Although the “reasonable expectation of privacy” test set forth in Katz represented a historic expansion of the Fourth Amendment’s right to privacy, it has few defenders among privacy scholars today. It is vulnerable to critique on a number of fronts: it is circular and gives courts little guidance;¹ it is not able to keep up with technology, given the lag time between the hardening of expectations and judicial review;² its two prongs require a subjective assessment that is easily gamed,³ combined with an empirical analysis that courts are not well-positioned to undertake;⁴ and so on.

Perhaps the most visible critique relates to one of Katz’s offshoots: the so-called “third-party doctrine,” under which courts have held that a person loses any reasonable expectation of privacy in information voluntarily disclosed to a third party.⁵ Critics argue that this doctrine falsely equates privacy—which encompasses, or should encompass, the limited disclosure of information to trusted associates of one’s choosing—with secrecy.⁶ They note that it is particularly untenable in an era in which we must routinely disclose communications, as well as information about those communications (known as “metadata”), to Internet service providers, mobile phone companies, and other intermediaries.⁷

The third-party doctrine is indeed deeply flawed and in need of rethinking. That rethinking, however, is well underway. Both on the legislative front and in the courts, an overhaul of the doctrine—one that, at a minimum, recognizes privacy in the content of electronic communications, if not the metadata—appears inevitable, even if it is coming decades later than it should have.⁸ On the other hand, there is an area in which both legislative policy and the Fourth Amendment case law are moving in the direction of providing less protection for the privacy of electronic communications: foreign intelligence surveillance.

Part I of this article presents the factual background for this legal development. Mass warrantless surveillance of foreign targets’ communications with Americans is a relatively recent phenomenon, stemming from changes in statutory law and technology. In particular, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISA Amendments Act), which created Section 702 of FISA, eliminated the requirement that the government obtain an individualized court order when wiretapping communications between foreign targets and Americans from inside the United States.⁹ At the same time, technological advances have eroded practical constraints on collection, storage, and analysis.¹⁰

Part II of the article surveys the case law on the constitutionality of surveillance undertaken pursuant to Section 702. Until recently, only the Foreign Intelligence Surveillance Court (“FISA Court”) was able to review the law’s constitutionality because the Department of Justice failed to notify criminal defendants when using evidence derived from Section 702 surveillance. The Department changed its notification policy in 2013, however, and since then, federal courts in three circuits have had the opportunity to weigh in on the issue.¹¹ All of them concluded that the challenged surveillance was lawful.¹² Most based their rulings, in part, on a line of decades-old cases holding that a warrant to wiretap telephone calls need not name every person whose communications will be intercepted.¹³ From these cases, the courts derived the so-called “incidental overhear” rule: Those in contact with a surveillance target can claim no greater rights or protections than the target herself.¹⁴ Because the targets of surveillance under Section 702 are foreigners without Fourth Amendment rights, the courts concluded that no warrant is required to obtain the communications of Americans in contact with them.

Part III critiques these decisions. It starts with the basic premise that the government must obtain a warrant to invade an American’s reasonable expectation of privacy, unless the search falls within an established exception to the warrant requirement. It then posits that Americans have a reasonable expectation of privacy in their communications with foreigners overseas—a proposition that the courts reviewing the constitutionality of Section 702 surveillance appeared to accept. Finally, Part III examines the “incidental overhear” cases and demonstrates that they did not establish an exception to the warrant requirement. Instead, they held that a warrant need specify only the phone line to be tapped and the conversations to be seized. Communications that meet these specifications fall within the warrant—not within an exception to the warrant requirement—and may be seized, even if the communicants are not named targets. By misunderstanding and misapplying this case law, the recent decisions on Section 702 surveillance threaten to take an enormous bite out of the constitutional protection for private communications recognized in Katz.

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