FISA

Ken Lund / Ben Balter (background)

First passed in 1978, the Foreign Intelligence Surveillance Act (FISA) still guides the physical and electronic surveillance of foreign powers and agents. Congress has repeatedly amended the law, however, seeking to calibrate the government’s surveillance to accord with the level of threat and seeking to keep authorities current as technology develops at breakneck speed. Nevertheless, even authorized activities affirmatively permitted by statute have come under fire as a torrent of leaks have revealed government surveillance programs under the statute.

Latest in FISA

FISA

Some Thoughts on Reuters, NY Times, and Yahoo

Benjamin Wittes flags that much of the Yahoo story is unclear, including legal arguments and the objective of the search, and further reporting from Motherboard and the Intercept further confuses the possible mechanism of the search, describing it not as a spam filter but like a "rootkit" and opening up a significant vulnerability. 

Surveillance

Relative vs. Absolute Approaches to the Content/Metadata Line

One of the foundational questions in surveillance law is how to distinguish between the contents of communications and non-content metadata. Identifying the line between the two is critical. Earlier this week, the ODNI declassified an April 2016 FISCR decision that adopts an approach to the distinction in some tension with a recent Third Circuit case. 

Aegis Paper Series

In Defense of FAA Section 702: An Examination of its Justification, Operational Employment, and Legal Underpinnings

The tension between a Nation-state’s need to detect and interdict threats to life, safety and property inevitably conflict with the privacy interests of its individual citizens and private sector entities.  Increased flattening and convergence of global communications will continue to exacerbate this tension, as Nation states seek to pursue these twin goods within the common spaces shared by protected populations and those who would hold society at risk.  

Aegis Paper Series

Beyond Privacy & Security: The Role of the Telecommunications Industry in Electronic Surveillance

This paper examines this gatekeeper function US industry plays in surveillance and recommends surveillance reforms that will reinforce that function without denying necessary government access to information.

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