CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, May 30, 2015

Walsh on FISA and the Fourth Amendment

Patrick Walsh has posted Stepping on (or Over) the Constitution’s Line: Evaluating FISA Section 702 in a World of Changing 'Reasonableness' Under the Fourth Amendment (New York University Journal of Legislation and Public Policy, Forthcoming) on SSRN. Here is the abstract:

The Foreign Intelligence Surveillance Act Section 702 program collects vast amounts of information — some on U.S. citizens located inside the United States — without a judicially authorized search warrant. Over one hundred federal terrorism prosecutions have involved evidence gathered through Section 702 warrantless interceptions. But this program may violate the constitution’s Fourth Amendment prohibition on unreasonable searches and federal courts have signaled that they are capable and willing to rule on the constitutionality of FISA Section 702. 

Federal courts and government oversight panels have narrowly approved section 702 interceptions, focusing on the jurisprudence from prior foreign intelligence cases. But two significant shifts in constitutional jurisprudence that courts have yet to consider cast doubt on whether Section 702 warrantless wiretaps are consistent with the protections provided in the Fourth Amendment. First, the Supreme Court has increased scrutiny on traditional criminal wiretaps searches in ways that equally apply to FISA Section 702. These cases constrict the government’s ability to act without judicial approval. Second, the Courts have significantly shifted away from their previous “deference” to the executive branch in areas of national security. While past courts might have created exceptions to these traditional wiretap rules that would protect national security searches, the present judiciary is unlikely to do so. Courts now freely venture into areas at the heart of national security, ruling on central national security issues when past courts would have demurred. The combination of these two factors creates a very real possibility that a future court will find that FISA Section 702 is an unconstitutional violation of the Fourth Amendment.

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