I/S: J.L. & Pol'y for Info. Soc'y, Vol. 10, pp. 1-32, 2014
33 Pages Posted: 4 Feb 2015
Date Written: April 30, 2014
Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect — i.e., a taxonomy of potential options. This Article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The Article begins by considering the legal underpinnings and challenges to the President's Surveillance Program. It then examines how technology has altered the types of information available, as well as methods of transmission and storage. The Article builds on this to develop a taxonomy for how a statutory approach to foreign intelligence gathering could be given force. It divides foreign intelligence gathering into two categories: front-end collection and back-end analysis and use. Each category contains a counterpoise structured to ensure the appropriate exercise of Congressionally-mandated authorities. For the front-end, this means balancing the manner of collection with requirements for approval. For the back-end, this means offsetting implementation with transparency and oversight. The Article then considers the constituent parts of each category.
Keywords: FISA, bulk metadata collection, Section 215, Section 702, foreign intelligence gathering, intelligence, foreign intelligence surveillance court, National Security Agency, NSA
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