TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

ternational communications moved from satellites, which are ‘radio’ communicationsunder FISA, to fiber-optic cables, which are ‘wire’ communicationsunder FISA.FISA originally regulated international wire communications only when thesurveillance was conducted in the US. Since a significant portion of the globalfiber-optic network currently passes through the US, the government arguedthat FISA should be modified to allow for foreign intelligence surveillance ofnon-US persons from within the country.Nevertheless, attempts to modernize FISA risked weakening civil liberties protectionsby removing the individualized warrant requirement that underpinnedthe original FISA law. 75 Some believed that program warrants and longer periodsof emergency warrantless surveillance could have further underminedthe intent of original protections. 76 Some further argued the ‘communicationsrevolution’ argument was overblown, and the shift of international communicationsthat from satellites to fiber should not impact the FISA review process.Finally, FISA modernization was viewed as a way to facilitate additional backdoorintelligence gathering practices, such as large-scale data mining.The FISA Amendments Act of 2008While a number of FISA-related issues remain for Congress to resolve in thefuture, the FISA Amendments Act of 2008 77 (set to expire in 2012) addressedthe following issues:• FISA and Title III remain the exclusive means for conducting electronicsurveillance.• In order to conduct electronic surveillance of US persons locatedoutside the country, the government must now proceed through theFISA court order process; previously, the Attorney General could certifythis collection under an executive order.• A provision permits greater use of program warrants in order to targetbroad groups of foreign targets, as opposed to more individualized ones.50 Trials by Fire: Counterterrorism and the Law

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