Reforms of Domestic Government Surveillance

In the National Security Agency (NSA) domestic snooping scandal, at least two major issues exist: 1) warrantless government “traffic” analysis of patterns of potentially all Americans’ phone calls, from which new technology allows authorities to assemble a fairy good picture of innocent peoples’ lives; and 2) the secret Foreign Intelligence Surveillance (FISA) Court that has been a rubber stamp for government warrants to spy on American citizens and permanent residents. Many lawyers, and even former judges on the secret court, have come up with laudable, but insufficient, ways to fix the obviously broken system. However, simple solutions are best: Repeal Section 215 of the PATRIOT Act, which has allowed government collection and analysis of the phone records of ordinary Americans, and abolish the FISA Court entirely. Traffic analysis is a government search and thus falls under the Fourth Amendment’s requirement that any search warrant must be specific concerning the place to be searched and the persons or things to be seized (the phone records of more than 300 million Americans hardly qualify) and must be generated by probable cause (all Americans are unlikely to be terrorists). The Constitution provides no exceptions for this fundamental right—which is vital to avoiding the creation of a surveillance or police state—including for “national security.” Section 215 of the PATRIOT Act does not use the probable cause standard. Thus, the government’s bulk traffic analysis of Americans phone records clearly violates the text of the Constitution. Also, at the nation’s founding, the term “probable cause” meant that a crime had been or would likely be committed. In contrast, the Foreign Intelligence Service Act, which set up the FISA Court, requires the government only to have probable cause that a surveillance target is a member of a foreign terrorist group or a foreign government or entity in order to intercept the phone and electronic communications of American citizens and permanent residents. The government doesn’t need to measure up to the higher constitutional standard that the target is suspected of having committed a crime...more