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The NSA Eavesdropping Opinion and the Fourth Amendment:

The district court, in a three-page analysis — mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case — concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that

  1. the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and

  2. Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power[s]" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).

For more on these two arguments, see Orin's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument — and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

Dan28 (mail):
Open and fair arguments, sure. But I really don't like either of them. Territorial borders matter less and less these days. I don't know much about the science of these things, but from what I understand, the average American sends information accross borders and back again many times in the average day. I don't know where the data from this specific comment on Volokh will go, but I wouldn't be surprised if it went to internet backbone servers in Canada, or Europe, or wherever. If a border search exception could apply to a call between an American and a foreigner, could it also apply to a domestic cell phone call between an American and another American if the cell phone company uses satellite or internet technology that happens to be in another country? Giving the government the right to search anything that crosses a border seems like an awfully large enhancement of governmental power given the current state of the global economy.

And if the government is free to define what constitutes a national security requirement without any oversight at all, what stops them from adopting an extraordinary or excessive definition of national security threats?
8.17.2006 3:17pm
NewsToTom (mail) (www):
I am reminded of the story I heard in first year Contracts that Judge Friendly's practice was to take the draft opinion his clerk had written, put "obviously" in front of the single most dubious proposition in the entire opinion, and sign off on it.
8.17.2006 3:17pm
Steve:
The court doesn't even acknowledge that warrantless searches are sometimes permissible under the Fourth Amendment. It's fair to say this portion of the opinion is cursory.
8.17.2006 3:26pm
Howard Gilbert (mail):
In the case of summary judgement, stripping away the unrelated issues, the core of the decision is found in the following quote "It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information. Contrary to Defendants' arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP." The question that will or should be raised on appeal is if these particular undisputed facts are actually enough to find that the TSP violates statues and the constitition.
Note that the court did not assert, and the government has not stipulated, that any surveillience activity was conducted inside the US, nor for that matter that any communications were intercepted by a US agency (where the alternative is that they were intercepted by the intelligence agency of another country (UK, Egypt, Pakistan) through which the traffic passed. Not only do we and the court know nothing about this program, but Senators on the Judiciary Committee have complained loudly that they know nothing about how or where the program operated.
Many may suspect (as the New York Times suggested) that the NSA intercepted communications inside the US, which would violate FISA. The government has never confirmed or denied any claims about how the program operated. The court, however, must rest its decision on the facts as proven or stipulated and may not decide a case based on vague unsubstantiated suspicion no matter how widely it has been published. The point here is not that this decision is incorrect in its interpretation of law (that is an entirely different matter). The point is that as a matter of simple logic, you cannot get from what is actually known and admitted about the program to any conclusion about whether it is legal.
The government has been reluctant up to this point to enumerate all the things that nobody outside the NSA knows about the program (such a list would immediately lead people to ask those specific questions, which would not be answered). It will be interesting to see if this changes in the appeal.
8.17.2006 3:26pm
MnZ (mail):
Dan28,

The Court has already recognized the ability of the government to search documents and data going across the border. I don't know why the mode of transport should make a Constitutional difference.

An interesting hypothetical might be as follows: Suppose that someone in New York is sending a package to someone in Chicago. However, the person in New York - for whatever reason - wants to send the package via London. So, the New Yorker sends the package preaddressed/presealed in another package to an agent in London, who then sends it to Chicago. Can the government search that package when it crosses the border?

If the answer is no, then you have a very good point. If the answer is yes, then your point might not make a difference.
8.17.2006 3:33pm
mbsch13:
To call the court's 4th Amend. analysis shoddy is an insult to shoddy legal writing everywhere. The court simply block quotes some language from Keith and Karo and then states that the program "obviously" violates the Amend. with no analysis whatsoever. More fundamentally, the Court grossly misstates 4th Amend. law, stating that in addition to reasonableness the Amend. "also requires prior warrants for *any* reasonable search." I guess the court was sick the day they taught exceptions to the warrant requirement in law school.
8.17.2006 3:36pm
Third Party Beneficiary (mail):
MnZ,

