Most famous, of course, is “never get into a land war in Mesopotamia.” But only slightly less well known is: “Never get into a Fourth Amendment argument with the guy who literally wrote the book on government seizure of electronic evidence.” Still, I want to take a quick look at Orin Kerr’s analysis at Volokh Conspiracy of the NSA eavesdropping program.
Kerr offers two arguments for why the program might pass Fourth Amendment muster. First, he suggests that wiretaps of communications between persons in the U.S. and interlocutors abroad might fall under the “border search” exception that permits the government to inspect, without a warrant, persons and packages entering or leaving the country. I have no idea whether the courts would rule as Kerr suggests—intuitively the primary border-search rationale of preventing contraband from entering the country doesn’t apply straightforwardly to communications surveillance, though, of course, there is such a thing as digital contraband. But the logic of the Fourth Circuit case Kerr cites certainly seems to leave that door open—hell, it stands in the doorframe beckoning—and the prospect that a court might rule this way is a little disturbing. In the physical world, crossing a border is a relatively clear-cut proposition—you don’t, as a rule, do it by accident, so you at least know when you’re going to be potentially subject to a search. But do you know where every packet of e-mail or VoIP conversation you exchange goes? I sure don’t. But if I send an e-mail to my aunt, who’s in New York for the holidays, there’s a pretty good chance that it makes a stopover on a server in Madrid somewhere. Online, our private communications are routinely crossing borders, at least sometimes without our knowledge. And never mind the “we’re at war here” jazz; the border-search rationale would apply any time.
Next, Kerr turns to a potential “national security” exemption, citing a case that denied the executive domestic warrantless surveillance powers, but explicitly refrained from ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Now, declining to deny a power is not the same thing as granting it, but leave that for the moment. A footnote in the same case observes:
No doubt there are cases where it will be difficult to distinguish between “domestic” and “foreign” unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers. But this is not such a case.
But this, surely, is. And The New York Times‘ description of who was targeted leaves some doubt that the surveilled parties were all “agents of foreign powers”:
In addition to eavesdropping on those numbers [captured from terrorists’ cell phones] and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
We don’t know what the criteria were for “expanding” that “chain,” but it does begin to sound a bit like a massive game of Six Degrees of Qevin al-Baiken. Maybe evidence for some sort of connection to a “foreign power” in each case was sufficient that the targets all would’ve passed muster before a FISA court. But if so—if ther NSA wasn’t just lowering an electronic dragnet into the bitstream—then, as others have observed, it becomes mysterious why they wouldn’t just do that (at least retroactively, as FISA allows). Assume we think executive wiretaps of agents of foreign powers are per se reasonable. Don’t we still want some kind of oversight to ensure that those who’re eavesdropped upon are at least justifiably suspected of being such agents? Of course, if we add oversight, then (Catch 22), it’s not really an “executive” search anymore.
Now, fortunately (as Kerr observes), even if these arguments were to fly, we have statutory restrictions on wiretaps that go further than the Fourth Amendment might require. Still, at a time when the statues are in flux, it’d be nice to have a little constitutional double-bagging.
If you’re looking for views from people with actual qualifications to talk about this, by the by, Dan Solove has a good roundup of analysis.
—posted by Julian
The Dish 