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"Special Needs" and the NSA Surveillance Program:
The Justice Department has justified the NSA domestic surveillance program under the Fourth Amendent by invoking the "special needs" exception to the warrant requirement. But does that rationale make sense? I thought I would take a closer look.

  First, some background. The special needs exception applies when the government is acting in a capacity beyond law enforcement. For example, imagine a high school principal needs to search a student's locker, or a housing inspector needs to inspect a house, or a government employer needs to search an employee's office for evidence of workplace misconduct. In these cases, it would frustrate the legitimate government need beyond law enforcement to require a traditional criminal law warrant. The "special needs" cases recognize that the government may wear lots of different hats, and imposes a more general reasonablness balancing rather than a traditional warrant requirement when the government is pursuing that non-law-enforcement interest.

  Here is how Justice O'Connor summarized the basic doctrine in O'Connor v. Ortega:
"[I]t is settled . . . that `except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant.'" Mancusi v. DeForte, 392 U.S., at 370 (quoting Camara v. Municipal Court, supra, at 528-529). There are some circumstances, however, in which we have recognized that a warrant requirement is unsuitable. In particular, a warrant requirement is not appropriate when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court, supra, at 533. Or, as JUSTICE BLACKMUN stated in T. L. O., "[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." 469 U.S., at 351 (concurring in judgment).
DOJ's argument is that the exception applies because intelligence collection is a "special need, beyond the normal need for law enforcement" (emphasis added). And of course, that's right in a formal sense: Intelligence collection is different from law enforcement. So in that sense, there is a "special need," and the application of the doctrine makes sense.

  However, there is an important potential wrinkle in this argument that I don't think anyone has noticed yet. The fact that the exception applies in some way does not indicate exactly how it applies. And there is a plausible case to be made that foreign intelligence is a special need, but that FISA warrants are still required to conduct foreign intelligence surveillance

  The key, as I see it, is that FISA warrants are themselves "special needs" warrants. The Keith case that inspired the passage of FISA considered the application of the "special needs" doctrine to domestic intelligence monitoring, and held that the existence of "special needs" justified the replacement of the traditional criminal law warrant with a special intelligence warrant — but, notably, not the elimination of the warrant requirement itself. As a result, it doesn't make sense to apply the "special needs" exception to say that the "special needs" warrants required under FISA are no longer required. Whether a need is "special" is relative to the type of warrant, the thinking would run: In the contect of FISA's warrant scheme, intelligence needs are not "special." So while foreign intelligence collection is a special need relative to the Fourth Amendment requiring criminal law warrants, it is not a special need relative to requiring FISA warrants.

  That's the argument, at least. Is it persuasive? What do you think? There are a few counterarguments to be made. For example, you could say that foreign intelligence is different from domestic intelligence. That is, you could say that the special needs doctrine relaxes the warrant requirement from a criminal warrant to a FISA-like warrant in the case of domestic surveillance (see Keith), but that foreign intelligence needs further relax the warrant requirement from a FISA-like warrant requirement to no warrant requirement. In other words, FISA warrants may be special needs warrants, but they are special needs warrants needed for domestic intelligence collection but not foreign intelligence collection. This is a possible argument, but as far as I know no court has directly addressed it: United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), was perhaps the closest, but it was based largely on notions of institutional expertise — and footnote 3 of the opinion ackowledged that the then-recently enacted FISA statute could very well alter the institutional expertise balance.

  Second, you could also say that it would be just too strange if the "specialness" of the need varied based on the type of warrants that Congress happen to authorize at any particular time. Congress can authorize all type of warrants, and it may seem intuitively odd that whether the Fourth Amendment requires a warrant hinges on whether Congress has created a statute authorizing that kind of warrant to be granted. For example, imagine Congress created a statute authorizing "home inspection" warrants, which could be issued based on probable cause to believe that a home needs a safety inspection. Would the existence of the new statute mean that housing inspections are no longer a "special need," because the needs are addressed in the new statute? Would the new statute alter the constitutional rule, requiring a warrant (albeit a home inspection warrant) where before no warrant was required? The interaction between constitutional warrant requirements and preexisting statutory warrant authority comes up from time to time in the cases, and hasn't been definitively resolved.

  By way of background, it may be helpful to note that, at least as I understand existing law, I don't think the seriousness of the Al Qaeda threat has a direct bearing on whether intelligence surveillance counts as a "special need" under the Fourth Amendment. My sense of the cases is that they ordinarily look to the general interest abstractly (such as a housing inspector's interest in safe houses) rather than the specific interest in the specific context of that particular search. Further, please understand that the "special needs" exception doesn't end the inquiry: other exceptions may apply even if special needs doesn't permit a warrantless search. Still, DOJ is relying on the special needs exception, so I think it's worth thinking critically about how the exception applies in these circumstances.

  UPDATE: I added a new paragraph shortly after posting the original.
ron (mail):
My recollection of the special needs cases is that a very important element in the analysis is the reasonable expectation of privacy. Regulated businesses, persons at borders, etc. have a lessened expectation. Telephone calls are typically expected to be private, so this may be an important element in a special needs analysis.
2.13.2006 3:09pm
Jon Black (mail):
As a frequent reader of this site, particularly the comments, I would be most impressed with a comment that was able to argue that the current NSA approach is not within the "special needs" doctrine while simultaneously providing an exampe of an actual case/situation where the "special needs" doctrine is properly invoked.
2.13.2006 3:32pm
John Lederer (mail):
This does seem to advance things a bit.

Under the "inherent power" argument the key question is whether Congress can define how that power is excercised (i.e. through FISA's procedures).

Under the "special need" exemption to warrants the key question is who gets to define a "special need" -- the Constitution, the President, or Congress?

That second question is different than the first.
2.13.2006 3:35pm
Duncan Frissell (mail):
Note that the Electronic Frontier Foundation is suing AT&T on behalf of private individuals for privacy violations under the NSA surveillance program.

I was under the impression that the special needs doctrine, the regulatory search exception, the third party records exception, and the various adminstrative subpeona provisions had completely evicerated the 4th amendment when it comes to all public and many private activities.

I had the idea that the Feds could declare the various terrorist promoters of the Caliphate to be a business and apply a 100% income tax on them. Since they would constitute an inherently dangerous business, warrantless regulatory searches and administrative subpeonas would be automatic and unlimited.

We still don't know the technical details of the intercepts. It's possible that they are perfectly legal but the Admin doesn't want to outline the details to protect methods and perhaps British Intelligence.

If the Brits or the Aussies performed the intercepts and then shared them with us they would be perfectly legal.

I take it that your view would be that these intercepts would not be covered as military communications which can generally be intercepted.
2.13.2006 3:38pm
M. Lederman (mail):
Well, I don't want to toot our own horn or anything, but we suggested just such an argument in our letters to Congress here and here. It is not enough, under SCOTUS "special needs" doctrine, that the government's objective be unrelated to law enforcement. It is also necessary that the warrant and individualized suspicion requirements be "impracticable." See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). But here, experience under FISA proves that they are not impracticable. Indeed, FISA's enactment demonstrates that the national legislature, together with the President, has determined that they are "practicable." How could the government possibly demonstrate impracticability in the teeth of a contrary finding by the political branches themselves?
2.13.2006 4:10pm
jrose:
Orin,

Even if the special needs of foriegn intelligence provide an exemption from any 4th Amendment warrant requirement, doesn't FISA still apply? Isn't Congress allowed to establish a higher standard than the 4th Amendment?

