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Obtain/Use Surveillance Dichotomy

Much attention has been paid recently to expansion of government powers to obtain information about people, but there has been less focus on how such information can be used in prosecutions. The Protect America Act of 2007 has expanded the government s power to conduct warrantless surveillance under the Foreign Intelligence Surveillance Act without individualized targeting of such surveillance, where targets are "reasonably believed" to be located outside of the United States. Steve C. Posner writes:


It is unclear whether a specific person or persons must be targeted, although that is implied by the Act’s statement that “a certification…is not required to identify the specific facilities, places, premises or property at which the acquisition of foreign intelligence information will be directed.” 50 U.S.C. § 1805B(b). Even if a specific person or persons must be targeted, however, no individualized suspicion that the target plays one of the roles identified in 50 U.S.C. § 1801(a) is required. There must merely be a determination and certification that a significant purpose of the surveillance is to obtain foreign intelligence information…The Act is also vague as to when a target is considered to be “located outside the United States”…The phrase “reasonably believed” also raises questions.


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