On Constitution Day, A Discussion of Surveillance

September 20, 2013 —

September 17 was Constitution Day — and at Georgetown Law the American Constitution Society, American Civil Liberties Union and National Security Law Society student groups marked the occasion with “A Constitutional Conversation: The Foreign Intelligence Surveillance Act in a Digital Era.”

Professor Laura Donohue, speaking on FISA's history, quoted from a prescient statement from then Sen. Walter Mondale — a member of the Church Committee commissioned to look into National Security Agency intelligence collection programs in the 1970s — on the practice of data collection from international telegrams.

“‘What we have to deal with is [that] this incredibly powerful and impressive institution could be used … in the future to spy upon the American people,’” Donohue quoted Mondale as saying. “’We need to very carefully define the law, spell it out so it is clear what the director of the NSA’s authority is and what it is not.”  

What the Church Committee came up with, among other things, was FISA, passed in 1978 to address abuses by intelligence agencies engaged in widespread surveillance of U.S. persons on U.S. soil, Donohue said. 

Professor Marty Lederman noted that FISA did not regulate all methods of information gathering, and that under current Fourth Amendment doctrine, the government may, without a showing of probable cause, obtain telephone and email "metadata" held by third parties (e.g., phone and internet service providers), and the content of international communications even if they include participants who are U.S. persons (something the 2008 FISA authorizes). 

The important questions going forward, he said, are whether and how Congress should cut back on the statutory authorities the government has invoked, and whether the Court should then reconsider whether there are any expectations of privacy warranting constitutional protection when the government accumulates and analyzes vast collections of information about U.S. persons in these ways that have previously been considered outside of the Fourth Amendment's protection.

Adjunct Professor Carrie Cordero, director of national security studies at the Law Center, also participated on the panel, which was led by Raffaela Wakeman (L’15) and introduced by Monica Bhattacharya (L’15). 

Several members of the Church Committee, including Mondale and Former U.S. Sen. Gary Hart, will visit Georgetown Law on September 24 to continue the discussion on intelligence gathering. More information is available here.