BYU Law Review


Emily Berman


The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by the Fourth Amendment—individual privacy and freedom from arbitrary government intrusions into the personal sphere. Faced with government surveillance requests that posed significant privacy concerns, but for which the government was unlikely to accept “no” as an answer, the FISC resourcefully employed a familiar tool—minimization procedures (rules designed to augment privacy protections in the context of electronic surveillance)—to champion constitutional principles and preserve for itself a role in surveillance oversight while simultaneously avoiding a no-win confrontation with the executive. This creative solution took the form of a bargain: the FISC permitted the government to implement its surveillance programs, but only after embedding in those programs a set of rules protecting what I have labeled “quasi-constitutional rights.”


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