Fourth Amendment and Foreign Intelligence Surveillance
The development of the legislation in the US concerning search
and seizure procedures was characterized by the permanent
conflict between the interest of the state and the protection
of fundamental civil rights of American citizens and people
living on the territory of the US. In this respect, a variety
of legislative acts and norms have been promulgated, including
the Fourth Amendment to the US Constitution and one of the
recent amendments to the Foreign Intelligence Surveillance
Act implemented in 2007. In fact, practically all legislative
initiatives concerning the procedure of search and seizure
were accompanied by heat discussions and conflict often emerged
because of the original contradiction of any attempts to restrict
human rights through the enlargement of the right of law enforcement
agencies in regard to the search and seizure procedures encountered
a strong opposition from the part of the society which stand
for the preservation of full civil rights of Americans. On
the other hand, as a rule, restrictive legislative initiatives
appeared when the actual situation forced the US authorities
to undertake unparalleled steps to guarantee the national
security and protect the life and well-being of American citizens.
In such a context, the Fourth Amendment and The Foreign Intelligence
Surveillance Act are two antagonistic legislative norms by
their nature since the former regulates and restricts the
procedure of search and seizure, while the latter enlarges
the rights of law enforcement agencies in regard to search
and seizure procedures.
On analyzing the difference between the Fourth Amendment and
FISA and possible contradictions of the FISA to the Fourth
Amendment, it is important to underline the huge time gap
between these two legal norms. The Fourth Amendment was implemented
in the 18th century, while the FISA was implemented in the
second half of the 20th centuries and the recent amendments
to the act were implemented in 2007. In such a way, two centuries
gap is a substantial barrier which naturally evokes certain
contradictions between the Fourth Amendment and the FISA.
In order to better understand the nature of differences and
possible contradictions of the FISA to the Fourth Amendment,
it is necessary to refer to the historical context in which
both the Fourth Amendment and the FISA were implemented.
First of all, it is important to underline that the Fourth
Amendment was implemented in the epoch of the American Revolution
and the post-war years. In actuality, the historical situation
forced the US authorities to implement the consistent legislative
changes to secure American citizens from the unsanctioned
search and seizure and minimize the interference of the state
and law enforcement agencies in the private life of individuals.
In this respect, the American Revolution background played
probably the determinant role in the implementation of the
Fourth Amendment because, historically, American legislation
was based on the English common law and its basic norms and
principles were widely spread in the US in the epoch prior
to the independence and even after gaining the independence
the US was still influenced substantially by norms and principles
of the English common law, which laid the foundation for the
American legislative system.
In such a situation, the US legislation had failed to guarantee
the full security of the private life of Americans. Moreover,
the practice of so-called writs of assistance was quite widely
spread, especially in the epoch of the American Revolution
and shortly after the war. The writs of assistance were extremely
controversial legal practices since they implied the general
search warrants. In other words, law enforcement agencies
had a legal right to search on the basis of the general search
warrant. However, the general search warrant opened huge opportunities
for law enforcement agencies to search and seizure regardless
of the obvious and motivated cause of search. To put it more
precisely, Americans could be searched and seized without
any specific pretext or reason but on the ground of general
assumptions and suspects.
Naturally, such a practice contradicted to the basic human
rights which constituted the backbone of the US Constitution
and all legislative acts. As a result, in order to adapt the
American legislation to the basic human rights, the Fourth
Amendment was implemented. The Fourth Amendment guarded against
unreasonable search and seizure. In order to stop the practice
of writs of assistance, the Fourth Amendment specifies that
judicially sanctioned search and arrest warrant must be supported
by probable cause and be limited in scope according to specific
information supplied by a person who has sworn by it and is
therefore accountable to the issuing court (Pikowsky, 2002).
In such a way, the Fourth Amendment restricted consistently
the opportunities for unreasonable search and seizure.
In stark contrast, the FISA and its latest amendments enlarge
rights of law enforcement agencies to search and seizure.
In this respect, it is important to underline that originally
the FISA was implemented to protect the US from the penetration
of foreign intelligent services into the system of national
security of the US. The FISA simplified the procedure of search
and seizure law enforcement agencies and the recent amendments
were justified by the struggle of the US against terrorism
and by the necessity to minimize the threat of terror attack
against the US citizens. In fact, the FISA enlarges the rights
of law enforcement agencies to search and seizure in case
of the suspicions concerning intelligent and terrorist activities.
The FISA prescribes procedures for the physical and electronic
surveillance and collection of evidences.
At first glance the act restricts consistently the rights
of Americans and eases the procedures prescribed by the Fourth
Amendment. For instance, the FISA facilitates the surveillance
procedure in relation to foreigners suspected of spying or
terrorism and even in relation to Americans, but the surveillance
cannot be unsanctioned and needs the court approval in a three
day term if American citizens or parties are involved.
On the other hand, the FISA and recent amendments could be
justified by the objective need to increase the national security
of the USA. The growing activity of foreign intelligent services
and the threat of terrorism, especially after the 9/11 forced
the American authorities to enforce legal norms concerning
the procedure of search and seizure in order to minimize external
threats, including the threat of terror attacks. In addition,
the FISA is not as restrictive as it may seem to be because
in relation to American citizens the act guarantees the observation
of basic legal procedures defined in the Fourth Amendment,
namely, the search or surveillance cannot be unreasonable.
Hence, an American citizen cannot be surveyed without a substantial
reason and respective sanctions of American authorities.
Thus, taking into account all above mentioned, it is possible
to conclude that the FISA does not perfectly match the norms
of the Fourth Amendment. At the same time, it would erroneous
to estimate that the FISA totally violates the norms of the
Fourth Amendment. In fact, the FISA should be viewed as an
attempt of the contemporary American authorities to adapt
the American legislation to the new challenges the American
society faces today, including the threat of terrorism and
foreign intelligence. In such a way, the controversies of
the FISA are determined by the change of the objective reality
in which the act was implemented. In stark contrast, the Fourth
Amendment was an essential measure to protect basic rights
of Americans, while the FISA limited in a way basic rights
for the sake of security of American citizens.
Evans, Jennifer C., “Comment: Hijacking Civil Liberties:
The USA PATRIOT Act of 2001,” 33 Loy. U. Chi. L. J.
933 (Summer, 2002).
McCarthy, Michael T., “Recent Development: USA PATRIOT
Act,” 39 Harvard Journal on Legislation 435 (Summer,
Osher, Steven A., “Essay: Privacy, Computers and the
Patriot Act: The Fourth Amendment Isn’t Dead, But No
One Will Insure It,” 54 Fla. L. Rev. 521 (July, 2002)
Pikowsky, Robert A., “An Overview of the Law of Electronic
Surveillance Post September 11, 2001,” 94 Law Library
Journal 601 (Fall 2002).
Rackow, Sharon H., “Comment: How the US Patriot Act
Will Permit Governmental Infringement Upon the Privacy of
Americans in the Name of ‘Intelligence’ Investigations,”
150 U. Pa. L. Rev. 1651 (2002)