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... now the Internet has made a hash of the tidy distinction between foreign and domestic surveillance. Today, citizens of France, Brazil and Nigeria routinely use Facebook, Gmail, and other American online services to communicate. Americans make calls with Skype. And much Internet traffic between two foreign countries often passes through the United States.
The NSA has reacted to this changing communications landscape by trying to claim the best of both worlds. The FISA Amendments Act, passed in 2008, gave the NSA the power to compel domestic telecommunications providers to cooperate with the NSA’s surveillance programs. Yet the NSA has resisted the transparency and judicial oversight that has traditionally accompanied domestic surveillance. They’ve argued that disclosing the existence of these programs would compromise their effectiveness. And they’ve argued that because the “targets” of surveillance are overseas, only limited judicial oversight by the secretive Foreign Intelligence Surveillance Court, not individualized Fourth Amendment warrants, were required.
But the NSA programs revealed by Snowden, including PRISM and the phone records program, look more like domestic surveillance programs than foreign ones. Like conventional domestic wiretaps, they rely on compelling domestic firms to cooperate with surveillance. Like conventional wiretaps, they sweep up information about the communications of Americans on American soil. And like domestic wiretaps, information collected by the NSA is sometimes shared with domestic law enforcement agencies for prosecution of Americans.
If the NSA is going to run what amounts to a domestic surveillance program that collects the private information of Americans on American soil, it’s going to face pressure to subject that program to the same kind of oversight as other domestic surveillance program. That means disclosing the general characteristics of the program—but not the specific targets—to the public. And it means requiring individualized warrants, supported by probable cause, before the government can intercept the communications of Americans on American soil.
