Adapting U.S. electronic surveillance laws, policies, and practices to reflect impending technological developments

Intelligence collection must always evolve to meet technological developments. While the collection programs under Section 702 of the FISA Amendments Act of 2008 have produced a great deal of valuable intelligence over the last decade, the U.S. must begin to think about foreseeable technological developments and strategically consider how to conduct signals intelligence (SIGINT) collection in the future. This article identifies four technological trends that could significantly impact the way the U.S. conducts SIGINT. Individuals now have access to sophisticated technologies that formerly only governments seemed capable of creating, and this decentralization of capabilities will likely only increase in the future. The increased prevalence of anonymity and location-spoofing technologies offer benefits to individual users, but may create significant difficulties for the Intelligence Community in determining the location of targets, which is a fundamental aspect of the current legal regime governing SIGINT activities. Also, the U.S.’s “home field” advantage is receding. This trend means that the U.S. will have a smaller share of the world’s communications traffic transit its physical infrastructure, which will reduce the Intelligence Community’s ability to acquire precise and intact communications by serving directives on U.S. companies. The push towards data localization laws may further reduce the U.S.’s home field advantage. Finally, technology companies have begun to innovate in a manner that reduces their capability to respond to lawful government orders. Technology companies are increasingly adopting encryption technologies and may shift data overseas to try to avoid complying with lawful surveillance orders. Decisions by major private sector technology companies have the ability to shift how SIGINT is collected. If a person’s true location becomes increasingly more difficult to ascertain, the law should adapt to the uncertainty of location. In addition to legislative reforms, it may be prudent to create more forward leaning procedures to ease some of the difficulties that could be caused by increased uncertainty of the location of targets. Finally, as Section 702 becomes less useful in the future, the Intelligence Community must improve collection under Executive Order 12333 to ensure that the government continues to acquire vital intelligence to protect U.S. national security interests