FISAThe Fourth Amendment Forecloses a Foreign Intelligence Exception: A Brief Case Against the FISA Section 702 Program
The House and Senate versions of the extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA) lack the only thing that matters: a warrant requirement to search the stored data of Americans collected under the program. In that sense, the 702 program has always been at odds with the plain language of the Fourth Amendment, thanks entirely to the secret court that oversees the semisecret surveillance activity.
On Tuesday, the Senate version of an extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA) was leaked. It is a near carbon copy of the same bill that was roundly defeated in the House in late April. And like the House bill, the Senate legislation lacks the only thing that matters: a warrant requirement to search the stored data of Americans collected under the program. In that sense, the 702 program has always been at odds with the plain language of the Fourth Amendment, thanks entirely to the secret court that oversees the semisecret surveillance activity.
For years, the Foreign Intelligence Surveillance Court (FISC) has held that querying Section 702–acquired data with a US-person term is not a separate Fourth Amendment event and requires no warrant—the program need only be “reasonable” at the point of collection. That rests on a “foreign intelligence exception” the Foreign Intelligence Surveillance Court of Review (FISCR) read into the amendment in In re Directives, building on In re Sealed Case. Two arguments demonstrate that the exception is a judicial construction the Framers would not have recognized, much less supported.
The Framers Used Encryption and Did Not Write a National Security Exception. That Silence Was a Choice.
The Founding generation was habitual users of “codes and ciphers,” what we now call “encryption.” The Library of Congress’s James Madison Papers record that Madison “feared constantly that unauthorized people would seek to read his private and public correspondence” and that he used ciphers to defeat them, continuing well after the 1783 peace. Thomas Jefferson invented a cipher device and corresponded in code with Madison, John Adams, James Monroe, and Robert Livingston; Madison encrypted portions of the very correspondence in which he and Jefferson worked through the Bill of Rights. They knew exactly what a state interception apparatus looked like—Europe’s monarchies ran “black chambers” that opened and decoded mail—and Jefferson designed his cipher to defeat them.
Accordingly, the men who drafted the Fourth Amendment understood encryption, interception, and the foreign intelligence and wartime contexts in which a government most plausibly claims a need to read communications without individualized cause. And they did not write an exception into the amendment’s text.