It seems to me that the type of warrant required by the 4th should not be primarily based on the type of warrant Congress requires. In your home inspections example, it does sound too strange that a Congressional statute would change the Constitutional requirement for home inspections from none whatsoever to the warrant specified in the statute. However, wouldn't the statute's stricter standard apply even though the 4th does not require a warrant?
2.13.2006 4:23pm
Grand CRU (mail):
Re: impracticability, Gonzalez seemed to be trying, without much success, during his hearing, particularly in one of his dialogues with Senator Brownback, to lay out the case that in some cases intel cannot be collected if the FISA procedure is used. In his dialogue with Biden, he said something to the effect that "if a tool is ineffective, why would we use it?" It may defy "logic and plain English," but it seems to be the argument they are making. I guess if the President and Congress come to a revocable agreement about impracticability, and then the President withdraws from the agreement because circumstances change, then there is no longer an agreement to rely on. Specter did not buy this argument, but I wonder if, presuming inherent Presidential powers exist, President Carter could renounce inherent powers for future Presidents, as Specter seemed to imply. I have no idea; I'm just wondering aloud.
2.13.2006 4:27pm
ThomasL (mail):
Well, that settles it, Marty. Rather than an argument about the practicability of a particular approach in particular circumstances, we can rest assured that the question was settled, at a meta level, in 1978, by the agreement of the Congress and the president. No need to look into the particular facts or examine the changed circumstances. And no need to ever consider the plain fact that one part of that equation has made a finding directly contrary to the position supposedly adopted decades ago.

What is surprising about Marty's approach is how entirely counter-intuitive it is, and how politically unpalatable. The Democrat position (and Marty is nothing if not a political operative) as of yesterday am is i) this program is absolutely necessary, but ii) isn't consistent with current law, so we should examine it, amend the laws as necessary, and subject the whole enterprise to Congressional oversight. Note that i) is entirely inconsistent with Marty's approach. Perhaps he should speak with those who are more familiar with the facts. (And perhaps those more familiar with the facts should carefully consider whether their conclusions aren't mutually exclusive.)
2.13.2006 4:33pm
Grand CRU (mail):
Re: Congress setting a stricter standard above the 4th Amendment requirement: This is indisputably true in the case of state constitutions and state statutes. I wonder if strong Article II believers will actually make the argument that states' rights prevent Congress from setting higher 4th amendment standards. Maybe that argument could have worked when the Rehnquist federalism revolution was in its heyday, but it doesn't seem to be a hot argument today. Then again,if we're putting our realist hats and reading tea leaves, then maybe the environmental cases on the SCOTUS docket should tell us how Roberts and Alito handle federalism cases.
2.13.2006 4:39pm
OrinKerr:
ThomasL,

Your comment is high on snark and sarcasm, but notably low on substance. If you have an argument to make, please make it, and please do so without insulting other commenters (and especially my friend Marty).
2.13.2006 4:39pm
OrinKerr:
Grand CRU,

Your 4:39 argument doesn't work: State constitutional requirements do not apply to federal officials under the Supremacy Clause.
2.13.2006 4:42pm
Grand CRU (mail):
Orin,
I am not a constitutional scholar...are you saying that federal officials can violate state constitutions? I do not understand.
2.13.2006 4:47pm
debsay (mail):
I'm not sure that I understand...

Why aren't these communications treated like any other communications by an 'enemy'? The Congress did give the President authority to do whatever was necessary to fight those responsible for 9/11... Why is this being treated any differently than intercepting communications of our enemy during any other war? If Japan &Germany had made it to our shores and setup operations here - are you telling me that we 'aren't allowed to intercept communications between our enemy and a US resident'? That's not even a rational position to take...
2.13.2006 4:48pm
Medis:
Ultimately, I think the "special needs" doctrine is a poor fit with this situation. As noted by others, many of the elements in paradigm "special needs" cases are missing.

My working theory is that insofar as we are talking about preventive detection--trying to detect terrorists and other enemy agents before they actually act in an effort to prevent them from harming the United States--the most salient case is actually Terry v. Ohio--specifically, the "stop" part of the "stop and frisk" in that case, which the Court held was a "seizure" within the meaning of the 4th Amendment.

Most of the opinion dealt with the "frisk" part, which actually yielded the evidence which was allegedly obtained in violation of the 4th Amendment. But the Court also discussed briefly the rationale for allowing the initial stop. To give a brief example, the Court in Terry wrote:

"Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions."

I think this passage embodies the real logic underlying the potential placement of such preventive efforts outside the scope of the warrant clause, and perhaps outside the scope of a probable cause requirement. In short, the basic logic is that when the government's goal is to detect and prevent crimes before they occur, something less than probable cause for an arrest may be warranted.

But conversely, in Terry the Court also noted that such stops were subject to the 4th Amendment's reasonableness requirement. Indeed, the Court deemed it important that judicial review of some kind play a role in enforcing that requirement:

"And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances."

In Terry, the Court apparently deemed it sufficient to apply the exclusionary rule. But in a broader preventive context, the exclusionary rule may not be an adequate vehicle to provide this "neutral scrutiny". And that is what I see FISA as doing: it provides for such neutral scrutiny by a judge in order to enforce the reasonableness requirement of the 4th Amendment.

In that sense, I'm not sure if the 4th Amendment does requires warrants per se, or probable cause, for surveillance programs designed to prevent terrorist acts--that might all depend on factors such as the degree of the intrusion and the magnitude of the government's interest, ala Terry. But the 4th Amendment does require reasonableness, and arguably some sort of neutral scrutiny to enforce that reasonableness requirement.

In short, FISA seems designed to satisfy those requirements, and those might be minimal constitutional requirements in any alternative to FISA as well.
2.13.2006 4:53pm
OrinKerr:
debsay,

Quoting from the post: "please understand that the special needs exception doesn't end the inquiry: other exceptions may apply even if special needs doesn't permit a warrantless search."
2.13.2006 4:54pm
OrinKerr:
Grand CRU,

Yes, that's right: federal officials acting in the course of their official duties are not bound by state laws and constitutions that attempt to limit their investigatory authority. So if the Ohio state constitution imposes a warrant requirement when the federal constitution does not, Ohio police need to get a warrant but FBI agents in Ohio don't.
2.13.2006 4:57pm
Grand CRU (mail):
Orin,
Ok, had to go to findlaw! Are you saying that the Supremacy Clause alone permits federal officials to violate state constitutions? A federal official needs a federal statute plus the Supremacy Clause, right? But in Rehnquist-era federalism cases isn't the discussion over whether the Congress could have passed the federal statute in the first place? Like in Lopez? That's what I mean by reading tea leaves for Roberts and Alito in environmental cases...I remember Lopez coming up a lot and that frog case Roberts was in.
2.13.2006 5:00pm
Grand CRU (mail):
Is there an additional federal statute for that "investigatory authority", or is the FBI acting under inherent powers? I do not know anything about the FBI!
2.13.2006 5:02pm
Just an Observer:
Medis: In that sense, I'm not sure if the 4th Amendment does requires warrants per se, or probable cause, for surveillance programs designed to prevent terrorist acts--that might all depend on factors such as the degree of the intrusion and the magnitude of the government's interest, ala Terry. But the 4th Amendment does require reasonableness, and arguably some sort of neutral scrutiny to enforce that reasonableness requirement.

I have come roughly to that position myself, in the context of trying to decide what form of legislative compromise I would favor -- the DeWine proposal, for example. That analysis, for me, is a work in progress.

It does seem to me that whatever the Fourth Amendment requires, it trumps the powers of both the executive and Congress. So this is not just a question of whether the existing NSA program violates the Fourth, but whether the same sort of surveillance would be okay if authorized by statute.

One issue that arises, if "some sort of neutral scrutiny to enforce that reasonableness requirement" is the legal equivalent of a warrant, is that "probable cause" is hard-wired into the Constitution with respect to warrants.
2.13.2006 5:09pm
John Lederer (mail):
Worth noting is Gen. Hayden's response to why the 72 hour emergency provision in FISA doesn't work for what NSA needs:

"I need to get a statement of fact out here, all right? NSA cannot -- under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general's standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it's not like you can throw it on for 72 hours."
2.13.2006 5:50pm
Medis:
JaO,

I actually don't know much (nor have a preconceived idea) about what makes something a warrant. If a "warrant" is any judicial order for a search or seizure within the meaning of the 4th Amendment that is required in advance, then maybe probable cause would be hard-wired into something like FISA--and in that sense, maybe the details of the statutory scheme do in fact trigger certain 4th Amendment requirements that might not apply but for the statute. But I'm not sure that is a sufficient condition for a "warrant".

