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Did Monitoring Satellite Phones in the Middle East Violate the Fourth Amendment?:
Over at Balkinization, Marty Lederman has a post arguing that the recently-discovered monitoring of satellite phones in the Middle East violated the Fourth Amendment:
The leading — indeed, virtually the only — case on the question indicates that the E.O. 12333 requirement that the U.S.-person target of such overseas surveillance be an agent of a foreign power, is also a Fourth Amendment minimum. That court held that such surveillance of U.S. persons overseas can be done without a warrant only (i) when authorized by the President or the Attorney General; (ii) when conducted primarily for foreign intelligence purposes; and (iii) when targeted at foreign powers or their agents, including American citizens believed to be agents of a foreign power. See U.S. v. bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000).

Assuming that some or all of that holding is correct, then the NSA activity described by ABC News would appear to violate the Fourth Amendment, too, even if it did not violate FISA.
  I think Marty is wrong, and that the monitoring probably did not violate the Fourth Amendment even if you accept the bin Laden case.

  (1) First, it appears from news reports that most of the monitoring was of members of the military using military-provided phones, and that users were notified that the phones would be monitored. This monitoring was clearly constitutional, as the notice waived an expectation of privacy under O'Connor v. Ortega and no warrant would be required under Title III, a precondition to FISA's warrant requirement.

  (2) Second, monitoring of individuals who were not U.S. citizens, permanent residents, or otherwise had strong connections to the U.S. would not implicate the Fourth Amendment under United States v. Verdugo-Urquidez.

  (3) Ok, but what about any U.S. citizens who were monitored abroad who were not in the military and not agents of a foreign power? At this point, it's important to keep in mind that the monitoring was of satellite phones, phones that work by broadcasting signals directly to communications satellites. There are no cases on how the Fourth Amendment applies to monitoring of satellite phones, but there are a bunch on how the Fourth Amendment applies to cordless phones. Here's what I wrote on the issue in my computer crime casebook:
  In the 1980s, telephone companies began selling cordless telephones to consumers. Cordless telephones work by broadcasting FM radio signals between the base of the phone and the handset. Each phone has two radio transmitters that work at the same time: the base transmits the incoming call to the handset, and the handset transmits the outgoing call to the base. Before the mid-1990s, cordless phones generally used analog FM signals that were easy to intercept. Government agents would occasionally listen in on the cordless telephone calls of suspects without a warrant by intercepting the signals using widely available FM radio scanners. In your view, should such surveillance be prohibited by Katz v. United States or permitted by Smith v. Maryland?
  Courts relied on Smith v. Maryland to reject claims of Fourth Amendment protection in the contents of such cordless telephone calls. Because cordless phone intercepting devices merely pick up a signal that has been "broadcast over the radio waves to all who wish to overhear," the interception was held not to violate any reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236, 1239-40 (6th Cir. 1995). See also Tyler v. Berodt, 877 F.2d 705, 707 (8th Cir. 1989); Price v. Turner, 260 F.3d 1144, 1149 (9th Cir. 2001). Courts reached the same result when the suspect was using a traditional landline telephone, and happened to be engaged in conversation with someone who was using a cordless phone. See United States v. McNulty, 47 F.3d 100, 104-106 (4th Cir. 1995).
  Although there are no cases on it, I think there's a decent argument that the same argument would apply to satellite phones. There are arguments against, to be sure — arguments that I am certain commenters will make in the comment threads. But the reasoning of those cases is pretty broad.

  Anyway, for those reasons I think the monitoring here probably didn't violate the Fourth Amendment, even if we accept Judge Sand's opinion in the bin Laden case.

