William C. Banks *
Sometime before the end of 2017, Congress has to decide whether and then on what basis to renew the FISA Amendments Act (“FAA”), a cornerstone authority for foreign intelligence surveillance that sunsets at the end of December 2017. The Privacy and Civil Liberties Oversight Board (“PCLOB”) reported in 2015 that more than one quarter of the National Security Agency (the “NSA”) reports on terrorist activities are derived, in whole or in part, from surveillance authorized by section 702 of the FAA, and that the percentage has increased every year since the enactment of the FAA. Although the bulk warrantless collection of communications content enabled by the FAA was viewed as a scandalous overreach when the Bush Administration‘s then-secret program‘s existence was revealed by the New York Times in December 2005, Congress approved substantially the same program on a temporary basis in 2007. Congress codified it in 2008, extended it in 2012, and is almost certain to renew it next year.
* Board of Advisers Distinguished Professor, Syracuse University College of Law; Director, Institute for National Security and Counterterrorism; Professor, Public and In- ternational Affairs, Maxwell School of Citizenship & Public Affairs, Syracuse University. The author thanks Taylor Henry, Syracuse University College of Law, J.D. 2018, for excel- lent research assistance.