The development of the legislation in the US concerning search and seizure procedures was characterized by the permanent conflict between the interest of the state and the protection of fundamental civil rights of American citizens and people living on the territory of the US. In this respect, a variety of legislative acts and norms have been promulgated, including the Fourth Amendment to the US Constitution and one of the recent amendments to the Foreign Intelligence Surveillance Act implemented in 2007. In fact, practically all legislative initiatives concerning the procedure of search and seizure were accompanied by heat discussions and conflict often emerged because of the original contradiction of any attempts to restrict human rights through the enlargement of the power of law enforcement agencies in regard to the search and seizure procedures encountered a strong opposition from the part of the society which stood for the preservation of full civil rights of Americans.
On the other hand, as a rule, restrictive legislative initiatives appeared when the actual situation forced the US authorities to undertake single steps to guarantee the national security and protect the life and well-being of American citizens. In such a context, the Fourth Amendment and The Foreign Intelligence Surveillance Act are two antagonistic legislative norms by their nature since the former regulates and restricts the procedure of search and seizure, while the latter enlarges the rights of law enforcement agencies regarding search and seizure procedures.
On analyzing the difference between the Fourth Amendment and FISA and possible contradictions of the FISA to the Fourth Amendment, it is essential to underline the enormous time gap between these two legal norms. The Fourth Amendment was implemented in the 18th century, while the FISA was implemented in the second half of the 20th centuries and the recent amendments to the act were implemented in 2007. In such a way, two centuries gap is a substantial barrier which naturally evokes certain contradictions between the Fourth Amendment and the FISA. To better understand the nature of differences and possible contradictions of the FISA to the Fourth Amendment, it is necessary to refer to the historical context in which both the Fourth Amendment and the FISA were implemented.
First of all, it is important to underline that the Fourth Amendment was implemented in the epoch of the American Revolution and the post-war years. In actuality, the historical situation forced the US authorities to implement the consistent legislative changes to secure American citizens from the unsanctioned search and seizure and minimize the interference of the state and law enforcement agencies in the private life of individuals. In this respect, the American Revolution background played probably the determinant role in the implementation of the Fourth Amendment because, historically, American legislation was based on the English common law and its basic norms and principles were widely spread in the US in the epoch prior to the independence and even after gaining the independence the US was still influenced substantially by norms and principles of the English common law, which laid the foundation for the American legislative system.
In such a situation, the US legislation had failed to guarantee the full security of the private life of Americans. Moreover, the practice of so-called writs of assistance was quite widely spread, especially in the epoch of the American Revolution and shortly after the war. The writs of assistance were extremely controversial legal practices since they implied the general search warrants. In other words, law enforcement agencies had a legal right to search by the general search warrant. However, the general search warrant opened huge opportunities for law enforcement agencies to search and seizure regardless of the obvious and motivated cause of search. To put it more precisely, Americans could be searched and seized without any specific pretext or reason but on the ground of general assumptions and suspects.
Naturally, such a practice contradicted to the basic human rights which constituted the backbone of the US Constitution and all legislative acts. As a result, to adopt the American legislation to the fundamental human rights, the Fourth Amendment was implemented. The Fourth Amendment guarded against unreasonable search and seizure. To stop the practice of writs of assistance, the Fourth Amendment specifies that judicially sanctioned search and arrest warrant must be supported by probable cause and be limited in scope according to specific information supplied by a person who has sworn by it and is therefore accountable to the issuing court (Pikowsky, 2002). In such a way, the Fourth Amendment restricted the opportunities for unreasonable search and seizure consistently.
In stark contrast, the FISA and its latest amendments enlarge rights of law enforcement agencies to search and seizure. In this respect, it is important to underline that initially the FISA was implemented to protect the US from the penetration of foreign intelligence services into the system of national security of the US. The FISA simplified the procedure of search and seizure law enforcement agencies and the recent amendments were justified by the struggle of the US against terrorism and by the necessity to minimize the threat of terrorist attack against the US citizens. In fact, the FISA enlarges the rights of law enforcement agencies to search and seizure in case of the suspicions concerning intelligent and terrorist activities. The FISA prescribes procedures for the physical and electronic surveillance and collection of evidence.
At first glance, the act restricts the rights of Americans consistently and eases the procedures prescribed by the Fourth Amendment. For instance, the FISA facilitates the surveillance procedure about foreigners suspected of spying or terrorism and even about Americans, but the surveillance cannot be unsanctioned and needs the court approval in a three-day term if American citizens or parties are involved.
On the other hand, the FISA and recent amendments could be justified by the objective need to increase the national security of the USA. The growing activity of foreign intelligence services and the threat of terrorism, especially after the 9/11 forced the American authorities to enforce legal norms concerning the procedure of search and seizure to minimize external threats, including the threat of terror attacks. Besides, the FISA is not as restrictive as it may seem to be because about American citizens the act guarantees the observation of basic legal procedures defined in the Fourth Amendment, namely, the search or surveillance cannot be unreasonable. Hence, an American citizen cannot be surveyed without a substantial reason and respective sanctions of American authorities.
Thus, taking into account all above mentioned, it is possible to conclude that the FISA does not perfectly match the norms of the Fourth Amendment. At the same time, it would be erroneous to estimate that the FISA violates the norms of the Fourth Amendment. In fact, the FISA should be viewed as an attempt of the contemporary American authorities to adopt the American legislation to the new challenges the American society faces today, including the threat of terrorism and foreign intelligence. In such a way, the controversies of the FISA are determined by the change of the objective reality in which the act was implemented. In stark contrast, the Fourth Amendment was an essential measure to protect basic rights of Americans, while the FISA limited in a way fundamental rights for the sake of security of American citizens.
Evans, Jennifer C., “Comment: Hijacking Civil Liberties: The USA PATRIOT Act of 2001,” 33 Loy. U. Chi. L. J. 933 (Summer, 2002).
McCarthy, Michael T., “Recent Development: USA PATRIOT Act,” 39 Harvard Journal on Legislation 435 (Summer, 2002).
Osher, Steven A., “Essay: Privacy, Computers and the Patriot Act: The Fourth Amendment Isn’t Dead, But No One Will Insure It,” 54 Fla. L. Rev. 521 (July, 2002)
Pikowsky, Robert A., “An Overview of the Law of Electronic Surveillance Post September 11, 2001,” 94 Law Library Journal 601 (Fall 2002).
Rackow, Sharon H., “Comment: How the US Patriot Act Will Permit Governmental Infringement Upon the Privacy of Americans in the Name of ‘Intelligence’ Investigations,” 150 U. Pa. L. Rev. 1651 (2002)
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