UPDATE: Marty responds here.
Steve:
What about the fact that when you eavesdrop on a phone conversation, you're necessarily eavesdropping on both sides?
10.10.2008 3:15pm
OrinKerr:
Steve,

Tough noogies, the cases say.
10.10.2008 3:17pm
Dilan Esper (mail) (www):
Professor Kerr:

I know nothing about satellite phones, but do they send unencrypted signals like the old-style cordless phones did?
10.10.2008 3:19pm
Steve:
Do they really, Orin? I mean, all these minimization rules that the NSA operates by when it inadvertently happens to wiretap a U.S. person, that's just the government being nice to me? There's no legal requirement that they do so?
10.10.2008 3:25pm
gab:
No reasonable expectation of privacy? Pardon my French, but that's bs. You're talking on the phone, you're not thinking (or shouldn't have to think) about how the handheld is transmitting to the base station and whether someone is listening in. You wanna listen in? Get a warrant.
10.10.2008 3:25pm
darelf:
It doesn't really matter, since this kind of surveillance is what the NSA was created to do. If some few civilians got eavesdropped on, well that happens. As you say, "tough noogies". Congress ordered them to blanket eavesdrop on foreign communications. If you happen to be American while making a call from one of those "target areas", you can pretty much be guaranteed that someone else is listening to that call.

By order of Congress.
10.10.2008 3:29pm
Arkady:

Because cordless phone intercepting devices merely pick up a signal that has been "broadcast over the radio waves to all who wish to overhear," the interception was held not to violate any reasonable expectation of privacy.


This gives a new meaning to the expression 'trash talking'.
10.10.2008 3:30pm
Jay Myers:
Doesn't this entire discussion presume that constitutional rights inhere in American citizens and thus can be carried with us when we travel outside of the country? If you take the view that the bill of rights are limits on the power of the federal government then as far as the Fourth Amendment is concerned it does not matter whether or not the subject is a "US person" when deciding if the feds can or cannot do something. Disregarding any voluntary limits that the government has adopted, either spying is permissable outside of the US or it is not.
10.10.2008 3:32pm
TerrencePhilip:
I assumed from the beginning that every phone call into or out of Iraq and Afghanistan was subject to being listened to by the US government, and that we had an active program to do just that. I don't understand the surprise, let alone the outrage, some have expressed over this.
10.10.2008 3:36pm
OrinKerr:
Steve asks, "Do they really, Orin?"

Yes, really! If one party has no REP, both sides can be monitored. That's different from minimization, which is d only an issue when all parties have an REP.

Gab,

The decisions are actually quite consistent with Fourth Amendment history and precedents from other communications systems like the postal network. Of course, you may feel that your warrant preference trumps that.
10.10.2008 3:38pm
A.W. (mail):
Ah, for the love of God.

The Fourth Amendment stops at the border. that's what verdugo really said. verdugo said unlike the 5th A privilege, which is violated at trial, the 4th A is violated when the search occurred, and thus it was territorially limited.

And it only makes sense. Do you really think you have an expectation of privacy when you are in china? Or when your signal crosses the high seas? give me a break. Why should it be that every other nation or even private concern can snoop, but us?

You leave the country, you leave our constitution behind. Don't like that? Then stay the hell home.
10.10.2008 3:42pm
George Weiss (mail) (www):
possible smith distinction is the fact that smith only dealt with pen registers and not full conversations. full conversations are inherently more private-even if given to a third party

it is true that the smith decision was based mostly on the fact that the pen registers were kept with a third party-however the court has not as yet entirely endorsed a full blown 100% thrid party doctrien exception to the 4th.

as such it is possible the SCOTUS could see cell/cordless/satellite conversations as more similar to Katz than to Smith
10.10.2008 3:43pm
George Weiss (mail) (www):
AW-

what about the people who did stay at home and were talking to people oversees?
10.10.2008 3:44pm
Steve:
Well, see, I'm glad I asked. Thanks, Prof. Kerr.
10.10.2008 3:46pm
Oren:
It is inconceivable (yes, that word means what I think it means) to me that Sat. phones wouldn't use powerful (256bit AES or better) encryption with strong public/private key based authentication. The next generation will certainly feature such technology and, at the rate we're going, ought to be marketed as "NSA-proof" (of course, the NSA can crack it, but supercomputers are expensive).

