Four More Years of Warrantless Surveillance
National Security Agency building in Fort Meade, Maryland
The Foreign Intelligence Surveillance Act of 1978 (FISA) established a panel of judges (the Foreign Intelligence Surveillance Court) who were empowered to issue warrants to federal government organizations, including the National Security Agency, to enable them to listen in on the conversations of American citizens or residents who were speaking to foreign nationals overseas or between two foreigners if the communications were intercepted at a hub located in the United States. As originally construed, there had to be a foreign intelligence angle to the investigation and the activity would be limited to the monitoring of agents of foreign countries and their contacts. The intention of FISA was to protect against egregious violations of the Fourth Amendment’s guarantee that Americans should have a “reasonable expectation of privacy” while avoiding the complications resulting from constitutional standards for what constitutes a legal search, i.e., that there be probable cause, that the court should know the name of the target, and that a fixed time frame for the activity be established. FISA lowered the bar of probable cause in general because of the supposed involvement of foreign governments, requiring only suspicion of possible illegal activity rather than demonstrating that a crime had been committed or was being planned, which was the normal basis for issuing a warrant. Fishing expeditions in which numerous communications lines were monitored in an attempt to find something incriminating were forbidden.
