Homeland Security and FISA

NSA/FISA

Following the terrorist attacks of September 11, 2001 there has been a significant effort to protect America from any further terrorist attacks. The purpose of this discussion is to examine the U.S. National Security Agency's ability to identify and monitor the communications of terrorists and prevent terrorism from occuring. The research will also investigate how the implications of employing these techniques for foreign intelligence surveillance suggests that the Foreign Intelligence Surveillance Act ("FISA") is inadequate in addressing recent technological developments. These developments include the transition from circuit-based to packet-based communications; the globalization of communications infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis. The research will also focus on how FISA is challenged by technological developments.

The Monitoring of Communications

The National Security agency was created to "protect U.S. national security systems and to produce foreign signals intelligence information." The strategic plan of the agency is to control cryptology throughout the world; maintain a network of systems, sensors, information and people throughout the world, ensure the safety of America's security systems and to advantageously utilize relationships with academia, industry, foreign partners and government (NSA/CSS Strategic Plan, 2009).

One of the ways in which the National security agency is able to carry out the aforementioned responsibilities is to monitor communications and identify terrorists before they commit terrorist crimes. The NSA has the ability to monitor both public and private comminications. This includes telephones, internet communications, mobile phones. The U.S. National Security Agency was supported greatly by the Bush administration as it pertained to having the ability to monitor communication amongst terrorists throughout the world.

In recent years the NSA has endured a great deal of controversy. This controversy existed because the monitoring of communications by the agency has changed over the years to include a greater amount of surveillance of domestic communications. Not only was it changed, but the Bush administration did not make American's aware of such changes until some three years after the changes went into effect.

An article in the New York Times published in 2008 explains,

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court- approved warrants ordinarily required for domestic spying, according to government officials. Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications (Risen, 2005)."

The controversy over increased use of domestic spying without warrants has sparked a great deal of debate about such surveillance as a violation of civil liberties as it pertains to undue searches. However, many in within the agency and the Bush administration contend that the ability to conduct such surveillance has aided in the ability of the agency to keep the country safe. In addtion the government has argued that such surveillance allows law enforcement agencies to prevent terrorists attacks before they occur.

The adequacy of the Foreign Intelligence Surveillance Act (FISA)

According to the American Civil Liberties Union (ACLU) FISA was developed after the Watergate debauchery. It was initially designed to establish the manner in which the United States government was allowed to gather communications in America and abroad (Bill to Amend FISA). The act was also originally passed to permit the government to gather foreign intelligence information including communications with "agents of foreign powers (The Foreign Intelligence Act)."

Since the inception of the act there have been amendments to the act. One such amendment was signed by President Bush in July of 2008. The amendment lessened even further the role of judicial oversight as it pertains to surveillance. This amendment is in stark contrast to the original act in which judicial oversight was a key component. In addition this amendment also absolved telecommunications companies of any legal responsibility for allowing the government to eavesdrop on U.S. citizens without a warrant.

Advances in Technology and FISA

Although the NSA and FISA seems to be adequate and even relentless in the desire to gather communications, there are also problems related to FISA and technological advancements. NSA and FISA have to deal with other technological developments including the transition from circuit-based to packet-based communications; the globalization of communications infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis.

As it pertains to the transition from circuit-based to packet-based communications Taipale (2006) reports that when FISA was first created there were only two known ends and a circuit-based communications channel. However today communications are packet based. That is, communications are broken up into packets 'that travel along independent routes between point of origin and destination where these fragments are then reassembled into the original whole message (Taipale 2006, 3)." In other words information that is intercepted through surveillance may not be complete because in some cases communication from the same source travels via different packets. FISA does not address the problems posed by this technological advancement.

In addition to changes in the manner in which communications travel, globalization of communications infrastructure is another development that highlights the inadequacies of FISA. In fact the FISA amendment was opposed by some senators because they believed it to be inadequate in the context of technological advancement. One of the senators that opposed the amendment based on the inattention to technological developments (among other things) was Russ Feingold. According to Feingold's remarks Opposing H.R. 6304, FISA Amendments Act of 2008 the broad surveillance powers involving international communications that are contained in this legislation are particularly troubling because we live in a world in which international communications are increasingly commonplace. Thirty years ago it was very expensive, and not very common, for most Americans to make an overseas call. Now, particularly with email, such communications happen all the time. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students email friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts (Feingold, 2008)."