Our nation’s recent enlargement of the power of surveillance began with an executive order issued in the fall of 2001, shortly after the terrorist attacks of September 11, but culminated in a statute–enacted first in 2007 and then again in 2008. This statute severed the analytic connection between international terrorism and wiretapping and justified such surveillance as a form of foreign intelligence gathering, which included, but was not limited to, the surveillance of persons suspected of international terrorism directed against the United States. Presented as an amendment to the Foreign Intelligence Surveillance Act of 1978, the 2008 FISA Amendments Act retained the original requirement of court approval but significantly lowered–almost to a vanishing point–the standards for obtaining that approval for international telephone calls between persons in the United States and foreigners abroad.
The Supreme Court is now considering, in a suit to enjoin the implementation of the 2008 statute, whether anyone might have standing to challenge it. In this Essay, I go beyond the standing issue and address the substantive dangers posed by the 2008 statute–and, for that matter, the 1978 scheme in general–to the values protected by the Fourth Amendment. Wiretapping interferes with the exercise of personal liberties essential for democratic life and thus, even in this time of terror, should be subject to the warrant requirement long proclaimed by the Supreme Court. In the wake of September 11, the temptation will of course be great to allow an exception to the warrant requirement for extraordinary crimes. I explain why that temptation should be resisted and why, even if an exception were allowed, the grant of authority in the 2008 statute should be declared invalid under the doctrine that condemns overbroad interferences with freedom.
Owen Fiss is Sterling Professor Emeritus of Law, Yale University.
