Saturday, November 14, 2009

More thoughts on FISA

As a means to developing a common understanding of what is meant by 'Getting FISA Right', Jim Burrows was kind enough to level set the scale and scope of the issue in this post here. I thought I might pivot off his work, to expose my own ideas about broadening the metaphor of our Republic: separation of powers.


At the end of the day, we are tasking our Government with the charge to defend our Republic against all enemies, foreign and domestic. Email may be one form our enemies choose to use for communication of whatever plot they might be developing - but it is still just communication between enemies that is of interest to us. And with that in mind, perhaps we need to return to the first step and assess our initial decisions, for a misstep at the start can lead us down the wrong path in the end - which is the problem we are here to address, no?

Our Constitution seeks to address this thorny issue of surveillance. It says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In practice, this has meant that:

"[E]xplicit search warrants based on probable cause and sworn testimony must be used for:

  • Any surveillance by the government within the US
  • Any surveillance by the US government upon “US persons” anywhere in the world.

On the other hand it is relatively well accepted that we allow the government to spy on the nation’s foreign enemies, and that the US courts need not issue warrants for spying on foreigners outside the US."


Is not our problem found right here? These words:

"well-accepted that we allow the government to spy on the nation's foreign enemies and that the US courts need not issue warrants for spying on foreigners outside of the US"


Take us away from the notion that there is an inherent right of People, to be free from unreasonable and invasive searches by Government.

Please note: I am not arguing that this is some new practice, or that this is some change in how the law was applied in the past. Rather, I am arguing that it is because 'this is how its always been done', that we have been led into this hornets nest of an issue.


In the days and nights when our Republic was founded, long distance communication was limited to mail delivery. Approaches that worked well then - assumptions that sufficed at that time - are now foundering on the volume and variety of long distance communication options available today. Additionally - and even more important than the varied communication platforms - is the reality that our world is more interconnected at both an interpersonal level and an international level, across all strata of our society. The transformations that our world has undergone - aided and abetted by our efforts to develop new (and hopefully, better) tools for communication - must also be accompanied by transformations in our understanding of our Laws, especially those we have codified into our Constitution.

So while previously, we have held that the Fourth Amendment only applied to US-persons, wherever in the world they might be, is not now the time to recognize that the better option is to define the scale and scope of those Constitutional protections as universal verities? When we say:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."


We must realize that we can actually implement the full meaning of those words, in a world of email and text messages, can we not?

Take the example of a Sender and Recipient: is not the thorny issue of whether or not to get a warrant resolved by always getting a warrant? In this scenario,


  1. The Government (represented in example by the form of the Spy) has a reason behind his or her desire to intercept the communication of one or both: Sender and Recipient;
  2. The Spy - presumably an Agent-member of the Executive branch - operates under a set of rules codified into law by;
  3. The Legislators, one of which requires him or her to present that reason to a member of our Judiciary, as a request for a warrant to intercept and search the communications sent from/to the aforementioned Sender and Recipient;
  4. The Judge approves or denies the request for a search warrant, guided by the knowledge of past history fully presented by the Agent of the Executive.
Why is this not the better approach? If the Executive can be convinced of the rationale for a search, why cannot the Judiciary be convinced as well? And there can be no concern within the Executive about sharing this information with the Judiciary: just as Patriots can be found to serve within the Executive, so to can Patriots be found to serve within the Judiciary. Rather than search for exceptions to the rules, why not attempt to apply the rule more broadly?

Our Republic was founded under the principle of balancing Federal authority amongst three separate, but equal branches of government. What we have today is an Executive that frequently says to the other two: "Trust me". This should be abhorrent to us, as we know historically that this is what the Executive always says (in truth - it's what the Legislature and the Judicial powers always say as well). We need to force our Legislators to codify the rules of the road into laws, such that search warrants are always required for the interception of communications; we need to force our Judges to develop processes based upon these laws whereby they can support the volume and velocity of these requests; and we need to force our Executives to faithfully conduct themselves according to these laws, under the guidance of our Judges and the supervision of our Legislators. This will unite our Federal authority in common cause, but it will imbue them with separate responsibilities. This separation of concerns, will allow each of them to responsibly fulfill their duties, while preventing any one branch from asserting some inherent and innate position of dominance over the other two.

No comments:

Post a Comment