Go Big, Go Global: Subject the NSA’s Overseas Programs to Judicial Review

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The next round of surveillance reform is a time for the United States to go big – and to go global. We should get out of our defensive crouch and show the world how to balance robust intelligence capabilities with rules to protect privacy and civil liberties in the digital age.

Section 702 of the Foreign Intelligence Surveillance Act authorizes collection of data inside the United States, so long as the direct targets are foreign citizens located outside the United States, with judicial review on a programmatic basis. Section 702 expires at the end of 2017. The debate over reauthorizing it pits supporters ­– who argue the law is vital and should be extended without change – against civil libertarians who urge its expiration or at least significant reforms. This paper is an effort to reframe that debate.

True, section 702 has problems. Greater transparency, limits on backdoor searches, and reforms to upstream and “about” collection would be welcome. Still, it is a mistake for civil libertarians to view section 702 in an exclusively negative light.

The problem with section 702 is not so much what it does, but what it doesn’t do ­– which is to say, what FISA doesn’t cover.

Since FISA’s definition of electronic surveillance only covers collection that is inside the United States or that intentionally targets Americans, it leaves out most of what the NSA does. In the internet age, it is no longer desirable or even possible to protect the privacy of Americans while leaving the rules for most global surveillance programs entirely to the Executive Branch.

The best way to protect everyone’s privacy – including our own – is to bring in the Congress and the courts. This means bringing most surveillance currently conducted under Executive Order 12,333 under a framework that is similar to section 702 of FISA. Overseas NSA surveillance under Executive Order 12,333 has far less scrutiny than any form of surveillance under FISA. It would be more significant for civil liberties to bring such surveillance under FISA than any specific reforms that could be made to section 702.

NSA reform could be accomplished in three steps:

• First, subject all NSA surveillance to FISA programmatic review, with the exception of tactical military intelligence.
• Second, limit surveillance of the citizens of democratic countries to international terrorism and other specific security threats – but only if they agree to do the same and adopt credible rules (like judicial review) to enforce them.
• Third, explicitly allow NSA surveillance to be challenged in ordinary federal courts in the expectation that a future Supreme Court may be adopted a more generous view of standing requirements.

This three-part plan for comprehensive NSA reform is radical in conception. It extends judicial review and statutory authorization to complex overseas programs that have previously been subject only to Executive Branch oversight. Nevertheless, the experience of section 702 shows that reform can be implemented in a manner that would be modest in its practical impact on the operations and effectiveness of the NSA and other intelligence agencies.

The United States already leads the world in mass surveillance. It should lead the world in mass surveillance reform.