John L.,

I'm not sure that the text of the statute supports Hayden's claim. The relevant provision simply requires that the Attorney General "reasonably determine[] that . . . the factual basis for issuance of an order under this subchapter to approve such surveillance exists." I don't see why that standard would require the Attorney General to have all the evidence before him.

Of course, perhaps there is a FISC precedent which equates the Attorney General's "reasonable determination" with the FISC's own determination of probable cause. But that would be a very odd holding precisely because it would render this emergency provision "unreasonable" in application, and the 72 hours following the Attorney General's decision largely irrelevant.
2.13.2006 6:22pm
Wintermute (www):
OK, it seems like Justice is moving a bit on this now. The biggest problem now is getting the executive branch and Congress to work together on this, rather than further endure what seems like a Cheney-Nixon tendency to stonewall to "restore" executive power, on the ground that explaining what the spies are doing now, even to the complete membership of the intelligence committees, is just some huge giveaway to terrorists that they could not imagine. We need to agree on appropriate data collection methods and trigger points for increased judicial scrutiny. For example, I thought I read that the FISC was reluctant to use incidentally acquired information in basing a warrant decision. The effectiveness the spies want might well be achieved in ways that won't offend most American citizens; but it should be done "with the consent of the governed." And with effective inter-branch scrutiny.
2.13.2006 6:23pm
Bruce Hayden (mail) (www):
It is not enough, under SCOTUS "special needs" doctrine, that the government's objective be unrelated to law enforcement. It is also necessary that the warrant and individualized suspicion requirements be "impracticable." See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). But here, experience under FISA proves that they are not impracticable. Indeed, FISA's enactment demonstrates that the national legislature, together with the President, has determined that they are "practicable." How could the government possibly demonstrate impracticability in the teeth of a contrary finding by the political branches themselves?
IMHO, a lot of problems with this. Two big ones though. Back thirty years ago, the technology was different and so was the threat. So, a political compromise that made sense then, (IMHO) doesn't now.

First, the threat. Back then, our major security worry was the USSR, and to a lesser extent, the PRC. We had thousands of nuclear tipped warheads aimed at them, and visa versa. We also had a large army facing theirs in Europe. We primarily depended on our early warning systems, including radars and sattelites to detect nuclear or land based attacks (as did they). In short, a classic symetric warfare threat between two nation states. The chances of our enemies pulling of a 9/11 type terrorist attack were very low for any number of reasons, including that they were open to retaliation, should they do it.

So, FISA was drafted to address this threat. It was aimed essentially at detecting the Soviet or Chinese agent who was under deep cover here. But there was little immediacy. Why should there be? We would detect any real attacks from them via our early warning systems. And, the number of such agents were not really that large. So, a cumbersome process of putting together a lot of paperwork to justify the warrants was not that onerous. After all, many of these investigations lasted months, if not years.

Now, look at the threat today. It is asymetrical, with our foes not being vulnerable to retaliation because they are not a nation state, as was the Soviet Union or the PRC. On the other hand, it is much faster moving. As noted before, one scenerio that has been mentioned as happening, is our troops, often in conjunction with Iraqi or Afgani troops, raid a suspected terrorrist location, and while seizing terrorists, feed not only the numbers of their cell phones to the NSA, but also the numbers found in the cell phone call histories and address books. And these numbers are tracked to the extent possible to see who they call and who calls them. But the minute that other terrorists, who have these phones with these numbers find out about the raids, they dump their phones. Pronto. So, typically, they have a matter of hours while the numbers are still good. Not weeks. Not 72 hours. But maybe a couple of hours. Also note that a bunch of numbers may hit the NSA computers in a very short time. Conceivably hundreds. Can the NSA get FISA warrants for all those numbers fast enough that it could conceivably intercept calls from them coming into the U.S.? I think it doubtful.

Also note that even without this, the timing is much more critical. For example, one often cited example are the two calls home by 9/11 hijackers on 9/10. The idea is to prevent another 9/11 by detecting this sort of thing in the future.

It is still not clear how much the 72 hour Emergency Orders provision helps here. For one thing, it is still not clear, after all these weeks discussing this, whether such are retroactive, or just prospective. If the NSA gets a call into the U.S. from a suspected terrorist number, can they actually legally listen to that call, via an Emergency Order requested after the call has been recorded? After it has been listened to? (I differenciate here because there is some evidence that the NSA doesn't consider merely recording a call surveilance, rather, that they consider that starting when a human listens to it). I throw this out because the conventional wisdom is that Emergency Orders are retroactive, but a strict reading of the statute would seem to indicate the opposite, but the legislative history of at least the PATRIOT Act extension from 24 to 72 hours would seem to assume retroactivity.

In any case, even Emergency Orders seem fairly cumbersome. A certain amount of information must be relayed to the AG for his approval. Some here have suggested making sure that he is always available and that it can be done over the phone. I have questioned that.

In any case, on to the technology side. Up until 5 or 10 years ago, the bulk of international calls were either by suboceanic (copper) cable or via geosyncronous sattelite. Both were relatively easily tappable outside the U.S. For the cables, the NSA just had to go out 20 miles in the ocean, and put induction taps on the cables. The sattelites were all located over the equator, and, thus, are not over the U.S. The result is that it was much more straight forward for the NSA to tap these calls and stay outside of FISA because they were subject to 50 USC 1801(f)(1). And that meant that they only needed FISA warrants if the target was in the U.S. and that target was a U.S. Person (i.e. here legally).

Now, fiber optic cables are the primary mode for international traffic. The problem there is that it is technologically almost impossible to tap such except at the switches (look to previous posts to see why). Someone above suggested tapping in one of the ECHELON UKUSA countries, the UK, Australia, and New Zealand. But it appears from fiber maps that only about half the traffic coming into the east coast goes through the UK, and very little from the west coast through either Australia or New Zealand. And if it doesn't come through those countries, our odds of tapping at a switch in another country are relatively low. So, roughly 3/4 of the incoming international traffic is not subject to tapping in a country that would allow the NSA to connect into their switches. That leaves intercepting it at switches located in the U.S.

But the problem there is that that moves the dialog from 50 USC 1801(f)(1) to (f)(2), which here is significant. 1801(f)(2) would require a FISA warrant if one party is in the U.S., regardless of whether they were the target of the surveilance or were in the U.S. legally. In short, if FISA controls, then interception of ALL international calls in to or out of the U.S. via fiber optic cables (or at least the 3/4 which don't run through UKUSA countries) would require FISA warrants.

So, I will submit that the idea that the compromise between the two branches almost 30 years ago should have little bearing here, esp. when discussing exigent circumstances. The threats are vastly different, as are the technologies.
2.13.2006 6:40pm
Nicole Black (mail) (www):
I posted here and here about the "special needs" doctrine and the concern that the gov't was going to begin using it as a way to evade warrants in order to conduct random searches of subway passengers on my blog.

In a recent case from December '05, a federal district court judge in Manhatten held that the governmental interest in preventing a terrorist bombing of the subway system outweighed the invasion of privacy resulting from the random searches, and thus held that the searches passed constitutional muster.

As I stated on my blog, I believe that the judge was overreaching in this case and am hopeful that he'll be reversed on appeal. Otherwise, our Fourth Amendment rights will continue to be eroded to the point where any search without a warrant will be consitutional, as long as it was conducted in the name of the fight against the nebulous concept of terrorism.

I think that we'll begin to see this exception being used over and over again by this administration as they attempt to circumvent the Fourth Amendment. The use of the "special needs" doctrine by this administration in order to support the wiretaps is further evidence of this troubling trend.

