Klein Assesses the State of the Foreign Intelligence Surveillance Act
Nov 8, 2021 | Technology, Security, and Global Affairs
In a recent article published in Lawfare, the Strauss Center’s Adam Klein discusses the state of the Foreign Intelligence Surveillance Act, or FISA, in light of a recent report by the Department of Justice Inspector General.
FISA requires the government to obtain a court order before conducting electronic surveillance or clandestine physical searches in the United States for national-security purposes—for example, to monitor the telephone or email of a suspected foreign spy.
The Inspector General found that the FBI repeatedly failed to follow procedures meant to ensure that applications submitted to the FISA Court, which approves FISA surveillance, are accurate. The article explains the report’s findings, before discussing three limitations of the Inspector General’s review:
First, Klein notes that the Inspector General did not look for errors of omissions—a key feature of other recent FISA controversies. For example, in the application to surveil Trump campaign advisor Carter Page, the FBI omitted key information that would have cut against its case for surveillance.
Second, Klein notes that, in response to earlier FISA missteps, the FBI and Department of Justice have already implemented numerous reforms to shore up process for preparing applications to conduct FISA surveillance. These reforms came after the period covered by the Inspector General’s review, so they were not reflected in the results.
Third, Klein notes that while accuracy is essential, it is not the only standard for measuring FISA applications. Just as important is whether the facts are presented in a manner that enables the judge to provide meaningful scrutiny of the government’s case. Often they aren’t; the volume of information can be overwhelming, and it is not always clear how each fact relates to the others or what weight the government assigns to each.
FISA faces the two primary challenges today—and they are in tension: restoring public trust and accountability, while at the same time fending off aggressive intelligence operations by geopolitical adversaries. The piece concludes by noting that “[p]olicymakers seeking to ‘fix’ FISA thus face a demanding task: rather than trading trust for capability, or vice versa, they must solve for both.”