The end of privacy

Stanford Law Review

Volumn 61, Issue 1, 2008, Pages 101-162

  Rubenfeld, Jed ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ACCESS TO INFORMATION; CIVIL RIGHTS; CONFIDENTIALITY; FORENSIC PSYCHIATRY; HUMAN; INTERNET; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT; PERSONAL AUTONOMY; PRIVACY; REVIEW; SOLDIER; TELEPHONE; UNITED STATES;

ACCESS TO INFORMATION; CIVIL RIGHTS; COMMITMENT OF MENTALLY ILL; CONFIDENTIALITY; HUMANS; INTERNET; MILITARY PERSONNEL; PERSONAL AUTONOMY; PRIVACY; SECURITY MEASURES; TELEPHONE; UNITED STATES;

EID: 57849138608     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (332)

1. Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972).
2. See infra Part IV.A.
3. Press Release, White House Office of the Press Sec'y, President Bush: Information Sharing, Patriot Act Vital to Homeland Sec. (Apr. 20, 2004), http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html.
4. See infra Part IV.C.
5. See infra Part IV.B.
6. In the Padilla proceedings, the legality of the President's power to seize an American citizen on American soil as an "unlawful enemy combatant" (without probable cause) came before five different courts, each of which disposed of the issue without Fourth Amendment discussion.
7. See Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005) (invalidating the seizure),
8. rev'd, 423 F.3d 386 (4th Cir. 2005) (upholding it);
9. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) (Mukasey, J.) (upholding the seizure),
10. off d in part, rev 'd in part sub nom. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) (invalidating it on statutory grounds),
11. rev'd, 542 U.S. 426 (2004) (not reaching the merits). Consider also the Supreme Court's Hamdi and the Fourth Circuit's Al-Marri decisions, in both of which the majority subjected the administration's position on unlawful combatants to stringent constitutional examination, but did not seem even to see a Fourth Amendment issue, focusing instead solely on statutory, treaty, and due process arguments.
12. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004);
13. Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
14. E.g., Smith v. Maryland, 442 U.S. 735 (1979);
15. see infra Part I.D. The government's recent program of obtaining such information is discussed infra Part IV.B.
16. The court found no Fourth Amendment standing because plaintiffs could not show their own conversations had been intercepted. See ACLU v. NSA, 493 F.3d 644, 655 (6th Cir. 2007). Under this ruling, so long as the government never discloses whose conversations it secretly taps, the wiretapping's constitutionality will apparently never be judicially reviewable.
17. See infra Part III.E.
18. See infra Part I.A.
19. California v. Ciraolo, 476 U.S. 207, 211 (1986).
20. See infra Part I.B.
21. See infra Part III.A.
22. E.g., United States v. White, 401 U.S. 745 (1971);
23. see infra Part III.D.
24. It is the "right of the people to be secure in their persons, houses, papers, and effects" that under the Fourth Amendment "shall not be violated." U.S. CONST. amend. IV (emphasis added).
25. See, e.g., Brendlin v. California, 127 S. Ct. 2400, 2410 (2007)
26. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976) (stating that the Fourth Amendment protects "the privacy and personal security of individuals"));
27. New Jersey v. T.L.O., 469 U.S. 325, 354 (1985) (Brennan, J., dissenting) (referring to the "Fourth Amendment's protections of personal privacy and personal security");
28. Terry v. Ohio, 392 U.S. 1, 8-9 (1968) (describing the "inestimable right of personal security" set forth in the Fourth Amendment). In its focus on security, this Article builds on Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 WAKE FOREST L. REV. 307 (1998) (arguing that Fourth Amendment law should give a much more central place to security and collecting cases in which security has played a role), but departs from Clancy on the question of what security means.
29. See infra note 16.
30. In Terry, for example, the Court defined personal security as a freedom from bodily restraint-a "right to . . . possession and control of [one's] person, free from all restraint"-which treats personal security essentially as a synonym for physical liberty.
31. Terry, 392 U.S. at 9 (citation omitted). For Thomas Clancy, the "right to be secure is the right to exclude."
32. Clancy, supra note 15, at 356. In my judgment, this is another unfortunate definition, equating security more with private property than with physical liberty, but equally depriving security of its distinctive constitutional meaning and value. A different conception of security will be pursued here.
33. See infra Parts II.C-D, III.
34. 389 U.S. 347 (1967).
35. Id. at 351.
36. See id. at 353 (affirming that the Fourth Amendment may be violated "without any 'technical trespass under . . . local property law'") (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
37. Id. at 361 (Harlan, J., concurring) ("My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable. '").
38. One year after Katz, the Court declared that "wherever an individual may harbor a reasonable 'expectation of privacy,' [Katz, 389 U.S.] at 361 (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion."
39. Terry, 392 U.S. at 9.
40. See, e.g., Samson v. California, 547 U.S. 843, 846 (2006);
41. Kyllo v. United States, 533 U.S. 27, 32 (2001);
42. Bond v. United States, 529 U.S. 334, 338-39 (2000);
43. Minnesota v. Olson, 495 U.S. 91, 95 (1990);
44. California v. Greenwood, 486 U.S. 35, 38 (1988);
45. Maryland v. Garrison, 480 U.S. 79, 90-91 (1987) (Blackmun, J., dissenting);
46. Smith v. Maryland, 442 U.S. 735, 740 (1979);
47. see also California v. Ciraolo, 476 U.S. 207, 211 (1986) ("The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.'")
