Event Assignment: FISA Section 215 (at Heritage Foundation)

On March 17th the Heritage Foundation hosted Steve Bradbury, former Head of the Office of Legal Counsel, as well as Lara Donohue, a professor of law at Georgetown Law and Director of Georgetown’s Center on National Security and the Law. The topic, FISA, is much contested and was first brought to the forefront after the Snowden Leaks.

FISA, or the Foreign Intelligence Surveillance Act, will expire on June 1st, unless Congress takes action to reauthorize it. Specifically talked about in this discussion was Section 215, the provision under which the bulk telephony metadata program is authorized. Bradbury throughout the discussion played the side of a supporter of FISA’s legality and constitutionality, whereas Donohue was strictly against FISA and considered it unconstitutional. 

A good portion of the talk was Bradbury discussion what he knew FISA to be, explaining the ins and outs of a very technical program in as ‘easy’ language as he could possibly use. The basic points from him were that the only information the government is collecting is telephone numbers, not the data which is compiled in your conversations; that we would much prefer the government to be collecting this data as opposed to a government contractor in a suburb of Washington that anybody could get access to (much more easily than the NSA); that having this information before 9/11 could have potentially stopped the terrorist attacks, as Obama stated in a speech in 2014; that FISA was originally used on an emergency basis, but Bush determined it necessary to preventing terrorist attacks, and Obama continued the program, although both men have very different views on ways to go about protecting the Homeland; and that this program should be continued, and that the government needs to at least continue and reauthorize the major section of FISA which allows us to collect telephone numbers. 

Interestingly enough, whether you were aware of this or not, the phone company under law already collects the numbers you call in order to bill you for their services, and stores them for 18 months. The government takes the records of each phone company, because each company only has access to their own information (AT&T has AT&T information but nothing from Verizon and vice versa), and compiles it into databases in which they can store this information for up to five years. The more complete these databases are, and the less numbers they delete, the better chances we have of ‘catching the bad guys’. 

Also, that American citizens have a higher degree of protection from being searched, versus foreigners. 

Donohue’s point is that the current laws against privacy and the government obtaining our data fail to protect how government has evolved. We have the right to be secure against unwanted intrusions; our home is our fortress and we ought to be secure against intrusion. Donohue brought up many points involving the Fourth Amendment as well as facts from the late 1700’s and early 1800’s to support freedom of speech, and our ability to keep the friends we want without the government knowing who we are speaking with. Donohue’s main point was that this breach of rights is no longer based on evidence like it should lawfully be based, instead the government breaches the right in order to obtain evidence. This brings on too much power to the government, and especially too much power to the executive branch. Donohue questions what a reasonable expectation privacy might be - which is still being decided by the courts, and by Congress as they determine what to do with FISA.

A major gap I noticed between the two speakers was they seemed to be on two different levels in what they were talking about. Bradbury looked at FISA at just what number called what number; Donohue looked at it as what number called what number, as well as who the person was that was calling - both very separate ideas and understandings to what information was collected. Donohue believed that there were abuses of power being hidden, Bradbury on the other hand suggested that these courts every 90 days look over the facts of what is being ruled to determine they are still in the realm of legality. Bradbury believed this information was only being used for foreign security matters, whereas Donohue believe that this information was also being pulled as criminal evidence in a way that is totally unrelated to the original reason this information was being used in the first place; programs like this have a tendency to expand in due time, and FISA was not doing what it was originally intended. Another gap was the fact that it seemed Donohue believed someone was constantly watching what we were up to, whereas Bradbury spoke on this information only being called upon when needed in a case. 

Regardless, key points that come out of this debate are whether or not the government is still allowing us individual rights, or whether the government is treating every individual as a suspect. Yes, the companies keeping this information is legal (and I am sure it is somewhere in that contract most people do not read thoroughly), but whether or not these companies are required to keep it is another story that gets back into Data Retention Laws which were being looked at in the 1990’s. The government needs to lay out their plans on the table and say what this program is intended to be used for, and that they will not verve away from doing so. The government also needs to explain what this surveillance information entails - we do not have to go into excruciating detail which most people with upper level security clearances know, but enough to tell us the facts for the American people to make the decision. Clearly, if two well read law professionals could not even agree on the basic facts, there are key items in this debate missing that needs to be identified. 

In relation to this class, we have spent time talking about Surveillance and Policy. While FISA was not identified so deeply, we did talk about drones and other devices the government has at their disposal to learn more about what is going on in day to day life. These days our reasonable expectation of privacy is much less than it used to be - if you put it out on the web and it is not private, the government can use it. The right to be forgotten is not possible in the case of FISA - while they may not know who it is specifically, they know that your phone number called X phone number on Y day and talked for N minutes. Edward Snowden uncovered a gold mine of information to show the American public what the government knew about them, and now we must remember that privacy barely exists. As the article by Andrew J. Blumberg and Peter Eckersley states, “…systems which create and store digital records of people’s movements through public space will be woven inextricably into the fabric of everyday life…” - and they are. We are used to our cell phones and calling people without thinking of the ramifications of doing so. While the government may not be actively listening in and watching what you are saying, they do have the ability to say your phone number called your friends phone number - your friend groups are no longer private. 

Only time will tell what Congress decides to do with FISA. Although Obama is confident having a piece of technology like FISA in place before 9/11 could potentially have stopped the terrorist attacks, there is no actual government case which can say that FISA was the key to solving it.