Controversy erupted in 2019 when news broke that the FBI had disregarded its own rules and regulations when it initiated surveillance of Donald Trump’s campaign advisor, Carter Page, as a possible Russian agent. Less publicity has accompanied the fact that this incident was not an anomaly. In fact, revelations of unlawful foreign intelligence surveillance activities have come with alarming regularity over the past two decades. These regulatory, statutory, and constitutional violations have involved unauthorized collection of information, misusing information in the government’s possession, and repeatedly misleading the Foreign Intelligence Surveillance Court regarding the nature and scope of surveillance programs. This Article argues that frequent violations are inevitable under the current regulatory model, that these violations impose unacceptable costs on Americans’ privacy interests, and that they can only be prevented by reimagining surveillance regulation. The Article seeks to do so by drawing on the idea of “constitutional common law” and the related concept of underenforcement of constitutional norms—the idea that some doctrinal rules will systematically fail to fully vindicate constitutional rights. After detailing the government’s extensive record of surveillance-rule violations, the Article explains why surveillance rules are predictably, systematically biased towards underenforcement. It then goes on to propose multiple specific reforms designed to combat this tendency, particularly in the contexts where violations have been most problematic.
* Associate Professor and Royce R. Till Professor of Law, University of Houston Law Center. Thanks to participants in UHLC Summer Faculty Workshop and the ACS Constitutional Law Colloquium, as well as Bill Banks, Barry Friedman, Aziz Huq, James Nelson, and Jessica Roberts.
The full text of this Article is available to download as a PDF.