In the past two days, the press has provided unprecedented revelations of how pervasive the secret surveillance state has become. Leaks reveal that the FBI and NSA have received all Verizon Business Services telephone call records , including geolocation data; and the NSA uses a program called PRISM to access user content held by Google, Facebook, Microsoft, and Apple. How can a country that constitutionally protects privacy permit its government to spy on such a scale?
The Fourth Amendment prevents dragnet surveillance by requiring law enforcement to go to courts and show probable cause. These dual requirements of court oversight and a legitimate, targeted investigation ensure that people will not be subject to general searches by an abusive government. But intelligence-gathering that involves "the activities of foreign powers" is treated differently, whether it occurs inside or outside of the United States.
Foreign intelligence is the exception that has swallowed the Fourth Amendment whole. As my colleague Anjali Dalal points out, people probably believe that foreign intelligence law is " supposed to be going after foreign intelligence ," but its impact on Americans is surprisingly broad. In 1978, Congress set up a system governing foreign intelligence surveillance. The surveillance programs leaked in the past two days are the results of the post-9/11 version of this system. The Verizon call records, which include phone numbers, location data, and timestamps, were authorized as the collection of "business records" under the PATRIOT Act. And the PRISM program--which allows the NSA to access content such as emails, search histories, and audio chats-- is authorized as part of "foreign intelligence" gathering under the 2008 Amendments to the Foreign Intelligence Surveillance Act (FISA).