FISA and The 4th Amendment Connection

Authored By: Mike Sonneveldt

FISA and The 4th Amendment Connection

A few days ago, Congress passed a bill that shocked lots of Americans. On the other hand, plenty of Americans did not realize anything was happening. They were too glued to all of the other dramas going on in our world.

Not long after, President Biden signed the bill into law. 


Extension of FISA Section 702 

FISA is the Foreign Intelligence Surveillance Act, which provides the government with the ability to conduct surveillance on foreign actors for national security. It allows the government to use technology and various means to collect information, data, and evidence. 

In 2008, Congress passed Section 702 of the FISA, which gives the intelligence community the green light to “collect, analyze, and appropriately share foreign intelligence information about national security threats.” 

This bill, FISA Section 702 extensionreauthorizes the government to surveil without requiring a warrant. While this bill will be up for another debate in two years, the general consensus of Americans who care about the Constitution is that a two-year extension provides no comfort or respite. 

However, due to some political wrangling and gamesmanship, the bill allows surveillance to continue until April 2025, even if Congress chooses not to reauthorize the law in two years. 


Did Anybody Fight the FISA?

The House chose not to pass an amendment that would have added some needed reforms to the FISA under Section 702. A few days later, six different amendments were defeated in the Senate. Those six amendments would have put some boundaries on the powers to spy. The amendments considered those powers to be “too broad.” The Senate obviously begged to differ. 

Unfortunately, Section 702 allows the NSA to collect all kinds of intelligence on foreign actors. Even though certain restraints are supposedly placed on the intelligence community regarding US citizens, questions are raised about what happens with incidental information. 

However, that is not the greatest concern in this new law. 


What’s The Problem with the FISA 702 Extension? 

Senator Ron Wyden said it best, “If you have access to any communications, the government can force you to help it spy. That means anybody with access to a server, a wire, a cable box, a wi-fi router, a phone, or a computer. … If this provision is enacted, the government can deputize any of these people against their will and force them, in effect, to become what amounts to an agent for Big Brother.” 

While the bill originally was intended to deal with the collection of foreign intelligence through warrantless searches, it collects plenty of American citizen’s private phone calls, emails, texts, and other electronic communications. The Brennan Center reports that over 200,000 warrantless “backdoor” searches happen every year. And those searches are with Americans’ private communications. 

Even though the government may tell us that they follow the rules, the truth bears repeating: they are not following the rules. Declassified documents have proven time and time again that the private communications of anybody from activists to Congressmen have been swept up in FBI backdoor searches. 

Not only that, but the intelligence community routinely gives themselves a nice end-around to the pesky 4th amendment. By using data brokers who sell data lists and information, the FBI and other intelligence agencies can bypass the necessity for a warrant and of course: that whole foreign actor issue. 

Unfortunately, Section 702 is a collection of some of the nastiest attempts to destroy American citizen’s civil liberties. 

When the bevy of amendments was shot down, Congress told us that they A) Didn’t see the need for warrants to protect the citizen’s rights B) Felt it was necessary to force Americans to become impromptu spies on their customers, consumers, patrons, family, and friends C) Saw no reason to stop the brokering of sensitive data to intelligence agencies and D) Had no interest in ACTUALLY protecting the American citizen’s God-given rights


This is Unprecedented...Right? 

No, sadly this is not the first time something like this has happened. Even though the typical American can recite plenty of events that curtailed our rights (Patriot Act for one…), we may look to something farther back in history and learn from our founding fathers

As far back as at least 1604, the idea of unlimited access to the private materials and communications of a citizen was a questionable practice. 

In 1604, during Semayne’s case, Edward Coke argued, “The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.” 


Writs of Assistance 

While English common law continued to make strides in recognizing the danger of unlimited governmental authority, it failed to truly protect the colonist's rights and liberties. 

The British struggled to control smuggling and attempts to get around their regulations and restrictions on trade. By using Writs of Assistance, inspectors could take a general form and use it to search any property or space and seize anything that was a “prohibited and uncustomed” good.  

However, the colonists hated such an open-ended document. Until 1750, the only warrants even defined in the handbooks of the Justices were general warrants. These gave little to no oversight for authorities. 

In 1756, Massachusetts passed a law banning general warrants as a response to the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists over goods subject to customs. 

When King George II died in 1760, all Writs of Assistance expired six months later, as determined by law. This event led to a major case brought forward by 50 merchants. 


James Otis and The Writs Case

James Otis came to the defense of the merchants in the colonies and fought against the idea of general warrants. 

Despite losing, Otis’ involvement in the case was so important that John Adams viewed the case as “The spark in which originated the American Revolution.” 

Otis’ remarks during the case were beautifully and forcefully argued. They provided a strong philosophical foundation for the concept of rights and liberties versus the tyrannical power of an authoritarian government.  

Otis stated, 

“I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book” 

“Now, one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entryTheir menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.” 

Even though Otis lost the case, he made such an impact on his fellow colonists that he went on to become a member of the MA legislature and passed legislation requiring special Writs of Assistance be “granted by any judge or justice of the peace upon information under oath by any officer of the customs” and banning all other Writs. However, the governor overturned it, seeing it as contrary to English law. 


Two Years Later 

A case was brought before the English courts involving two political authors who wrote critical materials about King George III. Both John Entick and John Wilkes had their houses searched in the investigation, with all kinds of papers and writings being seized by the authorities. The men sued the government for wrongfully collecting private materials and won. 

While in the Entick affair, the government at least carried a warrant with Entick’s name on it, no such papers existed for Wilkes. His home was involved in a sweep of 49 suspects (without his name being listed as a search target.) 

Chief Justice Pratt, who presided over both Entick and Wilkes cases, said, “Papers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect..” 

He further stated, "[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave.” 

Eventually, Pratt addressed the jury and said, “The defendants claimed a right, under precedents, to force persons' houses, break open escrutores, seize their papers, &c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.” 

 He saw the danger in a government with unlimited access to the private communications and belongings of its citizens. He also took note of the danger of open-ended warrants and general searches. 


The 4th Amendment 

By 1784, eight state constitutions contained some provisions against general warrants. 

The MA Declaration of Rights stated, “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.” 

When the Bill of Rights was ratified, the 4th amendment survived the ratification process. Interestingly enough, a slight language change has provided debate within courts. 

The original version, authored by James Madison, stated, “The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.” 

The phrase “warrants issued without probable cause” was modified to “no warrants shall issue but upon probable cause.” 

In England, there were lawful warrantless searches. However, the language has been read to mean that the only reasonable searches and seizures are those that meet the requirements of issued warrants. 

This has divided courts as to whether searches and seizures can be done without a warrant, or a warrant must be required. The division especially concerned the difference between searching for a suspect incident to arrest vs. searching areas within and without the control of the suspect. 


So Back to Section 702 

The government now has the right to force private citizens to hoover up any information that passes through a wi-fi router, cable box, server, phone, tablet, etc. under threat of punishment. They do not have to worry about the 4th amendment. Instead, we become their spies...much like the Soviet Union did with their own citizenry. 

Sadly, our 4th amendment has lost most of its teeth, and Section 702 is one more punch in the face. The power of the intelligence community (especially the NSA), the power of hidden courts, warrantless searches, oppressive investigations into private citizens, and the chilling effect of the government’s coercive tactics have all laid waste to our rights. 

Our founding fathers, such as Otis, passionately fought the idea that the government had free reign over a private citizen’s personal possessions (which included communications.) The question is: when they recognized such a gross destruction of their rights and liberties...what did they do? 


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