There is no doubt the Snowden disclosures have launched a debate that raises significant issues regarding the extent of U.S. government national security surveillance authorities and activities. And Julian Sanchez’s essay Snowden: Year One raises a number of these issues, including whether the surveillance is too broad, with too few limits and too little oversight. But an overarching theme of Sanchez’s essay is fear – and fear of what might be overshadows what actually is, or is even likely. Indeed, he suggests that by just “tweaking a few lines of code” the NSA’s significant capabilities could be misdirected from targeting valid counterterrorism suspects to Americans involved in the Tea Party or Occupy movements.
So really, what would it take to turn NSA’s capabilities inward, to the dark corner of monitoring political activity and dissent? It turns out, quite a lot. So much, in fact, that after a considered review of the checks and balances in place, it may turn out to be not worth fearing much at all.
First, a little history. Prior to 1978, NSA conducted surveillance activities for foreign intelligence purposes under Executive authority alone. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which distinguished between surveillance that occurred here at home and that which occurred overseas. FISA requires that when electronic surveillance is conducted inside the United States, the government seek an order from the Foreign Intelligence Surveillance Court (FISC or the Court) based on probable cause. So, if the government wants to conduct surveillance targeting a foreign agent or foreign power here in the United States, it must obtain FISC approval to do so. By law, the Court may not issue an order targeting an American based solely on activities protected by the First Amendment to the Constitution. The Attorney General is required to report on the full range of activities that take place under FISA to four congressional committees: both the intelligence and judiciary committees in Congress. The law requires that the committees be “fully informed” twice each year.