Surveillance Lobbying: Conceptualising the Policy Process of Surveillance Law

The United States spend more money than any other country in the world on intelligence gathering. Whistle-blowers provided proof of how an amalgam of state and corporate power orchestrates a relentless mass surveillance machinery that swallows terabytes of data each second. In some sense, this paper asks the question of how we got here. By fusing the theoretical notion of a subgovernmental structure, namely the ‘iron triangle’ (Cater 1964; Adams 1990), with the formal model of ‘lobbying as legislative subsidy’ (Hall and Deardorff 2006), I propose a theoretical basis for understanding the process of passing mass surveillance legislation in the United States. In short, I argue that the three core actors shaping US surveillance law, i.e. Congress (esp. the HPSCI and the SSCI), the Bureaucracy (the US Intelligence Community) and private corporations (private contractors and digital platforms), are best understood as the three corners of a triangular political configuration who - given the mutually reinforcing nature of their relations to one another - have essentially insulated themselves from public opinion, the democratic process and the presidency. In front of this dim theoretical background, I conduct a case study of how Title VII of the FISA Amendments Act of 2008 or the US intelligence community’s ‘crown jewels’ - to use the words of Trump’s Director of National Intelligence Dan Coats - came into existence during the Bush Administration and was then reauthorised by both Obama and Trump. More precisely, the case study investigates how a law that formed the basis for the mass surveillance programs exposed by Edward Snowden could be enacted and reauthorised not only under three different presidencies but also with the approval of three different majority configurations in Congress - two of them voting after Snowden exposed one of the grossest abuses of power in the 21st century and American history more generally. After careful consideration of the three cases, I come to the conclusion that neither a Democratic nor a Republican presidency on the one hand nor a particular majority caucus configuration in Congress on the other hand seem to be necessary conditions for enacting or reauthorising mass surveillance law in the United States. This is consistent both with the notion of the intelligence iron triangle as insulated and the general notion of mass surveillance as an issue of bipartisan consensus. On top of that, the cases provide anecdotal evidence that representatives of the intelligence bureaucracy do lobby Congress via the provision of legislative subsidies.