Academic journal article Washington and Lee Law Review

Defining "Foreign Affairs" in Section 702 of the FISA Amendments Act: The Virtues and Deficits of Post-Snowden Dialogue on U.S. Surveillance Policy

Academic journal article Washington and Lee Law Review

Defining "Foreign Affairs" in Section 702 of the FISA Amendments Act: The Virtues and Deficits of Post-Snowden Dialogue on U.S. Surveillance Policy

Article excerpt

I. Introduction

The revelations of Edward Snowden about government intelligence collection and surveillance have spurred a national conversation about surveillance.1 Both government and civil liberties advocates, although they differ on the cost of Snowden's disclosures, agree that this conversation has in some respects been beneficial. In this brief essay, I examine the virtues and limits of that conversation, with respect to a particular statutory provision: the definition of "foreign intelligence information" in § 702 of the FISA Amendments Act of 2008 (FAA) as including information with "respect to a foreign power" relating to the "conduct of the foreign affairs" of the United States.* 2 The exact parameters of the surveillance authorized by this language are admittedly unclear. However, privacy advocates-despite their sincerity-have not advanced the conversation in their approach to this issue.3 A more nuanced dialogue is necessary; this essay seeks to further that process.

While critics have argued that § 702's "foreign affairs" provision is a roving license for open-ended intelligence collection, that position fails to acknowledge the Framers' view that secrecy is necessary for deliberation.4 Premature public disclosure of lawful surveillance and intelligence collection can sour negotiations and embarrass allies.5 The Framers, who had practiced diplomacy from the American Revolution through the Founding Era, prized secrecy as one of the virtues of statecraft.6 Aware that they were pursuing a new legal and political order, they were also determined to revive virtues from the humanist political tradition that the warring monarchies of Europe had submerged. Moreover, the Framers understood diplomacy's place in international law. The criticism that Founding Era officials such as Hamilton and Madison, despite their differences, directed at the French minister Edmond Genet during the Neutrality Crisis demonstrated their understanding of secrecy's utility for diplomacy.7

Properly understood as limited to state conduct, the "foreign affairs" prong of "foreign intelligence information" under § 702 deals largely with matters ancillary to diplomacy, including foreign officials' taking of bribes from private companies, aid to individuals and entities in the theft of U.S. intellectual property, and attitudes toward sanctions on rogue states such as Iran.8 The "foreign affairs" language, understood as its language and intent suggest, is not a residual clause authorizing all the collection and surveillance precluded by other definitions in the statute. It simply allows the United States to gather information relating to other states' compliance with norms and the prospects for international cooperation on enforcement. This U.S. monitoring may occur clandestinely. As with other forms of information-gathering, undue disclosure of the means and subject of the collection may undermine the purpose of the investigation or jeopardize other U.S. foreign policy goals, such as cooperation with states that the United States has targeted for investigation.

Privacy advocates who criticize the breadth of the "foreign affairs" provision in the FAA have generally not recognized its importance for U.S. diplomacy. This failure to acknowledge the diplomatic issues addressed by the "foreign affairs" provision has adversely affected the public debate about surveillance and intelligence collection. To grapple with the issues raised by the "foreign affairs" provision, privacy advocates should have acknowledged the government's interests. They then should have argued that those interests are less important than the government contends or that the government can vindicate those interests in an overall regime of transparency. Instead, privacy advocates have advanced an oversimplified view of the Framers' thought that unduly discounts the virtues of secrecy.

One could also view privacy advocates' stance as a more sophisticated effort in tune with the Framers' efforts to fashion procedural proxies for substantive concerns. …

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