Katitza Rodriguez and Mark Rumold of EFF have co-authored posts with Tamir Israel of CIPPIC on how the history of surveillance of non-U.S. persons living outside the U.S.. In the first post, they write:
In order to fully appreciate how the revelations of this past week will impact non-Americans based outside of the United States, a little background on the legal framework on how the U.S. foreign intelligence apparatus operates is helpful. The centerpiece of this framework is the Foreign Intelligence Surveillance Act (FISA), enacted in the late 70s. Historically, relying on a national security exception contained in the Wiretap Act, the United States government considered it had no obligation to obtain authorization from a court before intercepting communications for the purpose of national security. This changed in 1972, when the Supreme Court of the United States first held that the Fourth Amendment warrant requirement does apply to surveillance carried out in the name of national security – at least with respect to domestic threats:
Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
Read more on EFF.
The second post, providing a modern legal perspective on foreign surveillance, begins:
In our previous post, we examined how FISA arose from a historical backlash against the excessive use of foreign intelligence powers to surveil the activities of U.S. persons. We examined how two of FISA’s controversial powers, the business records power (section 215 of the USA PATRIOT Act, codified as 50 USC §1861) and the general acquisition power (section 702 of FISA, codified as 50 USC §1881a) and how their internal safeguards are primarily designed to limit protection to U.S. persons from being excessively spied upon. Now, we will examine what protections, if any, FISA offers to non-U.S. persons. In brief, these are few and to make matters worse, FISA’s powers are interpreted secretly and generally isolated from any form of effective adversarial review. This makes it unlikely that a non-U.S. person will even have the opportunity to take advantage of the few protections it offers. All this has led Privacy Researcher, Caspar Bowden, to go so far as to conclude that U.S. foreign intelligence powers “offer zero protection to foreigners’ data in U.S. Clouds.”
Read more on EFF.