Stepping on (or Over) the Constitution’s Line: Evaluating FISA Section 702 in a World of Changing 'Reasonableness' Under the Fourth Amendment

54 Pages Posted: 22 May 2015 Last revised: 30 Jan 2016

See all articles by Patrick Walsh

Patrick Walsh

U.S. Army Judge Advocate General's Legal Center and School; Federal Law Enforcement Training Center

Date Written: December 2, 2015

Abstract

The Foreign Intelligence Surveillance Act (FISA) Section 702 program collects vast amounts of information — some on U.S. citizens located inside the United States — without requiring a judicially authorized search warrant. Over one hundred federal terrorism prosecutions have involved evidence gathered through Section 702 warrantless interceptions. But this program may violate the Constitution’s Fourth Amendment prohibition on unreasonable searches. Consideration of Section 702’s use is timely, as federal courts have signaled that they are ready and willing to rule on its constitutionality.

Federal courts and government oversight panels have narrowly approved Section 702 interceptions, relying on jurisprudence established in prior foreign intelligence cases. But two significant shifts in constitutional jurisprudence that courts have yet to consider cast doubt on whether warrantless wiretaps under Section 702 are consistent with the protections provided in the Fourth Amendment. First, the Supreme Court has increased scrutiny on traditional criminal wiretaps searches based on rationales that are also applicable to FISA Section 702. These cases constrict the government’s ability to conduct surveillance without judicial approval. Second, the Supreme Court has moved away from the previous “deference” given to the executive branch in areas of national security. While past courts might have created exceptions to domestic criminal wiretap rules that would have protected searches conducted for national security purposes from constitutional scrutiny, the present judiciary is unlikely to do so. Courts now freely venture into areas at the heart of national security, and rule on these issues where past courts would have demurred. Both of these developments create a very real possibility that a future court will find that FISA Section 702 violates the Fourth Amendment.

Keywords: FISA, Section 702, Foreign Intelligence, Fourth Amendment, FISC, Section 215

Suggested Citation

Walsh, Patrick, Stepping on (or Over) the Constitution’s Line: Evaluating FISA Section 702 in a World of Changing 'Reasonableness' Under the Fourth Amendment (December 2, 2015). 18 N.Y.U. J. Legis. & Pub. Pol'y, 741 (2015). Available at SSRN: https://ssrn.com/abstract=2608447

Patrick Walsh (Contact Author)

U.S. Army Judge Advocate General's Legal Center and School ( email )

600 Massie Road
Charlottesville, VA 22903-1781
United States
4349713184 (Phone)

Federal Law Enforcement Training Center ( email )

United States
912-280-5210 (Phone)

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