TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

Electronic Surveillance with a DomesticNexus, FISA and Its Legal BasisElectronic surveillance refers to the acquisition of the contents of wire, radioand other electronic communications. It has emerged as a critical tool for detectingand intercepting international terrorists within the United States andoverseas.There are two main frameworks for government authorities to obtain electronicsurveillance warrants. One, based on Title III of the US Code, coverssurveillance in the investigation of serious domestic crimes. The second,based on the Foreign Intelligence Surveillance Act (FISA), covers foreign intelligencesurveillance and serves as the main tool for electronic surveillanceof foreign targets and terrorism suspects.Congress passed FISA in 1978 in the wake of revelations that the White Houseauthorized warrantless surveillance of US citizens. In brief, the legislationstated:• FISA would be the “exclusive means” governing the use of electronicsurveillance in international terrorism and other foreign intelligenceinvestigations.• The Federal Bureau of Investigation (FBI) and NSA would serve asthe lead agencies to gather foreign intelligence relevant to the FISAframework.• The Intelligence Community would work through the ForeignIntelligence Surveillance Court (FISC) to secure a warrant before undertakingforeign intelligence surveillance of a domestic nature.Following 9/11, Congress and the White House agreed the IC needed greaterflexibility to address the threat posed by international terrorism. Congresstherefore passed amendments to the FISA legislation in the USA-PATRIOTAct in 2001. 71 The USA-PATRIOT Act significantly eased the standard requiredof a federal officer to apply for intelligence collection under the FISAframework. Congress also adjusted and modernized FISA in the ProtectAmerica Act of 2007 and the FISA Amendments Act of 2008. 72Belfer Center for Science and International Affairs | Harvard Kennedy School47

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