1THE FISA AMENDMENTS ACT OF 2001 AND 2008: SHREDDING THE FOURTH ANDFIFTH AMENDMENTSFlorida Coastal School of LawAbstract:September 11, 2001 was a tragic event that changed the face of America, and broughtabout sweeping reforms in the legal system, allowing broader measures to protect nationalsecurity while testing the boundaries of civil liberties. One such reform is the Foreign
Intelligence Surveillance Act or “FISA,” as amended in 2001 and 2008. FISA was enacted in
1978, ushering in the era of electronic surveillance for foreign intelligence purposes, requiringthe government to seek an order from
the Foreign Intelligence Surveillance Court or “FISC” to
conduct surveillance. After the FISA amendments in 2001 and 2008 things changed, FISA hasbecome the primary mode for abusing the Fourth Amendment, lowering the probable causestandard to receive a warrant for surveillance and even warrantless wiretapping against American
citizens. Additionally, FISA slashes the Fifth Amendment’s Due Process Clause by allowing
retroactive immunity for Telecommunications Providers acting in complicity with governmentwiretapping. FISA dismantles civil liberties for the sake of national security. This paper willdiscuss specific FISA amendments, arguments supporting national security measures, argumentsto protect civil liberties, and suggestions for reform to preserve Fourth and Fifth Amendmentrights.
In 1978, during the Cold War, Congress passed the Foreign Intelligence Surveillance Act,or FISA; effectively entering the field of electronic surveillance for foreign intelligencepurposes.
The purpose was to establish a statutory procedure authorizing the use of electronicsurveillance in order to obtain foreign intelligence information.
Presidential administrationssince Franklin D. Roosevelt have attempted to justify the ability to conduct electronicsurveillance for national security purposes as an exception to Fourth Amendment warrantrequirements.
following Roosevelt’s continued to expand on
1Matthew A. Anzaldi & Jonathan W. Gannon,
In Re Directives Pursuant to Section 105B Of The Foreign Intelligence Surveillance Act: Judicial Recognition Of Certain Warrantless Foreign Intelligence Surveillance
, 88 T
. 1599, 1605 (2010).2
John J. Dvorske, Annotation,
Validity, Construction, and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and Their Agents
, 190 A.L.R. F
. 385 (2003).