Foreign Intelligence Surveillance in the United States

The Acquisition of Foreign Intelligce Information and the Fourth Amendment

Because it implicates the reasonable privacy expectations of U.S. persons, the acquisition, according to a Government brief, must, of course, comply with the Fourth Amendment. As the Govermnent has already established, no warrant is required for such surveillance, and the extensive procedures and safeguards in place ensure compliance with the Founh Amendment’s fundamental requirement of reasonableness. The fact that the acquisitions authorized by the directives may implicate the Fourth lunendment rights of U.S. persons does not give (a US company) the ability vicariously to assert the Fourth Amendment rights of its customers,
much less of any indi vidual whose communications happen to pass through its servers. See California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1248 (9th Cir. 1982).

Are Warrants Required for Foreign Intelligence Surveillance?

According to the Government, the Fourth Amendment does not require the Government to obtain a warrant to conduct the surveillance contemplated by the directives. Rather, because the acquisition is conducted for the purpose of obtaining foreign intelligence information, it falls within the special needs exception to the Warrant Clause.

The acquisition at issue-foreign intelligence surveillance-addresses a “special gqvernrnental need beyond the normal need for law enforcement,” that justifies an exception to the warrant requirement of the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656,665-66 (1989); see. e.g .. Mac Wade v. Kelly, 460 F.3d 260, 270-72 (2d Cir. 2006) (stating that “preventing a terrorist from bombing the subways constitutes a special need that is distinct from ordinary post hoc criminal investigation”). As the Foreign Intelligence Surveillance Court of Review has noted, “all the other courts to have decided the issue (have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In reSealed Case, 310 F.3d 717, 742 (FIS~ Ct. Rev. 2002);

To require (…) a court order for each U.S. person whose communications are incidentally acquired would make little sense, impose an impossible burden on the Government, and may ultimately require the Government to discontinue its collection of information under the Protect America Act. The Government cannot know the identity of U.S. persons whose communications it incidentally acquires in the course of foreign intelligence surveillance. Because “the imposition of a warrant requirement [would) be disproportionate and
perhaps even disabling burden on the Executive, a warrant should not be required.” See United
States v. Bin Laden, 126 F. Supp. 2d 264, 273 (S.D.N.Y. 2000); see also. e.g., United States v.
Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980).

Finding the law: Foreign Intelligence Surveillance in the U.S. Code

A collection of general and permanent laws relating to foreign intelligence surveillance, passed by the United States Congress, are organized by subject matter arrangements in the United States Code (U.S.C.; this label examines foreign intelligence surveillance topics), to make them easy to use (usually, organized by legal areas into Titles, Chapters and Sections). The platform provides introductory material to the U.S. Code, and cross references to case law. View the U.S. Code’s table of contents here.

Resources

See Also

Intelligence Components Activities
Warshak v. United States
FISA Amendments Act
Foreign Intelligence Surveillance Court of Review
Electronic Communications