Foreign Intelligence Surveillance Act - Criticisms

Criticisms

K. A. Taipale of the World Policy Institute, James Jay Carafano of the Heritage Foundation, and Philip Bobbitt of Columbia Law School, among others, have argued that FISA may need to be amended (to include, among other things, procedures for programmatic approvals) as it may no longer be adequate to address certain foreign intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based communications; the globalization of communications infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis.

The need for programmatic approval of technology-enabled surveillance programs is particularly crucial in foreign intelligence. See, for example, John R. Schmidt, the associate attorney general (1994–1997) in the Justice Department under President Bill Clinton, recalling early arguments made by then-Attorney General Edward Levi to the Church Committee that foreign intelligence surveillance legislation should include provisions for programmatically authorizing surveillance programs because of the particular needs of foreign intelligence where "virtually continuous surveillance, which by its nature does not have specifically predetermined targets" may be required. In these situations, "the efficiency of a warrant requirement would be minimal."

And, in a recent essay, Judge Richard A. Posner opined that FISA “retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.”