DOJ Says Americans Have No 4th Amendment Protections At All When They Communicate With Foreigners

from the expectation-of-privacy? dept

We've already questioned if it's really true that the 4th Amendment doesn't apply to foreigners (the Amendment refers to "people" not "citizens"). But in some new filings by the DOJ, the US government appears to take its "no 4th Amendment protections for foreigners" to absurd new levels. It says, quite clearly, that because foreigners have no 4th Amendment protections it means that any Americans lose their 4th Amendment protections when communicating with foreigners. They're using a very twisted understanding of the (already troubling) third party doctrine to do this. As you may recall, after lying to the Supreme Court, the Justice Department said that it would start informing defendants if warrantless collection of information under Section 702 of the FISA Amendments Act (FAA) was used in the investigation against them.

Last October, it finally started alerting some defendants, leading courts to halt proceedings and re-evaluate. As two of those cases have moved forward, the DOJ is trying to defend those cases, and one way it's doing so is to flat out say that Americans have no 4th Amendment protections when talking to foreigners.

The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

This argument is questionable on so many levels. First, it's already relying on the questionable third party doctrine, but it seems to go much further, by then arguing that merely providing information to a foreign person means that it's okay for the US government to snoop on it without a warrant. The DOJ further defends this by saying, effectively, that foreign governments might snoop on it as well, so that makes it okay:

Moreover, any expectation of privacy of defendant in his electronic communications with a non-U.S. person overseas is also diminished by the prospect that his foreign correspondent could be a target for surveillance by foreign governments or private entities.

With this, it appears the DOJ is trying to attack the idea of the reasonable expectation of privacy that has been the basis of the 4th Amendment in the US. They're effectively arguing that since foreign governments might look at the info too, you should have no expectation of privacy in any communications with foreigners and thus you've waived all 4th Amendment protections in that content.

That's crazy.

In fact, they flat out admit that they're stripping Americans of any 4th Amendment rights with this claim, noting that communicating with foreigners means you've likely "eliminated" your 4th Amendment protections.

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

The implications of this argument, if upheld by the court is staggering. It would seem to fly in the face of basic logic and historical 4th Amendment law, all discussing how it's the expectation of privacy that matters. And I'm fairly certain that most of us who regularly communicate with folks outside the US have quite a reasonable expectation of privacy in such communications (though, to be fair, I've been much more actively using encryption when talking to people outside the US lately).

As Jameel Jaffer of the ACLU points out, this eviscerates basic Constitutional protections for many Americans:

The government's argument is not simply that the NSA has broad authority to monitor Americans' international communications. The US government is arguing that the NSA's authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

In the government's view, there is no need to ask whether the 2008 law violates Americans' privacy rights, because in this context Americans have no rights to be violated.

I'm curious if anyone wants to defend this as a reasonable interpretation of the 4th Amendment, because it seems quite clearly a complete bastardization of what the 4th Amendment says and how courts have interpreted it over the years.

Filed Under: 4th amendment, communications, doj, fisa, fisa amendments act, foreign persons, section 702

Latest NSA Leak: Rules On How They Use Data Without A Warrant

from the wow dept

Glenn Greenwald had promised that there were more incredible leaks concerning the NSA to come, and here's the first big one. Greenwald has revealed the NSA's rules that show the procedures for targeting non-US persons, and also how they "minimize" data collected on US persons when dealing with the "bulk" data records collection they do, such as with all of the data around every phone call made. These are two key parts to the NSA's insistence that they're staying within the law and not spying on people in the US. The details here, however, suggest a very different story. The FISA court has signed off on these rules that appear to grant incredibly wide latitude for the NSA to make use of data, rather than really "minimize" its usage. While President Obama and others have insisted that the rules make sure that the NSA really isn't collecting data on Americans, the reality shows that FISC approved rules let the NSA:

• Keep data that could potentially contain details of US persons for up to five years;
• Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• Preserve "foreign intelligence information" contained within attorney-client communications;
• Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

The report from Greenwald also reveals that orders he has seen from the FISA court concerning broad data collection do not appear to include details or explanations, other than your basic rubber stamp that FISC says it's okay.

One such warrant seen by the Guardian shows that they do not contain detailed legal rulings or explanation. Instead, the one-paragraph order, signed by a Fisa court judge in 2010, declares that the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.

But since those procedures have now been leaked, we can see that they're not very carefully targeted at all. If the NSA doesn't know where someone is located, it can assume the person is foreign:

In the absence of specific information regarding whether a target is a United States person, a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.

That part about how the NSA can still keep data on US persons if they believe the data contains "evidence of a crime," "technical data base information" or "information pertaining to a threat of serious harm to life or property" obviously give the NSA incredible powers to -- contrary to what they've stated publicly -- retain all sorts of info on Americans.

Once we and others have had a chance to dig deeper through these, I'm sure we'll have more to say, but for now, it appears that, once again, the NSA and its defenders were less than fully forthcoming about how the NSA uses the data it collects and how it makes sure that Americans aren't targeted.

Filed Under: fisa, fisa court, fisc, foreign persons, minimization, nsa, nsa surveillance, oversight, targeting, us persons, warrants