To address your question, a key distinction between modern telecommunications and your package hypothetical is that in the hypothetical the party makes a deliberate decision to send the package across international borders. The average person using a telephone to make a call with purely domestic endpoints, however, has no control over where the call is routed along the way by the intervening phone carriers.
8.17.2006 3:41pm
MnZ (mail):
Third Party Beneficiary,

I think "no control" is a bit too strong. Suppose I was shipping boxes from Buffalo to Detroit. If the shipper - against my wishes - went by way of Ontario, would the US government be prevented from searching them because I had "no control" over the fact that they went through Ontario?
8.17.2006 3:54pm
kelvin mccabe (mail):
I happen to think the Judge got the 4th amendment aspect correct, even though the analysis could have been better and recent Sup Ct decisions applied. (that is, the end result was correct, her method of getting there left something to be desired) Look, the argument is rather simple to me. FISA is the exclusive means to engage in the sort of eavesdropping the government has acknowledged it is engaged in. When domestic U.S. calls are involved, FISA requires a warrant. The feds have admittedly NOT gotten the warrants and have eavesdropped anyway on at least some domestic calls. AUMF does not trump FISA. Bush's inherent powers do not trump validly enacted statutes - -even in a time of war.

Whats the problem?
8.17.2006 4:06pm
Dan Hamilton:
"The average person using a telephone to make a call with purely domestic endpoints, however, has no control over where the call is routed along the way by the intervening phone carriers."

Possible but what difference does it make. It may happen sometimes but as a general rule it wouldn't. And the happenings would be ramdom based on the traffic.

You are saying that the interpretation is no good because there might possibly be sometime somewhere a case where it could be abused. This makes no since.

First you have a overall general interpretation that searchs without warrent are OK a border crossings. You then have a more specific one about packages, then hard disks, floppies, letters. It makes since to include emails because they are electronic letters. Also makes since to include that data in general can be searched which includes phone calls. Just because it could be abused doesn't mean that the interpretation is wrong just that it is not complete.

The law like everything else goes from the general to the specific.
8.17.2006 4:11pm
Mona (mail):
Whether or not her 4th Am analysis could have been more fulsome, she does a good job with the Youngstown discussion, which is independently dispositive of the NSA's warrantless surveillance being unlawful even if her 4th am holding should fall. Of course, prior to all that is the vulnerable standing issue, in which the First Am is creating standing for plaintiffs. If the 6th Cir, wants to get rid of this case -- and god knows the DoJ does not want the Youngstown prong taken up on appeal, all the way to the Supremes -- dismissing on standing grounds is the obvious way to do it.
8.17.2006 4:17pm
kelvin mccabe (mail):
Note: just wanted to add that when the gov.t says "at least one party to the call is international" i am assuming the other end is in the US. Thats how i arrived at my view that at least some calls were domestic. Plus, standing could not be granted for a 4th amend violation if all parties are international? Someone had to be domestic.

Plus, on a more serious note, the inherent problem i have with this is NOT that we are tracking calls from al quada to people in the u.s. This is a very good thing. The problem i have is a secret gov.t agency secretly collecting calls on unsuspecting people - - because the gov.t says they are speaking to al quada. If the gov.t says you are taliban it does not automatically make it so. The gov.t called jose padilla the dirty bomber. What is he now? Plus, you would be naive to think that the only calls being monitored are the ones between the al quada guy (international)and domestic guy. Wouldnt it be nice to know who else the domestic guy is calling after he hangs up with Osama? Isnt that the type of information that is really important to prevent an attack? Would the gov.t seek a FISA warrant using tapped phone calls done outside FISA to secure a warrant for a domestic person? Inquiring minds would like to know.
8.17.2006 4:20pm
Dan Hamilton:
kelvin mccabe

You would be right IF NSA were targeting the domestic U.S. caller but they are NOT. They are targeting the Foreign end of the Line. Which does not require a FISA warrent. Is there anyone who says that they need a FISA warrent to tap a international phone? Since when do you need a warrent FOR BOTH ENDS OF A WIRETAP?

Why is this so hard to understand? If you are worried that NSA is tapping domestic calls Fine. Worry. But that isn't what is being discussed. Two very different things.
8.17.2006 4:20pm
Steve:
You would be right IF NSA were targeting the domestic U.S. caller but they are NOT. They are targeting the Foreign end of the Line.

