The new normal in surveillance: Understanding FISA
Today's activity was a panel dedicated to discussing Peter Swire's proposals to revise the PATRIOT Act. It was a terrific panel — Peter really knows what he's talking about, and so does Patricia Bellia, and so does Richard Phillips, counsel to Sen. Leahy and the Senate Judiciary Committee. All I had to do was direct traffic.
Peter Swire's paper on the Foreign Intelligence Surveillance Act of 1978 (and the changes to it made by PATRIOT) is well worth reading. It's very clear. FISA was a grand compromise that has been substantially undermined by PATRIOT — much broader permitted searches, authorized at lower levels, with less of a nexus to foreign intelligence gathering required, are all now possible under PATRIOT.
Richard Phillips seemed pessimistic that any of this could be narrowed in the current environment. We might, he suggested, be able to do something about the powers of the Foreign Intelligence Surveillance Court to review and authorize records requests (and release gag orders about them eventually). But it's an uphill battle.
A key part of the policy discussion about all of this has to be resisting the claimed newness of this post-cold war age. The same arguments are made over and over again — evil is rampant, we have to give up our civil liberties to respond. In fact, the world hasn't changed so very much, and it doesn't require new laws, new bureaucracies, or new asymmetries of information to deal with the current situation. But try telling legislators that. You won't win.
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