Want to Know a Secret . . .? Electronic Surveillance, National Security, and the Role of the Foreign Intelligence Surveillance Act

Abstract

On February 29, 2019, the United States Court of Appeals for the Ninth Circuit held in Fazaga v. Federal Bureau of Investigation (Fazaga II) that the Foreign Intelligence Surveillance Act (FISA)—passed in 1978 to limit the government’s ability to conduct certain surveillance activities without court authorization—displaces the state secrets privilege in all cases involving electronic surveillance for foreign intelligence purposes. Until recently, courts applied the procedures set forth in FISA only to claims brought under FISA. Meanwhile, the state secrets privilege—a common-law doctrine insulating the government from disclosing sensitive information related to national security in court—has long governed the U.S. government’s use of electronic surveillance for domestic and foreign intelligence purposes. This Comment examines the conflict between national security and individual liberties underlying FISA and the state secrets privilege. It argues that, in times of unprecedented technological advances, Fazaga II appropriately preserves the role of each governing branch in protecting these values.