Excerpted from DarkReading
‘Stone’s movie also hit on the biggest legal vulnerability threatening our constitutional rights: secret laws being written that avoid the critical checks and balances of the American system of balance of powers.
One key source of these secret threats is the Foreign Intelligence Surveillance Act (FISA) court system, which issues secret rulings that can function as secret law. While Congress may have rightly understood that many aspects of intelligence gathering and judicial oversight must be kept secret – including warrants that can reveal sources, methods, and targets – there was an unintended consequence. Under this framework, the FISA court can grant new authorities via secret court opinion, constituting new law not subject to public scrutiny.
As we now know, without public scrutiny and an adversarial judicial process, these rulings have been demonstrated to violate common assumptions about Constitutional protections provided by the Fourth Amendment. For instance, a 2013 New York Times article revealed that the FISA court determined that collections of data on any American, regardless of connection to foreign enemies, did not violate the Fourth Amendment search and seizure protections.
This legal threat persists today. Some laws have changed, but our information remains exposed. This may seem like an intractable problem: trying to ensure transparency of law while maintaining operational security of our national defense. But there is a solution.
The solution will require an act of Congress mandating that secret rulings made by courts or agencies must include a public, unclassified summary of any legal interpretations made in granting a warrant or issuing a ruling. This can be done without revealing sensitive sources, methods, or targets.
Perhaps the most chilling theme in the movie revolves around potential misuse of surveillance powers by future leaders. In January, we will have a new administration, and our new president will drive his or her agenda on surveillance. Without legal reform and transparency, we will not know how our privacy rights have changed – for the better or the worse. In the meantime, let us make sure our data carries its own protection, end to end, so it is protected regardless of what others do.
As Stone’s movie makes clear, while most of us have “nothing to hide,” we all have information worth protecting.’More / Comments