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"I ALWAYS FEEL LIKE SOMEBODY'S WATCHING ME": A Fourth Amendment Analysis Of The Fbi's New Surveillance Policy


Friday, Jun. 14, 2002

Attorney General John Ashcroft's latest regulation expands the FBI's authority to surveil Americans in public venues such as open Internet chat rooms, political rallies, and houses of worship. The new regulation deserves close analysis under the Constitution's Fourth Amendment, which governs government snooping.

The Fourth Amendment helps identify what is sensible and what is problematic about Ashcroft's new policy. In turn, Ashcroft's regulation helps identify what is sensible and what is problematic about the Supreme Court's Fourth Amendment caselaw.

The Constitution and the Regulation

shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The new regulation, issued on May 30, provides (in relevant part) that: "For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally. . . . For the purpose of detecting or preventing terrorism or other criminal activities, the FBI is authorized to conduct online search activity and to access online sites and forums on the same terms and conditions as members of the public generally."

Is the Regulation Even Covered by the Amendment?

Does visiting a website or attending a public rally or an open worship service even constitute a "search" that triggers the Fourth Amendment? We think so.

In ordinary language, one commonly speaks of performing an "online search." Indeed, this is the exact wording of Ashcroft's regulation itself .

And when FBI agents engage in extensive naked-eye surveillance at a rally or in a mosque, they are searching, according to a standard definition of the verb "search" in the Oxford English Dictionary: "To look scrutinizingly at." (Interestingly, the OED illustrates this usage with a passage from Justice Holmes's father, Oliver Wendell Holmes, Sr.: "He searched her features through and through.")

Nonsearch Nonsense: Supreme Court Decisions Denying a Search Has Occurred

The Supreme Court, however, has sometimes denied that "search" means "search," holding instead that certain sightings of things in plain view lie outside the Fourth Amendment's scope. In Florida v. Riley, for example, the Court ruled that hovering 400 feet over a backyard greenhouse with a surveillance helicopter was not a search; and in U.S. v. Dunn, the Justices likewise ruled that trespassing onto a person's private homestead, climbing over his fences and peering into his barn was a nonsearch.

What accounts for such stingy readings at the Fourth Amendment threshold? In part, the modern judicial exclusionary rule, which often suppresses evidence acquired in unconstitutional searches, even if the evidence is highly reliable proof of violent crime. Because many judges dislike suppressing such evidence, they may be tempted to deny the Fourth Amendment was violated in the first place by ruling that no real "search" took place.

The Court's nonsearch gambit is also a product of its intermittent insistence that searches ordinarily require probable cause or at least individualized suspicion - that is, some particular reason to single out the searchee. But the Fourth Amendment's text simply does not say this.

Rather, as explained in our March 8 column, the Amendment requires merely that a search be "reasonable." (The Amendment's rules about "probable cause" apply only to warrants, not to all searches.) The Constitution's wording makes good sense; sometimes a reasonable search may take place without any individualized suspicion, as with airport metal detectors.

Confusingly for both theorists and practitioners, the Court has sometimes upheld searches without individualized suspicion; but at other times has insisted that such searches are presumptively unconstitutional. This insistence, in turn, has pressured the Court into denying that an instance of naked-eye surveillance is a search at all.

Were the Court to both hold naked-eye surveillance to be a search, and also insist that searches must proceed only upon individualized suspicion, then most ordinary surveillance would be unconstitutional. That is because police and FBI agents typically engage in naked-eye surveillance before they have probable cause or anything like it. Indeed, it is often such surveillance that generates the probable cause supporting a later application for a search warrant.

Once again, an overly broad reading of the Fourth Amendment in one place (presumptively requiring all searches to be supported by probable cause or something like it) creates hydraulic pressure to weaken the Amendment in another place (by denying that naked-eye surveillance is even covered by the Amendment at all).

A Better Framework: Calling a Search a Search

A better approach-more commonsensical and more faithful to the Constitution's text-would call a search a search, but would also recognize that many forms of naked-eye surveillance are often reasonable searches, which is all the Constitution requires.

If a particular surveillance is unduly prolonged or unjustified, or discriminatory, or expression-chilling, or especially intrusive, it might thereby become unreasonable. For this very reason, judges should treat surveillance as a search, and monitor its overall reasonableness. The commonsense intuition that constant surveillance is tantamount to a search, and can overstep the bounds of reasonableness, should be reflected in Fourth Amendment doctrine, as well.

There are shards in judicial doctrine that would support this revised approach. For instance, the current judicial test for deciding when a Fourth Amendment "search" has occurred speaks of whether the government has intruded upon a citizen's "reasonable expectation of privacy"-thus smuggling the reasonableness inquiry into the threshold determination as to whether a given government activity comes within the Fourth Amendment in the first place.

The new Ashcroft regulation itself helps illustrate the importance of these factors to proper Fourth Amendment analysis.

Public versus Private Surveillance

Ashcroft stresses that his new regulation gives FBI field agents only the same surveillance power as ordinary members of the public enjoy-to attend public events or monitor public websites. These restrictions weigh in favor of overall reasonableness, and distinguish Ashcroft's May 30 regulation from his October 30, 2001 regulation intruding into traditionally private conversations between lawyers and clients. (For a Fourth Amendment critique of that earlier regulation, see our November 16, 2001 column.) Nevertheless, the issue of public surveillance is more complicated than Ashcroft suggests.

For starters, the ability of ordinary citizens to monitor others in public is not unlimited. If a private person stalks and surveils his target for months upon end, following her whenever she leaves the house, this can indeed constitute a tort of invasion of privacy. If the FBI did this without justification, there might likewise be an overall invasion of privacy even if all the surveillance occurred in public.

