Warrantless searches in the United States

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Warrantless searches are searches and seizures conducted without court-issued search warrants.

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In the United States, warrantless searches are restricted under the Fourth Amendment to the United States Constitution, part of the Bill of Rights, which states, "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."

History

In the Thirteen Colonies, agents of the British Empire utilized general warrants to authorize searches in the homes of colonists. Such warrants allowed the holder to search any place for any thing at any time. They were viewed as abuses of power, contributing to increased tensions that ultimately led to the American Revolution. The Fourth Amendment barred all warrantless searches and all general warrants; nevertheless, the interpretation and limitations of the Fourth Amendment and the permissibility of warrantless searches under certain circumstances, such as wartime, have been important in the history of executive and judicial power in the United States.

During the American Revolutionary War, "the Continental Congress regularly received quantities of intercepted British and Tory mail". [1] See intelligence in the American Revolutionary War.

In 1975, the Church Committee, a United States Senate select committee chaired by Frank Church of Idaho, a Democrat, investigated domestic and foreign Cold War area intelligence-gathering by the federal government, including warrantless surveillance on anti-war advocates inside America. [2] The committee report found the "Americans who violated no criminal law and represented no genuine threat to the 'national security' have been targeted, regardless of the stated predicate. In many cases, the implementation of wiretaps and bugs has also been fraught with procedural violations, even when the required procedures were meager, thus compounding the abuse. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information – unrelated to any legitimate governmental interest – about the personal and political lives of American citizens." [3]

The "potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973)" helped persuade president Gerald Ford in 1976 to seek surveillance legislation, which was ultimately enacted as Foreign Intelligence Surveillance Act in 1978. [4]

Abuses of power by the federal government led to reform legislation in the 1970s. [4] Advancing technology began to present questions not directly addressed by the legislation as early as 1985. [5]

In its 1985 report "Electronic Surveillance and Civil Liberties", the nonpartisan Congressional Office of Technology Assessment suggested legislation be considered for a surveillance oversight board. [6] Congress disbanded this agency in 1995. [5]

Clinton administration

On July 14, 1994, President Clinton's Deputy Attorney General and later 9/11 Commission member Jamie Gorelick testified to the Senate Intelligence Committee that "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes … and that the president may, as has been done, delegate this authority to the Attorney General." This "inherent authority" was used to search the home of CIA spy Aldrich Ames without a warrant. "It is important to understand", Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities". [7]

George W. Bush administration

NSA warrantless surveillance controversy

On December 16, 2005, the New York Times printed a story asserting that following 9/11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying", as part of the War on Terrorism: [8]

Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The revelation of this program caused a widespread controversy, with legal experts and politicians[ who? ] concluding that it violates the Foreign Intelligence Surveillance Act and other legal experts[ who? ] saying that the FISA law only applied to domestic calls and not to overseas calls and communications that involved a foreign intelligence threat. Bush administration officials such as the Attorney General defended the program by citing that this was a part of the justification that the Clinton administration used in its warrantless search of Aldrich Ames. They claimed that since Ames was spying for a foreign power, presidential power applied and FISA did not. [9]

NSA call database

In May 2006, it was revealed that the Bush administration had also been compiling a database of telephone calls, created by the National Security Agency (NSA) with the cooperation of three of the largest telephone carriers in the United States: AT&T, Verizon, and BellSouth. [10] All three companies were paid to provide the information to the NSA. [11] It is speculated that the database contains over 1.9 trillion call-detail records of phone calls made after September 11, 2001. [12] The database's existence prompted fierce objection from those who viewed it as a warrantless or illegal search – nevertheless, the collection of such third-party information has been authorized by the USA PATRIOT Act, and has been upheld by the courts.

US Foreign Intelligence Surveillance Court of Review

In a 2002 opinion entitled In re: Sealed Case No. 02-001 , the United States Foreign Intelligence Surveillance Court of Review examined all the significant appellate decisions. [13] The court noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power", However, In Re Sealed Case "[took] for granted" that these cases are correct:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power ... ... Even without taking into account the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [14]

The "balancing test drawn from Keith" is a reference to United States v. U.S. District Court , in which the Supreme Court of the United States established a legal test to determine whether the primary use of the warrantless search was to collect foreign intelligence, as per presidential authority, or whether that primary use is to gather evidence for use in a criminal trial. [15]

Exceptions to the search warrant requirement

The warrant requirement of the Fourth Amendment is not absolute, and a number of exceptions to that requirement have been recognized by the courts, based upon such factors as whether it is reasonable under the circumstances for officers to obtain a warrant, and whether evidence might be lost or destroyed before a warrant can be obtained.

Common exceptions include:

See also

Related Research Articles

<span class="mw-page-title-main">United States Foreign Intelligence Surveillance Court</span> U.S. federal court

The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.

<span class="mw-page-title-main">Fourth Amendment to the United States Constitution</span> 1791 amendment prohibiting unreasonable searches and seizures

The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

<span class="mw-page-title-main">Foreign Intelligence Surveillance Act</span> 1978 United States federal law

The Foreign Intelligence Surveillance Act of 1978 is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.

The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10.