In the case discussed above, the judge held that the special needs doctrine applied even though the police were pursuing a law enforcement interest. This exception is being morphed into a catch all in order to avoid the Fourth Amendment.

I realize that the case I'm discussing doesn't involve FISA or foreign surveillance, but I think it's relevant to this discussion, nonetheless.
2.13.2006 6:51pm
Nicole Black (mail) (www):
I should clarify that the judge's decision in the above case re: searching subway passengers was based on the special needs doctrine.
2.13.2006 6:54pm
jrose:
Grand CRU,

Had FISA required state and local officials to get warrants, we might have a 10th Amendment concern. But, I'm pretty sure FISA only places restrictions on federal officials and hence no states rights issues are implicated.
2.13.2006 7:00pm
Medis:
Bruce,

So who makes that decision? Should the courts look at your arguments and decide that FISA is no longer constitutional because changing circumstances render the compromise it struck no longer prudent? Do you really want to give the courts such power?
2.13.2006 7:00pm
ThomasL (mail):
Orin, I don't think I insulted Marty or anyone else, but if I did, I apologize. These arguments can be touchy, but they certainly aren't personal. Marty is skilled at what he does (though we may disagree about how to properly charactize what he does).

My substantive disagreement on this issue goes to Marty's contention (with the rest of his gang of scholars) that FISA "doesn't come anywhere close to 'prohibit[ing] the President from taking actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack.'" Reply to DOJ, p. 9. That contention is essentially repeated in the 4th amendment analysis in the reply, and in the comment above.

Fortunately or unfortunately, Marty simply doesn't know--because none of us not privy to the information know--whether that's true. It may be true; I certainly don't know better than Marty does. But it is worse than unhelpful to assert it at the beginning, as an argument stopper. It's a wonderful rhetorical strategy, but it isn't more than that. If you don't have the information, you don't have the information, and you need an analysis that focuses on what is known and what isn't, and what's important about each of those pieces. That, unfortunately, is likely to be a dispassionate analysis, and so certain sorts of people are less likely to undertake it.

If, as most Congressional Democrats say, the program is essential to fighting al Qaeda, what would it take to find that FISA has unconstitutionally limited the president's authority? What would it take to find that FISA's warrant requirements are impracticable *in the present circumstances* (and not in some abstraction from 1978)? It seems to me that it wouldn't take much more than some demonstration that the administration couldn't operate the program effectively under FISA. (Technical details--such as a evidence that intercepts of calls originating in various foreign nations are most effectively intercepted inside the US (or similar evidence on the contrary side)--might be relevant, though there isn't a single mention of that possibility (in general or specifically) in anything Marty has written.) I may be wrong in my impressions; it'd be great if someone argued that this initial reaction is wrong, rather than simply assumed the difficulties away.
2.13.2006 7:13pm
Bruce Hayden (mail) (www):
So who makes that decision? Should the courts look at your arguments and decide that FISA is no longer constitutional because changing circumstances render the compromise it struck no longer prudent? Do you really want to give the courts such power?
No. I would rather not. I think right now everyone is posturing, but ultimately, we will have a Legislative solution acceptable to the Administration. What I think would give the Administration a lot of the breathing room they seem to want would be to merge together 50 USC 1801(f)(1) and (f)(2), so that as long as the party being targeted was not in the U.S., then no FISA warrant would be required. That, I think, would leave in place plenty of hurdles for purely domestic surveilance. And, as far as I know, the expectation of privacy in international calls is quite a bit lower than with purely domestic calls.

In trade for this loosening up of the warrant procedures, I think that some Congressional oversight would probably be in order, something akin to the PATRIOT Act reporting. That way, the two Intelligence Committees could verify that the NSA program was not being abused. I don't think it is, but many here do, and I think that must be addressed.

The thing is, is that I don't see Congress ready or willing to shut down the NSA program. That would be political suicide if another 9/11 type attack occurs, and, in particular, if it might have been prevented with this program. The problem has been, IMHO, that they haven't been in the loop, and believe that maybe they should have been. Well, now I think that they will be. I think that it is to the Administration's benefit if it can make the whole issue go away as quickly as possible - because the more scrutiny it is under, the more the enemy knows about it (as well as the rest of us). And, the longer the Administration plays hardball, the longer it will be before the public goes on to the next scandal, and the more information about the project will inadvertantly leak out. So, I see them ultimately willing to deal. And when both sides get ready to deal, a deal will be done.
2.13.2006 8:21pm
Tom Holsinger (mail):
I wouldn't limit this to "special needs" analysis - Truong also distinguished between searches aimed at criminal prosecution and those which aren't, which in that case was foreign intelligence. But it doesn't have to be foreign intelligence.

Consider mass traffic stops - ones of every vehicle on a highway headed in a particular direction. Those are normally for vehicle safety inspections but in California they are also to search for agricultural pests. In both instances the officers are allowed to arrest people for obvious criminal offenses, usually open containers of alcohlic beverages but sometimes for other reasons.

Such mass stops for the specific purpose of searching for obvious criminal activity would probably result in the searches being found unconstitutional, but mass stops done for non-criminal reasons can result in valid arrests. The police just don't have to ignore obvious crimes, and they can't conduct a thorough search of any stopped vehicle absent a particularized suspicion created by obvious evidence.

Given that America is a target for terrorist activity, searches intended to prevent such are not done with the intent of gathering evidence for criminal prosecution.

This reasoning seems to have convinced some of the FISC judges - I've seen stories that about DOJ deals with individual FISC judges which ok warrantless searches for generalized surveillance, but require FISA warrants when surveillance focuses on particular individuals (as opposed to individual phones and computers). If true, this might be a reasonable compromise.

IMO we should reconsider whether criminal prosecution and procedure should apply at all to foreign (non-citizen) terrorists in the U.S. I've contended this for years.
"The Supreme Court long ago ruled that resident aliens are entitled to the same constitutional protections as citizens. This was done for expedient reasons - letting police and prosecutors deny constitutional protections to aliens imperiled the same protections for citizens. But "[t]he Constitution is not a suicide pact." The lives of citizens are now directly threatened by resident aliens, while the constitutional rights of citizens are imperiled by security measures created to protect against resident aliens. The law must change to reflect these developments.

The new Department of Homeland Security would be more effective, without harming citizen rights, if aliens lack full constitutional protection, for offenses committable only by aliens, which it has exclusive jurisdiction to prosecute. State and local police, the FBI, and state and Justice Department prosecutors, would have to give aliens full constitutional rights during investigation and prosecution of ordinary offenses, as citizens can be charged with those too. But Homeland Security law enforcement officers and prosecutors wouldn't have to do so for offenses under laws which apply only to aliens."
2.13.2006 8:33pm
Robert Schwartz (mail):
There is a special need. there is a war on. If you want the US to lose the war, just turn it over to a bunch of lawyers.
2.13.2006 9:16pm
Noah Klein (mail):
Thanks Rob,

If you want to lose your country, just give all power to the executive.

Noah
2.13.2006 9:21pm
Medis:
Tom,

I dson't disagree with you that foreign intelligence surveillance is not primarily about "criminal prosecution". Indeed, FISA itself has always made that point clear.

But conversely, it seems misleading to me to say that surveillance for the purpose of gathering foreign intelligence within the meaning of FISA is purely "non-criminal". To be sure, not every harm FISA seeks to prevent is necessarily a crime, but a lot of it is.

So, it seems to me the real difference is that FISA is about "preventing" rather than "prosecution", but it is misleading to claim what FISA seeks to prevent is purely non-criminal.
2.13.2006 9:52pm
Just an Observer:
Bruce Hayden: What I think would give the Administration a lot of the breathing room they seem to want would be to merge together 50 USC 1801(f)(1) and (f)(2), so that as long as the party being targeted was not in the U.S., then no FISA warrant would be required. That, I think, would leave in place plenty of hurdles for purely domestic surveilance.

