The delicate balance between protecting security and eroding civil liberties under U.S Foreign Intelligence Surveillance Act

Introduction

In this week's entry, I will be discussing a piece of U.S legislation that has been in place, since the Carter Administration in the United States circa 1978. I realize I have several readers, from all over the world, including the U.S who read my blog on weekly basis. This law is applicable to readers outside of the U.S, but will only make sense to you are familiar with U.S statutory laws. It applies to both U.S and non-U.S citizens equally, but from a civil liberties standpoint ONLY if you are U.S citizen. The first question your probably asking is what is this law about and how does it apply to computers? The answer to that in short, is according to most Criminal Justice textbooks, FISA is a law that dictates how and when the U.S is able to conduct electronic surveillance for foreign intelligence and national security purposes outside of the U.S. It's been the subject of frequent debate [1] here in the U.S, in post 9/11 world on, whether or not there is enough "oversight" regarding various types of warrants (or lack there of to electronically wiretap suspects) domestically. Advocates claim that FISA is necessary for security in seemingly unstable post 9/11 world, whereas civil liberties and privacy advocates see it as violation to the first amendment (freedom of speech) and fourth amendment (unreasonable searches and seizures) here in the U.S. Why has this debate come up again you might be asking on a law that was amended four years ago? The reason is that U.S congress has to vote, whether or not to reauthorize FISA law for another five years by December 28th, 2012 WITH or WITHOUT the necessary changes that privacy advocates are looking for. With all of that said and done, today I am briefly going to look at the delicate balance between the protection that this bill provides "security" of the U.S and the potential "erosion" of the U.S constitution.

The balance between protecting security and eroding civil liberties under FISA

The balance between protecting security and eroding civil liberties, has been a long hard fought battle in the U.S. It's taken on a new meaning in the "Internet age". There are many newer and presumable "classified" technologies that U.S government may use to search for potential suspects, including the likes of foreign spies and terrorists. The question is, whether or not with or without knowing how that technology is used is whether or not a search warrant is required in order to conduct an electronic wiretap? The FISA court, which is held in secrecy for security purposes and is handed out by a single judge is the sole factor in determining, whether or not those warrants are handed out to conduct an investigation. Civil liberties advocates are not concerned with the method in which this is conducted or by whom, but rather the volume at, which FISA court hands out search warrants! (It should be noted this number has to be disclosed by law by the federal government). The rise in requests has prompted many of these advocates to call on congress to "modify" the bill stripping out some provisions from it's 2008 form i.e making absolutely sure that fewer smart phone, e-mail conversations, and domestic Internet traffic that are collected by an agency such as the U.S Cyber Command are "disregarded", if they are of no importance to the agency for domestic privacy purposes. One other important purpose would be for U.S congress to be briefed on what intelligence activities maybe taking place, in a close door setting so that they are not left in the dark on such matters.

Conclusion

It can be seen that the balance between protecting security and eroding civil liberties has taken on new meaning in the "Internet age". Both sides are systemically trying to find common ground on what these matters can further be addressed and which ones simply cannot, because of rapid advancements in technology i.e when is a "roving wiretap" allowed on potential suspects if the suspect is moving between wireless AP's? Does this make it harder to obtain a search warrant if they are traveling between different points on a map? How many e-mails are necessary to conduct an investigation on potential suspects and how many should be disregarded, because of fourth amendment concerns? This and many other scenario's involving technology are extremely important questions that will come up in the future in more ways then one as potential suspects, find new ways to commit crimes domestically. It's how they are kept in check by civil liberties groups, that will be the most important question as we move forward into the future and over the next five years. I will be back either in couple of days or next week (like always) with a new entry. I hope this post has shed some light on FISA and it's far reaching importance on various forms of electronics communications. Thanks for reading! Take care.

Reference:

1. Kerr, S. Orin. University of Chicago Law Review. "Updating the Foreign Intelligence Surveillance Act" http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/75.1/75_1_Kerr.pdf accessed 16 Dec 2012. 2008