People with anything to hide ought to get a satellite internet uplink and use zphone.
10.10.2008 3:47pm
OrinKerr:
A.W.,

Well, no, Verdugo doesn't say that. It says that the Fourth Amendment is a right enjoyed by "the people." People can leave the U.S., and there are tons of lower court opinions recognizing that U.S. citizens keep Fourth Amendment rights when they go abroad.
10.10.2008 3:47pm
OrinKerr:
10.10.2008 3:49pm
commontheme (mail):
I think the framers intended that the government be able to listen to other people having phone sex, so I find Mr. Kerr's 4th amendment analysis persuasive.
10.10.2008 3:56pm
A.W. (mail):
George,

Do you really think if you call China, that you have privacy?

Give me a break.

Orin,

Reread it. it is exceedingly clear that the issue is the location of the search not the identity of the person searched.
10.10.2008 3:57pm
Dilan Esper (mail) (www):
But encyrption doesn't create a reasonable expectation of privacy, it seems to me.

But was that argument accepted by the courts in the cordless phone cases? Or was the lack of a reasonable expectation of privacy dependent on the fact that anyone with a scanner could hear their conversations, which wouldn't have been true had they been encrypted?
10.10.2008 3:57pm
OrinKerr:
A.W.,

1) Can you quote the sentence or paragraph that makes this so clear to you?

2) Why have all the lower courts missed this if it is "exceedingly clear"?
10.10.2008 4:07pm
Dilan Esper (mail) (www):
10.10.2008 4:08pm
George Weiss (mail) (www):
aw.

china-no
canada-yes.

depends on the facts
10.10.2008 4:14pm
Gregory Conen (mail):
Keep things like this in mind, then, when dealing with information you have an ethical obligation to keep secret. No cordless phones for lawyer-client communications.
10.10.2008 4:35pm
Elliot123 (mail):
How about WiFi? That's a radio signal anyone can pick up. I'm using WiFi right now. Does that presume no expectation of privacy? If I plug an ethernet cord into the computer do I now have a presumption of privacy?

Same question for Bluetooth devices.
10.10.2008 4:43pm
Dan Hamilton:
[Deleted by OK on civility grounds.]
10.10.2008 5:12pm
Xanthippas (mail) (www):

Because cordless phone intercepting devices merely pick up a signal that has been "broadcast over the radio waves to all who wish to overhear," the interception was held not to violate any reasonable expectation of privacy.


That courts can even reach such a conclusion is an indictment of the jurisprudence behind a modern understanding of a "reasonable expectation of privacy." That a court could ever think that someone who is using a cordless phone has no "reasonable" subjective expectation of privacy, when probably 90% of Americans using a phone would expect just such privacy, is ludicrous.

[OK Comments: I don't understand. The modern courts invented the phrase "reasonable expectation of privacy" -- the Supreme Court didn't adopt it until the Carter Administration. How can modern courts misunderstand a concept that they invented? You can accuse them of using a legal fiction, but I don't se how you can accuse them of not understanding their own test. For more, see my article,"Four Models of Fourth Amendment Protection."]
10.10.2008 5:16pm
Dilan Esper (mail) (www):
Xanth:

There's a tension in the reasonable expectation of privacy standard, never fully resolved by the courts, about whether it means "a reasonable member of the public would not want the government listening in on this communication if he or she were a party" or whether it means "you're an idiot if you think the government couldn't be listening to this communication". The cordless phone cases fall in the second category.

That doesn't mean they are wrongly decided-- I can think of strong arguments in favor of pitching the Katz standard in either direction-- but they do expose the tension in what it means to have a reasonable expectation of privacy.
10.10.2008 5:24pm
Nunzio:
After Kyllo, doesn't it depend on the type of technology the gov't uses to intercept?

