Posted by Orin Kerr:
Updating the Foreign Intelligence Surveillance Act:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184342772
I have just uploaded a draft of a new essay, [1]Updating the Foreign
Intelligence Surveillance Act, forthcoming in a symposium issue of the
University of Chicago Law Review. It's a short article, about 22
pages. Here's the abstract:
This essay argues that the Foreign Intelligence Surveillance Act
should be restructured to account for changes in communications
technology and Fourth Amendment law since FISA's enactment in 1978.
FISA reflects the person-focused assumptions of 1970s-era
technology and constitutional law. At that time, foreign
intelligence monitoring necessarily focused on subject identity and
location. Although some modern investigations track this
traditional approach, many do not; investigations involving
packet-switched networks often start with data divorced from any
known person or location. FISA should be amended to create two
distinct authorities for surveillance: data-focused authorities
when the identity and/or location of the subject are unknown, and
person-focused authorities when the identity and/or location are
known. A two-pronged approach can best implement the goals of
foreign intelligence investigations given the realities of modern
communications networks.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1000398
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