48. (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)).
49. See, e.g., Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 SUP. CT. REV. 173, 188 ("[I]t is circular to say that there is no invasion of privacy unless the individual whose privacy is invaded had a reasonable expectation of privacy; whether he will or will not have such an expectation will depend on what the legal rule is.");
50. see also, e.g., RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD 210 (1998) ("It is all too easy to say that one is entitled to privacy because one has the expectation of getting it. But the focus on the subjective expectations of one party to a transaction does not explain or justify any legal rule, given the evident danger of circularity in reasoning.");
51. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 384 (1974) ("An actual, subjective expectation of privacy ... can neither add to, nor can its absence detract from, an individual's claim to fourth amendment protection. If it could, the government could diminish each person's subjective expectation of privacy merely by announcing half-hourly on television that... we were all forthwith being placed under comprehensive electronic surveillance.").
52. See, e.g., Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979) ("For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects.").
53. But compare, for example, United States v. Payner, 447 U.S. 727, 732 n.4 (1980), in which the Court found that the defendant lacked a reasonable expectation of privacy in banking information in part on the basis of statutes requiring banking information to be reported. This kind of reasoning could, if extended, allow statutes compelling individuals to submit to searches to be self-validating.
54. Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). In Rakas, the Court expressly observed that the way out of "tautologfy]" in determining reasonable expectations of privacy is to locate those expectations in "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."
55. Id.
56. 547 U.S. 103 (2006).
57. Id.
58. Id. at 111-13, 121.
59. Id. at 113.
60. As Professor Post puts it, "judicial interpretations of 'reasonable expectations' will affect the actions of law enforcement agencies, which will in turn affect the actual social norms that define privacy....But it is not true that social norms are entirely a product of legal action." Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2094 (2001).
61. See, e.g., Bond v. United States, 529 U.S. 334, 338-39 (2000);
62. California v. Greenwood, 486 U.S. 35, 40-41 (1988) (finding no reasonable expectations of privacy in garbage deposited outside house on the basis of prevailing trash norms, habits, and practices);
63. Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978).
64. See, e.g., Horton v. California, 496 U.S. 128 (1990) (holding that evidence discovered in "plain view" is admissible);
65. California v. Ciraolo, 476 U.S. 207 (1986) (holding that a police flyover to search for marijuana in the homeowner's backyard did not require a warrant because the yard was visible from public airspace).
66. "So long as thermal imagers are 'not in general public use,' employing those devices to read the heat emissions from a property in which the target has a reasonable expectation of privacy will constitute a search within the meaning of the Fourth Amendment." United States v. Huggins, 299 F.3d 1039, 1044 n.5 (9th Cir. 2002)
67. (quoting Kyllo v. United States, 533 U.S. 27, 40 (2001));
68. see also, e.g., People v. Katz, 2001 Mich. App. LEXIS 2592, at *7 n.4 (Mich. Ct. App. 2001) (upholding police use of night vision binoculars) ("Such devices are sold at retail and may very well be 'in general public use' such that their use by police would not be considered an illegal search by the Kyllo majority.");
69. State v. Citta, 625 A.2d 1162, 1165 (N.J. Super. Ct. Law. Div. 1990) (collecting cases and holding that police effect no search when they use vision-enhancing "devices commonly used by and available to the general public").
70. 425 U.S. 435 (1976).
71. 442 U.S. 735 (1979).
72. Miller, 425 U.S. at 442.
73. Id. at 443.
74. Smith, 442 U.S. at 744.
75. Id. at 743-44 (emphasis added).
76. See Gonzales v. Google, 234 F.R.D. 674 (N.D. Cal. 2006).
77. 401 U.S. 745 (1971).
78. See United States v. Jacobsen, 466 U.S. 109, 117 (1984) ("It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities....").
79. Smith, 442 U.S. at 744.
80. Id. at 743-44.
81. Many others have also worried that what I am calling the "Stranger Principle" would eviscerate the Fourth Amendment. See, e.g., Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 IND. L. REV. 253, 292-93 (2006);
82. Stephen E. Henderson, Nothing New Under the Sun?: A Technologically Rational Doctrine of Fourth Amendment Search, 56 MERCER L. REV. 507, 562-63 (2005);
83. Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. REV. 1, 103 (1991) (suggesting that if we took the Court's "assume the risk" analysis seriously, "the only sphere of privacy still protected from unnecessary government intrusion would be what we kept to ourselves");
84. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1086-87 (2002);
85. Joseph T. Thai, Is Data Mining Ever a Search Under Justice Stevens's Fourth Amendment?, IA FORDHAM L. REV. 1731, 1734 (2006).
86. Smith, 442 U.S. at 737.
87. Id. at 740 n.4.
88. United States v. Miller, 425 U.S. 435, 437 (1976).
89. 447 U.S. 727 (1980).
