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Professor Donohue has given us a full-throated denunciation of the entire legal framework regulating the government's collection of data about American citizens and permanent residents, whom we call "United States Persons."1 She contends that in the wake of the digital revolution, current law "is no longer sufficient to guard our rights"2 - she's right about that - and that we have actually returned to the untrammeled issuance of general warrants that characterized the eighteenth century British practice that our nation's Founders rebelled against. She proposes a thorough revision of the laws governing the collection of foreign electronic intelligence within the United States and abroad, and she advocates severe limitations on the collection and access to digital information of any sort. I will address the merits of her arguments - but first a threshold question: Is this really a book about the future of foreign intelligence?
From the half-century leading to the end of the Cold War, the nearly exclusive control by nation-states over the tools of spy craft seemed like a natural monopoly. The complexity of modern cryptography from the 1930s onward put high-end encryption beyond the capability of all but a few intelligence services.3 Most forms of electronic intelligence gathering - advanced listening devices, sophisticated radars and antennae, and measurement of weaponry signatures, for example - were also developed by governments and were unavailable to most nations. Freelance and commercial human spying never went away, but they became the exception after Europe was rigidly divided into East-West blocs, and as border controls, which hardly existed before World War I,4 became the norm.
Governments' monopoly over most of the tools of spycraft did not disappear overnight. Between the collapse of the Soviet Union in 1991 and the 9/11 attacks a decade later, however, the monopoly largely vanished as these tools became the products and instruments of the marketplace. The encryption now found in an ordinary smart phone can be broken only with extraordinary effort, if at all, and its computing power dwarfs anything available to the presidents and premiers of a previous generation. The monopoly of the two Cold War superpowers over high-thrust rocketry and orbital satellites is ancient history. Countries around the world now compete with, or rely on, private companies to do the...