<span class="mw-page-title-main">Project MINARET</span> National Security Agency surveillance operation

Project MINARET was a domestic espionage project operated by the National Security Agency (NSA), which, after intercepting electronic communications that contained the names of predesignated US citizens, passed them to other government law enforcement and intelligence organizations. Intercepted messages were disseminated to the FBI, CIA, Secret Service, Bureau of Narcotics and Dangerous Drugs (BNDD), and the Department of Defense. The project was a sister project to Project SHAMROCK.

<span class="mw-page-title-main">NSA warrantless surveillance (2001–2007)</span> Part of Terrorist Surveillance Program

NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lays within the U.S.

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<i>American Civil Liberties Union v. National Security Agency</i>

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<span class="mw-page-title-main">Section summary of Title II of the Patriot Act</span>

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<span class="mw-page-title-main">Terrorist Surveillance Program</span> NSA program

The Terrorist Surveillance Program was an electronic surveillance program implemented by the National Security Agency (NSA) of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program, which was in turn conducted under the overall umbrella of the War on Terrorism. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a U.S. person. In 2005, The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy. Later works, such as James Bamford's The Shadow Factory, described how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from "everyone in the country."

<i>Hepting v. AT&T</i>

Hepting v. AT&T, 439 F.Supp.2d 974, was a class action lawsuit argued before the United States District Court for the Northern District of California, filed by Electronic Frontier Foundation (EFF) on behalf of customers of the telecommunications company AT&T. The plaintiffs alleged that AT&T permitted and assisted the National Security Agency (NSA) in unlawfully monitoring the personal communications of American citizens, including AT&T customers, whose communications were routed through AT&T's network.

<span class="mw-page-title-main">Protect America Act of 2007</span>

The Protect America Act of 2007 (PAA),, is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside the United States. The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act in Title VII of FISA.

<span class="mw-page-title-main">Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008</span> United States Law

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National security of the United States is a collective term encompassing the policies of both U.S. national defense and foreign relations.

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The Fourth Amendment Protection Acts, are a collection of state legislation aimed at withdrawing state support for bulk data (metadata) collection and ban the use of warrant-less data in state courts. They are proposed nullification laws that, if enacted as law, would prohibit the state governments from co-operating with the National Security Agency, whose mass surveillance efforts are seen as unconstitutional by the proposals' proponents. Specific examples include the Kansas Fourth Amendment Preservation and Protection Act and the Arizona Fourth Amendment Protection Act. The original proposals were made in 2013 and 2014 by legislators in the American states of Utah, Washington, Arizona, Kansas, Missouri, Oklahoma and California. Some of the bills would require a warrant before information could be released, whereas others would forbid state universities from doing NSA research or hosting NSA recruiters, or prevent the provision of services such as water to NSA facilities.

<span class="mw-page-title-main">USA Freedom Act</span> 2015 U.S. surveillance law

The USA Freedom Act is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the National Security Agency. It also restores authorization for roving wiretaps and tracking lone wolf terrorists. The title of the act is a ten-letter backronym that stands for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.

<span class="mw-page-title-main">FISA Improvements Act</span>

The FISA Improvements Act is a proposed act by Senator Dianne Feinstein, Chair of the Senate Intelligence Committee. Prompted by the disclosure of NSA surveillance by Edward Snowden, it would establish the surveillance program as legal, but impose some limitations on availability of the data. Opponents say the bill would codify warrantless access to many communications of American citizens for use by domestic law enforcement.

<span class="mw-page-title-main">Proposed reforms of mass surveillance by the United States</span>

Proposed reforms of mass surveillance by the United States are a collection of diverse proposals offered in response to the Global surveillance disclosures of 2013.

References

  1. ↑ "Intelligence Techniques." Intelligence in the War of Independence. Central Intelligence Agency, 2007.
  2. ↑ "Warrantless FBI Electronic Surveillance". AARC. Assassination Archives and Research Center. Retrieved November 20, 2018.
  3. ↑ "Paul Wolf Archive". Church Committee: NATIONAL SECURITY AGENCY SURVEILLANCE AFFECTING AMERICANS. Retrieved May 14, 2006.
  4. 1 2 "National Security Archive at George Washington University". Wiretap Debate Déjà Vu. Retrieved February 4, 2006.
  5. 1 2 "Princeton University". The OTA Legacy. Retrieved May 14, 2006.
  6. ↑ "National Security Archive" (PDF). Electronic Surveillance and Civil Liberties. Retrieved May 14, 2006.
  7. ↑ York, Byron (December 20, 2005). "Clinton Claimed Authority to Order No-Warrant Searches – Does anyone remember that?". National Review Online.
  8. ↑ James Risen, Eric Lichtblau (December 16, 2005). "Bush Lets U.S. Spy on Callers Without Courts". The New York Times.
  9. ↑ "Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States". justice.gov. February 6, 2006. Archived from the original on December 13, 2007.
  10. ↑ NSA has massive database of Americans' phone calls – USA Today, May 11, 2006.
  11. ↑ Hold the Phone – Newsweek, May 22, 2006.
  12. ↑ Data on Phone Calls Monitored [ dead link ] – Washington Post, May 12, 2006
  13. ↑ In re: Sealed Case No. 02-001 , 310F.3d717 ( United States Foreign Intelligence Surveillance Court of Review 2002).
  14. ↑ "Foreign Intelligence Surveillance Court of Review Opinion".
  15. ↑ United States v. U.S. District Court (Keith), 407 U.S. 297, 322 (1972).
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