The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age

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.