The Future of Foreign Intelligence

Last year, Laura Donohue of Georgetown published a new book that will be of interest to readers: "The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age." The blurb for the book reads:

Since the Revolutionary War, America's military and political leaders have recognized that U.S. national security depends upon the collection of intelligence. Absent information about foreign threats, the thinking went, the country and its citizens stood in great peril. To address this, the Courts and Congress have historically given the President broad leeway to obtain foreign intelligence. But in order to find information about an individual in the United States, the executive branch had to demonstrate that the person was an agent of a foreign power. Today, that barrier no longer exists. The intelligence community now collects massive amounts of data and then looks for potential threats to the United States.

As renowned national security law scholar Laura K. Donohue explains in The Future of Foreign Intelligence, global communications systems and digital technologies have changed our lives in countless ways. But they have also contributed to a worrying transformation. Together with statutory alterations instituted in the wake of 9/11, and secret legal interpretations that have only recently become public, new and emerging technologies have radically expanded the amount and type of information that the government collects about U.S. citizens. Traditionally, for national security, the Courts have allowed weaker Fourth Amendment standards for search and seizure than those that mark criminal law. Information that is being collected for foreign intelligence purposes, though, is now being used for criminal prosecution. The expansion in the government's acquisition of private information, and the convergence between national security and criminal law threaten individual liberty.

You can access a presentation on the book by Prof. Donahue on YouTube if you want and find a short summary in this SlideShare. I had meant to note its publication at the time, but simply neglected it.

I am reminded of it today, however, because Joel Brenner (formerly of the NSA) has now published this critical essay, "FISA and Foreign Intelligence: Getting the History Straight." It opens (footnotes omitted):

Professor Donohue has given us a full-throated denunciation of the entire legal framework governing the government’s collection of data about American citizens and permanent residents, whom we call “U.S. Persons.” She contends that in the wake of the digital revolution, current law “is no longer sufficient to guard our rights” – she’s right about that – and that we have actually returned to the untrammeled issuance of general warrants that characterized the eighteenth century British practice that our nation’s Founders rebelled against. She proposes a thorough revision of the laws governing the collection of foreign electronic intelligence within the United States and abroad, and she advocates severe limitations on the collection and access to digital information of any sort. I will address the merits of her arguments – but first a threshold question: Is this really a book about the future of foreign intelligence?

Both the book, and the essay, are well worth your attention.