A New National Security Exception to the Fourth Amendment

In a August 22 decision (PDF) that was released last week, the Foreign Intelligence Court of Review, which hears appeals from the Foreign Intelligence Surveillance Court, upheld an earlier version of the law that allows the executive branch to unilaterally authorize surveillance of international communications involving people in the United States. The law at issue, the Protect America Act of 2007, has expired, but it was replaced by a statute with similar provisions. Under both versions, the attorney general and the director of national intelligence may authorize the monitoring of email and telephone calls between Americans and people in other countries if the official target of the surveillance is believed to be located abroad and "a significant purpose" of the surveillance is the collection of foreign intelligence. A telecommunications company, whose name (along with some other crucial details) is redacted from the public version of the appeals court's decision, challenged an order issued under these provisions, arguing that it violated the Fourth Amendment. The court disagreed, discovering "a foreign intelligence exception to the Fourth Amendment's warrant requirement" for surveillance "conducted to obtain foreign intelligence for national security purposes" and "directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States." It also concluded that the executive branch's internal safeguards render the surveillance reasonable—assuming that everyone acts in good faith and nobody makes any mistakes.

That's a pretty big assumption, one that seems to obviate the Fourth Amendment itself. But the court ruled that, in the absence of specific evidence that the government is abusing its surveillance powers, the mere possibility of abuse is not enough to invalidate them. Sen. Russell Feingold (D-Wis.), a member of the Senate Intelligence Committee and the Senate Judiciary Committee, suggests that such evidence exists but was not brought to the court's attention: "It is my view that the Court's analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government's implementation of the law, about which I have repeatedly raised concerns in classified settings." Feingold also notes that the decision, which upheld a statute governing surveillance, in no way validates former President Bush's position that he had the authority to ignore such statutes.

Still, the recognition of a new exception to the Fourth Amendment is a big deal. There is enough leeway in the current rules to allow the government to read any international email message and listen to any international phone call involving people in this country without a warrant, as long as it asserts that the target is the person on the other end and that collecting foreign intelligence is one purpose of the surveillance. Furthermore, it's hard to see why the court's "special needs" reasoning for upholding this kind of surveillance would not also apply to surveillance of purely domestic communications said to involve an agent of a foreign power, or indeed to physical searches aimed partly at collecting foreign intelligence.

Here is the ACLU's take. Over at The Volokh Conspiracy, Orrin Kerr argues that the decision "was not a blank check by any means," since the court seemed to rely not only on the restrictions in the statute but also on additional Justice Department safeguards in its determination that the surveillance was reasonable. Then again, Kerr himself has suggested that the "border search" exception to the Fourth Amendment, which allows warrantless examinations of people and things entering the country, might also apply to electronic signals that cross the border, meaning that the Constitution imposes no restrictions on surveillance of such communications.