I can see how such a merging of these two definitions might keep most international calls out of reach of FISA's definition, so long as intercepting them does not target people in the United States. In general, your intent seems to be to restore the ability to NSA to intercept purely international traffic to the same degree it could before the technological shift to fiber-optic cable. I am sympathetic to that intent.

However, I think the administration is unlikely to agree with that proposal, because the warrantless NSA surveillance program very likely does target such U.S. persons.

Bruce Hayden: And, as far as I know, the expectation of privacy in international calls is quite a bit lower than with purely domestic calls.

I think this is incorrect as a matter of law, although it is a common pseudo-fact repeated in the blogoshere lately. Despite repeated challenges on this blog over the past couple of months to those who make such an assertion, no one has ever been able to cite a case that supports the proposition. Can you?
2.13.2006 10:02pm
o' connuh j.:
"I think this is incorrect as a matter of law, although it is a common pseudo-fact repeated in the blogoshere lately. Despite repeated challenges on this blog over the past couple of months to those who make such an assertion, no one has ever been able to cite a case that supports the proposition."

But the expectation of privacy is assuredly lower in an analogous case: that of international mail. Fn 17 in _Ramsey_:

"There are limited justifiable expectations of privacy for incoming material crossing United States borders. Not only is there the longstanding, constitutionally authorized right of customs officials to search incoming persons and goods, but there is no statutorily created expectation of privacy. See 39 U.S.C. 3623 (d). See also United States v. King, 517 F.2d, at 354; United States v. Odland, 502 F.2d 148 (CA7), cert. denied, 419 U.S. 1088 (1974); United States v. Doe, 472 F.2d, at 985.'

International phone calls cross United States borders. The same level of privacy - or lack thereof - applies.
2.13.2006 11:08pm
Just an Observer:
o' connuh j,

I can see making an analogous argument for calls to/from a known terrorist abroad. If the overriding requirement about domestic interception were eliminated as mentioned above, suca a call wouldn't be covered by FISA anyway.

It is more of a stretch if the targeted person is in the United States calling or being called by an unknown party abroad.

And this is all just inference, still not a case directly on-point. In the 39 years since telephone communications have been held to be covered by the Fourth Amendment, I would expect to find an on-point case if there were an exception.

What you are suggesting is that no one has an expectation of privacy for our international calls, which would come as a surprise to just about everyone. By contrast, I think we all understand that our incoming stuff can be searched for contraband, etc.
2.13.2006 11:41pm
Medis:
If there is any truism about the 4th Amendment, it is that changing any significant fact can lead to a different result.

Warrantless border searches have been justified on the ground that the government can search for contraband goods or people trying to enter the country illegally. How, if at all, this rationale would apply to electronic communications is not clear. Moreover, border searches have been limited to the actual physical area of the border, and so again, how, if at all, this would apply to electronic communications is not clear.
2.14.2006 12:04am
Just an Observer:
Prof. Kerr,

Since you are reputed to know more than a little about the field of criminal procedure, might we get a little free education from you on the point of law we have just been discussing: Do U.S. citizens here generally have an expecation of privacy when they are talking on an international call?
2.14.2006 12:45am
KMAJ (mail):
Prof. Kerr,

I would like to correct one assertion, the Keith Case was not the inspiration for FISA. FISA was created because of the Church Committee exposed massive domestic spying abuses by the FBI, CIA and NSA, and was the driving force. The Keith case ruling played a part, but it was the Church Committee that was the inspiration. The ties between Keith and FISA are very loose. Keith was about warrantless wiretaps on 'domestic' groups for National Security, FISA, by its name alone, is about 'foreign' intelligence surveillance. Hardly synonymous, though both deal with national security, FISA goes far beyond the decision in Keith. Keith was a purely domestic case. In fact, one could reasonably say, FISA went far beyond the decision in Keith:

We think the language of 2511 (3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:

"Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . ."

against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers - among other things - to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral.


And here:

It is important at the outset to emphasize the limited nature of the question before the Court. This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Nor is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest. Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967). 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 [407 U.S. 297, 309] "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government" (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power. 8


And here:

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. 20


So any equivalence between Keith and FISA is very limited.
2.14.2006 5:22am
Nicole Black (mail) (www):


Consider mass traffic stops ...Such mass stops for the specific purpose of searching for obvious criminal activity would probably result in the searches being found unconstitutional, but mass stops done for non-criminal reasons can result in valid arrests. The police just don't have to ignore obvious crimes, and they can't conduct a thorough search of any stopped vehicle absent a particularized suspicion created by obvious evidence.

Given that America is a target for terrorist activity, searches intended to prevent such are not done with the intent of gathering evidence for criminal prosecution.


That's exactly the analysis used in the case I cited above re: random searches of subway patrons. And the court upheld the searches because the war on terror is a "special need." And for that reason, the court concluded that the stops were not conducted in a law enforcement capacity and thus the special needs exception applied--somewhat circular reasoning in my opinion.

The problem is that the "war on terror" is an amorphous concept. If the special needs doctrine is applied to anything related to fighting the war on terror, then the gov't has the go ahead to violate its citizrns constitutional rights whenever it deems fit, as long as the stated purpose is to fight the "war" on "terror," which we'll be fighitng forever, since it cannot be "won."
2.14.2006 7:36am
Medis:
Nicole,

I agree that the traditional "special needs" doctrine is a poor fit with something like the NYC subway random bag searches, and that it is misleading to call anti-terrorism efforts "non-criminal" matters.

But that said, I don't think the "crime-prosecution" model works either, since this is more about "crime-prevention". So, I think we may need some new laws and new 4th Amendment doctrines to deal with all this.
2.14.2006 9:50am
Alfalfa Male:
If the Justice Department is going to argue that gathering foreign intelligence is a "special need", then the assurance that Gonzales repeatedly gives us that the NSA surveillance program is limited to conversations involving al-Qaeda is meaningless. There is no reason why al-Qaeda would have to be involved in order for a "special need" to arise. Limiting the surveillance program to those particular conversations is a self-limitation that the President could do away with if he so chose.
2.14.2006 10:13am
KMAJ (mail):
From a layman's perspective, it would seem 'special needs' goes further than just the difference between law enforcement and intelligence gathering. It would have to encompass the question 'Why is it a special need ?' That question creates a dangerous conundrum for the judicial branch. It puts them in the position of determining a national security issue, which is outside their expertise.

To answer that question, the judicial branch has to insert itself into risk assessment, evaluating the cost of inaction versus action, an area they are ill-equipped and not constitutionally empowered. Their unaccountability as unelected lifetime federal employees disqualifies them from that arena

The accountability for failure to protect, defend and prevent the citizens from future attacks rests primarily on the president, which is why the executive branch is given primacy in this area. It will not be the Congress, or especially the Supreme Court, who will bear the brunt of criticism and blame. Unless Congress wants to pass a statute of congressional accountability that will shift more blame and accountability onto their shoulders, as suggested by op-ed writer David Brooks, that any law passed or action taken by Congress that results in or contributes to an attack, those that voted for such, shall have their names posted on the front pages of newspapers and be held accountable. It would certainly make our elected officials think twice before they decide to play politics with national security.

If Congress wants to play games with the separation of powers and intrude more on the executive branch by over-regulating, than the need for a vehicle to expand their accountability. Is such a solution likely ? I doubt it, politicians, by nature, try to dodge accountability, and I do not think such a vehicle would pass constitutional muster.
2.14.2006 11:43am
Just an Observer:
I agree with Prof. Kerr that FISA warrants are inspired by the Keith case and thus are special needs warrants, because their primary purpose with respect to security is prevention rather than prosecution, and their requirements are correspondingly different.

The Keith case was about "domestic security," and its factual basis involved homegrown radicals' violent acts.

What is interesting is that while the court suggested that Congress might legislate some non-criminal, special surveillance requirements in a purely domestic context, to my knowledge Congress never did so. If Timothy McVeigh were alive today, plotting the Oklahoma City bombing or taking flight training with intent to crash a plane into the Capitol, it would still be necessary to get an ordinary Title III warrant to wiretap him.

