Does the 4th amendment protect you from surveillance or the results of surveillance?

[Recursion]

Before 1978 (the original FISA law), the President was held to have "inherent" powers of surveillance for national security reasons. He could surveil anyone anywhere with no warrant or notice. The 4th amendment limited the usefulness of this surveillance since anything found could not be used as evidence against the target.

Since 1978, the President's power has been legislatively limited (side note: I'd basically guarantee that no Supreme Court would allow that law to stand if an administration challenged it, since it's an inter-branch turf war) to require a warrant from FISC.

Over the intervening 4 decades, FISC has become more and more of a formality (though they did push back in the mid-oughts, and got some changes), to the extent that de facto we're back to where we were before FISA: the Executive can de facto surveil anyone and our chief protection is that the 4th Amendment keeps anything found out of court. (People will point out that the DEA has been caught "reconstructing" cases, which is awful, but also points to the fact that information caught in blanket surveillance is not usable as evidence -- not to mention pointing out that the DEA has problems.)

If anyone knows of a legal theory by which the 4th amendment prevents the surveillance itself rather than its use later, I would love to hear it (that's not sarcasm).

[Thinkingabout]

1. Actually the president could order surveillance without a warrant and Nixon was an abuser.

The FISC Act said even the president had to get a warrant, ergo to speed up a process to handle national security, etc FISC court was set up for speedy response but again Bush bypassed this requirement claiming his "war powers" gave him the ability to do so, again he was halted in 2008.

[Recursion]

9. Right, that was the pre-1978 regime

The President (or his delegate) could order surveillance of anyone, but the 4th Amendment limited its usefulness in legal processes.

[FBaggins]

13. Nothing has really changed.

It isn't that the courts wouldn't allow the law to stand because it's "an inter-branch turf war"... it's because the legislative branch doesn't have the power (by legislation) to remove an authority that the Constitution grants to the executive. That is... you can't pass a law that takes away the fact that the President is the commander in chief.

What they can do is impeach a President that abuses that power.

[House of Roberts]

2. Is surveillance a search, or a seizure?

If it is either, then the 4th requires it be based upon probable cause.

[djean111]

4. I think surveillance is a sort of seizure. Data is seized.

[Recursion]

5. But I don't know of a case where the 4th amendment has granted direct standing.

To obtain relief (ie, stop the surveillance) you would need standing, and I don't know that anyone has successfully argued that under the 4th amendment the execution of a search (rather than the use of what was found against you) constitutes "harm" in a legal sense. Not that that couldn't be successfully argued, just that it hasn't.

[djean111]

3. I believe it prevents surveillance itself.

"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."

It would, to me, be a greasy sophistry to assert that every person can, in effect, be spied upon, by saying that the government MIGHT not use the information later. The DEA using information to build alternate data trails proves that yes, the information will be used later, if desired or needed. Why issue warrants at all, if everything is open to surveillance? Conversely, why gather the mass of information at all, if it is not usable as evidence?

[Recursion]

6. To the last question

why gather the mass of information at all, if it is not usable as evidence?

Before 1978, the rubric was "national security", the same reason Lincoln had telegraph wires tapped without a warrant, and Wilson had photographs of the recipient and return address of every mailed letter photographed and sent to the White House by the USPS (this is still going on, incidentally, 100 years later). Information found in this type of surveillance could not be used as evidence in court but could direct analysis.

It would, to me, be a greasy sophistry to assert that every person can, in effect, be spied upon, by saying that the government MIGHT not use the information later.

But, this being the law, greasy sophistry is how it operates. Can you show harm based on what the government might do in the future?

[djean111]

7. From my point of view, the government is just scooping up everything in the hope that it

can be used against people later. For whatever reason. That seems both horribly wrong, invasive, and not in the spirit of the fourth amendment. But that is my idea of right and wrong, which, of course, has nothing to do with the NSA or lawyers.

[arcane1]

8. I wouldn't feel "secure" in my papers and effects if I knew people could examine them

[Recursion]

10. Alice asks Verizon to connect her phone to Bob's phone

The "paper and effect" in question is the record that that connection happened. I'm still not sure where the privacy interest lies there (I lean towards it being Verizon's privacy at stake...)

[OnyxCollie]

11. In the NSA's own words:

National Security Agency/Central Security Service
Transition 2001, p. 32 (December 2000)

The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today. The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born an earlier electronic surveillance environment.

Make no mistake. NSA can and will perform its missions consistently with the Fourth Amendment and all applicable laws. But senior leadership must understand that today's and tomorrow's mission will demand a powerful permanent presence on a global telecommunications network that will host the "protected" communications of Americans, as well as the targeted communications of adversaries. (quotations in original)

&spfreload=10

[RobertEarl]

12. What is this?

A way to sell the idea we are just subjects to be messed with at the whim of who ever the fuck is the government?

The constitution tells the government what it can and can't do. The 4th tells the government they are breaking the law whenever they do something at the whim of whoever the fuck is in the government.

[nationalize the fed]

14. +1

"The answer to 1984 is 1776"

[randome]

15. The Heisenberg Uncertainty Principle...

...says that the act of observation changes the observed. So if something the government collects -deliberately or inadvertently- is not observed...
[hr][font color="blue"][center]Stop looking for heroes. BE one.[/center][/font][hr]