1st, 4th & FISA
A couple more notes on the big decision from yesterday.
Normally I don’t read Eugene “Public Torture is Desirable” Volokh at all… Because I prefer my legal ‘experts’ to have shred of moral fiber somewhere in their body. But folks have been a’linkin’ to his posts about yesterday’s historic verdict holding law-breaking to be illegal… so I’ve been reading. I was surprised to read a few VC posts without running across an exploding head. Too bad; less entertaining that way. Matter of fact, VC makes a couple of good points & it’s worth looking at some of the weaknesses of the decision more closely.
His first substantive post was on precedent regarding the 4th amendment. Specifically, he brings up “exceptions” in case law that apply to foreign surveillance and to border searches. Having looked at the argument with my non-legal-expert eyes, I do not see them as very persuasive, but in Volokh’s words:
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.
The first point is that the court has held open the question of how the 4th Amendment applies when the surveillance is targeted at foreign communications. It has not been settled, in court anyway, that a person warrantless search is “unreasonable” if what is being surveilled is international communication. It appears true that this hasn’t been settled, but I think there’s a strong case that it should be settled in favor of probable cause and warrants, since that is the general standard set in the 4th Amendment, and no good reason is given that it should not apply.
The second, related, point is that warrants are not required for searches (including searches of “information”- post, computer disks, etc.) as persons and their effects physically cross borders, and that international communication could be exempt on the same grounds. This argument is much weaker, in my view. While a person may not have a “reasonable expectation” of privacy as they physically travel internationally, or even send mail internationally, for a variety of reasons, I can see no reason why they should not have a reasonable expectation of privacy while making an international telephone call from their own living room.
But, it is true - these points have not been settled. If this case goes to the Supreme Court, they may be. So, persuasive or not, there you have potential grounds to overturn the decision as it applies to the fourth amendment.
Going on… I had a hard time wrapping my head around the decision as it applies to the First Amendment. Volokh addresses that here. I think he is pretty much correct - and his perspective does help the decision make sense. Basically, if you find yourself lacking in fourth amendment protections in your private conversations, it is reasonable to think you will find your right to free expression chilled. I’m certainly not married to this particular argument.
Of course, the coup d’ grace is FISA. Where an argument could at least be made to overturn the decision as it applies to the fourth amendment, the FISA act leaves no loopholes: it was written with just this sort of surveillance in mind. The government hopes to get a pass on the basis of the AUMF, and on Article II separation of powers. Orin Kerr at VC makes short shrift of those arguments.
