> How can anyone pretend that this law is constitutional???
The whole premise of FISA was to add an additional layer of protections in situations where no Article III warrant was necessary in the first place. Before FISA, to the extent that the target had no 4th amendment rights (foreign intelligence agent) or the monitoring in question was not a "search", then the government could do whatever the hell it wanted. FISA created an additional layer where the government had to get a FISA warrant to engage in that activity. Because the 4th amendment wasn't implicated, it was unnecessary for FISA warrants to meet the particularity requirements of Article III warrants.
The argument, thus, is "what is a search?" Is collecting AT&T's call data records a "search" that requires a Article III warrant? If not, then a "give us everything" FISA warrant is not unconstitutional. I imagine that's the interpretation the NSA is operating on.
The problem is that the 4th has not, in my opinion, been satisfied. I'm not happy with all of my data being sucked into a database which is a very tempting target. The administration does not think this violates the 4th, I think it does.
But even if we grant their theory that it does not violate the 4th, there is no question that searches have been conducted under any definition of the term that can and do accidentally sweep up Americans. Proving that it happened to you, individually, is very hard. But it happens. The 4th is violated. And once it is, we're dependent upon the good will and honesty of the government to forget what they saw that they were not supposed to do so.
The standard which I want to see for all parts of the Constitution - including the 4th - is that the burden of proof is on the government to guarantee that no wrong is done. That, in another context, is the whole point of habeas corpus. The same standard should be applied here.
As a US citizen who grew up in another country, 50.1% confidence does not comfort me. As a person who has seen people with privileged information who were not supposed to leak it leak it in lots of other contexts, I have little trust that government spooks are going to be better. (In one example, a stalker bribed the CA DMV to find the address of the car owned by a woman I know.) As a person who has seen databases abused, I know how easy that is to do once you've centralized data. (One amusing example involved a woman who worked in a bank who did a search for all single men in a particular age range with incomes over a certain threshold in a particular geographic area...) And once you've centralized the data, I think it is just a question of time until bad actors manage to get their hands on copies of it all.
Yes, I know that the people who are doing this are convinced that they are saving the world. But in the long run, their actions scare me more than the terrorists that they claim to be protecting me from.
The whole premise of FISA was to add an additional layer of protections in situations where no Article III warrant was necessary in the first place. Before FISA, to the extent that the target had no 4th amendment rights (foreign intelligence agent) or the monitoring in question was not a "search", then the government could do whatever the hell it wanted. FISA created an additional layer where the government had to get a FISA warrant to engage in that activity. Because the 4th amendment wasn't implicated, it was unnecessary for FISA warrants to meet the particularity requirements of Article III warrants.
The argument, thus, is "what is a search?" Is collecting AT&T's call data records a "search" that requires a Article III warrant? If not, then a "give us everything" FISA warrant is not unconstitutional. I imagine that's the interpretation the NSA is operating on.