Surveillance: NSA Warrantless Wiretapping

Thoughts on a Blue-Sky Overhaul of Surveillance Laws: Challenges

By David Kris
Sunday, May 19, 2013, 11:00 AM

[Editor's Note: this is the second in a series of four posts by David Kris, on large-scale surveillance reform.  The first, an introduction, can be found here.  Below, David discusses the challenges facing any "blue-sky" overhaul.] 

A blue-sky overhaul, while easy to imagine, would be extraordinarily difficult to execute, fraught with risk, and likely to fail in practice.  Savvy officials in government know this, which is one of the main reasons that comprehensive reform does not occur.  Looking back, for example, it appears that some of the issues addressed by the FAA may have been recognized as early as 1987, at least to some degree, but deferred for 20 years precisely because of the challenges inherent in seeking their resolution.[1]  As I have explained elsewhere:

In 1990, DOJ’s Office of Intelligence Policy and Review (OIPR) wrote a memo to the Office of the Deputy Attorney General explaining that it had been “working with the National Security Agency for the past three years to develop possible amendments to the Foreign Intelligence Surveillance Act to meet a need created by technological advances.”  In particular, these technological advances appear to have affected “NSA’s collection of international and foreign communications,” creating a “practical imperative” for legislation.  The 1990 memo cited draft legislation on which DOJ and the NSA were “close to agreement,” and which would have “provide[d] for Attorney General certification, rather than court order” for the surveillance.  However, the 1990 memo also identified several “policy and tactical issues” counseling against seeking new legislation.  These policy and tactical issues appear to have overcome the practical imperative in 1990, resulting in no amendments to FISA.[2]

These “policy and tactical” issues, the government’s 1990 memo explained, included the following:

• the fact that “committee jurisdiction in both the House and Senate is concurrent between the Intelligence and Judiciary Committees,” and while the “problems giving rise to the possible amendments have all been discussed with the Intelligence Committees,” they had not been discussed “with the Judiciary Committees”;

• concerns about separation of powers, and the question whether “putting the proposed new collection under the statute, albeit on the basis of Attorney General certification, pose[s] greater separation of powers problems than attempting to exclude the collection from the statute?”

• “the risk of added congressional restrictions if the statute is opened up to amendment”; and

• the fact that “the proposed amendment to FISA to resolve the NSA problem . . . is certain to be written in such enigmatic terms that only those who have been briefed in executive session will understand them,” thus risking “speculation in the media about what is really intended and probably deep suspicion that something sinister is going on.”[3]

All of these concerns, and others, could apply even more strongly to a blue-sky overhaul of surveillance laws in general.  The official commencement of such an effort, if disclosed, could produce ripple effects of the sort outlined above – e.g., “deep suspicion that something sinister is going on.”  Moreover, even if there were a policy decision within the executive branch to develop an overhaul package, and even if it were conducted in a protected, sandbox environment with no ripple effects, the government officials best suited to perform it will be most needed for daily operations.  This is something outsiders may not appreciate:  even within the vast U.S. Intelligence Community, relatively few officials have the truly deep knowledge and skills to properly perform a blue-sky review of our surveillance laws.  Some of that scarcity results from legal complexity, some from technical and operational complexity, and some from the perfect storm where they converge.  Most of the officials who have the legal and technical knowledge and skills cannot retreat from day-to-day operational responsibilities – in fact, the work of meeting those responsibilities is part of what qualifies them to conduct an overhaul.  Outsiders, who may have more free time than their government counterparts, have less operational and other knowledge, and a blue-sky endeavor uninformed by ground-truth will almost surely fail.

Nonetheless, if complexity pains escalate sufficiently, or if there is a crisis of some sort, an overhaul may become possible or required despite the risks and costs.  More importantly, even if it would not yield a viable legislative product, the process and results of an overhaul might, by identifying a preferred end state, serve as a polestar for more realistic incremental change over time.  It might also help triage efforts to address anomalies in current law, allowing officials to focus on those most in need of correction.  This is probably its chief value.

As a former government official with at least a lingering sense of the legal and operational challenges, I have given some thought to how we might conduct a blue-sky overhaul if we wanted or needed to do so.  Without suggesting that it is in fact a good idea, what follows beginning in tomorrow’s post is a sketch of one way we might proceed.[4]

[1] See 1 NSIP § 16:5 at 557.

[2] 1 NSIP § 16:5 at 557-58 (footnotes omitted).

[3] 1 NSIP § 16:5 at 558 n.62 (citations omitted).

[4] Such an overhaul would be a good example of what social scientists refer to as a “wicked” problem, in which the resolution of each aspect of the problem requires resolution of all.  See Horst Rittel and Melvin Webber, Dilemmas in a General Theory of Planning, Policy Sciences Vol. 4 at 155-169 (1973).  For that reason, the sketch that follows may be deceptively linear.  It is nearly certain that the process I describe would need to loop and iterate.