FISA established rules for wiretapping, search warrants, surveillance and investigation of intelligence targets. It permitted authorized, covert surveillance, while maintaining both secrecy and court and Congressional oversight. Notably, it set much stricter rules for spying on American citizens than those it set for noncitizens and foreigners.
It is important to note that FISA has worked well. The FISA court has issued literally tens of thousands of search and wiretap warrants, with very few complaints or challenges. It is also important to note that FISA, by its very founding, reaffirmed the principle that Americans do not expect to be investigated for exercising our wide-ranging rights.
Which brings us back to what we have learned about the government’s data collection efforts since 2001. Essentially, all types of surveillance — physical, video, phone, online — have increased steadily, to the point today where we can safely assume that there are no private communications if any third party or filtering medium is involved.
That sounds terrible — and Orwellian — but it may pose no threat to our personal liberty. My reading of what has happened is this: The nature of the plethora of communication technologies has evolved so fast and offers so many avenues for bad people to plot bad things, that the only way to detect them is to continuously monitor all communications everywhere — globally.
Furthermore, other circumstances have changed. The nature of bad people, and the nature of the tools at their disposal, have become many magnitudes more dangerous than, say, 30 years ago. Terrorist fanaticism has become more robust, more widespread, and more mobile and far-reaching than ever before. And the variety of weapons has become much larger, more available, more lethal and potentially staggeringly devastating (think electrical grid shutdown) than ever before in history.
Lastly, the world itself has become small, overcrowded, interconnected and strained, and the design and dependencies of modern society contain all sorts of extreme vulnerabilities. Ironically — as we lament the ubiquitous surveillance that computers make possible — it is the very conversion of everything to computer control and online operation that is the source of one of the biggest vulnerabilities we have.