90. Id. at 731.
91. Smith, 442 U.S. at 744.
92. See, e.g., United States v. N.Y. Tel. Co., 434 U.S. 159 (1977) (upholding power of lower courts to compel pen registers);
93. United States v. X, 601 F. Supp. 1039 (1984) (issuing order requiring telephone companies to provide toll records).
94. United States v. Todisco, 667 F.2d 255, 258 (2d Cir. 1981).
95. Katz v. United States, 389 U.S. 347, 348 (1967).
96. See Doernberg, supra note 46, at 292-93 ("What is to stop the police from eavesdropping on any conversation, circumventing the protection that the Fourth Amendment would otherwise offer, by arguing that there was no reasonable expectation of privacy because the listener might have been wired or otherwise cooperating with the police?").
97. See Kyllo v. United States, 533 U.S. 27, 46-47 (2001) (Stevens, J., dissenting);
98. Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo s Rules Governing Technological Surveillance, 86 MINN. L. REV. 1393, 1394 (2002) ("As the dissenters in Kyllo rightly pointed out, varying Fourth Amendment regulation of technology on the prevalence of that technology is troublesome, because 'the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.'")
99. (quoting Kyllo, 533 U.S. at 47 (Stevens, J., dissenting)).
100. See, e.g., Sarah Weddington, Reflections on the Twenty-fifth Anniversary of Roe v. Wade, 62 ALB. L. REV. 811, 824 (1999) ("The word 'privacy' does not appear in the Constitution.").
101. 410 U.S. 113 (1973).
102. See Boyd v. United States, 116 U.S. 616, 630 (1886).
103. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, A HARV. L. REV. 193 (1890).
104. Perlman v. United States, 247 U.S. 7, 14 (1918);
105. Weeks v. United States, 232 U.S. 383, 389-90 (1914);
106. Flint v. Stone Tracy Co., 220 U.S. 107, 174-75 (1911).
107. Olmstead v. United States, 277 U.S. 438, 471-85 (1928) (Brandeis, J., dissenting).
108. Davis v. United States, 328 U.S. 582, 587 (1946) (emphasis added);
109. see also Okla. Press Publ'g Co. v. Walling, 327 U.S. 186, 204 n.30 (1946).
110. See generally WARREN FREEDMAN, THE RIGHT OF PRIVACY IN THE COMPUTER AGE 1-31 (1987) (discussing legal remedies for violations of the right of privacy);
111. Anita L. Allen, Privacy in American Law, in PRIVACIES: PHILOSOPHICAL EVALUATIONS 19-30 (Beate Rössler ed., 2004) (detailing expansion of privacy protection in constitutional law, common law, and state and federal statutory law).
112. See, e.g., William L. Presser, Privacy, 48 CAL. L. REV. 383, 389 (1960) (observing "a complex of four" distinct common law privacy torts, which had developed since the Warren and Brandeis article).
113. This "complex of four" privacy torts is now included in the Second Restatement. RESTATEMENT (SECOND) OF TORTS § 652B-E (1977).
114. See, e.g., Children's Online Privacy Protection Rule, 16 C.F.R. §§ 312.1-.12 (2008);
115. Family Educational Rights and Privacy Act (FERPA) Regulations, 34 C.F.R. §§ 99.1-.76 (2008).
116. See, e.g., Federal Privacy Act of 1974, 5 U.S.C. § 552a (2000);
117. Children's Online Privacy Protection Act of 1998, 15 U.S.C. §§ 6501-6506 (2000);
118. Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2521, 2710-2711, 3121-3127 (2000 & Supp. 2002);
119. Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g (2000).
120. Griswold v. Connecticut, 381 U.S. 479 (1965).
121. Roe v. Wade, 410 U.S. 113 (1973).
122. See, e.g., MADELEINE SCHACHTER, INFORMATIONAL AND DECISIONAL PRIVACY vii-xv (2003);
123. DANIEL J. SOLOVE, MARC ROTENBERG & PAUL M. SCHWARTZ, INFORMATION PRIVACY LAW xi-xxiv (2d ed. 2006);
124. RICHARD C. TURKINGTON & ANITA L. ALLEN, PRIVACY LAW xiii-xxxi (2d ed. 2002).
125. See, e.g., Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) ("To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. ... From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy....");
126. Robbins v. California, 453 U.S. 420, 428 (1981) (plurality opinion) ("Expectations of privacy are established by general social norms ....");
127. James A. Bush & Rece Bly, Expectation of Privacy Analysis and Warrantless Trash Reconnaissance After Katz v. United States, 23 ARIZ. L. REV. 283, 293 (1981) ("[S]ocial custom . . . serves as the most basic foundation of a great many legitimate privacy expectations.").
128. See Warren & Brandeis, supra note 61, at 196 ("To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.").
129. Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 SUP. CT. REV. 173, 190.
130. Id.
131. Id. at 193.
132. United States v. Kramer, 711 F.2d 789, 793 (7th Cir. 1983). Judge Posner did not deliver the opinion in Kramer, but he was on the panel.
133. See id. at 791.
134. U.S. CONST, amend. IV (emphasis added).
135. For example, in Terry v. Ohio, 392 U.S. 1 (1968), where the Court upheld a stop-and-frisk, the Court several times described the Fourth Amendment as protecting "personal security," but described this "inestimable right of personal security" as '"the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.'"
136. Id. at 8-9
137. (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)).
