Electronic Surveillance And Its Historical Context

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The first part of this paper framed FISA in its historical context. The 1978 Act initially enacted dealt only with electronic surveillance. It provided a statutory framework for collection of foreign intelligence information through the use of electronic surveillance of communications of foreign powers or agents of foreign powers. However, the Congress amended the act in 1995 and 1999 to provide a statutory framework for gathering foreign intelligence information through the use of electronic surveillance, physical searches, pen registers or trap and trace devices, access to business records and other tangible things. In sum, FISA grants broader authority than the Crime Control Act, but under a narrower range of circumstances. To limit the abuse of the Executive power that led to its passage, FISA also established the Foreign Intelligence Surveillance Courts (FISC). The FISC requires the government to submit an application to obtain a surveillance warrant to a specially appointed FISA judge. Moreover, since the FISA warrant is secret, the government in order to benefit from this higher level of secrecy bears a burden of showing that there is “probable cause” to believe the target is a foreign power and that the targeted information relates to the ability of the United States to protect against spying or terrorism. However, to address changing circumstances after the terrorist attacks of September 911, Congress has repeatedly amended FISA to adapt to the fight against
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