Rather, in passing FISA, Congress applied the suggestion for different rules to foreign-intelligence surveillance, including that of international terrorist organizations and their agents. FISA's "probable cause" requirement does not relate to commission of a crime, but merely to being a foreign agent. That does seem to be consistent with the suggestion made in Keith, so far as the Fourth Amendment is concerned.

Notably, all of the foregoing relates to what Congress, not the President, is constitutionally allowed to do. The separation-of-powers issue was addressed separately in FISA, where Congress explicitly asserted its power to legislate in the foreign-intelligence domain.
2.14.2006 11:46am
Neal Lang (mail):
Congress setting a stricter standard above the 4th Amendment requirement: This is indisputably true in the case of state constitutions and state statutes. I wonder if strong Article II believers will actually make the argument that states' rights prevent Congress from setting higher 4th amendment standards. Maybe that argument could have worked when the Rehnquist federalism revolution was in its heyday, but it doesn't seem to be a hot argument today. Then again,if we're putting our realist hats and reading tea leaves, then maybe the environmental cases on the SCOTUS docket should tell us how Roberts and Alito handle federalism cases.

I believe the real question is whether or not the Congress can neuter the arguably necessary Constitutional "war powers" authority of the "Commander-in-Chief by mere legistive act, rather than following the methods prescribed in Article V to amend the Constitution.
2.14.2006 12:46pm
Neal Lang (mail):
Why aren't these communications treated like any other communications by an 'enemy'?

BINGO!
2.14.2006 12:48pm
Neal Lang (mail):
It does seem to me that whatever the Fourth Amendment requires, it trumps the powers of both the executive and Congress. So this is not just a question of whether the existing NSA program violates the Fourth, but whether the same sort of surveillance would be okay if authorized by statute.

Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, 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.

Nope! It doesn't appear as though the NSA Terrorist Surveillance Program violates the 4th Amendment.
2.14.2006 12:57pm
Neal Lang (mail):
So who makes that decision? Should the courts look at your arguments and decide that FISA is no longer constitutional because changing circumstances render the compromise it struck no longer prudent? Do you really want to give the courts such power?

The "responsible party" should have the "authority" to make the decision. In cases of "public Safety", neither the courts nor the Congress are ultimately held responsible for any failures. Instead, the Commander-in-Chief must accept the responsibility - "The Buck Stops Here"! As such, the Constitution should balance the "responsibility and the authority" to act. Anything less would be unjust. The historical record reflects this acquiescence by the Judiciary and the Congress to the President's "War Powers" - "when in Cases of Rebellion or Invasion the public Safety may require it".

The Constitution itself has many examples of "Special Needs" of the Executive during War, for example, the suspension of the "Privilege of the Writ of Habeas Corpus". It is almost impossible to read history or the Constitution in any other way.
2.14.2006 1:16pm
Neal Lang (mail):
If you want to lose your country, just give all power to the executive.

Not "all power", merely the "power" necessary to successfully prosecute a WAR. If you really want to "lose your country", don't give the Executive (military) the necessary "power" during time of war - just ask the French! The Framers understood this - especially after witnessing how near they came to disaster during the Revolution - a war run by "legislative committee" of the Continental Congress.
2.14.2006 1:22pm
o' connuh j.:
Observer,

On reviewing some of the cases I confess that I'm a little bit confused myself. Your argument that in general, 'everyone' presumes an expectation of privacy appears to be based on the test articulated in _Katz_ - a test that isn't very helpful because of its dubious applicability absent the facts of how NSA surveillance is conducted. (Not to mention the fact that _Katz_ does not address itself to the question of warrantless surveillance in a national security context.)

Per Scalia in _Kyllo_:

"The Katz test - whether the individual has an expectation of privacy that society is prepared to recognize as reasonable - has often been criticized as circular, and hence subjective and unpredictable . . . [as well as] difficult to refine".

Whatever the status of _Katz_, we find in _California v. Ciraolo_ that "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible."

And in _Florida v. Riley_, quoting _Katz_ in part:

"'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' [citations omitted]. As a general proposition, the police may see what may be seen 'from a public vantage point where [they have] a right to be'".

The argument therefore hinges on whether there is a legal vantage point from which warrantless surveillance may be carried out. If one exists, then there is no reasonable expectation of privacy, and therefore no requirement for a warrant.

As I understand Holsinger's position, the question of whether a given vantage point for warrantless surveillance is 'legal' would depend on whether the law at a location of interception allows for it. A reasonable expectation of privacy would exist only if there is no such vantage point. If a call to Omar in Kabul is legally surveillable from a vantage point in a friendly country, it would follow from the reasoning in _Ciraolo_ and _Riley_ that there is no expectation of privacy to be had. In addition to passing Fourth Amendment muster, this would also place such surveillance outside the meaning of electronic surveillance as defined in FISA.

We have seen in _Ramsey_ how there is "no statutorily created expectation of privacy" in that case. It is the same in the instant case.

Medis says:

Moreover, border searches have been limited to the actual physical area of the border, and so again, how, if at all, this would apply to electronic communications is not clear.

I believe this has been discussed before. United States v. Montoya De Hernandez applies the exception to the "functional equivalent" - and not just the physical area - of a border.
2.14.2006 1:24pm
Neal Lang (mail):
And this is all just inference, still not a case directly on-point. In the 39 years since telephone communications have been held to be covered by the Fourth Amendment, I would expect to find an on-point case if there were an exception.

Interestingly, the same number of years that telecoms were considered NOT "covered by the Fourth Amendement.
2.14.2006 1:31pm
Neal Lang (mail):
Unless Congress wants to pass a statute of congressional accountability that will shift more blame and accountability onto their shoulders, as suggested by op-ed writer David Brooks, that any law passed or action taken by Congress that results in or contributes to an attack, those that voted for such, shall have their names posted on the front pages of newspapers and be held accountable.

It would require a Constitutional Amendment, as a mere Legislative Statute cannot change the nearly 220 year understanding of the Constitution with regards to the "powers" and "responsibility" of the Commander-in-Chief.
2.14.2006 1:36pm
Some Guy:
Doesn't a special needs argument suggest that the DoJ is conceding the constitutionality of FISA? Wouldn't they have to in order for the argument to work at all?
2.14.2006 2:14pm
Just an Observer:
o' connuh j,

I'm familiar with the inferential theory you recount. Tom Holsinger has advanced the same inference here as an argument before.

What I'm asking for is an actual case that upholds that theory in the specific situation of a U.S. citizen in this country making a private phone call to or from a foreign country.

I know of no such case, Tom knows of no such case, and you apparently don't either.

There surely have been many investigations and prosecutions over the past 39 years of criminal suspects who had occasion to make international phone calls. Yet we have no case where any of them has been legally wiretapped without a warrant.

I have to assume that if there were such a case, the DOJ lawyers would know and it would have been cited in their 42-page "white paper." It obviously would have made their argument much stronger.

But such a case seems to be a legal unicorn. People talk about it as if it exists, yet no one can point to the specimen.
2.14.2006 2:16pm
Medis:
o' connuh j.,

So what is the "functional equivalent" of a physical border when one is talking about electronic communications? Or is there such a thing at all? Note that what that has meant in actual cases is things like international airports in the interior of the country.

In general, though, I don't mean to imply that there is a clear answer to these questions. My point is just that 4th Amendment jurisprudence is highly fact-specific, and any variation of a substantial fact--in this case, the difference between actual goods and people versus electronic communications--could potentially lead to a different result.
2.14.2006 2:32pm
o' connuh j.:
No, I don't know of any case "directly on point". That is why we have legal argumentation: because we apply or distinguish analogous cases to novel situations.

Possibly no such case exists because there wasn't a challenge on those facts.

Either way, it doesn't help you, because if there is no case directly on point one way or the other, there is no support for your contention that a reasonable expectation of privacy exists for international communications.

