Mike Masnick
Tech Dirt
May 15, 2014

Constitution1We’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.

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