More generally, the FBI commands vast resources that ordinary members of the public lack. If an individual wants to infiltrate a church or political organization, he can attend a meeting or two. But no single person or group of persons could ever have the chilling effect on religious or political association that the FBI, with its army of full-time employees, could have merely by being present at events open to the public.

Being stalked by the FBI-even in public places -is hugely different from being stalked by an individual. Just because a person expects that some individuals may see some things he does in public, does not mean he expects government to see everything he does that might be publicly visible all the time. (Similarly, the formal right of a private jet to fly high above a person's backyard is very different from a government surveillance chopper hovering for hours a hundred yards above his hammock and snapping pictures-a point that, unfortunately, was lost on the Court in Florida v. Riley.)

Finally, the Constitution often bars government from doing what private citizens may do. Ordinary Americans are free to spew racial epithets or blacklist liberals. The FBI is not (even though in the past it has done both). Similarly, a private investigator might be free to monitor the speeches only of candidates criticizing the Republican Party; but such selective partisan targeting should be off limits to the FBI.

The Identity of the Searcher: Why It Matters That It is the FBI, In Particular, Surveilling

Thus, it matters not just who is being searched (and why, and how) but also who is doing the searching. Judicial doctrine has been slow to openly recognize this point. But surely a patdown search of a woman at an airport would generally be more reasonable if done by a female officer rather than a male. So too, in his famous opinion in Terry v. Ohio, Chief Justice Warren

Also, the Court has said that certain searches of criminal suspects require more judicial monitoring than searches of noncriminals; but the Fourth Amendment's words contain no such distinction. A better rationale for this rule is that searches done by police departments raise special concerns, because such departments can develop institutional tunnel vision that distances them from the general society and thus requires special judicial oversight.

A similar point applies to the FBI. Prior to the new Ashcroft regulation, rules dating back to the mid-1970's had placed special limits on FBI investigations of political and religious organizations. Before an agent could attend certain public events or meetings, or gather information about certain organizations open to the public, he had to have a particularized reason - as opposed to a simple hunch - for believing that a crime had already been committed there, and he had to obtain special intra-departmental approval.

These rules arose because of an earlier pattern of systematic abuse by the FBI under the leadership of J. Edgar Hoover. Under "COINTELPRO" (COUNTER INTELLIGENCE PROGRAMS) initiatives conducted between 1956 and 1971, the FBI surveilled and kept files on hundreds of civil rights and religious activists including Martin Luther King and other leading opponents of the Vietnam War.

Democratic Authorization: Why Congress's Blessing Matters

The 1970's guidelines were the product not merely of the FBI's own soul-searching, but of a series of Congressional hearings conducted during 1971-1975, documenting and spotlighting the abuses of Hoover's FBI.

Thus, the prophylactic internal rules in place until last week were themselves the result of a dialogue between the Executive Branch and Congress. Even if Ashcroft's new rules are sound policy, it is troubling that the executive branch issued them without formally consulting Congress or (better still) winning Congress's explicit approval in a statute.

The Fourth Amendment speaks of a right of the people, after all - and the people's view about the reasonableness of a government action deserves to be part of a sensible Fourth Amendment analysis. The people are represented not just by the executive branch but by the legislature too. Any policy that intrudes upon Fourth Amendment interests should receive less deference from judges if it comes with the backing of only one of the elected branches rather than both.

The Rehnquist Court, however, has failed to pay much heed to anyone's view of the Constitution other than its own, and has in general paid less deference to Congress as a co-ordinate branch than any previous Court in history. (The statistics appear in our April 5 column.) Ashcroft thus had less incentive to win Congress's approval because such approval would not be given much weight by today's Court.

Coerciveness and Intrusiveness

Free Expression and Equality

Another key Fourth Amendment value is implicit in the word "papers." By singling out "papers" above and beyond all other "effects," the Fourth Amendment reminds us of the importance of protecting free expression, which would be threatened if government could rummage through citizens books and writings at will. More generally, Fourth Amendment reasonableness should factor in the threat a given government search policy poses to political and religious expression.

Likewise, equality values and dignity values should be part of the overall reasonableness analysis. Government surveillance of churches, mosques, and political assemblies raises special concerns if government is allowed simply to pick and choose whom it will surveil and whom it will spare.

Even if such surveillance does not independently violate the First Amendment (because no one is being coercively prevented from speaking) or the Equal Protection clause (because there is no explicit intent to discriminate, but only a disparate impact on certain minority races or minority faiths), it does call for heightened Fourth Amendment scrutiny.

The Government's Reasons: An Obvious Key to "Reasonableness"

Finally, reasonableness should obviously turn on the government's reasons. The new Ashcroft regulation does not simply allow FBI agents to surveil religious and political meetings for any reason at all. Rather agents may surveil only "for the purpose of detecting or preventing terrorist activities"-about as compelling a reason as can be imagined after the horror of September 11.

Authority to surf public websites, as granted in the new regulation, is broader-going beyond crimes of terror-but this makes sense given that reading a public website is less intrusive than surveilling physical meetings.

These restrictions are further reminders of the value of treating FBI surveillance as a search. For if it were not a search, the Fourth Amendment simply would not apply, and government would not need to have any reason at all. But if, as we argue, surveillance is a search, it needs to have reasons, and the more intrusive it is, the stronger the reasons must be.

In the end, the problem with the Ashcroft regulation is not that it lacks reasons or restrictions; but that it also poses dangers, when previous FBI abuses are kept in mind. Yet these dangers were not brought before, and openly weighed by, the people's representatives in Congress, as they should have been.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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