A Few Additional Thoughts on NSA Surveillance:
The NSA surveillance story has come at an awkward time for law profs; it's hard to follow the latest in this fast-moving story when you should be working through a pile of exams. But I wanted to respond to a few issues, even if only briefly.

  1. Some have asked me why I question whether the surveillance program violated FISA, given that Bush and Gonzales aren't arguing it didn't. They make the very fair argument that if the administration isn't defending the program on that ground, the program presumably does violate FISA. This is a decent point, but I think it's sensible to be cautious here. My thinking is that there may be strategic reasons why the administration isn't making this argument. Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn't want to do that in public given that the program is classified. I don't know how likely this is, but it's certainly possible when you're dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don't know.

  2. Sticking with that theme, I don't think we know a lot of important facts of how the program works. Questions that I would want to know: Was this surveillance intercepting satellite communications? Assuming that telecom satellites are in geosynchronous orbit, are the satellites over the U.S.? How do they route calls in and out of the United States? (There's a fun Fourth Amendment question: Assuming no border search exception or national security exception, does an individual have a Fourth Amendment reasonable expectation of privacy against intercepting their satellite communications in space? Does it matter whether the satellite orbits the earth outside the United States?) If the interceptions were on wires, not via satellite, then where, how, and by whom were the monitoring devices installed?

  3. A bit about the Fourth Amendment abroad. Some people have been assuming that Fourth Amendment rights are completely territorial, such that those outside the United States have no such rights. The Supreme Court hasn't said a lot about this question: it has said that if you have no voluntary contacts with the U.S. you have no Fourth Amendment rights, but that's about it. Lower courts have filled in more details. According to the lower court opinions, Fourth Amendment rights track the individual's connection to the United States, even if the person is abroad. For example, U.S. citizens retain Fourth Amendment rights abroad; if you're a U.S. citizen and you visit country X, the U.S. government generally can't search your home in country X without legal authorization.

  The exact contours of Fourth Amendment rights abroad are pretty tricky, as it's not like the U.S. government can go to the District Court of Argentina to get a warrant. (In a few circuit cases involving joint U.S.-foreign investigations, for example, courts have said that the Fourth Amendment's reasonableness standard is satisfied if the search complies with the laws of the country where the search occurs. There are no cases on Fourth Amendment rights for searches in orbit, though.) But the key idea is that the Fourth Amendment issues are much less sensitive to the territorial question of where the search is occurring — with the notable exception of the border — than some people seem to be thinking. It's a different case on the statutory front, as the statutes have much clearer territorial bounds.

  Anyway, there's lots more ground to cover, but let me stick with that for now.