Doug Kmiec, a professor at Pepperdine University School of Law, told the senators that the government needs a "programmatic way to have a detached set of eyes," which is not consistent with the FISA requirements.
HaroldKoh, dean of the Yale Law School, warned the committee that this argument would deem every search the government chooses to do "reasonable," obviating the Fourth Amendment's protections altogether.
Also, the FISA allows the U.S. attorney general to approve warrantless surveillance in the United States for 15 days after a declaration of war, to pursue emergency situations while giving Congress time to pass whatever new laws are needed.
In this realm it is governments, not private citizens, who are the likely violators, and they tend to be quite fully aware of international treaties and other obligations; if they are not, the Internet is not going to educate them.
Perritt seems on stronger ground on the issue of compliance with public international law when he endorses HaroldKoh's suggestion
Perritt does not tell us how he expects existing norms to spill over to the new medium, or for that matter how new norms might be expected to form.
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