Assessing Surveillance Laws in An Era of Sunset Provisions:

By Orin Kerr on July 15, 2008 2:33 am

In my blog post last week on the new FISA Amendments, and a follow-up on Friday, some commenters expressed strong disagreement — and in some cases, downright contempt — at my view that the most natural baseline for assessing the latest FISA Amendments was last year’s FISA law, the Protect America Act. Our disagreement raises a conceptually interesting question: How should we characterize the direction of new surveillance laws in an era when so many surveillance laws are being subject to sunset provisions? And applying that to the specific case here, is the Protect America Act the right baseline for the new FISA Amendments?

I think the question is tremendously important. Statutory laws require a feedback loop: The public needs to know if their policy preferences are being enacted into law. But the details of surveillance law are a mystery to 99.99% of the population. The laws are arcane and technical, which means that the only way most people will get a sense of the direction of the law is second-hand. In my view, this puts intense pressure on those of us who want to write on these issues in a public forum to get it right. The democratic process only works correctly if we describe the law accurately. If our writings don’t accurately describe what is happening, over time the law will no longer match public preferences in the way that they should in a democratic system.

Reporting on the direction of the law is particularly tricky when Congress uses sunset provisions. A sunset provision makes the new law temporary: After a period of time, the new provision elapses and we revert to the old law (pending the likely passage of some new legislation). Sunsets let Congress experiment with different rules and see how they work out; near the end of the sunset period, Congress can have hearings and then decide whether to stick with the old law or try something new.

Congress’s heavy reliance on sunset provisions in surveillance law is one of the most interesting developments in the surveillance law of the post 9/11 era. As far as I know, the Patriot Act’s sunset provisions were the first to use this: About half of the surveillance law changes in the original Patriot Act of 2001 sunsetted at the end of 2005. The Protect America Act of 2007 picked up the idea, sunsetting after 6 months but allowing orders granted under it to be valid for a year after they were issued. The new FISA Amendments also use sunsets: the new law expires at the end of 2012.

So what baseline should we use when reporting on these issues? Here’s my best sense: The most accurate and principled way to report on changes to surveillance laws in an era of sunset provisions will usually be to compare each new provision to the prior provision Congress negotiated. With an important exception, we should ordinarily compare new rules to sunsetting or recently sunset old rules.

I think this is the case for three reasons. First, my sense is that this view matches the understanding of the institutional players in Congress and the Executive branch. Congress has pushed the use of sunsets to ensure that the baseline negotiated today can be renegotiated tomorrow; as the old law sunsets, the new law becomes the baseline for where the new law will go. The understanding of the parties is that the sunsetting law will be the future baseline.

For example, the sunsetting Patriot Act provisions became the standard for how the law would change when Congress negotiated the next step at the end of 2005. Congress had hearings on whether or how to renew or amend pretty much every single sunsetting provision, no matter how minor. Similarly, my understanding is that the Protect America Act became the baseline for the negotiation of the new FISA Amendments. Given that this is the expectation of the institutional players when they insist on (or fight against) sunset provisions, I think it makes sense to track that understanding.

Second, sunset provisions have become sufficiently common in surveillance law that any other baseline becomes rather arbitrary. As I see it, sunset provisions are here to stay: They seem to have become the new norm in surveillance law. If I’m right about that, my concern is that looking back to the pre-sunset law as the standard mostly just looks back to the era before sunsets were common rather than to any objectively “neutral” standard. In the case of surveillance of individuals overseas, for example, Congress’s realization of the new technology allowing surveillance from inside the U.S. of individuals abroad led first to the Protect America Act for between 6 and 18 months (depending on how you look at it), then the new law for the next 52 months or so, and then we’ll have something else new when the 2008 law expires in 2012. We may keep going on sunset provisions after that, too: we’ll keep renegotiating every few years off into the future.

To read the rest of this post, click here.

Finally, I think the prior negotiated law is a good baseline because the passage of a new law with a sunset is a front page story of legal change while the reversion back to the pre-sunset version generally is not. When Congress passes a new surveillance law, the papers and op-ed writers usually decry the law and say it is a radical shift that guts protections. But when the sunset expires, we don’t get that in reverse: we don’t see the same writers celebrate the reversion and say it is a radical shift that drastically enhances protections. The reason relates to reason #1 above, I think: the understanding is that the law isn’t permanently reverting, but rather being renegotiated, so it would be odd to report the change as if it were permanent.

If we adopt pre-sunset law as the standard, the law and the press coverage can diverge in a pretty bizarre way. Imagine Congress enacts a new sunsetting law every year in a particular area, and further imagine that the new law always becomes more privacy protective than the prior year’s. In that case, the press coverage will announce every year that the old law has been gutted and privacy diminished while actually the law will be becoming more privacy protective every year rather than less. If you’re an interested citizen and you want to know what’s happening in surveillance law, press coverage that uses the pre-sunset baseline is going to leave you with a pretty dramatic misimpression.

I hope this explains to readers why I think the PAA is the right baseline for reporting on the new FISA Amendments. My understanding is that Congress intended it that way; my sense is that such sunsets are here to stay; and I think it leads to the most accurate overall impression of the direction of the law for the public that wants to know where the law is heading. So I think it’s the best standard to use.

Finally, let me add that there is an exception to this general rule. In some cases, so much time will have has passed after a provision has expired that the sunset provision will no longer be considered the standard for Congressional negotiations. If Congress lets a sunset expire and then a good chunk of time passes under the reverted law, then eventually the reverted law becomes the standard.

But I don’t think that exception means the PAA isn’t the standard here. First, while the Protect America Act expired on February 17, 2008, the surveillance orders issued under the Act did not expire. They are valid for a year, and it has been less than a year since the PAA was enacted. Second, my understanding is that Congress did in fact take the PAA as the baseline when the new law was negotiated. Third, it’s important to recognize that pre-PAA warrant requirement was a coincidence of technological change, not a knowing Congressional decision. Congress didn’t know until the Times story broke in December 2005 that lots of foreign to foreign communications were being routed through the U.S. and that they could be monitored there. As a result, Congress didn’t realize that the FISA statute was imposing a warrant requirement on the surveillance of foreign to foreign communications in that setting. The PAA is the first statute that tried to regulate this type of surveillance knowing that the category of surveillance in fact existed. Given that, it seems like a particularly sensible baseline to apply.

Navigation