Remnants of Information Privacy in the Modern Surveillance State

Abstract

This is a response to Laura Donohue’s book, THE FUTURE OF FOREIGN INTELLIGENCE: PRIVACY AND SURVEILLANCE IN A DIGITAL AGE (Oxford 2016). The book has many virtues. It provides a clear explanation of the nature of foreign intelligence surveillance in the age of electronic communication and the dangers posed by that surveillance as it has evolved and escaped the legal framework Congress designed to regulate it, the Foreign Intelligence Surveillance Act. She also provides a robust understanding of the reasons why information privacy is important, and why the framers sought to protect this form of privacy through the Fourth Amendment. The question, though, is whether reform is possible. Donohue argues for a new Fourth Amendment standard to govern foreign intelligence surveillance, one that recognizes and accounts for the dangers this surveillance poses to the information privacy rights of U.S. persons. Notwithstanding the merits of the proposal, such a standard can only come from the U.S. Supreme Court, and that is not likely any time soon. Part of the problem is the Fourth Amendment itself, as the Court has allowed its protections to atrophy in the face of the perceived needs of law enforcement — especially notable when compared to the Court’s protection of free speech. And part of the problem is the traditional deference the Court has shown the political branches in all matters related to national security — even when national security regulations implicate free speech. If we are going to change constitutional doctrine, it will take a litigation strategy and a body of favorable rulings — a string of precedents of which the Court must take account. One place to look is state constitutional law, where the work of trying to preserve viable search and seizure protections in the digital age has already begun.

Keywords: FISA, surveillance