Page 153 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 141

States would flood American courts with lawsuits for damages related to
Fourth Amendment violations in foreign countries. Furthermore, they
argued, the executive and legislative branches would be “plunged into a sea
of uncertainty as to what might be reasonable in the way of searches and
seizures conducted abroad.” 137
These divergent views on the extraterritorial application of the Constitu-
tion can be traced to the distinct theories invoked in defense of these clashing
interpretations of the Fourth Amendment. Social contract theory, on one
hand, contends that “the people” in the Constitution refers to a voluntary
party to the social contract (i.e., citizens or “a class of persons who are part
of a national community or who have otherwise developed sufficient con-
nection with this country to be considered part of that community”). 138 By
contrast, natural rights theory views the Constitution as a constraint on
the American government’s activities everywhere—as limits on the actor
rather than rights given to a specific kind of victim. 139 At present, the pre-
vailing legal consensus supports the former theory, and foreign nationals
abroad are consequently excluded from the protection of the Constitution’s
Fourth Amendment.

b. Domestic Law
Section 702 of FISA enacted in 2008 authorizes the PRISM program to
collect, without a warrant, the electronic communications of foreign targets
reasonably believed to be both non- U.S. citizens and outside the United
States. 140 Furthermore, according to the FISA Amendments Act, any for-
eign national outside the United States can be targeted for surveillance
as long as the government’s objective is to collect foreign intelligence. 141
FISA broadly defines “foreign intelligence collection” as “information with
respect to a foreign power or foreign territory that relates to the conduct of
the foreign affairs of the United States.” 142
In accordance with FISA, the Attorney General and Director of National
Intelligence can issue one-year blanket authorizations for the surveillance
of non-citizens who are reasonably believed to be outside the United
States. 143 Along with this authorization, the Attorney General also pro-
vides the FISC with a “written certification containing certain statutorily
required elements.” 144 The court reviews the certification as well as the
targeting and minimization procedures mandated by FISA regulations. 145
If the judge determines that the targeting and minimization procedures
adequately restrict the acquisition, retention, and dissemination of private
information related to U.S. persons and are consistent with the require-
ments of the FISA subsections and the Fourth Amendment, the judge
enters an order approving the certification. 146 If, on the other hand, the
court decides that the 702 application does not meet the aforementioned