Tuesday, December 20, 2005

Warrantless Wiretaps and the Fourth Amendment

Is the President acting legally when he authorizes warrantless wiretaps of communications between persons in the U.S. and someone outside the U.S.? Orin Kerr provides a preliminary legal analysis at Volokh's Conspiracy. Kerr's analysis of the Fourth Amendment is the most aplicable, I think.

The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment [which prohibits unreasonable search and seizure] under existing precedent.

...

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. ...

... The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. ...

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. ...

... [B]etween 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.

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