Warrantless searches are searches and seizures conducted without search warrants.
In the United States, warrantless searches are restricted under the Fourth Amendment to the United States Constitution, part of the Bill of Rights, which provides that "The right of the people to be secure...against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
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In the Thirteen Colonies, agents of the British Empire conducted warrantless searches on homes of colonists, which was viewed as an abuse of power. The Fourth Amendment barred all warrantless searches; nevertheless, the interpretation and limitations of the Fourth Amendment and the permissibility of warrantless searches under certain circumstances (such as wartime) have been important in the history of executive and judicial power in the United States, where it is only legal under martial law.
During the American Revolutionary War, "the Continental Congress regularly received quantities of intercepted British and Tory mail.[1] See intelligence in the American Revolutionary War.
In 1975, the Church Committee, a United States Senate select committee chaired by Frank Church of Idaho, a Democrat, investigated Cold War intelligence-gathering by the federal government, including warrantless surveillance.[2] The committee report found the "Americans who violated no criminal law and represented no genuine threat to the 'national security' have been targeted, regardless of the stated predicate. In many cases, the implementation of wiretaps and bugs has also been fraught with procedural violations, even when the required procedures were meager, thus compounding the abuse. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information - unrelated to any legitimate governmental interest - about the personal and political lives of American citizens."[3]
The "potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973)" helped persuade president Gerald Ford in 1976 to seek surveillance legislation, which was ultimately enacted as Foreign Intelligence Surveillance Act in 1978.[4]
Abuses of power by the federal government led to reform legislation in the 1970s.[4] Advancing technology began to present questions not directly addressed by the legislation as early as 1985.[5]
In its 1985 report "Electronic Surveillance and Civil Liberties," the nonpartisan Congressional Office of Technology Assessment suggested legislation be considered for a surveillance oversight board.[6] Congress disbanded this agency in 1995.[5]
On July 14, 1994 President Clinton's Deputy Attorney General and later 9/11 Commission member Jamie Gorelick testified to the Senate Intelligence Committee that “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes…and that the president may, as has been done, delegate this authority to the Attorney General.” This “inherent authority” was used to search the home of CIA spy Aldrich Ames without a warrant. "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."[7]
On December 16, 2005, The New York Times printed a story asserting that following 9/11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terrorism.[8]
The revelation of this program caused a widespread controversy, with legal experts and politicians concluding that it violates the Foreign Intelligence Surveillance Act and other legal experts saying that the FISA law only applied to domestic to domestic calls and not to overseas calls and communications that involved a foreign intelligence threat. Bush administration officials such as the Attorney General defended the program by citing that this was a part of the justification that the Clinton administration used in its warrantless search of Aldrich Ames. They claimed that since Ames was spying for a foreign power, presidential power applied and FISA did not.[9]
In May 2006, it was revealed that the Bush administration has also been compiling a database of telephone calls created by the United States National Security Agency (NSA) with the cooperation of three of the largest telephone carriers in the United States: AT&T, Verizon and BellSouth.[10] All three companies were paid to provide the information to the NSA.[11] It is speculated that the database contains over 1.9 trillion call-detail records of phone calls made after September 11, 2001.[12] The database's existence has prompted fierce objections from those who view it as constituting a warrantless or illegal search, however the collection of third party information has been authorized by the USA PATRIOT Act and upheld by the courts.
FISA Court of Review Ruling in 2002'
In 2002, in Re Sealed Case No. 02-001 the United States Foreign Intelligence Surveillance Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct.
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power......
....Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." [3]
The balancing test from Keith case referred to in the decision is a legal test that asks if the primary use of the warrantless search to collect foreign intelligence as per presidential authority, or was the primary use of the warrantless search to gather evidence to use in a criminal trial.