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  • Section 702 and the collect...
    Donohue, Laura K

    Harvard journal of law and public policy, 01/2015, Letnik: 38, Številka: 1
    Journal Article

    This article proceeds in three parts: the evolution of Section 702, a statutory analysis of PRISM and upstream collection, and the attendant constitutional concerns. The article begins by considering the origins of the current programs and the relevant authorities-particularly the transfer of part of the President's Surveillance Program, instituted just after September 11, to the 1978 Foreign Intelligence Surveillance Act (FISA). The first part ends with a brief discussion of the current state of foreign intelligence collection under Executive Order 12,333, outside either FISA or the FAA. The article next turns to statutory issues related to targeting, post-targeting analysis, and the retention and dissemination of information. In its constitutional analysis, the article finds certain practices instituted under Section 702 to fall outside acceptable Fourth Amendment bounds. Although lower courts had begun to recognize a domestic foreign intelligence exception to the warrant clause, in 1978 Congress introduced FISA to be the sole means via which domestic foreign intelligence electronic intercepts could be undertaken.