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I. Introduction........................................................................................125
II. FISA...................................................................................................128
III. Electronic Surveillance in Europe......................................................135
A. Germany....................................................................................139
B. United Kingdom.......................................................................141
C. France........................................................................................145
D. Italy...........................................................................................149
E. Spain.........................................................................................151
IV. Conclusion..........................................................................................153
I. Introduction
In the summer and fall of 2013, there were strong political, academic, media, and public reactions to the disclosures of Edward Snowden regarding electronic surveillance conducted by the United States. These tended to create an impression of the U.S. government as an everpresent eye, snooping on every citizen's private actions and conversations. As the author has pointed out in previous articles, the reality is that the law^ and procedures regulating U.S. domestic surveillance are highly restrictive. In fact, notably absent from the furor surrounding the Snowden revelations were any verified claims of innocent citizens being harmed by U.S. surveillance.
The purpose of this article is to compare the fundamental operative provisions of the U.S. Foreign Intelligence Surveillance Act (FISA) with the equivalent directives of European surveillance law in five representative countries. The specific provisions being compared relate to the ability to monitor the content of individual communications within the nation-state or of citizens outside the territorial borders. The author is not greatly concerned at this point with the procedure required before interceptions of non-citizens' communications outside the country, as under U.S. law this is not limited in a manner that endangers the nation. Foreign residents outside the country are not protected by the Fourth Amendment,3 and thus there are less obstructive regulations. Nor is there a need at this time to concentrate on metadata collection, which is simply the accumulation of data on numbers dialed, time, and duration of calls made by telephone subscribers.5 Metadata does not include content. Although the provisions of the USA Freedom Act will increase the burden on the government by directing that this data^be stored with the separate telecommunications providers instead of NS A, the threat posed by these provisions is minor compared to the dangers created by the restraints of the FISA statute on the ability of the government to intercept citizens and communications domestically.
In this latter area, an examination of European law will reveal that the authority provided to the Executive (under less demanding standards than the U.S.) with reasonable oversight results in more efficient security procedures than the current U.S. regime...