You could pick up a cordless phone call by turning your radio to FM and then turning the dial all the way to the end.

You can't use over-the-counter items to pick up a satellite call, unless your MacGyver.
10.10.2008 5:44pm
Xanthippas (mail) (www):
I think my wording was awkward. All I meant was that, like Marty Lederman, I don't see how it's all possible for a court to conclude that you do not have a reasonable expectation of privacy in a cordless phone when almost all users of a cordless phone would certainly think that there conversation is intended to be and should remain private.
10.10.2008 5:50pm
Oren:

But encyrption doesn't create a reasonable expectation of privacy, it seems to me.

Nope (would that it weren't so!), but it's computationally infeasible to intercept a zphone conservation without resorting to rubber-hose cryptography (in which case, you might as well just ask for the incriminating information outright). Where the 4A fails to protect you, I suggest relying on the difficulty of taking discrete logarithms on a finite field.
10.10.2008 6:13pm
Arkakdy:
@ A.W.


Reread it. it is exceedingly clear that the issue is the location of the search not the identity of the person searched.


United States vs. Verdugo-Urquidez, 494 U.S. 259


We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.


It seems to me that any fair reading of that must conclude that the scope of the expression 'these circumstances' includes the fact that Verdugo-Urquidez was a citizen of Mexico (with no attachment to the United States), and not the United States: Because Verdugo-Urquidez was a citizen of Mexico and the search was of a place located in Mexico, the Fourth Amendment does not apply. His citizenship (identity) was surely at issue.

As to Orin's assertion re the people, the Court of Appeals found support for its holding under Lopez-Mendoza, 468 U.S. 1032, where "a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States." But,


Our statements in Lopez-Mendoza are ... not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among "the people" of the United States.


And thus, not being among "the people" (once again his "identity" is at issue), the 4th Amendment does not apply to him. Or so I read it.
10.10.2008 6:30pm
Kazinski:
This whole debate is just wild. The US Government, in a region where we are actively at war, has a fairly narrowly tailored program to monitor a very small niche of telecommunications traffic, has a very justifiable need for the data, and yet there are a horde of nitpickers out there straining at gnats for some justification to claim that it is unconstitutional. The nitpickers would ignore very real possibility that terrorists could be using satelite phones to coordinate attacks, because of the off chance that some innocuous personal conversation, that is probably being listened to by a half dozen other intelligence agencies might be overheard. Forgive me for speculating that the conversation the nitpickers actually want protected is the one between the Al Qaeda cells. Or between the Qods and the Sadrists.

Maybe the Constitution is a suicide pact.
10.10.2008 6:37pm
glenalxndr:
Ignorance of technology doesn't give anyone a right to privacy.

If you communicate using a medium that broadcasts your conversation (clear text or encrypted) via the public airwaves, then it's fair game for anyone to buy or build a radio receiver and listen in. There's no difference between ham radio, cordless phones, wifi, satellite phones, or any other radio frequency broadcast.
10.10.2008 6:38pm
Dilan Esper (mail) (www):
If you communicate using a medium that broadcasts your conversation (clear text or encrypted) via the public airwaves, then it's fair game for anyone to buy or build a radio receiver and listen in. There's no difference between ham radio, cordless phones, wifi, satellite phones, or any other radio frequency broadcast.

That may or may not be true as a matter of Fourth Amendment law. But it certainly makes Professor Lederman's point about being insufficiently concerned about the realities of communication, because it would mean that whatever steps one takes to ensure the privacy of a communication that cannot take place through a wire, there is no Fourth Amendment privacy interest.
10.10.2008 6:43pm
Don Miller (mail) (www):
Glen is correct,

Long time Ham Radio Guy, basic FCC Regulations are if you broadcast a radio signal, anyone can listen to it.

Certain bands are restricted now, but public bands like WiFi or Bluetooth devices are fair game to anyone who wants to listen to them.

