Is Uncle Sam Stalking You? Abandoning Warrantless Electronic Surveillance to Preclude Intrusive Government Searches

Abstract

The Founders drafted the Fourth Amendment foreseeing immense governmental abuse likely to stem from intrusive, unlimited searches. The Fourth Amendment bars any government investigative efforts absent a warrant grounded in a showing of probable cause. Further the Fourth Amendment specifically protects the “papers” of U.S. citizens. This is interpreted to extend to all private communication whether conducted through traditional or electronic channels.This article argues the Fourth Amendment mandates oversight in all surveillance conducted by the intelligence community. Administrations have made continuous efforts to conduct massive collections of electronic data — including private communications of U.S. citizens — without obtaining a warrant. The foreign surveillance exception was recognized to provide the Executive with an exception to the Fourth Amendment’s warrant requirement where the investigation was centered on national security. The numerous abuses stemming from the recognition of an exception, led Congress to draft the Federal Intelligence Surveillance Act. This statute mandated judiciary and legislative oversight of the Executive’s previously unchecked power to conduct intelligence surveillance.This article is the first to consider completely abandoning the foreign intelligence exception, to maintain all national security electronic surveillance with the oversight of the Federal International Surveillance Court.The Federal International Surveillance Court, organized through FISA, provides a tribunal for an independent judiciary to consider the constitutionality of the intelligence community’s electronic surveillance procedures. The court scrutinizes the particular intelligence purpose; the reasonableness of the surveillance; and maintains minimization procedures. This serves to promote efficient intelligence while preserving the protected privacy rights of Americans and promoting efficient intelligence.