Further, one can adduce Ramsey, Ciraolo, and Riley as support for the position that a reasonable expectation of privacy does not exist for international communications. What is your support for the contrary position other than Katz?

Zilch.
2.14.2006 2:32pm
Just an Observer:
Neal Lang,

Yes, I am aware that you think Katz was wrongly decided and that the 4th Amendment does not apply to electronic communications such as phone calls.

As I told you before, it is not intellectually useful to consider your opinion seriously unless one is willing to believe that the solicitor general of the United States will make the same argument before the Supreme Court. Of course, he will not.
2.14.2006 2:35pm
Just an Observer:
o' connuh j,

Well then, we agree that as far as we know the specific question is undecided. You are free to assert what you wish.

I would take your assertion more seriously if the DOJ lawyers even made such a argument. AFAIK, they do not.
2.14.2006 2:40pm
o' connuh j.:
So what is the "functional equivalent" of a physical border when one is talking about electronic communications? Or is there such a thing at all? Note that what that has meant in actual cases is things like international airports in the interior of the country.

I don't know. I would guess though that, since undersea cables are laid on the seaboard, a functional border exists where the rights to the seaboard of the United States cease to have purchase. Or switching stations through which international calls are routed - analogous to airports "in the interior of the country" (although not being familiar with the technology, I can't say for sure).

As mentioned, there is no clear answer to Fourth Amendment questions because of the specificity of the cases at hand. But if we are to make an argument for Holsinger's position by enunciating principle, we find that there is not such a paucity of cases as Observer suggests is the case.
2.14.2006 2:47pm
o' connuh j.:
Observer, incorrect.

Your original contention was:

Despite repeated challenges on this blog over the past couple of months to those who make such an assertion, no one has ever been able to cite a case that supports the proposition.

But I have just cited three cases that support the proposition, so your blithe assertion that "no case" can be adduced was refuted.

You then change your tune to: 'yeah well, no case exactly corresponding to the same facts can be adduced.' But of course this is a truism. There would be no novel cases in law if we demand an exact correspondence for every case cited to support a position. Thus is the illogicality of your case.

As for your other remark that the DOJ makes no such argument - well yes, but are they addressing Fourth Amendment issues or the inapplicability of FISA because of Article II? And since when was someone else "not making an argument" a logical riposte to Holsinger's position on the merits? It's not even an argument!
2.14.2006 2:59pm
Medis:
o'j,

You may be coming to this conversation a bit late ... it has been going on for a long time now.

Anyway, we are all familiar with Tom's "principles". The problem is that in a fact-specific inquiry, reasonable people can disagree about whether certain "principles" can or cannot be transported into a new factual context.

Speaking just for myself, I think the cases in question--border searches, plain view, and so on--are all factually distinct in important ways. I also think Tom's basic argument--that if a foreign government could lawfully conduct surveillance without a warrant of their end of a communication in their jurisdiction, then we can lawfully conduct surveillance without a warrant of our end of that communication in our jurisdiction--violates some basic principles of sovereignty.

But I don't claim to have a case on point that proves I am right, and I wouldn't be terribly surprised if a court did go the other way in a case of first impression. Conversely, however, Tom has consistently maintained that he KNOWS he is right, and he KNOWS we are all wrong. But as far as I can tell, he has no authority that justifies such certainty.

In short, I agree this may in fact be an open issue, and I might end up being wrong if a case is ever decided. But Tom is unwilling to admit any possibility that the issue is open or that he could be wrong--and therein lies the reason we keep insisting that he needs to back up his claims with an actual case directly on point.
2.14.2006 3:09pm
cathyf:
If a call to Omar in Kabul is legally surveillable from a vantage point in a friendly country, it would follow from the reasoning in _Ciraolo_ and _Riley_ that there is no expectation of privacy to be had. In addition to passing Fourth Amendment muster, this would also place such surveillance outside the meaning of electronic surveillance as defined in FISA.
Does it matter that in the real world, phone calls are routed through the cheapest route at that particular moment in time, and that it is generally not possible to predict in advance how a particular call is going to be routed? So it may be that, say, half the calls between Kabul and the US are "legally surveillable from a vantage point in a friendly country" and the other half are not.

What if NSA has technology which can force a particular call to go through a switch in a particular country? (And that country would do the surveillance and communicate the results to us.) What if the technology is installed at a switch in the US? Is that technology surveillance?

cathy :-)
2.14.2006 3:36pm
o' connuh j.:
. . . however, Tom has consistently maintained that he KNOWS he is right, and he KNOWS we are all wrong. But as far as I can tell, he has no authority that justifies such certainty.

If he believes so, then absent a controlling case we can't know. We can only make arguments to that effect.

If memory serves his position was one based on legislative history and he never did make a 'principles' argument based on reasonably analogous cases. Or I could have missed it. So here I am making one for him, in response to Observer's observation that 'no one has cited any cases for the proposition'.

I also think Tom's basic argument--that if a foreign government could lawfully conduct surveillance without a warrant of their end of a communication in their jurisdiction, then we can lawfully conduct surveillance without a warrant of our end of that communication in our jurisdiction--violates some basic principles of sovereignty.

Curiously enough, I would have thought the exact opposite was the case. Does the Fourth provide for extraterritorial jurisdiction over United States persons in foreign, sovereign territory?

If not, the 'fact' that foreign law allows for a legal vantage point, thereby extinguishing a reasonable expectation of privacy, would be an argument 'supportable' by the caselaw.

Cathyf, don't all international calls have to be routed through a switching station? I think there's a colourable argument that said switch would be the functional equivalent of a border.
2.14.2006 3:52pm
Just an Observer:
o' connuh j,

Okay, I will rephrase:

Despite repeated challenges on this blog over the past couple of months to those who make such an assertion, no one has ever been able to cite a case that proves the proposition.

And again, we can agree that the inferential argument can be made from other cases with colorably similar -- but differnet-- facts. Obviously you both have made it.

But if I understand Tom Holsinger, he has claimed that, as a matter of historical fact, that rule has been applied by U.S. courts to NSA surveillance since FISA was enacted. There still is no support for that claim.

o' connuh j: As for your other remark that the DOJ makes no such argument - well yes, but are they addressing Fourth Amendment issues or the inapplicability of FISA because of Article II?

Actually, the DOJ "white paper" did address the Fourth Amendment issues, as well as Article II issues, as well as statutory analysis of FISA.

And within FISA, one key definition of surveillance turns on the phrase: "... if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." 50 USC 1801(f)(1)

Obviously, if there were no expectation of privacy in transnational communications that would be material to the DOJ's analysis of FISA, or anyone else's analysis of the current controversy.

Yet the unicorn remains at large.
2.14.2006 3:54pm
o' connuh j.:
Ok, that is fine by me Observer. As for the DOJ remark, I would not discount the possibility that they didn't want to 1. reveal the operational parameters of NSA surveillance by making that argument 2. stir up a hornet's nest over a mere supportable but 'unproven' argument.
2.14.2006 4:19pm
o' connuh j.:
Pwned.

"Beginning in the 1890s, with In re Ross, the Supreme Court began a broad agenda of limiting the reach of the Constitution outside the territorial boundaries of the United States. In Ross, the Court held that the Constitution simply had no reach beyond U.S. borders, even in regard to an American citizen. In the following two decades the Court expanded this holding through a series of cases known as The Insular Cases. In these cases, the Court adopted the Territorial Incorporation Doctrine, which stated that "fundamental" rights might extend beyond the borders of the several states, but that the full Bill of Rights did not apply to unincorporated territories, or territories that were not destined for eventual statehood."

http://www.followtheflag.net/?p=17
2.14.2006 4:28pm
Medis:
o.j.,

I wasn't referring to what the U.S. government can do with respect to U.S. citizens when both parties are actually outside the jurisdiction of the United States.