WiFi is a possible exception because there are additional laws relating to breaking into computer systems. But if you used a receiver only to listen to the signals, you might have a defense. Of course, if you were only using a receiver, how would anyone know?
10.10.2008 6:54pm
George Weiss (mail) (www):
Orin-
i take it you think REP should mean what you advocate it should mean in your article on encryption-that a person who could use reasonably effective non 4th amendment rights to hide material has 4th amendment protection whether he hides the material or not.

I have no idea how you can read that into katz.

Under your understanding of REP-katz did not have REP. he may have had what you call statistical REP..but what extra 4th amendment right could he have exercised to keep the conversation silent-and how would it have been effective?

Why did justice Harlan make such a big deal about Katz closing the door? according to your reading-Katz's actions would not matter-only that he could have closed the door.

Also-isn't this way of interpreting REP just a backdoor way around the exclusionary rule? If the 4th is contingent upon extra 4th amendment rights-i.e. only a person engaged in legitimate purposes may use the 4th-then that is pretty much a statement that criminals cannot use the 4th to hide their criminal activity-ever.

yes-i read your article-im not convinced-i think one need not develop the reading you have of REP in order to justify the chemical field test or the air surveillance test. but its true those cases don't match the statistical model either.
10.10.2008 6:58pm
Dilan Esper (mail) (www):
Don:

It's certainly illegal, though, to intercept a cell phone or satellite phone conversation, right? (Remember when there was a prosecution based on the interception of a Newt Gingrich cell phone call with a scanner?) How does that affect your analysis?
10.10.2008 6:59pm
jccamp (mail):
Dilan,

A 1986 amendment to Title III, the Electronic Communications Privacy Act, made it illegal to listen to or divulge the contents of a cell phone conversation. Later, Congress passes another law which forbade common scanners from having the ability to listen to cell phone frequencies.

The rationale re: cordless phones was that the widespread ability to listen to such calls (at that time) meant that using a cordless phone was somehow analogous to having a conversation in a crowded room. One could not seriously maintain an expectation of privacy if you made a phone call within the hearing of other people.

The technology of cordless phones has changed. New digital frequency switching makes it difficult, but not impossible, to listen to cordless phone calls.

I have no clue about satellite calls. I would suspect that the calls are being intercepted from, say, a downstream flow from the satellite to some central switching facilities (as opposed to the upstream phone-to-satellite). I only mention this only because when the signals hit a land line, they may be no longer encrypted.
10.10.2008 7:31pm
glenalxndr:
As Don points out, certain radio frequency (RF) bands are now restricted, and technically no longer the "public airwaves." This, I believe, is the legal basis for protecting privacy rights in cellular telephone communications.

We live in a soup of RF signals, all carrying information. Receiving those signals is a completely passive exercise. If you want privacy, then use really good encryption, and send a letter in a sealed envelope via the US Mail.
10.10.2008 7:32pm
Brian G (mail) (www):

Did Monitoring Satellite Phones in the Middle East Violate the Fourth Amendment?:


The fact this is even arguable shows how suicidal we have become as a country, worrying so much about the "rights" of those who will kill us all in a second if given the chance.
10.10.2008 11:04pm
Oren:

If you want privacy, then use really good encryption, and send a letter in a sealed envelope via the US Mail.

I was of the impression that US mail exiting the country does not have 4A protection (while intra-US mail does).
10.11.2008 12:47am
Scalitor:
A.W., you're wrong about Verdugo.

Moreover, the plurality in Reid v. Covert is suggestive: "When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land."
10.11.2008 1:53am
Alan Jeffries (mail):
i'm a doctrine guy by nature, but i love it how you all squabble over the doctrine like it really matters. in the end, this is all Supreme Court made common law. don't pretend any different, lest you believe there is intellectual honesty (on both sides on the court). Cheers.
10.11.2008 2:52am
BruceM (mail) (www):
If the government spends a huge amount of money on broadcasting and getting out the message that they are listening in to ALL of our phonecalls, anytime, everywhere, anyplace, does that then negate any reasonable expectation of privacy?

