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Warrantless Wiretapping, Retroactive Immunity, and the Fifth Amendment
By Mike Wagner

This Note argues that Congress should amend the FISA Amendments Act of 2008 ("FISAA") to remove its retroactive grant of immunity because it unconstitutionally infringes on the rights guaranteed in the Fifth Amendment of the Consitution.  First, FISAA violates the Fifth Amendment’s Due Process Clause because it retroactively abrogates a right of action which had already accrued to a claimant.  Second, FISAA contravenes the Fifth Amendment’s Takings Clause by eliminating accrued tort claims without providing just compensation.

In order to cure these defects, Congress should replace the retroactive grant of immunity to telecommunications providers with an alternative administrative fund that plaintiffs can opt into in exchange for dropping their cause of action.  Such a solution, when coupled with a provision for ex parte, in camera review of all classified national security material at trial and a statutory cap on damages, avoids these Fifth Amendment problems by permitting suits against telecommunications providers to move forward while still protecting classified national security information and shielding telecommunications firms from undeserved liability.

Part I of this Note provides a brief overview of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), describes the role played by telecommunications providers in the NSA’s Terrorist Surveillance Program (“TSP”), discusses the most publicized suit arising from this warrantless domestic surveillance, and explains the adoption of FISAA in July of 2008.  Part II analyzes the retroactive immunity provision of FISAA and examines its constitutional deficiencies under the Due Process and Takings Clauses of the Fifth Amendment.  Part III proposes several changes to FISAA that would ensure its constitutionality under the Fifth Amendment while still addressing the concerns that prompted its enactment.  Finally, Part IV demonstrates that in addition to constitutional arguments, sound policy reasons also militate in favor of amending FISAA to incorporate the changes proposed here.

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About This Content
Keywords: FISA, Wagner, domestic surveillance, constitutional law
Content Type: Note
Media Type: Print
Author: Mike Wagner
Publish Date: November 2009
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