Are you under the impression that our agents are sneaking into Kabul and planting listening devices on all the terrorist phones?

The government is eavesdropping on the conversation, plain and simple. The idea that it's only eavesdropping "from the foreign end of the line" is just a legal fiction with no real meaning.
8.17.2006 4:35pm
Third Party Beneficiary (mail):
"I think 'no control' is a bit too strong."

In what manner are you able to control the relays and switches your telephone call is transmitted over?
8.17.2006 4:38pm
Dan Hamilton:
"Wouldnt it be nice to know who else the domestic guy is calling after he hangs up with Osama? Isnt that the type of information that is really important to prevent an attack? "

And you haven't heard of NSA getting domestic phone log info. Just the number to number infor which I don't believe requires a warrent. The NSA then uses the infor they have on the US phone number (very likey a throw away phone) to trace the call path looking for paths that show the connections they are looking for. The NSA says it then turns over the information to the FBI to investigate in the normal manner.

Does that answer your question. All legal. All doen without warrents because warrents aren't required for what they are doing. And warrents shouldn't be required because of the hundreds of thousands of warrents that would be required and no possible way to show probable cause except that one phone number called another phone number.

Requiring warrents makes this impossible to do. How many warrents can a judge reasonabily do in a 8 hour day? How many judges are you going to have. How many people are you going to have doing the paperwork to generate the warrents. How long does it take to generate one.

What happens if you require warrents. ALL get rubber stamped. NOBODY looks at them. NOBODY reads them. Mountains of data generated. Mountains of money wasted. Would you FEEL better then? Would it make any difference?
8.17.2006 4:38pm
Third Party Beneficiary (mail):
"Possible but what difference does it make. It may happen sometimes but as a general rule it wouldn't. And the happenings would be ramdom based on the traffic.

You are saying that the interpretation is no good because there might possibly be sometime somewhere a case where it could be abused. This makes no since [sic]."

Dan Hamilton, if you go back an re-read my post, you'll see I was critiquing MnZ's package hypothetical (in which someone deliberately sends a package internationally), not arguing that the judge's analysis was correct here.
8.17.2006 4:43pm
Dan Hamilton:
"The government is eavesdropping on the conversation, plain and simple. The idea that it's only eavesdropping "from the foreign end of the line" is just a legal fiction with no real meaning."

BS. It is not a legal fiction. It is the TARGET end.

It doesn't matter where they are eavesdropping from. It matters WHO they are eavesdropping on. That is why you have a warrent for domestic eavesdropping. You are eavesdropping on the domestic TARGET you are not eavesdropping on the non-target end. You have no clue about the non-target end.

Or are you one of those people who believes that a warrent should be required for BOTH ENDS of a wiretap?
8.17.2006 4:45pm
Dan28 (mail):

"The average person using a telephone to make a call with purely domestic endpoints, however, has no control over where the call is routed along the way by the intervening phone carriers."

Possible but what difference does it make.

My understanding (although I don't have the case in front of me) is that warrantless searches at border crossings are Constitutional specifically because the person being searched knows where and when they will be searched. So it makes a great deal of difference.
8.17.2006 4:47pm
Dan Hamilton:
Dan28

The point I was trying to make is that this would be a random event. If it happened all the time to everyone of enve most of the time then that specific part would have to be addressed. Much like the exception for sealed LAND/SEA containers not requiring inspection if they are only passing through a US port going to a foreign port. I believe this is the case.

You carve out an exception for the special case you don't throw away the general interpretation.
8.17.2006 4:53pm
kelvin mccabe (mail):
So Dan, the 4th amendment problem isnt in the fact that they are monitoring all these calls...its the fact that there are too many damn warrant applications and not enough fascist lackies to fill them out and sign them?

Interesting take on it. I suppose a 4th amendment exception could be carved out for "gov.t too lazy or inefficient to follow constitution so consitution waived" which the current make up of the sup ct might just go for.