Once it's common knowledge that big brother is listening in to our calls, any expectation of privacy is per se unreasonable. Yes it should be unreasonable for the government to take this course of action in the first place, but that's not the question.
10.11.2008 3:04am
NotMyRealName:
Orin Kerr's analysis assumes that the satellite communications intercepted by the NSA are of a similar level of security as 1980s-era cordless phones. That's not clear to me.

As I understand it, the 1980s-era cordless phones were analog. They could be intercepted by any old FM radio that happened to be able to receive at the proper frequency. Similarly, the earliest analog cellphones could be intercepted, if you had an appropriate TV, by tuning the dial to a UHF station (somewhere around channel 88 or so, as I recall) -- so in other words they could be intercepted by someone with no special knowledge, using devices that happen to be laying around the home.

Today, cordless phones and cellular phones are digital and hence are not so trivial to intercept. (Note that simply because a system uses digital communications by no means that it is secure, but the difference between "trivial to intercept by someone with no special knowledge using just devices already laying around your home" vs "easy to intercept given sufficient technical knowledge or equipment" seems potentially relevant here.)

I doubt that the satellite communications in question here are as easy for a random guy off the street to intercept as the 1980s-era cordless phones were. I haven't read the cases about 1980s-era cordless phones, but as described here, it seems like one might reasonably question whether the 1980s-era cordless phone precedent has any relevance here. Does anyone have any information about how the reasoning of those cases would be affected by the technical differences between the ease of interception of 1980s-era cordless phones vs modern satellite communications?
10.11.2008 4:19am
Manuel:
Prof. Kerr,

Is it the possiblity that a person could intercept a cordless or satelite with over the counter gadgets from a retail store such make such intercepts fall outside 4th Amendment protection because essenttially a person is sharing their phone conversation over the airwaves like yelling a secret in a crowded parking lot, thus there is no expectation of privacy? Is that what you mean?
10.11.2008 4:25pm
roan:
I think the big picture here is the public sector's atrocious lack of adaptation to transformative developments in technology which have impacted and fundamentally changed how our society functions over the last couple of decades. Computers have had a profound effect on the world, and yet our legislatures have failed to act proactively to anticipate and prevent (or even react to) the negative side-effects of digital computing's increasing power to record and manipulate private and public information.

This is particularly and egregiously in evidence right now in both the economic sector (lack of updated approaches to regulating new, speculative computer software-driven financial instruments), as well as in communications surveillance by our government in a world that has largely transitioned from landline to cell phone (and analog to digital) use extremely rapidly. A little over a hundred years ago, telephones - and certainly telephone networks - were just being invented. Yet, in many ways, computers have transformed our society much more profoundly than the telephone, in just a couple of decades.

So deferring, for example (as the NSA has done), to Smith vs. Maryland's holding - in a technological sense in today's world - seems like absolute folly for those in Congress, considering the leaps and bounds in technology that have taken place in telephonic communications since that, at the time seemingly-limited, ruling was made.

It's been clear for some time, for example, that private profit from public (taxpayer-financed) databases was a growing enterprise, that included threats to personal privacy, but in the misapplied name of "open government" and "sunshine", legislatures sat back and watched this rip-off of public property take place without protest, with its inherent infringement on privacy, as though we were still back in the pre-computer age. Most of those (originally publicly-financed) databases are now migrating into federal government digital dossiers on us, purchased with federal taxpayer dollars from private, middlemen firms in "classified" secrecy. Yet Members of Congress predictably feign surprise when these unsound practices they've let run wild on their watch turn into such unregulated disasters as the Credit Default Swap market has proven to be.

