Programmatic Surveillance and FISA: of Needles in Haystacks

Professor Banks argues that the basic framework of FISA should be refashioned. The 2008 amendments to FISA permit broad, programmatic surveillance focused on patterns of suspicious activity and not on a specific individual. Banks argues that this broad surveillance is potentially intrusive and unaccompanied by safeguards to protect those whose information is gathered as an incident to the sweeping surveillance. As a result, he offers some benchmarks for rebuilding FISA that will both improve the efficacy of the surveillance programs.