NSA Surveillance, FISA, and Technological Challenges

Introduction

Following the terrorist attacks of September 11, 2001, there has been a significant effort to protect America from further terrorist attacks. This paper examines the U.S. National Security Agency's (NSA) ability to identify and monitor the communications of terrorists and prevent terrorism from occurring. The research also investigates how the implications of employing these techniques for foreign intelligence surveillance suggest 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 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 NSA carries out these responsibilities is to monitor communications and identify terrorists before they commit crimes. The NSA has the ability to monitor both public and private communications, including telephones, internet communications, and mobile phones. The agency was supported greatly by the Bush administration as it pertained to having the ability to monitor communication among terrorists throughout the world.

In recent years the NSA has endured a great deal of controversy. This controversy arose because the monitoring of communications by the agency changed over the years to include a greater amount of surveillance of domestic communications. Moreover, the Bush administration did not make Americans aware of such changes until some three years after they went into effect.

An article in the New York Times published in 2005 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 domestic spying without warrants has sparked a great deal of debate about such surveillance as a violation of civil liberties, particularly as it pertains to undue searches. However, many within the agency and the Bush administration contended that the ability to conduct such surveillance aided the agency's efforts to keep the country safe. In addition, the government argued that such surveillance allows law enforcement agencies to prevent terrorist attacks before they occur.

The Adequacy of the Foreign Intelligence Surveillance Act (FISA)

According to the American Civil Liberties Union (ACLU), FISA was developed in the aftermath of the Watergate scandal. It was initially designed to establish the manner in which the United States government was permitted 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, several amendments have been made. One such amendment was signed by President Bush in July of 2008. The amendment further reduced the role of judicial oversight as it pertains to surveillance — standing in stark contrast to the original act, in which judicial oversight was a key component. In addition, this amendment absolved telecommunications companies of any legal responsibility for allowing the government to eavesdrop on U.S. citizens without a warrant.

Conclusion

Overall, it is apparent that the NSA and FISA are designed to keep America safe from the threat of terrorism. This examination has also made it evident that both the NSA and FISA have been controversial as they pertain to ensuring the civil liberties of American citizens. The research further suggests that technological advancements have not been considered carefully within the framework of FISA, undermining the act's ability to conduct proper surveillance given the nature of technology currently available to people throughout the world.

Works Cited

Bill to Amend FISA. (2007). The United States Select Committee on Intelligence. Retrieved March 4, 2009, from

Feingold, R. (2008). Remarks of U.S. Senator Russ Feingold opposing H.R. 6304, FISA Amendments Act of 2008. Retrieved March 4, 2009, from http://feingold.senate.gov/statements/08/06/20080625f.htm

NSA/CSS Strategic Plan. (2009). Retrieved March 4, 2009, from http://www.nsa.gov/about/strategic_plan/index.shtml

Risen, J. (December 28, 2005). Bush lets U.S. spy on callers without courts. The New York Times.

Taipale, K. A. (Spring 2006). Whispering wires and warrantless wiretaps: Data mining and foreign intelligence surveillance. NYU Review of Law & Security, No. 7, Supl. Bull. on L. & Sec.

The Foreign Intelligence Act. (n.d.). Retrieved March 4, 2009, from