ThinkTankWeekly

The Fourth Amendment Forecloses a Foreign Intelligence Exception: A Brief Case Against the FISA Section 702 Program

CATO | 2026-06-03 | society

Topics: Climate, Europe, United States

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English Summary

CATO’s analysis argues that the FISA Section 702 program fundamentally violates the Fourth Amendment by treating bulk data collection of Americans as equivalent to a general warrant, a practice the Founding Fathers explicitly sought to abolish. The organization contends that the FISC’s ‘foreign intelligence exception,’ built upon judicial interpretation, is a constructed loophole rather than a genuine constitutional provision. Evidence cited includes the Founders’ use of encryption to protect their communications and the absence of a national security exception in the original Fourth Amendment text. Furthermore, the program’s architecture – collecting communications ‘to, from, or about’ foreign selectors – inherently sweeps in American data, creating a system of unwarranted surveillance. This ultimately necessitates a warrant requirement to protect individual privacy rights.

中文摘要

CATO 的分析認為, FISA 第 702 條項根本上侵犯了第四修正案,將美國公民的大量數據收集視為一種廣泛逮捕令,而這正是開國元勳們明確致力於廢除的做法。該組織認為,FISC 的『外國情報例外』,基於法官解釋,並非真正的憲法條文,而是一種虛構的漏洞。引用的證據包括開國元勳使用加密技術保護其通信,以及原始第四修正案文本中沒有國家安全例外情況。此外,該項目的設計——收集「與、來自或關於」外國選定的通信——固有地會滲透到美國數據中,形成一種不必要的監控系統。這最終需要獲得逮捕令以保護個人隱私權。

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