The Senate Judiciary Committee held a hearing this week on FISA for the 21st Century. Several people testified, among them was Bryan Cunningham, information security and privacy lawyer and principal at Morgan & Cunningham, LLC. I’d heard Cunningham before on a fascinating podcast entitled "The Digital Spy: How Technology is Changing the Intelligence Community" from a session at the Council on Foreign Relations. Audio and transcript here.
Bryan Cunningham’s June 26 testimony addressed whether the current FISA was applicable, given today’s technology. One of his points (about two-thirds of the way down) is that the 1978 FISA is problematic because it depends on being able to determine
* Whether the collection of information takes place within the United States or overseas and
* Whether or not a potential target is a U.S. person (citizen or permanent resident alien)
According to Cunningham (from the Council on Foreign Relations session):
The first is, was the information collected inside the United States physically, geographically, or not? … That way to divide up the world probably made perfect sense in 1978, and perhaps for some years after that. But with the Internet, with Skype-encrypted telephone calls that can be had from anywhere worldwide, with the ability to sit in Iraq or Afghanistan and be on an Internet service provider in California, all of those legal distinctions that are based on geography, in my judgment, have become and are becoming increasingly outdated.
And similarly the U.S. person issue: How do you determine if you’re thinking about listening in to a Skype-encrypted phone call that you don’t know where on the globe it’s taking place, how do you determine that the person you may be wanting to listen to is or is not a U.S. person? So those legal distinctions, it seems to me, need to be looked at and need to be retooled for the 21st century.
How can you argue with that?
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