At the risk of inducing commenters to start demanding “Freebird,” here’s a quick take on Andy McCarthy’s recent NRO column on FISA and border searches. You have to wade through a few paragraphs of talk-radio style throat clearing, in which McCarthy uses his psychic powers to divine that congressional Democrats have blocked expanded executive wiretap powers as a sop to their money-grubbing trial lawyer buddies at the ACLU and EFF. But by and by, we finally come to the real point of the piece, which is that a recent Ninth Circuit ruling concerning border searches of laptops proves that there’s no need for a warrant to wiretap international telecommunications. There are a few simple factual problems here, and a few dodgy leaps in reasoning.
The Left’s portrayal of President Bush as an imperious lawbreaker has always been the stuff of farce. To be sure, the warrantless surveillance program operated for a time outside the judicial supervision imposed by the 1978 Foreign Intelligence Surveillance Act. FISA, however, did not and could not divest the commander-in-chief of his constitutional power to protect the nation from foreign threats. That was the position of the Democrat (President Carter) who signed FISA into law, and of the Democrat (President Clinton) who approved an amendment extending FISA to physical searches.
If the basis of that last sentence is the same few out-of-context quotes we’ve seen slung around in the past on this issue, then this is just wrong. I’ve explained why in some detail here. An of course, no tendentious surveillance-hawk article would be complete without a quotation of their faaaavorite bit of dicta from In Re Sealed Case, as though a one-line aside in a ruling on an unrelated matter somehow settled a core question about the scope of executive power in the face of restraining legislation. Finally, we get to the border search question, where McCarthy invokes U.S. v Ramsey, which approved warrantless searches of international mail. But he neglects to mention a few significant components of that ruling:
As we observe infra at 431 U. S. 623-624, the opening of mail is limited by a “reasonable cause” requirement, while the reading of letters is totally interdicted by regulation. [….] 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.
Emphasis mine. So, three things of rather obvious importance here. First, the precedent concerning international mail is overtly premised on the notion that customs officials are looking for contraband, based on reasonable suspicion, rather than reading the contents of the letters themselves.
Second, the exception to ordinary Fourth Amendment standards concerns what comes in to a nation’s sovereign territory, not what citizens send out. The reforms sought in proposed amendments to FISA would cover e-mails sent by U.S. citizens to parties abroad.
Third, and most importantly, this at most establishes what the Fourth Amendment, in isolation, requires. Even if we grant that there’s no Fourth Amendment bar to an executive “border search” of international communications, it doesn’t follow that there couldn’t be a statutory barrier to such searches—and, indeed, the ruling seems to clearly recognize that it would be another story if there were. And there is no question at all that FISA’s definition of “electronic surveillance” encompasses wire communications with one party in the United States, and one party without.
This is why it’s simply bizarre to see McCarthy arguing that Democrats are acting “against the accumulating weight of legal authority.” What? How? By defending 30-year-old statutory privacy protections that might go beyond the bare minimum required by the Fourth Amendment? Lots of privacy statutes go beyond the bare minimum required by the Fourth Amendment. Assuming we accept McCarthy’s equivalence between physical border searches, mail, and telecommunications—and assuming further we disregard the various caveats that figured in the mail rulings—we’ve still got an argument that, at best, is only weakly relevant: It establishes nothing about whether the NSA program violated FISA, and nothing about what sort of protections we want enshrined in statute going forward. Indeed, the whole point of FISA was to place added checks on a sphere where it wasn’t clear whether the Fourth Amendment alone was sufficient to limit abuses. So it’s frankly just weird to imagine that it’s an argument against the traditional FISA rules that the Fourth Amendment, unaided, might not do as much to check abuses. Then there’s this:
Similarly, there is no reason to infer that the e-mailed or wired communications of any person, much less a foreign terrorist, carry a greater expectation of privacy than would the very same communications if the person instead physically brought them into the country, stored on a laptop. Indeed, the physical search is more intrusive and hence more violative of privacy. Still, the courts have uniformly held no warrant is necessary. The national security interest is simply too strong.
Actually, there is a fairly obvious basis for a distinction here, and it’s the very reason that e-mail communications have proven tricky under the preexisting FISA rules: The communications in question don’t just involve what persons abroad are sending into the U.S., but what Americans are sending out. Moreover, a person often won’t know whether the e-mail she sends to a correspondent is going to be read in the U.S., or downloaded overseas. If what’s relevant is her expectation, then it’s no great leap to imagine a court deciding that an otherwise protected e-mail or Skype conversation shouldn’t become fair game for interception if, perhaps unbeknownst to the sender, her interlocutor is abroad.
Finally, while this isn’t an objection specific to this line of argument, it’s worth saying one more time how obnoxious and tendentious is all this talk about the supposed rights of “foreign terrorists.” In cases where we actually know we’re dealing with foreign terrorists, there’s no problem with operating under the traditional FISA regime, because we can just start surveillance and then bring the evidence that our target is a terrorist before the FISA court. Not having to jump through the FISA hoops is attractive precisely when it’s not clear that the target is a terrorist—the sort of case where, indeed, it often won’t be, as we know because the FBI has complained that the NSA program was generating lots of dead-end leads. The nature of this kind of broad-based surveillance in the absence of probable cause is such it will very likely, as often as not, involve people who turn out not to be terrorists. We can’t even begin having a sane discussion about the appropriate policy until folks who favor broader powers are prepared to acknowledge that much.