138. See, e.g., Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66, 674 (1989) (holding that "national security hazards" must be "balancefd] [against] the individual's privacy expectations").
139. See, e.g., United States v. Arvizu, 534 U.S. 266, 273 (2002) ("The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government . . . .");
140. Florida v. Bostick, 501 U.S. 429, 439 (1991) ("The Fourth Amendment proscribes unreasonable searches and seizures . . . .");
141. New York v. Class, 475 U.S. 106, 116 (1986) ("The Fourth Amendment by its terms prohibits 'unreasonable' searches and seizures.").
142. U.S. CONST, amend. V (emphasis added).
143. Id. amend. VI (emphasis added).
144. Id. amend. IV (emphasis added).
145. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 64-67 (1998).
146. 2 WILLIAM BLACKSTONE, COMMENTARIES *125.
147. Id. at *129.
148. Id. at *141, *144.
149. See Clancy, supra note 15, at 350-53 (collecting sources).
150. A 1762 Massachusetts newspaper article, probably written by James Otis himself, protested the writs of assistance on the ground that "every householder in this province, will necessarily become less secure than he was before this writ." BOSTON GAZETTE, Jan. 4, 1762,
151. reprinted in M.H. SMITH, THE WRITS OF ASSISTANCE CASE 562 (1978). John Dickinson, in his Pennsylvania Farmer letters, attacked the writs as "dangerous to freedom, and expressly contrary to the common law, which ever regarded a man's house as his castle, or a place of perfect security."
152. JOHN DICKINSON, THE POLITICAL WRITINGS OF JOHN DICKTNSON, ESQ., LATE PRESIDENT OF THE STATE OF DELAWARE, AND OF THE COMMONWEALTH OF PENNSYLVANIA 230 (Baltimore, Bonsai & Niles 1801) (emphasis omitted). In Boston in 1772, a town committee condemning the writs concluded: Thus our Houses, and even our Bed-Chambers, are exposed to be ransacked, our Boxes, Trunks and Chests broke open, ravaged and plundered, by Wretches, whom no prudent Man would venture to employ even as Menial Servants .... By this we are cut off from that domestic security which renders the Lives of the most unhappy in some measure agreeable.
153. JOSIAH QUTNCY, JR., REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY BETWEEN 1761 AND 1772, at 467 (New York, Russell & Russell 1865).
154. See, e.g., MASS. CONST. of 1780, pt. 1, art. XIV ("Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.");
155. N.H. CONST. of 1784, pt. 1, art. XIX ("Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.").
156. JAMES MADISON, Speech to the House of Representatives (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 197, 201 (Robert A. Rutland et al. eds., 1977). The Virginia ratifying convention's proposal for the amendment also referred to "a right to be secure."
157. EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 184 (1957).
158. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 1, 12 (New York, O. Halsted 1826);
159. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1902, at 648 (Melville M. Bigelow ed., 5th ed., Boston, Little, Brown, & Co. 1891) (1825).
160. To pursue paradigm-case interpretation, as I will here, is to follow a particular set of interpretive commitments; privileging the constitutional text and that text's foundational applications, treating the latter as paradigmatic for all subsequent interpretation. And to follow one set of interpretive commitments is, of course, implicitly to reject others. For example, I will not be asking what the "original understanding" of the Fourth Amendment was (in the way that term is usually understood) or what Blackstone had in mind when he used the term "personal security." For more on the paradigm-case method, see JED RUBENFELD, REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW chs. 1-3 (2005).
161. 2 STORY, supra note 93;
162. see Boyd v. United States, 116 U.S. 616, 625 (1886);
163. AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 13 (1997) ;
164. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 668 (1999).
165. See Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.);
166. Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (K.B.).
167. For overviews of the Wilkes affair and its significance to the Fourth Amendment, see Powell v. McCormack, 395 U.S. 486, 527-41 (1969);
168. Boyd, 116 U.S. at 625-30;
169. AMAR, supra note 95, at 11-14;
170. PAULINE MAIER, FROM RESISTANCE TO REVOLUTION 162-69 (1972);
171. STORY, supra note 93, § 1902, at 648-50.
172. For an overview of the writs of assistance and their significance to the Fourth Amendment, see Davies, supra note 95, at 550-70. Amar believes the significance of the writs of assistance in the original understanding has been overstated.
173. See AMAR, supra note 85, at 66.
174. Writ of Assistance, Dec. 2, 1762, in SELECT CHARTERS AND OTHER DOCUMENTS ILLUSTRATIVE OF AMERICAN HISTORY 1606-1775, at 258-59 (William MacDonald ed., New York, MacMillan 1899) [hereinafter Writ of Assistance].
175. See 1 ENGLISH HISTORICAL DOCUMENTS 1714-1783, at 256 (D.B. Horn et al. eds., 1996).
176. Writ of Assistance, supra note 98, at 260-61.
177. See 7 ENGLISH HISTORICAL DOCUMENTS, supra note 99.
178. Id.
179. Id.
180. See Huckle v. Money, (1763) 95 Eng. Rep. 768-69 (K.B.);
181. NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 43-44 (1937);
182. see also Payton v. New York, 445 U.S. 573, 608 (1980);
183. Stanford v. Texas, 379 U.S. 476, 482-83 (1965) (discussing arrests made in the Wilkes affair).
184. See, e.g., Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) ("'[Probable cause' to justify an arrest means facts and circumstances . . . sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.");
185. see also Carroll v. United States, 267 U.S. 132, 162 (1925) (stating that probable cause refers to evidence "sufficient in [itself] to warrant a man of reasonable caution in the belief that a felony has been committed by the individual in question).
