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A Law That Seeks Balance Between Privacy and Protection from Terrorism

With Edward Snowden's surprise disclosure about NSA's surveillance of phone calls and e-mails, you may wonder if the National Security Agency is subject to any laws. Yes, it is. The Foreign Intelligence Surveillance Act, FISA for short, dates back to 1978, but it was expanded in 2008 during the Bush administration. Its aim is to permit, but also to regulate, the collection of foreign intelligence information to detect and prevent terrorism. In essence, FISA gives the government wide authority to snoop. As a result, data concerning many millions of phone calls and e-mails has been collected and catalogued by NSA.

Snowden's revelations to The Washington Post and Guardian newspapers have provoked heated debate on privacy versus security. FISA sets up some protection against unwarranted intrusion. It established the Foreign Service Intelligence Court, composed of 11 rotating federal judges, to hear search warrant applications to try to ensure that the government doesn't abuse its surveillance powers. The government applies for a warrant, and a judge approves or rejects the application after reviewing it.

The secretive nature of the court and the fact that only the Department of Justice is represented before the judges is criticized by those most interested in our right to privacy. The argument that the law works to let the government have its way may have merit, because last year the court approved all of the government's 1,788 applications to conduct electronic surveillance. Yet, advocates for wide government surveillance powers to thwart terrorists' activities argue that the secrecy is necessary for national security. They also say that these matters are so time-sensitive that it would be unworkable to allow lawyers for all sides to argue each warrant before the court. Needless to say, with what's at stake on both sides, we are going to hear the debate for a long, long time.


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