for centuries has been a common law rule. Because of the government’s shift, what is now at stake is the possibility of any litigant to ever challenge illegal and unconstitutional surveillance. Fazaga represents the tip of the iceberg in terms of the risks to individual rights that would follow should the government ultimately prevail

Transparency or Loopholes: Target Locations, FISA Warrants, and Reasonable Belief

The Foreign Intelligence Surveillance Act (FISA) of 1978 was a grand compromise. FISA aimed at continued collection of national security intelligence, while preserving American civil liberties from government overreach. This compromise sought to assuage concerns from the tech industry and high-level government officials by providing protection to both from litigation. The FISA comprise was premised on the independence of a specially created judicial court, the Foreign Intelligence Surveillance Court (FISC), overseeing executive power while providing reporting to Congress. A true balance of power.From its inception, FISA\u27s basic foundation for legality is founded on government knowledge of the physical location of targets. This foundation has not aged well as technology has evolved. In addition to technological advances, the law itself has not been updated to reflect the changes in technology. Congress has shown a penchant for reacting to either the executive or the Supreme Court. Congress\u27 reaction to litigation in 2018, the Court\u27s recent ruling in Carpenter, and Special Counsel Mueller\u27s investigation into Russian election interference with subsequent Congressional disclosures, all threaten the vitality of FISA.This article outlines the foundation, covers the technological developments, and exposes flaws in the FISA system. The Article argues the Government, along with the tech industry must rework another grand compromise to ensure the continued vitality of national security surveillance, while continuing to protect American civil liberties from government overreach

Surveillance Self-Defense: Privacy in the Post-9/11 Mass Surveillance State

The nature of digital information and the networked world has enabled the greatest advances in communication, education, art, science, and entertainment since the invention of the printing press. However, with each new day the systems and technologies to track people and predict their behavior only expand. Corporations and governments track anyone and everyone. Privacy has never been in such grave danger. The collection, storage, and analysis of data have enabled the expansion of the pervasive surveillance state. Journalists, whistleblowers, activists, and average citizens are all under attack. A democracy cannot thrive in an environment deprived of freedom of thought, information, and expression. The surveillance state chokes the light of freedom from such an environment, and democracy will suffer. Democracy will thrive if the citizens of the world rise up and continue the struggle for freedom, which is predicated upon the protections of privacy. Privacy allows journalists to work with sources and publish information so citizens may be informed. Privacy allows whistleblowers the ability to perform a vital public service: sounding the alarm when those in power abuse power. Privacy allows activists and dissidents the ability to exercise their First Amendment rights. Privacyallows the average person to have a secure space to exist away from the harsh gaze of society and develop mentally, spiritually, and emotionally

Secrets and Lies — Exposed and Combatted: Warrantless Surveillance Under and Around the Law 2001-2017

Before June 2013, civil society and much of Congress were largely in the dark about the extent of the surveillance activities of the National Security Agency and the circumlocutions of statute undertaken by the White House and the Department of Justice. After the releases by Edward Snowden to specific journalists, the mendacity of Intelligence Community lawyers and leaders, the evasions of the law and manipulation of the FISA Court by the White House working with the Justice Department, and the scope of the violations of the Fourth Amendment protections of U.S. Persons (USPs) became increasingly apparent.2 This article reviews the changes that were initiated in the Executive Branch (and to a lesser extent in the Legislative Branch), the role civil society played in pushing and utilizing greater transparency, and what the changes mean for government accountability to the public

Examining the Anomalies, Explaining the Value: Should the USA FREEDOM Act’s Metadata Program be Extended?

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially seemed to be working well, although the fact that from 40 court orders in both 2016 and 2017, the NSA collected hundreds of millions of CDRs created public concern. Then in June 2018 the NSA announced it had purged three years’ worth of CDRs due to “technical irregularities”; later the agency made clear that it would not seek the program’s renewal. This Article demystifies these situations, analyzing how forty orders might lead to the collection of several million CDRs and providing the first explanation that fits the facts of what might have caused the “technical irregularities” leading to the purge of records. This Article also exposes a rather remarkable lacuna in Congressional oversight: even at the time of the passage of the USA FREEDOM Act a changing terrorist threat environment and changing communications technologies had effectively eliminated value of the CDR collection. We conclude with recommendations on conducting intelligence oversight