186. See, e.g., United States v. Winsor, 846 F.2d 1569, 1572 (9th Cir. 1988) (en banc) (holding that, where fugitive fled into hotel and police went room-to-room demanding entry, search was unconstitutional because "at the time the police knocked on Winsor's door, they had reasonable suspicion to believe that the suspected bank robber was inside, but did not have probable cause to believe so" (emphasis added)).
187. That is, they can search only one house if they are looking for the criminal himself and arrest only one person as the criminal himself; the case is of course different if we add accomplices to the story or evidence scattered throughout various houses.
188. U.S. CONST, amend. IV.
189. On the view that I have just presented, it follows that generalized warrantless arrests and home searches on less than probable cause would violate the Fourth Amendment just as paradigmatically as would the same arrests and home searches effected under a general warrant. This view could, in principle, be rejected. If the Fourth Amendment's probable cause requirement, which appears in the amendment's second clause (the "Warrant Clause"), is read as a safeguard that applies only against warrants, on the theory that warrants in general (rather than general warrants) were '"an enemy,'"
190. see AMAR, supra note 95, at 13
191. (quoting TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 41 (1969)), then police might in principle have the constitutional authority to conduct exactly the same searches and seizures licensed by general warrants-i.e., systematically invading people's homes, searching through their papers, making arrests, and holding people in jail on mere suspicion or no suspicion at all-provided the police were shrewd enough to do so without a warrant. My view is that this outcome would violate the Fourth Amendment's core meaning. On the other hand, a security-based Fourth Amendment would not hold that all searches and seizures require probable cause (or a warrant); they require probable cause only when, as with arrests and invasions of the home, permitting them on mere suspicion would destroy the security the Fourth Amendment exists to protect.
192. See, e.g., infra Part III.E.2.
193. See supra note 15 and Part U.C. The term "personal security" can be viewed either as a shorthand solely for the people's security in their "persons," so that the security of their "houses, papers, and effects" becomes an analytically distinct concept, or as a shorthand for the entire right of security guaranteed by the Fourth Amendment. My own view is that the latter understanding is best, but nothing in the argument I will present turns on this point.
194. See supra note 79.
195. 1 FRANCIS LIEBER, ON CIVIL LIBERTY AND SELF-GOVERNMENT 76-84 (Phila., Lippincott 1853).
196. FRANK FRIEDEL, FRANCIS LIEBER: NINETEENTH CENTURY LIBERAL vii, 27-62 (photo, reprint 2003) (1947).
197. LIEBER, supra note 112, at 78.
198. Id.
199. Id. at 78-79.
200. JOHN STUART MILL, ON LIBERTY 70, 71, 81 (Elizabeth Rapaport ed., Hackett Publ'g Co. 1978) (1859).
201. Id. at 11-13.
202. See, e.g., United States v. White, 401 U.S. 745, 765 (1971) (Douglas, J., dissenting) (counseling the majority to "spend some time in totalitarian countries [to] learn firsthand the kind of regime they are creating" by allowing warrantless wired police informants);
203. Solove, supra note 46, at 1084-86.
204. LIEBER, supra note 112, at 78.
205. See, e.g., Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 MICH. L. REV. 1229, 1229 (1983).
206. See, e.g., Whren v. United States, 517 U.S. 806, 817 (1996) ("It is of course true that in principle every Fourth Amendment case, since it turns upon a 'reasonableness' determination, involves a balancing of all relevant factors. With rare exceptions ... the result of that balancing is not in doubt where the search or seizure is based upon probable cause.");
207. New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) ("Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.").
208. The pitfalls of this explanation are many. For example, the notion that probable cause tips the balance in favor of the state appears to rest on a comparison of incommensurables or a quantification of unquantifiables (the "cost" of lives threatened, say, versus the "price" of lost liberty). Moreover, even assuming quantifiability, how could judges, who typically adjudicate two-party adversarial proceedings, possibly be in a position to evaluate social costs and benefits involving hundreds of millions of people along multiple dimensions (as they would have to do if "in principle every Fourth Amendment case . . . involves a balancing of all relevant factors")? Whren, 517 U.S. at 817. Finally, if a balancing of interests really explained the probable cause requirement, surely that balance ought to vary-the quantum of evidence required for an arrest ought to change-depending on the gravity of the crime involved (because the social costs of failing to apprehend criminals are obviously much higher for certain crimes than for others). But under both text and doctrine, the probable cause requirement applies to all warrants and all arrests, with no variation for heinousness, for lesser or greater social harms, and so on.
209. See, e.g., U.S. CONST, amend. IV ("[N]o Warrants shall issue, but upon probable cause."); Dunaway v. New York, 442 U.S. 200, 208 (1979) (stating that "[t]he [probable cause] standard applied to all arrests, without the need to 'balance' the interests and circumstances involved in particular situations").
