The Evolution of International Communications Technology and Foreign Intelligence Surveillance Regulation

Abstract

In October 2022, the Biden administration issued an Executive Order imposing limits on its interception of foreign citizens' communications. This self-imposed limitation came nearly a decade after the Snowden disclosures and the resulting European Union opposition to transferring EU data to the United States. But prior disclosures of U.S. surveillance practices in the 1970s and 1980s had not produced enough international pressure to prompt the United States to impose restrictions on itself. This Article examines why the outcome was different after the Snowden disclosures. The Article returns to the origins of modern U.S. surveillance law in the 1970s and traces three related stories. The first story shows how international telecommunications pathways migrated from over-the-air satellite transmissions and undersea copper cables in the 1970s to faster and more secure undersea fiber-optic cables today. The second story explores how the explosion of personal communications technologies in the Digital Age changed the composition of international communications and exposed vastly more personal communications to intelligence collection. The third story examines the post-9/11 expansion of U.S. surveillance authorities. The expansion was intended to overcome practical and legal challenges that arose when international communications migrated to under-sea fiber-optic cables. However, the expansion did not simply rebalance the scales. Instead, the expanded surveillance authorities gave the U.S. intelligence community access to far more personal communications of foreign citizens than would have been imaginable in the 1970s. The newfound vulnerability of ordinary citi-zens' communications helps explain why the Snowden disclosures generated more significant and sustained international pressure than revelations of U.S. surveillance in the 1970s and 1980s.