By Shane Harris
May 1, 2010
Surveillance laws should focus on how agencies use information, not how they collect it.
In 1978, when Congress enacted the Foreign Intelligence Surveillance Act, there were only a few ways to secretly capture someone's private conversations. One was a wiretap on a phone line. Another was through wireless signals, snatching a communication as it bounced between transmitters and receivers, or from a distance with powerful microphones. The simplicity of this predigital surveillance is illustrated in the 1974 film The Conversation, featuring Gene Hackman as crack private detective Harry Caul, who builds listening devices in a hobby shop like some techno-Geppetto.
Back then, the laws governing intelligence surveillance were written to restrict collection: when the government could monitor; whom it could target; and with what kinds of equipment. With just a few ways to spy on someone, it made sense to control surveillance this way. Laws like FISA were a reaction to collection abuses of the preceding years, when government authorities illegally wiretapped activists and politicians. The collection-focused law strengthened privacy protections by limiting spying on the front end.
This is all rather quaint by today's standards. The Harry Cauls of the 21st century find an unlimited trove of information on the Internet. Their counterparts in the intelligence community barely can remember when wiretapping meant actually clamping a recording machine onto a piece of copper, rather than siphoning off gargantuan streams of digital packets from fiber-optic networks. And yet, the laws governing intelligence surveillance still are written with a 1970s mind-set: They're largely about the acquisition of information.
They should be focused on the use of that information. The use of information determines whether analysts achieve a breakthrough in understanding terrorist networks, or whether they fail to connect the dots about the next attack. It's in the use of information that agencies either respect individual privacy or infringe on it. By contrast, collection is occurring at such a breakneck pace it's practically an afterthought. Every day, approximately 10,000 names and leads pour into the National Counterterrorism Center. Analysts there are overloaded with sources.
What would a new law of information look like? For starters, it would take aim at the two fundamental questions every agency must answer now: Is information being used effectively? And is it being used properly? We know from the failed Christmas Day attack that various components of the counterterrorism community had useful data in their hands about the alleged underwear bomber, Umar Farouk Abdulmutallab. But there was no mechanism in place for alerting those agencies to each other's knowledge. A new law could require agencies to do this kind of cross-checking and to get to work building an automated system to help them do it.
A new law also could enhance privacy protections for Americans who find themselves enmeshed in intelligence surveillance. Today, classified "minimization procedures" govern this process. They vary among agencies, but generally require that names and identifying features of anyone not actually a target of surveillance to be redacted from official reports. A new law could require technology not just to keep track of Americans names, and to shield them when appropriate, but also to track how analysts are using the information about those people and whether they're breaching any rules in the process, and to report violations more thoroughly and frequently.
These are practical measures. But there are few incentives for lawmakers to act on them, because extraordinary controversy will follow any public acknowledgement of what they, and every intelligence professional, already know: There are few technical or even legal impediments to the intelligence community collecting data on just about anyone. Changing the law to reflect that will require a level of political courage that's in short supply.
Shane Harris, the author of The Watchers: The Rise of America's Surveillance State, was a writer and technology editor at Government Executive for five years.
By Shane Harris
May 1, 2010