210. I mean only that "houses" should be read to include, for example, apartments, and that "papers" should be read to include electronically stored documents or visited web pages, and so on. I don't mean that judges have some sort of general license to "update" the constitutional text to suit contemporary needs or values.
211. IMMANUEL KANT, GROUNDWORK FOR THE METAPHYSICS OF MORALS 37 (Allen W. Wood ed. & trans., Yale Univ. Press 2002) (1785) ("Act only in accordance with that maxim through which you can at the same time will that it become a universal law.").
212. 401 U.S. 745, 749 (1971) (plurality opinion).
213. See id. at 750-51;
214. see also United States v. Lee, 359 F.3d 194, 199 (3d Cir. 2004) (rejecting defendant's challenge to video and audio recording by an informant);
215. United States v. Davis, 326 F.3d 361, 362 (2d Cir. 2003).
216. As Justice Douglas said in his dissent in White, "[M]ust everyone live in fear that every word he speaks may be transmitted or recorded and later repeated to the entire world? I can imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn firsthand the kind of regime they are creating here." 401 U.S. at 764-65 (Douglas, J., dissenting) (citation omitted).
217. See, e.g., MARIA ŁOŚ & ANDRZEJ ZYBERTOWICZ, PRIVATIZING THE POLICE-STATE: THE CASE OF POLAND 31 -32 (2000) (describing the ubiquitous use of covert agents as part of the "anatomy" of a police state).
218. See Illinois v. Wardlow, 528 U.S. 119, 123 (2000) ("In Terry, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.");
219. Terry v. Ohio, 392 U.S. 1, 20-21 (1968).
220. See Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-first Century, 65 IND. L.J. 549, 582 (1990) (advocating an intermediate, reasonableness standard of review for the use of a "wired confidant . . . planted in the betrayed person's home or entourage").
221. Cf. United States v. Squillacote, 221 F.3d 542, 551 (4th Cir. 2000) (suggesting that the FBI's use of a "mature male undercover agent" to "capitalize on [the defendant Squillacote's] fantasies and intrigue" did not require a warrant or even implicate the Fourth Amendment).
222. Georgia v. Randolph, 547 U.S. 103, 106 (2006).
223. Id. at 113.
224. Id. at 114-15.
225. See, e.g., United States v. Payner, 447 U.S. 727, 731-32 (1980).
226. ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
227. See id. at 655 ("If, for instance, a plaintiff could demonstrate that her privacy had actually been breached (i.e., that her communications had actually been wiretapped), then she would have standing to assert a Fourth Amendment cause of action for breach of privacy. In the present case, the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped.").
228. See Rumsfeld v. Padilla (Padilla IV), 542 U.S. 426, 430-31 (2004).
229. For a succinct description of the facts, see Padilla v. Hanft (Padilla VIII), 547 U.S. 1062 (2006) (Kennedy, J., concurring in denial of certiorari).
230. Padilla IV, 542 U.S. at 430.
231. Declaration of Michael H. Mobbs, Special Advisor to the Under Secretary of Defense for Policy, Padilla v. Bush, No. 02 Civ. 4445 (S.D.N.Y. Aug. 27, 2002), available at http://www.cnss.org/Mobbs%20Declaration.pdf;
232. see also Padilla v. Rumsfeld (Padilla III), 352 F.3d 695, 701 (2d Cir. 2003),
233. rev'd, 542 U.S. 426 (2004).
234. Padilla III, 352 F.3d at 700.
235. Padilla IV, 542 U.S. at 430.
236. Padilla v. Hanft (Padilla VI), 423 F.3d 386 (4th Cir. 2005).
237. Deborah Sontag, A Videotape Offers a Window Into a Terror Suspect's Isolation, N.Y. TIMES, Dec. 4, 2006, at Al (describing images of Padilla);
238. Posting of Patrick Cooper to USA Today: On Deadline, Video, Stills of Padilla's Captivity Emerge, http://blogs.usatoday.com/ondeadline/2006/12/ video-stills-of.html (Dec. 4, 2006, 9:26 EST).
239. The government transferred Padilla into civilian custody in 2006, apparently in order to avoid further Supreme Court review of his confinement. Hanft v. Padilla (Padilla VII), 546 U.S. 1084 (2006) (granting the order for transfer);
240. see also Linda Greenhouse, Justices Let U.S. Transfer Padilla to Civilian Custody, N.Y. TIMES, Jan. 5, 2006, at A22.
241. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2107-33 (2005);
242. John Yoo, Courts at War, 91 CORNELL L. REV. 573, 588 (2006);
243. cf. Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1037 (2004) (supporting a new constitutional framework that grants the President the power to "detain suspects without the criminal law's usual protections of probable cause or even reasonable suspicion" for a "temporary state of emergency").
244. Pub. L. No. 109-366, 120 Stat. 2600 (2006).
245. Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
246. United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) (emphasis added);
247. see, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972) ("We allow our police to make arrests only on 'probable cause.'").
248. Dunaway v. New York, 442 U.S. 200, 208 (1979).
249. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Thousands upon thousands of proceedings are based on these holdings, including for example, every post-arrest, probable-cause hearing.
