Yochai Benkler, law professor and director of the Berkman Center for Internet & Society at Harvard University, writes in The Guardian that a ruling in the Foreign Intelligence Surveillance Court contradicts recent jurisprudence from the U.S. Supreme Court on security and the constitutional protection from unreasonable searches and seizures. One of the most important implications of Benkler's argument is for FICA no longer to be an ex parte, completely secret court. Creating a role for an adversary to the goverment's surveillance requests has been one of the key reforms suggested for FISC. Benkler says that if FISC was adversarial that the U.S. Supreme Court's holding in United States v. Jones--that it was unconstitutional for law enforcement to place a GPS tracking device on a suspect's vehicle without a warrant-- would not have been ignored by FISC in a decision setting out "why the government's collection of records of all Americans' phone calls is constitutional."
Lawyer and Legal Journalist