Rather, in this situation both the U.S. government and the U.S. person are inside the jurisdiction of the United States. But the U.S. person is communicating with another person in a foreign jurisdiction. Tom's argument amounts to the claim that because the foreign government, acting in its own jurisdiction, under its own laws, might be able to lawfully surveil the communication without a warrant, our government, acting in our jurisdiction, can ignore our laws and just do as the foreign goverment could do.

Personally, I think your application of the "plain view" doctrine is purely metaphorical. But even on its terms, it requires the lawful presence of the government agent in that viewpoint. Here, the U.S. government agent is NOT in that viewpoint (meaning the hypothetical "viewpoint" which could be lawfully occupied by the foreign government in its own jurisdiction).
2.14.2006 4:37pm
Neal Lang (mail):
Yes, I am aware that you think Katz was wrongly decided and that the 4th Amendment does not apply to electronic communications such as phone calls.

As did a majority of the Supremes in Olmstad. From where does the Supremes get the idea that they have the "power" to amend the Constitution without jumping through the requisite Article V hoops?
As I told you before, it is not intellectually useful to consider your opinion seriously unless one is willing to believe that the solicitor general of the United States will make the same argument before the Supreme Court. Of course, he will not.

As Katz didn't address "foreign intelligence", it is doubtful it would even apply in the case of the NSA Terrorist Surveillance Program. "It is not intellectually useful to consider your opinion seriously" that the 4th Amendment applies to "electronic surveillance" of "enemy agents" to gather "combat intellience".
2.14.2006 4:49pm
Tom Holsinger (mail):
o' connuh,

A former NSA staffer appeared in FISA thread at least a month ago and said that the telecommunications companies were bouncing copies of electronic communications from places where FISA might be applicable to satellites where the copies could be intercepted without violating FISA. He also said he had resigned due to ethical qualms about the tasks he was gathered to perfom. I suspected these two matters were related, and expressed concern that he might have violated his non-disclosure agreement.

JAO errs in contending that I said there were cases on this point. I said the "reasonable expectation of privacy" clause in FISA referred to an existing body of law, including cases, defining "reasonable expectation of privacy", particularly in the area of privileged communications. My arguments on analogous law were consistently rejected as inapposite.
2.14.2006 5:41pm
Just an Observer:
Tom Holsinger,

I recall the "former NSA staffer" to whom you refer, Polaris, saying that during his tenure communications were intercepted outside FISA's legal definition of the United States. No one disputes that; it seems to be an open secret about NSA's historical activities. Polaris also said he has no knowledge of the NSA program in question, because he left the agency before it began. None of that pertains to the question of "expectation of privacy."

I do recall that you, like o' connuh j now does, have made inferential arguments from other cases, just as I have said above in this thread.

But my recollection, like that of Medis, is that you previously have claimed not just that such an inference is arguable, but that such a ruling in fact had been applied by the courts ever since FISA was enacted.

If you now disclaim making that assertion, then you apparently concede that you don't really know that the courts in fact have adopted your inferential argument. In that case, we have no longer have a disagreement.
2.14.2006 6:18pm
Tom Holsinger (mail):
JAO,

Feel free to cover your rear by contending that I said something I didn't.
2.14.2006 6:45pm
Just an Observer:
Tom Holsinger,

It seems pointless to argue about whose memory is correct about what you said in the past. (If this site had a workable search function we could resolve that question of fact one way or another.)

Since I am not willing to invest the time to search all those threads manually, I will simply concede that my memory may be faulty. If I have misquoted you, I apologize.

More important, we now all agree that none of us knows with certainty that there is no expectation of privacy in this country for international calls, and none of us knows with certainty that there is such expectation.
2.14.2006 6:59pm
farmer56 (mail):
Gee,

Same dead horse.

If someone here is an elected member of congress. Write an ammendment to the Statute. If not you are welcome to your self pleasure. But. Know that even the most liberal of the liberal Democrats do NOT want do a thing with this law. But, do enjoy yourself in your solitude.
2.15.2006 4:54pm
jonathan (mail) (www):
Medis writes:


Personally, I think your application of the "plain view" doctrine is purely metaphorical. But even on its terms, it requires the lawful presence of the government agent in that viewpoint. Here, the U.S. government agent is NOT in that viewpoint (meaning the hypothetical "viewpoint" which could be lawfully occupied by the foreign government in its own jurisdiction).


I guess I disagree. For the last twenty-odd years my self-appointed nickname has been "boyrobot" w which is one of my online monickers -- i.e. half man, half machine. In order to effectively prevent these kinds of attacks from occurring, the law enforcement official needs to be there, "in place" -- in order to view the evidence. The problem is that they have to be everywhere at all times in order to prevent another 9/11. IMHO, that's why we have taps to gather the intel, and database "triggers" and stored procedures to alert a real human to the presence of potentially incriminating information. The officer is "in place" via the tap and the trigger; the tap and the scrutiny-triggering algorithm function as something of an authrorized [cyber]agent acting on behalf of the reviewing officer. If the information turns out, upon review, to be harmless, then it is ignored. If privacy has been violated by the scrutiny of harmless information, and it happens too often, then that just means we need more refined database triggers and stored procedures. I don't think you can argue against the taps.

The government has no interest in sifting through mounds of worthless data, and the creation of the algortithms must take into account the harms that could conceivably flow from having government officers privy to "worthless" private information. I guess I'm just confident that the NSA is continually tuning its algorithms in order to avoid the general problem of signal-to-noise ratio.

Any takers?
2.17.2006 4:41pm
jonathan (mail) (www):
I just created a post on my own blog regarding one of Orin's opening thoughts, the comment by Medis, and my response to that comment, here.

I added the following as an afterthought to that post:

In the case of police roadblocks designed to catch drunk drivers, I believe the Supreme Court has ruled that the roadblocks have to follow a pattern, i.e. they can't be arbitrary; they have to stop every driver, or every seventh driver, or something like that (they can't stop a car just because it happens to be a jalopy, and ignore the guy in a fancy suit who's driving an expensive sportscar, that'd be an improper use of profiling). In the case of electronic communications, maybe we "stop" all communications going outside of the country, or all communications going to certain countries, or all communications going to certain area codes or phone numbers, or more correctly "slow them down momentarily" in order to exercise "plain view" observation by national technical means — just as certain traffic routes are monitored by law enforcement because they are higher-probability routes for suspected drunk drivers. Only when the database triggers manage to sniff out suspected incriminating information, based on an operational dictionary and associated algorithm(s), does heightened scrutiny by a human agent result. I don't see any problem with this approach unless the dictionary is somehow inept and/or the algorithms are somehow deficient, or the government agents are abusing their authority, all of which are considerations which could be possible grist for things like FOIA requests, whistle-blowing, and/or judicial review.
2.17.2006 6:32pm
jonathan (mail) (www):
I just created a post on my own blog regarding one of Orin's opening thoughts, the comment by Medis, and my response to that comment, here.

I added the following as an afterthought to that post:

In the case of police roadblocks designed to catch drunk drivers, I believe the Supreme Court has ruled that the roadblocks have to follow a pattern, i.e. they can't be arbitrary; they have to stop every driver, or every seventh driver, or something like that (they can't stop a car just because it happens to be a jalopy, and ignore the guy in a fancy suit who's driving an expensive sportscar, that'd be an improper use of profiling). In the case of electronic communications, maybe we "stop" all communications going outside of the country, or all communications going to certain countries, or all communications going to certain area codes or phone numbers, or more correctly "slow them down momentarily" in order to exercise "plain view" observation by national technical means — just as certain traffic routes are monitored by law enforcement because they are higher-probability routes for suspected drunk drivers. Only when the database triggers manage to sniff out suspected incriminating information, based on an operational dictionary and associated algorithm(s), does heightened scrutiny by a human agent result. I don't see any problem with this approach unless the dictionary is somehow inept and/or the algorithms are somehow deficient, or the government agents are abusing their authority, all of which are considerations which could be possible grist for things like FOIA requests, whistle-blowing, and/or judicial review.
2.17.2006 6:33pm