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Updating the Foreign Intelligence Surveillance Act

24 Pages Posted: 13 Jul 2007  

Orin S. Kerr

The George Washington University Law School

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.

Keywords: FISA, Foreign Intelligence, Internet, Fourth Amendment

JEL Classification: K1, K14

Suggested Citation

Kerr, Orin S., Updating the Foreign Intelligence Surveillance Act. University of Chicago Law Review, Forthcoming; GWU Legal Studies Research Paper No. 289; GWU Law School Public Law Research Paper No. 289. Available at SSRN: https://ssrn.com/abstract=1000398

Orin Kerr (Contact Author)

The George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)

HOME PAGE: http://www.law.gwu.edu/orin-s-kerr

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