Long-term planning needs to become feasible and honored again in Congress. Many components of the private sector can't be bothered to look beyond short-term profit, but for the sake of us all - including our steadily-eroding Fourth Amendment privacy rights - the public sector has to get real about the public interest, its longstanding worship of private profit at public expense notwithstanding.

Specifically regarding the ABC NSA expose, note that James Bamford told ABC/Brian Ross Thursday that Pat Leahy had been told by Adrienne Kinne (the female whistleblower) of these interceptions, only to be ignored by Leahy. Also note that she (Adrienne) was intercepting these "awkward" calls before we invaded Iraq - she was eavesdropping on the Palestine Hotel journalists in Iraq before "Shock and Awe" (and possibly from early 2002 or so). The male whistleblower eavesdropped from 2003 through November, 2007. Both of them indicated that they were ordered to retain the (American) subjects making the calls on the interception roster regardless of the content of their calls; in short, it did not sound like only select, salacious calls were singled out for recording and transcribing, according to their (separate and independent) accounts. Also according to Bamford, Texas is the location where a giant repository for these and other digital interception/database recordings is being constructed by the federal government.
10.11.2008 4:41pm
jccamp (mail):
With all due respect to Prof Kerr, I think that Title III (18 USC ch 119 LINK) was amended in 1994. That amendment specifically included intercepting cordless telephones and satellite phones in the prohibitions. All of the cases cited refer to pre-94 statutes. However, Title III refers only to internal U S communications, and exempts any communications that FISA might apply to, including foreign communications that involve U S citizens.

FISA probably does permit warrantless intercepts of the mentioned communications, because Congress apparently and intentionally left satellite telephones out of the FISA language. Given the vague nature of FISA requirements, it's hard not to imagine the government NOT being allowed to intercept foreign-originated satellite phone communications. As to whether someone using a satellite phone from Iraq, either pre-war or after, could reasonably expect privacy, I would say only a moron would NOT realize satellite calls were probably being monitored. Use at your own risk.

I think the ABC article was typically slanted. For instance, the ABC article mentioned the Red Cross and Doctors Without Borders. There is nothing in law that prohibits the government from intercepting aid agencies' satellite calls. I'd suggest that such interception is simply prudent, given the generally anti-US (well, anti-war anyway) bias of both organizations, especially in the time period mentioned. Does anyone reading this thread seriously think it would be impossible or even unlikely for an aid organization worker to allow someone else to use a satellite phone?

I could make this point about any number of issues cited in other posts here. If the factual question of what was prohibited, what was allowed, and what was not mentioned in controlling law cannot be determined absolutely, then the conduct was probably lawful. It may be an invitation to Congress, or even an over-reaching judiciary, to step in and remedy the deficiency, but if an abundance of former debate team members cannot decide who has the right of law, it seems unreasonable to penalize those who step into the gap in the name of good faith national security.

Just a thought.
10.11.2008 7:25pm
roan:
The following May, 2008 blog post about the NSA whistleblowers includes a summary of whistleblower Adrienne Kinne's experience. This summary (by David Swanson) appears to back up Marty Lederman's supposition that the secret rescinding of a key Executive Order and/or agency directive by the White House - per Sheldon Whitehouse's intimations - is what explains the apparently-dramatic change in U.S. spying and collection practices on Americans abroad:

[Kinne] also described how the NSA's policies with regard to spying on Americans changed completely on September 11, 2001. Prior to that date, she said, it was unacceptable to listen in on or collect information on Americans. The practice was barred by United States Signals Intelligence Directive (USSID) 18. Kinne recalled an incident in 1997 in which an American's name was mentioned, and she and her colleagues deleted every related record because they took very seriously the ban on collecting information on Americans. After September 2001, she said, it was acceptable to spy on Americans even after identifying them as aid workers for non-governmental organizations. Faulk confirmed that this was the policy when he worked there as well.


http://www.afterdowningstreet.org/node/33525
10.12.2008 12:59am