250. See 22 C.J.S. Criminal Law § 452 (2008) (discussing post-arrest probable cause hearings).
251. United States v. Salerno, 481 U.S. 739, 748 (1987). The Court also relied on this language in Hamdi v. Rumsfeld, 542 U.S. 507, 591 (2004).
252. The quoted sentence can be interpreted more narrowly, as a reference to the executive's power to detain when Congress has suspended habeas corpus. See infra note 178.
253. U.S. CONST, amend. Ill ("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.").
254. See John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. MASON L. REV. 565, 586-87 (2007).
255. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 130, 135-36 (1807). In fact, in the early days, probable cause was often considered insufficient to guarantee the legality of an arrest.
256. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 624-34 (1999) (describing how at early common law an officer could be found liable for arresting a man, even though on probable cause, who turned out to be innocent).
257. Exporte Bollman, 8 U.S. at 75.
258. For details of the Burr Conspiracy, see THOMAS PERKINS ABERNETHY, THE BURR CONSPIRACY (1954);
259. BUCKNER F. MELTON, JR., AARON BURR: CONSPIRACY TO TREASON (2002).
260. MELTON, supra note 159, at 56 ("[T]he cauldron that was Mississippi Valley was always simmering, threatened by sea and by land. Louisiana might be big, but it was wild and unpeopled. The frontiersmen might have the Mississippi, but with France and Spain and England at war, and the United States a very weak country, New Orleans might fall to an enemy. The foreign lands that ringed the valley were thus both threats and targets.").
261. Bollman, 8 U.S. (4 Cranch) at 125-26.
262. Justice Story, in his Commentaries, explicitly condemned Jefferson's argument that the dangers of war waived or modified the executive's duty to comply with the Fourth Amendment's requirements for a lawful arrest and seizure.
263. See 2 STORY, supra note 93, § 1902, at 649-50 n.2.
264. Bollman, 8 U.S. (4 Cranch) at 135-37.
265. Korematsu v. United States, 323 U.S. 214 (1944).
266. Exparte Quirin, 317 U.S. 1 (1942).
267. See, e.g., Bradley & Goldsmith, supra note 147;
268. Lee Epstein et al., The Supreme Court During Crisis: How War Affects Only Non-War Cases, 80 N.Y.U. L. REV. 1 (2005);
269. Jack Goldsmith, Justice Jackson 's Unpublished Opinion in Ex Parte Quirin, 9 GREEN BAG 232 (2006);
270. Aya Gruber, Raising the Red Flag: The Continued Relevance of the Japanese Internment in the Post-Hamdi World, 54 U. KAN. L. REV. 307 (2006).
271. Quirin, 317 U.S. at 20 (reciting the undisputed facts as they "appear from the petitions or are stipulated").
272. Id. at 21-22.
273. Korematsu, 323 U.S. at 215-16 ("Civilian Exclusion Order No. 34 ... directed ... all persons of Japanese ancestry [to] be excluded from [the] area [of San Leandro].").
274. Exparte Endo, 323 U.S. 283, 297 (1944).
275. See, e.g., Compagnie Française de Navigation àVapeur v. La. State Bd. of Health, 186 U.S. 380, 387 (1902) ("That . .. state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States ... is not an open question.");
276. Ex parte Culver, 202 P. 661, 663 (Cal. 1921) ("There can be no doubt that . .. the state board of health has power to order the quarantine of persons who have come in contact with cases and carriers of contagious diseases . . . .");
277. Kirby v. Harker, 121 N.W. 1071 (Iowa 1909); Haverty v. Bass, 66 Me. 71 (1876).
278. See, e.g., Addington v. Texas, 441 U.S. 418, 426 (1879) ("The state has a legitimate interest ... in providing care to its citizens who are unable because of emotional disorders to take care of themselves . .. [and in] protecting] the community from the dangerous tendencies of some who are mentally ill.").
279. See, e.g., Bruce Ackerman, This Is Not a War, 113 YALE L.J. 1971, 1881 (2005) (using the hypothetical of a quarantine to justify an emergency executive power to detain);
280. Christopher Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 46 n.203 (2003);
281. Yung Tin, Ending the War on Terrorism One Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees, 29 HARV. J.L. & PUB. POL'Y 149, 155-56 (2005) (proposing a noncriminal system of detention analogous to procedures for pretrial detention for dangerousness, quarantine, and civil commitment).
282. Dunaway v. New York, 442 U.S. 200, 208 (1979) (emphasis added).
283. See, e.g., Ex parte Martin, 188 P.2d 287 (Cal. Ct. App. 1948) (upholding the quarantine of two women to prevent the transmission of venereal disease based upon evidence that the women lived in an establishment, De Luxe Rooms, at which prior arrests for prostitution had occurred).
284. See, e.g., Jew Ho v. Williamson, 103 F. 10 (N.D. Cal. 1900) (striking down quarantine of all of San Francisco's Chinatown);
285. Wong Wai v. Williamson, 103 F. 1 (N.D. Cal. 1900) (invalidating a San Francisco quarantine supposedly directed at carriers of bubonic plague where the quarantine applied only to Chinese).
286. See, e.g., Moyer v. Peabody, 212 U.S. 78, 84 (1909) (upholding temporary detention without probable cause during state of insurrection).
