Reimagining Surveillance Enforcement

Posted: 29 Mar 2022 Last revised: 30 Mar 2022

See all articles by Emily Berman

Emily Berman

University of Houston Law Center

Date Written: February 10, 2022

Abstract

Controversy erupted in 2019 when news broke that the FBI had disregarded its own rules and regulations when it initiated surveillance of Donald Trump’s campaign advisor, Carter Page, as a possible Russian agent. Less publicity has accompanied the fact that this incident was not an anomaly. In fact, revelations of unlawful foreign intelligence surveillance activities have come with alarming regularity over the past two decades. These regulatory, statutory, and constitutional violations have involved unauthorized collection of information, misusing information in the government’s possession, and repeatedly misleading the Foreign Intelligence Surveillance Court regarding the nature and scope of surveillance programs. This Article argues that frequent violations are inevitable under the current regulatory model, that these violations impose unacceptable costs on Americans’ privacy interests, and that they can only be prevented by reimagining surveillance regulation. The Article seeks to do so by drawing on Professor Henry Monaghan’s influential 1975 Forward to the Harvard Law Review articulating the idea of “constitutional common law” and the related concept of underenforcement of constitutional norms—the idea that some doctrinal rules will systematically fail to fully vindicate constitutional rights. After detailing the government’s extensive record of surveillance-rule violations, the Article explains why surveillance rules are predictably, systematically biased towards underenforcement. It then goes on to propose multiple specific reforms designed to combat this tendency, particularly in the contexts where violations have been most problematic.

Keywords: surveillance, national security, fourth amendment, constitutional law, regulation

Suggested Citation

Berman, Emily, Reimagining Surveillance Enforcement (February 10, 2022). University of Illinois Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4031970

Emily Berman (Contact Author)

University of Houston Law Center ( email )

4170 Martin Luther King Blvd
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Houston, TX 77204-6060
United States

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