Continuing relevance of FISA

I was tipped off to this OpEd by Glenn Greenwald.

In the third paragraph, Mike McConnell admits what FISA is all about:

FISA was created to guard against domestic government abuse and to protect privacy while allowing for appropriate foreign intelligence collection.

But he never returns to the point that the problem FISA is intended to solve involves human nature. Governments want to engage in far more surveillance than is necessary or is called for. Government tries to retain far more data about non-threatening peace groups and religious people than it needs to. The entirety of the rest of McConnell's OpEd concerns technology, but it's not at all clear that technology is the problem.

Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.

But it's not that both parties are located in foreign countries, it's that at one end of the conversation is an American citizen physically located in the United States of America. That's the type of situation that requires a court order. That's because government officials would be constantly snooping in on conversations between American citizens and foreigners. If someone went backpacking in Europe seven or eight years ago and received a phone call from a fellow he met back then, that could open up a perfectly innocent American citizen to unneeded, unwarranted snooping in on what should be a private conversation. That's why FISA does not require the approval of a mere “shift supervisor,” that's why FISA requires a judge to spy on American citizens.


What does this have to do with technological changes? Nothing really. FISA was indeed passed in the era when computers had memories of 16 kilobytes and telephones had rotary dialing, but human nature remains the same. As a comparison, sure, Social Security was established in1934 because:

For most of human history, people lived and worked on farms in extended families and this was the foundation of their economic security. However, this changed as the developed world underwent the Industrial Revolution.

The extended family and the family farm as sources of economic security became less common as more and more people became wage-earners, working for others. Along with the shift from an agricultural to an industrial economy, Americans moved from farms and small rural communities to larger cities.

How has any of this changed? Are family farms any more likely to take care of elderly people in retirement today than in 1934? Hardly. Why does Social Security need to be updated? The answer is that it doesn't. Human nature is that folks spend what they have on hand and only wealthy people will put aside what they need for retirement. The reason Social Security has been an issue in our politics has been that investors wish to cut up Social Security and feed it to the wolves of Wall Street. They want to tear it apart for the sheer profit of it all. It's not an issue because of any changes that have occurred.

Likwise, FISA is designed the way it is because of human nature. Government engages in far more surveillance than is necessary for our security. The whole point of FISA was to prevent that.

I found it quite telling that Mr McConnell spends most of his OpEd discussing technology. The reason for that isn't hard to guess at.