Assessing Surveillance Laws in An Era of Sunset Provisions:
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.

Related Posts (on one page):

  1. Assessing Surveillance Laws in An Era of Sunset Provisions:
  2. Strange Op-Ed By Chris Hedges:
  3. The New FISA Law -- and the Misleading Media Coverage Of It: