"The Right of the People": The NSA, the FISA Amendments Act of 2008, and Foreign Intelligence Surveillance of Americans Overseas
In October 2008, two former National Security Agency communications analysts told reporters that the NSA used satellite technology to monitor the phone conversations of Americans living in the Middle East. This revelation highlighted an unresolved area of surveillance law—the privacy rights of U.S. citizens against their own government when they are outside the borders of the United States. Though the FISA Amendments Act of 2008 has created a procedure for the judicial review of this type of surveillance, this review is only a general oversight and judges on the Foreign Intelligence Surveillance Court are not required to individually review every surveillance request. This Note analyzes Fourth Amendment surveillance jurisprudence to decide what level of judicial review is necessary, if any, before engaging in surveillance of Americans overseas. First, this Note examines cases that have discussed the reach of the Fourth Amendment to see if its protections are available to Americans living outside the United States. Next, this Note analyzes the recent Second Circuit decision In re Terrorist Bombings, which held that the Fourth Amendment protects Americans overseas but does not require a warrant. Then, this Note investigates whether, if a warrant requirement does in fact exist, there is a “foreign intelligence exception” to this requirement. This Note concludes by deciding that the Fourth Amendment requires U.S. intelligence agencies to obtain a specific warrant before engaging in overseas surveillance of American citizens. To enforce this requirement, this Note advocates for further amendments to FISA, including a comprehensive and individualized warrant process that protects both privacy and national security.