A tale of two agencies: exploring oversight of the National Security Administration by the Federal Communications Commission.

• Author: Healey, Audra

TABLE OF CONTENTS I. INTRODUCTION II. TWO CHANGING AGENCIES: THE NSA AND THE FCC A. The NSA has increasingly turned its surveillance towards the American public B. The Federal Communications Commission has a proven tract record of adapting to new communications technology' III. OVERSIGHT IS NEEDED, AND THE FCC SHOULD PROVIDE IT A. The NSA's oversight mechanisms are inadequate in promoting efficiency and public confidence B. Stronger oversight is needed because the courts are ill-equipped to adequately review and oversee the NSA 1. Traditional courts do not provide an adequate avenue of appeal 2. The FISA Court is not providing an adequate level of publicly available oversight C. The FCC mission can be naturally expanded to protect privacy in relation to surveillance 1. The FCC has strong a background and significant expertise that will allow the agency to provide oversight of the NSA 2. FCC oversight of the NSA could confer significant benefits IV. HOW THE FCC SHOULD ADDRESS THE NSA SURVEILLANCE: IMPLEMENTING THE SOLUTION A. Congress should amend the organic statutes of the FCC and 1 and encourage participation in the FISA Court 1. Congress should amend the NSA organic statute to provide for collection of data by the FCC 2. The FCC's organic statute should be amended to allow the FCC authority over NSA data collection and participation in the FISA Court 3. Congress should allow outside parties to petition the FISA Court V. CONCLUSION I. INTRODUCTION

"In the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement, so we can intercept new types of communications, but also build in privacy protections to prevent abuse."

--President Obama, May 23, 2013 (1)

According to recent disclosures, the National Security Agency ("NSA") has been collecting information from hundreds of millions of email accounts and phone numbers, many belonging to Americans. (2) The NSA's strategy is to use this information to "draw detailed maps of a person's life, as told by personal, professional, political, and religious connections." (3) Former NSA director Gen. Keith Alexander argued that the agency's bulk collection of email and call detail records is necessary because the government "need[s] the haystack to find the needle." (4)

The NSA's extensive surveillance of U.S. citizens was brought into the spotlight by the recent disclosures of former NSA contractor Edward Snowden. (5) The first of Snowden's disclosures, released by The Guardian on Wednesday, June 5, 2013, revealed that the NSA was collecting phone call detail records from millions of U.S. consumers on a daily basis. (6) This has prompted widespread public concern about the extensive information collection policy of the NSA. As technology continues to develop and the Internet continues to play a major role in modern life, governmental monitoring of Internet activity will likely become an area of increasing concern. The best way to ensure proper oversight of this monitoring is by empowering an administrative agency: namely, the Federal Communications Commission (the "FCC").

This Note will address what role the FCC could and should play in overseeing intelligence activities that implicate individual privacy on the Internet and telecommunications networks. This Note argues that the FCC, as the expert independent agency that routinely deals with the Internet and telecommunications networks, has both the tools and capacity to provide some oversight and protection for Internet users. Part II discusses the background of each agency, beginning with the NSA, then delves into the FCC and its efforts to keep pace with the ever-changing Internet. Part III argues that, because the existing mechanisms for overseeing governmental, domestic surveillance programs are inadequate, and given the FCC's long history of scrutinizing the interplay of national security and privacy involving telecommunications, Congress should empower the FCC to address privacy concerns raised by the NSA's surveillance of U.S. citizens. Part IV discusses how the FCC could address NSA surveillance activities, laying out possible, practical solutions that Congress should provide.

2. TWO CHANGING AGENCIES: THE NSA AND THE FCC

   1. The NSA has increasingly turned its surveillance towards the American public.

      The NSA, originally formed to monitor outside threats to the security of the United States, has increasingly turned its surveillance towards the American public. (7) The NSA was originally formed in 1952 growing out of intelligence and cryptology analytics developed during WWII, which naturally developed the agency's mission to monitor threats coming from outside the United States. (8) Today, the NSA is "authorized to collect, process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions, and to provide signals intelligence support for the conduct of military operations." (9)

      Under the letter of the law, this power is significantly limited in the domestic arena. The Foreign Intelligence Surveillance Act of 1978 ("FISA") (10) bars the NSA from intercepting any domestic, electronic communications of persons inside the United States unless a judge on the Foreign Intelligence Surveillance Court ("FISA Court") issues a warrant upon finding that "the purpose of the surveillance is to obtain foreign intelligence information ... and there is probable cause to believe that the target of the surveillance is an agent of a foreign power." (11) FISA also places various restrictions on other forms of domestic surveillance activities that do not intercept the contents of communications, such as the "installation and use" of pen registers or trap and trace devices, which capture the origin and destination of phone calls or other communications to and from a particular telephone number or other device. (12) In 2001, Congress substantially expanded FISA with the USA PATRIOT Act, (13) adding, among other provisions, a section that authorizes the Director of the Federal Bureau of Investigation ("FBI")--or FBI agents designated by the Director--to petition the FISA Court for "an order requiring the production of any tangible things ... for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." (14) Moreover, under Executive Order 12,333, when the NSA conducts intelligence-gathering activities abroad--which are not regulated by FISA (15)--it may collect, retain, or disseminate information about United States persons "only in accordance with procedures established by the head of the agency and approved by the Attorney General." (16)

      Despite its foreign-centric mission and the express limits on its domestic authority, the NSA has increasingly turned its attention to activities of persons within the United States in the wake of 9/11. For instance, in 2006, it was discovered that the NSA had created a call database in 2001 that collected tens of millions of citizens' phone records from data provided by AT&T, Verizon, and BellSouth. (17) "[T]he largest database ever assembled in the world" at the time, its goal was to log "every call ever made within the nation's borders." (18) The NSA itself has acknowledged its serious obligation to operate effectively in an increasingly interconnected and globalized world without stepping on the toes of civil liberties for the sake of national security. (19)

      Additionally, the NSA's intrusions into domestic communications extend beyond call data to reach citizens' activity on the Internet. (20) For years, the NSA "unlawfully gathered tens of thousands of emails and other electronic communications between Americans" as part of the agency's broader collection of communications as they "flow across Internet hubs" under Section 702 of FISA. (21) Pursuant to these practices, the NSA may have intercepted as many as 56,000 domestic electronic communications through various methods, (22) some of which the FISA Court has found unconstitutional. (23)

      The disclosure of these NSA practices triggered a substantial backlash. Many Americans reacted by taking steps to insulate themselves from what they considered unwarranted government intrusion on their private lives and activities. (24) Even though several crucial FISA Court rulings have been partially declassified and released to the public (25) in an effort to demonstrate that the NSA's powers are not unrestrained, public trust and confidence in the agency has clearly diminished. (26) In the wake of these disclosures, forty-five percent of Americans felt that the government went too far in its surveillance programs pursuant to anti-terrorism efforts. (27) This "massive swing" in public opinion about government policies embodies "the public reaction and apparent shock at the extent to which the government has gone in trying to prevent future terrorist incidents." (28) Coupled with the steps that many Internet users are taking to prevent government intrusion on their online activities and communication, this shift in public opinion shows that Americans are dissatisfied with the reach of government surveillance. (29)

   2. The Federal Communications Commission is a dynamic agency, adapting to new communications technology as it emerges.

      The FCC makes a conscious effort to adapt to new technology. Established by the Communications Act of 1934, (30) the FCC regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia, and U.S. territories. (31) As the agency's then-Chairman acknowledged in 2012, the FCC necessarily plays a role in facilitating the continuing...