Legitimate security surveillance versus unlawful, warrantless wiretapping

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The basic constitutional law on search and seizure is, of course, as set forth in the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The U.S. Supreme Court has consistently held, and notably in the 1961 case of Mapp v. Ohio, that government use of personal information is unconstitutional when obtained through an unlawful search and seizure, such as warrantless wiretapping or eavesdropping. This does not mean that all warrantless searches are illegal. Far from it. The courts have upheld warrantless searches in public schools, in government offices, and on border patrols — all special risk situations where there is no legitimate expectation of privacy.

Throughout the Cold War, from the late 1940s onward, U.S. intelligence agencies, police and security services have, without warrant, intercepted telephone, radio, voice and other communications, as a means of detecting and hopefully deterring the impending launch of intercontinental ballistic missiles, nuclear devices, clandestine explosives, biochemicals, other acts of sabotage, spy networks, as well as illegal trafficking in weapons and illicit drugs. The unstated, prevailing policy has been: Don’t ask, don’t tell.

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Today we face the new prospect of international and home-grown terrorism. It is common to say that this changes everything. It does not. What has changed in the 21st century is the sheer volume of global communications and the advance in technical capabilities for both sending and intercepting communications. But the basic dilemma remains the same: We continue to need the freedom to carry out what I would call broad "epidemiological" surveillance, to detect and deter risks, but do so through a process that does not allow warrantless invasion of personal privacy.

This is the key distinction implicit in the Fourth Amendment. Certain kinds of impersonal surveillance may be a national necessity, but what is critical is the protection of personal freedom, the right of privacy and the sanctity of personhood embodied in the U.S. Constitution.

It is rare that I agree with Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, and professor at the University of Chicago Law School, but Posner has seized on this distinction where few others have: "Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets."

Failing to see this distinction, and failing to note what the Fourth Amendment intends to protect, the U.S. administration and Congress are thus wrongly slicing the pie in the amended FISA act. Instead of defining the legitimate zone of "epidemiological" detection surveillance and its limits, they are extending the government’s powers of warrantless search and seizure into the personal privacy domain. The logic of the Fourth Amendment is thereby violated.

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The U.S. administration and Congress are caught up in debate about whether a communication is between U.S. citizens, whether it is overseas, and whether it involves persons already suspected of terrorist activities or leanings. Even if these distinctions were relevant, the fact of the matter is that today’s communications technologies, including switching systems, are so sophisticated that it is virtually impossible even to site the communication geographically, let alone by nationality — as if that mattered. The debate is impractical, and it takes the eye off the key issue.

The better way to address the problem and phrase and implement the law is this: Allow a defined lattitude of "epidemiological" risk detection surveillance without warrant, but when reasonable expectation of probable cause is detected, and targeted surveillance, active search or seizure, or invasion of a person’s privacy appears warranted, then require as a matter of absolute legal necessity the obtaining of a warrant from a reviewing court of law (e.g. the FISA court).

The argument that presenting to a court of law evidence of probable cause would somehow endanger national security is a false one. The court, which may be convened in closed session, wants to hear or see the actual evidence for reasonable suspicion, not the details of how a particular surveillance program or technology works. The current administration tends to use this false argument, not to protect national security, but to evade judicial oversight of illegal government search and seizure, and false imprisonment.

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How should the system work? Example: Suppose the National Security Agency and the Federal Bureau of Investigation intercept a communication that could suggest that a dirty nuclear bomb is being sent to and picked up by a shipping agent in New York harbor. No warrant is required so far, since the interception is of a general "epidemiological" risk detection surveillance nature. Now, the NSA, FBI or NYPD want to specifically "wiretap" and track the shipping agent, and/or search his person, his phone records, his computer, his e-mails, his business records, and perhaps his home premises in Brooklyn. That requires a warrant. Concerned officials may go ahead and act immediately, provided that within three days they must absolutely apply to the court to obtain a warrant in accordance with constitutional and federal law.

We can sum this up succinctly: Legitimate security surveillance, yes. Unlawful warrantless wiretapping, eavesdropping, search or seizure, no. Your personal reading preferences at your local library, No way, never.

The difficult challenge to drafting and implementing intelligence surveillance legislation that will not contravene the clear intent of the Fourth Amendment will be to respect the bright line we must draw between legitimate risk detection surveillance and unlawful warantless violation of personal privacy. The task will not be easy. It must be bipartisan. Unless and until we do the work, the government will continue to make a perfect mess of it, and the price will be paid out of our personal freedom and security.