287. U.S. CONST, art. 1, § 9. A suspension of habeas is usually understood not as affecting the legality of a seizure, but rather as affecting only the prisoner's remedies-in particular, preventing the prisoner from obtaining release.
288. See WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 171 n.118 (1980) ("It should be noted that suspension did not legalize arrest and detention. It merely suspended the benefit of a particular remedy in the specific case.");
289. Trevor W. Morrison, Hamdi's Habeas Puzzle: Suspension as Authorization, 91 CORNELL L. REV. 411, 435-37 (2006).
290. But see David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 NOTRE DAME L. REV. 59 (2006) (arguing the opposite position). This view implies that even when habeas is suspended, an individual imprisoned on the basis of an enemy-combatant designation might still have other remedies-for example, monetary remedies-if a court were later to determine that his detention violated the Fourth Amendment.
291. United States v. Salerno, 481 U.S. 739, 748 (1987).
292. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952).
293. See id. at 587 ("Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.").
294. See Leslie Cauley, NSA Has Massive Database of Americans ' Phone Calls, USA TODAY, May 11, 2006, at Al;
295. Seymour M. Hersh, Listening In, THE NEW YORKER, May 29, 2006, at 24.
296. See Dan Eggen, Lawsuits May Illuminate Methods of Spy Program, WASH. POST, Aug. 14, 2007, at Al. Independently, federal law enforcement officers have also attempted, at least in some instances successfully, to obtain from Internet service providers search history data on millions of people.
297. See Gonzales v. Google, 234 F.R.D. 674 (N.D. Cal. 2006).
298. See Smith v. Maryland, 442 U.S. 735 (1979);
299. supra Part I.C-D and notes 54-55.
300. Smith, 442 U.S. at 743-44.
301. However, for similar reasons, there would be no constitutional difficulty if the government chose to immunize (even retroactively) companies cooperating with the NSA from private-party damage-seeking lawsuits. Such immunity would confirm the existence of state action in such cases, and so long as the state remained responsible for any constitutional violations, immunizing the private companies would not be unconstitutional.
302. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A20; President George W. Bush, President's Radio Address (Dec. 17, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/print/ 20051217.html ("In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.").
303. For a summary of the facts of the program, see Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006).
304. Att'y Gen. Alberto Gonzales & Gen. Michael Hayden, Principal Deputy Dir. for Nat'l Intelligence, Press Briefing (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html.
305. See Eric Lichtblau & David Johnston, Court to Oversee U.S. Wiretapping in Terror Cases, N.Y. TIMES, Jan. 18, 2007, at A1.
306. ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
307. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811, 1821-1829, 1861-1862 (2000).
308. See, e.g., ACLU v. NSA, 438 F. Supp. 2d 754, 779 (E.D. Mich. 2006) (holding that the "secret authorizationfs] . . . violate the Separation of Powers ordained by the very Constitution of which this President is a creature");
309. Jack M. Balkin & Sanford Levinson, The Process of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 499-500 (2006).
310. Katz v. United States, 389 U.S. 347 (1967).
311. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995);
312. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989);
313. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989).
314. See Vernonia Sch. Dist., 515 U.S. at 652-53 ("[W]hether a particular search meets the reasonableness standard 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'"
315. (quoting Skinner, 489 U.S. at 619));
316. Von Raab, 489 U.S. at 676.
317. 50 U.S.C. § 1802(a)(1) (2000) (emphasis added).
318. 50 U.S.C.A. § 1801(b) (West 2006).
319. 50 U.S.C. § 1805(a)(3)(A) (2000).
320. See, e.g., S. REP. NO. 94-465 (1975) (detailing the results of the investigation by the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), available at http://www.aarclibrary.org/publib/church/reports/ir/contents.htm (part of an online collection of Church Committee reports on the formation, operation, and abuses of U.S. intelligence agencies).
321. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 321-22 (1972) ("We have not addressed and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.").
322. Several courts upheld warrantless foreign intelligence surveillance. See, e.g., United States v. Truong Dinh Hong, 629 F.2d 908, 914 (4th Cir. 1980) (ruling on surveillance that took place before passage of FISA) ("[B]ecause of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.");
323. United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977);
324. United States v. Butenko, 494 F.2d 593, 606 (3d Cir. 1974). The District of Columbia Circuit, however, took a different view.
325. See Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975);
326. see also Chagnon v. Bell, 642 F.2d 1248, 1258 (D.C. Cir. 1980) ("[T]he state of the law with respect to electronic surveillance of foreign agents of foreign powers was, at best, unsettled in 1977-1978....").
327. 50 U.S.C. § 1802(b) (2000).
328. 50 U.S.C. § 1802(a)(3) (2000).
329. 50 U.S.C. § 1806 (2000).
330. See, e.g., United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987) ("FISA's numerous safeguards provide sufficient protection for the rights guaranteed by the Fourth Amendment within the context of foreign intelligence activities.");
331. United States v. Duggan, 743 F.2d 59, 73 (2d Cir. 1984) ("We regard the procedures fashioned in FISA as a constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information.").
332. See KEITH WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 194-201 (1999) (arguing that FISA was the product of "constitutional construction" in which constitutional meaning was elaborated through primarily political, not judicial, means).