Fourth amendment rights for nonresident aliens

The U.S. National Security Agency (NSA) has nearly unlimited authority to spy upon citizens of foreign countries while they are outside the United States. Section 702 of the Federal Intelligence Surveillance Act (FISA) allows the NSA to collect the “metadata” of nonresident aliens (NRAs) – the collection of which from U.S. citizens is now of dubious constitutionality – as well as the content of the electronic communications of NRAs. The only precondition for collecting this information – other than that the targets must be NRAs and that the collection must be “conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States” – is that the aim is to “acquire foreign intelligence information.” This requirement is so broad that it serves as no meaningful restriction at all. It goes almost without saying that such targeting of U.S. citizens and resident aliens, without any hint of individualized suspicion either of criminal wrongdoing or of being a threat to national security, would be constitutionally prohibited. The Fourth Amendment protects U.S. citizens and resident aliens “against unreasonable searches and seizures,” and such targeted searching for information without individualized suspicion has long been regarded as unconstitutional. But the dominant view in the American legal community is that there is nothing constitutionally wrong, or even suspect, about targeting of NRAs without an identifiable reason for doing so. The assumption is that the U.S. Constitution – specifically the Fourth Amendment – simply does not provide protection to non-resident aliens. I contend here that the dominant view of the law is wrong both descriptively and normatively. It is wrong with regard to the proper interpretation of the relevant constitutional case law, because that case law is more open-ended and unclear than the dominant view represents it as being. And it is wrong with regard to the underlying legal and moral principles that should guide the interpretation and development of constitutional law. Those principles call for recognizing that NRAs enjoy the Fourth Amendment's prohibition on unreasonable searches and seizures.