“We don’t export our law to other countries – that would be hubris”

Mr. Weissmann, you were the General Counsel of the Federal Bureau of Investigation (FBI) from 2011 until October 2013. Did your legal work at the FBI change after the Snowden leak, and if so, what was the main difference?

From a legal perspective, there was a series of issues. First of all, there has been quite a lot of litigation: Internet providers have initiated litigation in the Foreign Intelligence Surveillance Act (FISA) court – a special US court dealing with secret investigations – because they wanted to disclose more information about government requests for access to personal data. Then there is ongoing litigation challenging the surveillance of telephone metadata and of foreign electronic communications under sections 215 and 702 FISA. And of course there have been requests under the Freedom of Information Act (FOIA) and congressional hearings in which FBI personnel participated. Finally, there has been some declassification of materials that needn’t be kept secret anymore after the leaks. There’s now a website of the Director of National Intelligence where declassified documents are published, such as decisions of the FISA court on procedures and letters to Congress about surveillance programs.

The NSA surveillance program publicly known as “PRISM” is based on section 702 of FISA, which allows targeting of foreign persons located abroad. Besides, section 215 of the PATRIOT Act – the so-called “business records” provision – has been interpreted to authorize the collection, in bulk, of all metadata of phone calls and e-mails within the US. To what extent is court approval required to use these powers? How tight is judicial oversight? Isn’t there a privacy interest already when data is merely collected?

There are now many declassified documents that set out the exact procedures ...

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