President Donald Trump signed the Foreign Intelligence Surveillance Act (FISA) Amendments Reauthorization Act of 2017 into law. Like his predecessor, the Republican president gave no consideration to the fact that FISA is a general warrant, which is the very type of blanket power that the Founding Fathers stood against when they put the Fourth Amendment into the U.S. Constitution.
Judge Andrew Napolitano wrote in a piece for the Tenth Amendment Center that general warrants are meant to be illegal under the Constitution precisely because they come from the authority’s wish to have access to the privacy of all Americans.
At the time the Founders came up with the wording contained in the Fourth Amendment, England and its parliament saw national security as an excuse to invade everybody’s privacy. By looking at the sovereignty of the individual as the basis of private property law, the Founders went on to write that warrants were to be issued based only on probable cause of crime.
By reauthorizing FISA, however, Trump showed the Constitution, the piece of paper he swore to uphold, nothing but contempt.
As Napolitano explains, FISA “[added] another way for the government to invade privacy when its wish is to surveil people for national security purposes — a return to general warrants — as opposed to solely gathering evidence of crimes.” As a result, the government ends up collecting the haystack to look for the needle. Instead of looking at the crime and its causes first to find a culprit, these general warrants give the government more data than it can handle.
Thanks to Trump, Washington’s secret court will continue to issue general warrants with the excuse of keeping us safe from those “dangerous” foreigners. But instead of non-citizens, it is us who pay the price.
As Napolitano explains, FISA warrants authorize governments to surveil “all landlines, mobile devices and desktop computers in a given area or ZIP code … without any evidence of crime or even suspicion.” With 99 percent of the warrants the government requests being granted by FISA courts, one can only imagine how much data on all of us the government already has in its hands. Can you imagine how much more it’s about to collect now thanks to Trump?
As libertarians, we’re aghast at the callous disrespect the FISA reauthorization shows toward our Fourth Amendment rights, but the truth is likely that most Americans will gladly give up some of these protections for a more effective surveillance state against foreign and domestic threats. People are becoming more afraid of terrorists and “dangerous” foreigners than the threat of tyranny.