Look, if the gov.t does not have individualized suspicion of wrongdoing concerning a specific person they shouldnt be tapping there f-ing phone! Say i am a U.S. person who was called by a person i did not know, a telemarketer - who 17 calls before he called me called an islamic charity in Gaza and told them how much money they hoped to raise for HAMAS. Am i now a full fledged member of Hamas? OF COURSE NOT. That is why the judiciary is interposed between the gov.t and the citizens. Aschroft and Abu gonzales may want to give me the padilla treatment based on this call and low presidential approval ratings - but IT IS ILLEGAL FOR THEM TO DO SO! The concept of liberty - as in civil liberties - refers to a constructive constraint ON AND AGAINST the government.

THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR HOUSES, PAPERS, etc... SHALL NOT BE INFRINGED! Note the use of the word shall- - its a command. Desipte all the drug war exceptions, etc...it is still a right we all enjoy. The 4th amend. is your friend, not your enemy. DIG IT
8.17.2006 4:57pm
Just an Observer:
Dan Hamilton: You would be right IF NSA were targeting the domestic U.S. caller but they are NOT. They are targeting the Foreign end of the Line. Which does not require a FISA warrent. Is there anyone who says that they need a FISA warrent to tap a international phone?

First, understand that AG Gonzales said up-front in confirming the NSA program that it involves communications that are covered by FISA's scope. The administration merely argues that their legal theories trump FISA -- theories rejected by the court today.

Second, you have no basis for your assumption that only the foreign end of the the conversation is being targeted. All the government has said on the record is that one end of such a call is outside the country, one end is inside, and it suspects that someone on the call is affiliated with the bad guys.

Third, there is a separate provision of FISA's definition that causes any intercept to be covered by the statute, without regard to who the target is, if the intercept is acquired in the United States. According to the NYT, the NSA program does include large-scale intercepts acquired in the United States.

Fourth, there is no exception in FISA for international calls. If either the target of the call or the intercept itself is in this country, FISA applies. If both the target and the intercept are abroad, it does not. (But that would mean Gonzales was not telling the truth.)
8.17.2006 5:07pm
WHOI Jacket:
I'm not a lawyer by any measn, but say:

Tony Soprano is making deals over the telephone. The FBI has a wiretap on his phoneline. They are recording his telephone conversations with a warrent. After Tony calls Fat Albert to have some flunky sleep with the fishes, someone calls Tony asking if he can borrow his ratchet set on Sat. That conversation is listened into as well.

During Tony's trial, his lawywer argues that the government "illegaly" listend into the conversation on the phone because they only had a warrent on Tony and NOT on Tony's friend.

------------

Because that's how some of this is seeming to me. Do you really need BOTH parties to be under some sort of legal permission to wiretap/trace/whatever?
8.17.2006 5:11pm
WHOI Jacket:

My understanding (although I don't have the case in front of me) is that warrantless searches at border crossings are Constitutional specifically because the person being searched knows where and when they will be searched. So it makes a great deal of difference


So, if it came to be generally expected that overseas phonecalls could/would be monitered, then it would become constitutional? (if not so already...)
8.17.2006 5:13pm
Dan Hamilton:
kelvin mccabe
Your example is wrong. The NSA isn't tapping your call. Unless the telemarketer is a foreign caller. The NSA did get the telemarketer's phone log. You were on it. But the path after didn't have anything NSA would be interested in unless you call people that call Hamas.
The Path
1. International phone number (believed to be terrorist)
2. telemarketer (in US) NSA eavesdroppes on this call.
3. NSA gets or has Phone logs for telemarketer
4. You are on list of telemarketer phone logs
5. NSA gets or has your Phone logs
6. keeps going until path deadends or reaches some length.
7. NSA searches for Paths of a certain type that have the possibility of defining a terrorist cell.
8. NSA turns over the Paths it finds to the FBI.

NSA only eavesdropped on ONE call. The call between the TARGET and the telemarketer. The rest are just number to number lists.

And you want warrents for the telemarketer (after the fact). Which would mean that the NSA could eavesdrop on ALL the telemarketers calls. And warrents for all the points on the phone logs to get the next phone log?

