FISA vs the Constitution

FISA vs the Constitution

VI. FISA  is unconstitutional under the Fourth Amendment

U.S. Constitution, Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

FISA violates the Fourth Amendment’s liberties from unreasonable searches and seizures. The following discussion includes three sections. The first section explains four principles establishing the broad scope of Fourth Amendment liberties. The second section explains the Fourth Amendment’s five restrictions on electronic surveillance. The third section explains how FISA violates all five of the Fourth Amendment’s restrictions on electronic surveillance.

A. The broad scope of Fourth Amendment liberties

Four principles define the broad scope of Fourth Amendment liberties from unreasonable searches and seizures. The following discussion details the U.S. Supreme Court opinions establishing these principles.

First, Fourth Amendment liberties apply to all persons present in the United States. Fourth Amendment liberties against unreasonable searches and seizures apply to all persons present in the United States, even if their presence is “unlawful, involuntary, or transitory.” Zadvydas v. Davis, 533 U.S. 678 (2001); Adarand Constructors, Inc. v. Pena, 516 U.S. 200 (1995); and Bolling v. Sharpe, 347 U.S. 497 (1954). All surveillance under FISA involving persons present in the United States is therefore subject to the Fourth Amendment.

Second, Fourth Amendment liberties apply to electronic surveillance. Although the text of the Fourth Amendment only refers to “persons, houses, papers, and effects,” a unanimous U.S. Supreme Court held that Fourth Amendment liberties apply to electronic surveillance as well. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972). All electronic surveillance under FISA involving any person present in the United States is thus subject to Fourth Amendment restrictions.

Third, Fourth Amendment liberties apply in cases involving national security. The U.S. Supreme Court held in United States v. U.S. District Court, 407 U.S. 297 (1972), that the federal government’s duty to preserve national security does not override the Fourth Amendment’s liberties from unreasonable search and seizures. The federal government must comply with the Fourth Amendment in all domestic subversive investigations. Government must present sufficient evidence of probable cause to a neutral magistrate and obtain a warrant before it can invade the privacy of any person in the United States.

The Court wrote that Fourth Amendment liberties are even more essential in national security cases than in cases involving ordinary crimes. The federal government tends to regard all opponents of its policies as a threat. This attitude predisposes the federal government to violate rights protected by both the First Amendment and the Fourth Amendment. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972).

Lastly, Fourth Amendment liberties apply wherever a person has a reasonable expectation of privacy. Fourth Amendment liberties apply wherever a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” 389 U.S. at 359. Fourth Amendment liberties also apply to electronic surveillance whenever the person has a “reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368 (1968).

B. The Fourth Amendment’s five restrictions on electronic surveillance

Fourth Amendment liberties protect against “unreasonable searches and seizures,” but they do not protect persons from all searches and seizures. To protect against unreasonable searches and seizures, the Fourth Amendment establishes five restrictions on all searches and seizures. The following discussion details the U.S. Supreme Court opinions applying these five restrictions to electronic surveillance. As explained above, these restrictions protect all persons present in the United States, even if their presence is “unlawful, involuntary, or transitory.” Zadvydas v. Davis, 533 U.S. 678 (2001).

Warrants. First, the Fourth Amendment prohibits electronic surveillance without warrants, even in national security cases. Katz v. United States, 407 U.S. 347, 353 (1967); United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972) (Unanimous opinion). The Fourth Amendment prohibits the federal government from conducting any electronic surveillance involving persons present in the United States without obtaining a search warrant.

Prior approval of a neutral magistrate. Second, the Fourth Amendment prohibits electronic surveillance without the prior approval of a neutral magistrate. The courts cannot properly enforce Fourth Amendment liberties if the Executive Branch conducts domestic security surveillances solely within its own discretion. United States v. U.S. District Court, 407 U.S. 297, 316-318 (1972).

A neutral magistrate must approve any electronic surveillance before the government can proceed with the surveillance. This requirement applies to cases involving matters of national security. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972). Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S.
347, 359 (1967).

“Probable cause.” Third, the Fourth Amendment prohibits electronic surveillance without an affidavit establishing “probable cause.” “Probable cause” under the Fourth Amendment requires that the person swearing to the warrant application have “reasonable grounds at the time of his affidavit for the belief that the law is being violated on the premises to be searched.” Dumbra v. U.S., 268 U.S. 435, 439-41 (1925). [Emphasis added].

The Fourth Amendment requires a sworn affidavit establishing probable cause before the government can conduct electronic surveillance. “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” [Emphasis added]. Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S. 347, 359 (1967).

Detailed description of the targeted location. Fourth, the Fourth Amendment prohibits electronic surveillance without a sworn, detailed description of the targeted location. The Fourth Amendment requires a sworn affidavit giving a detailed description of the location the government intends to surveil. “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched.” [Emphasis added]. Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S. 347, 359 (1967).

Detailed description of the targeted person. Fifth, the Fourth Amendment prohibits electronic surveillance without a sworn, detailed description of the targeted person. The Fourth Amendment requires a sworn affidavit giving a detailed description of the person the government intends to surveil. “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [Emphasis added]. Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S. 347, 359 (1967).

C. FISA violates the Fourth Amendment’s five restrictions on electronic surveillance

In violation of the U.S. Supreme Court opinions cited above, FISA violates all five of the Fourth Amendment restrictions on electronic surveillance. The following discussion explains the FISA provisions violating each restriction.

