Electronic Surveillance at the Virtual Border

Abstract

A virtual border divides people into two groups: those subject to the Fourth Amendment’s protections when the U.S. government conducts surveillance of their communications and those who are not. The distinction derives from a separation in powers: inside the virtual border, U.S. citizens and others enjoy the extensive oversight of the judiciary of executive branch surveillance. Judges review such surveillance before, during, and after it transpires. Foreign persons subject to surveillance in foreign countries fall within the executive branch’s’ foreign affairs function. However, the virtual border does not exactly match the physical border of the United States. Some people inside the physical border do not benefit from the constitutional protections. Others, outside the physical border do. For example, U.S. Persons inside the physical border may lose the Fourth Amendment protections if they engage in spying for a foreign country. When that happens, such persons are “exiled” over the virtual border to where surveillance takes place in the discretion of the executive branch. Properly understood, the Foreign Intelligence Surveillance Act (“FISA”) represents the procedures by which people may be exiled and thereby deprived of the protections of judicial review. Because the consequences are so significant, the exiling decision itself must be subject to sufficient judicial oversight and review to ensure that executive branch officials not abuse exiling to avoid judicial scrutiny of surveillance. Recent events have shown that the executive branch has sought to exile people over the virtual border without a sufficient showing to a judge to protect constitutional rights. To the extend laws permit such exiling with sufficient justification, oversight, and accountability, they should be fixed.

Keywords: virtual border, Fourth Amendment, cyberspace, surveillance, wiretap, Foreign Intelligence Surveillance Act, FISA, foreign affairs, constitutional protection