What I am saying is that the Fourth doesn't come into this. The information that you called the Pizza place is not protected by the fourth. What you said is but not the fact that you called. The call between the international phone number and the telemarketer is not protected in any way. It is between a foreign enemy and someone in the US. The government has always eavesdropped on such call whenever it could.
8.17.2006 5:31pm
David Maquera (mail) (www):
Of course if we had a competent "Commander-in-Chief", a competent Secretary of Defense, and competent field commanders prosecuting the "War on Terror," we would would be celebrating the anniversary of Bin Laden's capture and execution instead of 9-11 or engaging in meaningless debates over one silly district court judge's legal opinion.
8.17.2006 6:06pm
Dan Hamilton:
Just an Observer
1. Nobody agrees/believes AG Gonzales but you go with him on this. NSA doesn't apply is a better arguement. AG Gonzales didn't think so. Doesn't mean FISA applies.

2. "and a warrant would be required for law enforcement purposes;" This is in parts 1,2,4 of the FISA definition of "Electronic surveillance". If the argueements about warrents not being required for searches crossing borders are correct as long as one end is foreign FISA doesn't apply.

3.You are maybe right about "Third, there is a separate provision of FISA's definition that causes any intercept to be covered by the statute, without regard to who the target is, if the intercept is acquired in the United States. According to the NYT, the NSA program does include large-scale intercepts acquired in the United States."

FISA defination of "Electronic surveillance" means
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

But notice it says "any wire communication" the rest of the time it says 1. "wire and radio" 3. "radio" and
4. "other than from a wire or radio". This would leave out Radio communication to SATS. So if NSA was tapping SAT Comms this would not apply.

4. International phone numbers could be assumed to be outside the US. Especially if what is being tapped is a signal from the US to non-US country.

I suspect that there is a good argueement that FISA doesn't apply. It is just to legal and Clintonesque for the Bush administration to want to use it.
8.17.2006 6:19pm
BobDoyle (mail):
Yeah, if only we had not taken our eye off the ball and gotten Bin Laden, we'd now be entering the Age of Aquarius, lions would be lying down with lambs, Hamas, Hezbollah, the Muslim Brotherhood, and Al Qaida would embrace peace with the Israeli's and the rest of the world, and we would be entering a millenium of universal terror-free peace and prosperity!
8.17.2006 6:27pm
Just an Observer:
Dan Hamilton,

On 1) you may think Alberto Gonzales was not telling the truth about FISA's scope. But that means nothing to the court. He never retracted this statement, he is the highest law-enforcement officer in the government, and it was cited by the ACLU in this case in support of its motion for summary judgment.

On 3), I believe you are correct about satcom intercepts not deemed to take place within this country. But the NYT story I mentioned was not about satcom. It specifically said the NSA program involved tapping into network switches in the United States.
8.17.2006 9:36pm
David Maquera (mail) (www):
Not at all BobDoyle. However, a public crucifixion of Bin Laden and all his cohorts publicly broadcasted on CNN, Al-Jazeera, etc., for several days would have sent a message to future Bin Laden wannabes that the United States does not particularly appreciate having jetliners flown into its skyscrapers.
8.17.2006 11:35pm
Thorley Winston (mail) (www):

FISA defination of "Electronic surveillance" means
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

But notice it says "any wire communication" the rest of the time it says 1. "wire and radio" 3. "radio" and
4. "other than from a wire or radio". This would leave out Radio communication to SATS. So if NSA was tapping SAT Comms this would not apply.


Good point, also assuming that we're talking about the federal government's data mining operation (which the press has incorrectly referred to as "eavesdropping" and "wiretapping"), whereby they get the phone numbers rather than actually listening in on the conversations of the people being subject to surveillance, it seems to me that this wouldn't fit the statutory definition of "electronic surveillance" because they're not listening in on the "content."
8.18.2006 1:04pm
John Noble (mail):
Before we even get to the border search and national security exigencies, there is a question as to whether there is a reasonable expectation of privacy in international communications. If international transmissions are subject to unrestrained, even routine interception by foreign authorities, an expectation of privacy, as against only the United States government strikes me as not altogether reasonable. The "plain view" exception to the warrant requirement comes to mind.
8.19.2006 8:17pm