The Future of Foreign Intelligence
Privacy and Surveillance in a Digital Age
Laura K. Donohue
Since the Revolutionary War, America's military and
political leaders have recognized that U.S. national security depends upon the
collection of intelligence. Absent information about foreign threats, the thinking
went, the country and its citizens stood in great peril. To address this, the
Courts and Congress have historically given the President broad leeway to
obtain foreign intelligence. But in order to find information about an
individual in the United States, the executive branch had to demonstrate that
the person was an agent of a foreign power. Today, that barrier no longer
exists. The intelligence community now collects massive amounts of data and
then looks for potential threats to the United States.
As renowned national security law scholar Laura K.
Donohue explains in The Future of Foreign Intelligence, the internet and new
technologies such as biometric identification systems have not changed our
lives in countless ways. But they have also led to a very worrying
transformation. The amount and types of information that the government can
obtain has radically expanded, and information that is being collected for
foreign intelligence purposes is now being used for domestic criminal
prosecution. Traditionally, the Courts have allowed exceptions to the Fourth
Amendment rule barring illegal search and seizure on national security grounds.
But the new ways in which we collect intelligence are swallowing the rule
altogether. Just as alarming, the ever-weaker standards that mark foreign
intelligence collection are now being used domestically-and the convergence
between these realms threatens individual liberty.
Donohue traces the evolution of foreign intelligence
law and pairs that account with the progress of Fourth Amendment jurisprudence.
She argues that the programmatic surveillance that the National Security Agency
conducts amounts to a general warrant-the prevention of which was the point of
introducing the Fourth Amendment. The expansion of foreign intelligence
surveillance - leant momentum by significant advances in technology, the Global
War on Terror, and the emphasis on securing the homeland - now threatens to
consume protections essential to privacy, which is a necessary component of a
healthy democracy. Donohue offers an agenda for reining in the national
security state's expansive reach, primarily through Congressional statutory
reform that will force the executive and judicial branches to take privacy
seriously, even as it provides for the continued collection of intelligence
central to U.S. national security. Both alarming and penetrating, this is
essential reading for anyone interested in the future of foreign intelligence
and privacy in the United States.
