Jammer Jaffer of the ACLU comments on two legal briefs filed by the U.S. government defending the constitutionality of the FISA Amendments Act, the 2008 law that codified the Bush administration’s warrantless-wiretapping program.
In making its defense, the government claims
The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.
As Jaffer points out, the government is arguing the N.S.A. not only has broad authority to monitor international communications, but that authority is unlimited.
If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.
Andrew Crocker and Hanni Fakhoury of Electronic Frontier Foundation show the logic of the government position render Fourth Amendment protections against search and seizure absurd.
The implication of the government’s argument is that you have no Fourth Amendment protection in anything that could potentially be overheard by someone—either as the target of the United States under the FAA, or some other foreign country—or in information stored “in a place subject to a government search.” Under this logic, the Fourth Amendment is quite simply meaningless.
That’s because nearly everything is subject to a government search: from your electronic communications to your home to your physical body. The issue is not whether the government can search these areas but how they are able to do so. Traditionally the Fourth Amendment demands the government obtain a search warrant, demonstrating to a neutral and detached magistrate that there is probable cause to do a narrow, particular search to find evidence of a crime or other contraband.
Senator Russ Feingold in the clip above warned about the ways in which the FISA Amendments Act would be used and abused. Many, at the time, dismissed him as alarmist.
Today we might call him prophetic.