The Foreign Intelligence Surveillance Act (FISA) of 1978 was a grand compromise. FISA aimed at continued collection of national security intelligence, while preserving American civil liberties from government overreach. This compromise sought to assuage concerns from the tech industry and high-level government officials by providing protection to both from litigation. The FISA comprise was premised on the independence of a specially created judicial court, the Foreign Intelligence Surveillance Court (FISC), overseeing executive power while providing reporting to Congress. A true balance of power.
From its inception, FISA's basic foundation for legality is founded on government knowledge of the physical location of targets. This foundation has not aged well as technology has evolved. In addition to technological advances, the law itself has not been updated to reflect the changes in technology. Congress has shown a penchant for reacting to either the executive or the Supreme Court. Congress' reaction to litigation in 2018, the Court's recent ruling in Carpenter, and Special Counsel Mueller's investigation into Russian election interference with subsequent Congressional disclosures, all threaten the vitality of FISA.
This article outlines the foundation, covers the technological developments, and exposes flaws in the FISA system. The Article argues the Government, along with the tech industry must rework another grand compromise to ensure the continued vitality of national security surveillance, while continuing to protect American civil liberties from government overreach.
John Fortin, Transparency or Loopholes: Target Locations, FISA Warrants, and Reasonable Belief, 16 Dartmouth Law Journal 6 (2018).