Class #10: The Extraterritorial Fourth Amendment Professor Emily Berman Thursday, September 25, 2014
Thursday, September 25, 2014 Wrap Up Third Party Doctrine Discussion Smith v. Maryland Section 215 The Extraterritorial Fourth Amendment Reid v. Covert United States v. Verdugo-Urquidez In re Terrorist Bombings of the U.S. Embassies 2
Facts: Warrantless installation of a pen register by a telephone company, at the request of the police, in pursuit of a robbery suspect. Holding: There is no reasonable expectation of privacy in the phone numbers you dial. Third-Party Doctrine: There is no reasonable expectation of privacy in information voluntarily given to third parties. 3
NSLs (No ex ante judicial oversight): Demand for, inter alia, ISP customer information that is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. PATRIOT Act Section 215 (FISC oversight): Government can get an order requiring the production of any tangible thing for which there is reason to believe that it is relevant to an authorized investigation. 4
Verizon Order leaked from Edward Snowden: FISC order requires the production an electronic copy of the following tangible things: all call detail records or telephony metadata created by Verizon for communications (i) between the US and abroad; or (ii) wholly within the US, including local phone numbers. Required production of all such records in Verizon s custody, as well as production of such records on an ongoing daily basis for the duration of the order. 5
1. Judge Eagan, In re Application of the FBI Requiring the Production of Tangible Things from [Redacted] (FISC 2013) Statutory argument & defining relevance Constitutional argument 2. Judge Pauley, ACLU v. Clapper (SDNY 2013) Constitutional argument 2d Cir. Argument from Sept. 2 on CSPAN.org 3. Judge Leon, Klayman v. Obama (D.D.C. 2013) Constitutional argument D.C. Cir. Argument on Nov. 4, 2014 6
Facts: FBI agents installed a GPS tracking device on a suspect s car without a valid warrant. Issue: Whether the government must get a warrant, even though physical surveillance would not require a warrant. Scalia, J. (Majority): This is a search within the meaning of the 4A because the government physically occupied private property for the purpose of obtaining information. 7
Reality check: With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. This is important: GPS monitoring generates a... wealth of detail about [a person s] familial, political, professional, religious, & sexual associations. Rethinking Smith?: It may be necessary to reconsider third-party doctrine. 8
FISC Opinion from 2011: NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The rules had been so frequently and systematically violated that it can fairly be said that this critical element of the overall... regime has never functioned effectively. 9
The Fourth Amendment 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. 10
Facts: Several women killed their U.S. servicemen husbands while stationed overseas. They were tried on U.S. military bases under U.S. military law. Question: Whether the trial violated the women s 5A & 6A rights to a grand jury indictment followed by a jury trial. 11
Plurality (Black, J.): (709): Regardless of where they are located, government agents can only act in accordance with all the limitations imposed by the Constitution. Harlan, J., concurring: (711): [There are provision in the Constitution which do not necessarily apply in all circumstances in every foreign place. Local setting, practical necessities, & alternatives should be taken into account. 12
Facts: DEA agents executed a search of the property of a Mexican citizen in Mexico. Question: Whether the 4A applies to the search and seizure by US agents of property owned by a non-resident alien and located in a foreign country. 13
Majority (Rehnquist, J.): (713): The people in the 4A [r]efers to a class of person who are part of national community or who have otherwise developed sufficient connection with this country to be considered part of that community. (715): [A]liens receive constitutional protections when they have come within the territory of the US and developed substantial connections with this country. 14
Kennedy, J., concurring: (716): The conditions and considerations of this case would make adherence to the 4A warrant requirement impracticable and anomalous. Practical barriers to the warrant requirement: Absence of local judges Differing conceptions of reasonableness and privacy abroad Need for cooperation with foreign officials 15
Brennan, J. & Marshall, J., dissenting: (717): When we tell the world that we expect all people wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Blackmun, J., dissenting: (717): [W]hen a foreign national is held accountable for purported violations of US criminal laws, he has effectively been treated as one of the governed and therefore is entitled to 4A protections. 16
Facts: El-Hage, a US citizen, was convicted of involvement with bombings of the US Embassies in Kenya and Tanzania. He argues that evidence against him derived from searches of his home and surveillance of his conversations should be suppressed because they were not supported by a warrant. How would the Reid plurality answer this question? The Verdugo majority? 17
Joe has just completed his MD at Johns Hopkins, and has returned to his native South Africa to practice medicine. U.S. government officials then discover that several members of Joe s graduating class at Hopkins had been fraudulently writing prescriptions for OxyContin in return for cash payments. To determine whether there is any evidence that Joe has participated in these activities, the FBI s Baltimore Field Office contacts the FBI agents stationed in Cape Town and asks them to search Joe s house for evidence. They do so. 18