No warrants. First, FISA permits electronic surveillance without warrants. 50 U.S.C. § 1881a (a). The Attorney General and the Director of National Intelligence may target persons for electronic surveillance without a warrant for up to one year unless the person “is known” to be present in the United States. 50 U.S.C. § 1881a (d). FISA thus permits the federal government to target any person it chooses without a warrant by claiming uncertainty about the person’s location.

Furthermore, although 50 U.S.C. § 1881a (b) prohibits the “intentional” targeting of persons present in the United States, FISA permits “incidental” surveillance of persons present in the United States. For example, if a person present in the United States communicates with a targeted person outside the United States, FISA permits surveillance of both persons, even though all warrantless electronic surveillance of persons present in the United States violates the Fourth Amendment. Katz v. United States, 407 U.S. 347. 353 (1967); United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972) (Unanimous opinion). The term “incidental” is thus a cynical and misleading euphemism. It describes unconstitutional electronic surveillance that violates Fourth Amendment liberties against unreasonable searches and seizures.

The Privacy and Civil Liberties Oversight Board (“PCLOB”) is an independent agency within the executive branch of the United States government. Congress established PCLOB in 2004. The PCLOB published a report on FISA surveillance in 2014. The PCLOB concluded that the federal government was conducting broad “incidental” domestic surveillance on Americans protected by the Fourth Amendment. The report presumed the scope of this surveillance was very large. The PCLOB could not define its full scope, however, because “the government is presently unable to assess the scope of the incidental collection of U.S. person information under the program.”

Furthermore, the PCLOB concluded that this unconstitutional, warrantless, “incidental” surveillance was intentional. “The collection of communications to and from a target inevitably returns communications in which non-targets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act [50 U.S.C. § 1881a] (July 2, 2014) at pp. 10, 82. [Emphasis added].

The Chairman of the PCLOB, David Medine, testified in 2016 before the Senate Judiciary Committee regarding the broad and indiscriminate scope of “incidental” surveillance of persons present in the United States. “Government databases,” Medine testified, “inevitably contain deeply personal communications by, from, and concerning U.S. persons” that “have nothing to do with terrorism or crime.”  Medine testified as follows:

[50 U.S.C. § 1881a] allows the government to collect a massive number of communications, and as a default, store them for five years or more. Although U.S. persons cannot be targeted for [50 U.S.C. § 1881a] collection, the government incidentally acquires information about a U.S. person when a target communicates with that person. As a result, government databases inevitably contain deeply personal communications by, from, and concerning U.S. persons. Many of these communications have nothing to do with terrorism or crime. Rather, they can include family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges. U.S. person queries are, therefore, capable of revealing a significant slice of an American’s personal life. This is particularly the case for Americans who correspond frequently with foreigners, including relatives, friends, and business associates. PCLOB Chairman David Medine, “Prepared Statement for the Senate Committee on the Judiciary,” May 16, 2016. [Emphasis added].

 

No prior approval of a neutral magistrate. Second, FISA permits electronic surveillance without the prior approval of a neutral magistrate. 50 U.S.C. § 1881a (j). The FISA Court never reviews or approves specific requests for electronic surveillance. Instead, the FISA Court only reviews the government’s “targeting” and “minimization” procedures. It has no role in overseeing how the government actually uses its surveillance power. 50 U.S.C. § 1881a (j) (2) (B) and (C).

Furthermore, even if the FISA Court finds the government’s “targeting” and “minimization” procedures deficient, the government may ignore the FISA Court ruling and continue its surveillance during rehearing and appeal. This surveillance can continue until the FISA Review Court issues its final order on appeal. 50 U.S.C. § 1881a (j) (4) (B).

No “probable cause.” Third, FISA permits electronic surveillance with no showing of probable cause. “Probable cause” under the Fourth Amendment requires the government affiant to demonstrate reasonable grounds, under oath, that the targeted individual is violating the law on the premises the government intends to surveil. Dumbra v. U.S., 268 U.S. 435, 439-41 (1925). [Emphasis added].

The burden for obtaining a FISA warrant is substantially less than Fourth Amendment “probable cause.” Under FISA, the government need not demonstrate that the targeted individual is violating the law on the targeted premises. The federal agent merely needs to list the facts and circumstances upon which he relies in forming a belief that (1) that the targeted individual is an agent of a foreign power, and (2) that the location to be surveilled is about to be used by an agent of the foreign power. 50 U.S.C. § 1804 (a) (3) (A)-(B).

FISA does not require any showing that the surveillance target is (1) violating any law, (2) involved in any crime or wrongdoing of any type, or (3) connected in any way to terrorism. 50 U.S.C. § 1804 (a) (3) (A)-(B).

No detailed description of the targeted location. Fourth, FISA permits electronic surveillance without a sworn, detailed description of the targeted location. In fact, FISA permits electronic surveillance of locations in the United States without any identification of the targeted location. 50 U.S.C. § 1804 (a) (3).

No detailed description of the targeted person.
Fifth, FISA permits electronic surveillance without a sworn, detailed description of the targeted person. In fact, FISA permits electronic surveillance of individuals in the United State without any identification of the targeted individual. 50 U.S.C. § 1804 (a) (2).

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