Intelligence Law School - Course 1: Lesson 3.5.3 The Fourth Amendment


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LESSON 3: CONSTITUTIONAL LAW


3.5 The Bill of Rights


3.5.3 The Fourth Amendment


Lecture Audio



Lesson Outline


 

Annotated Lecture Transcript

3.5.3 The Fourth Amendment

3.5.3.1 Text of the Fourth Amendment

Okay, so that does it for the First Amendment.

Now we turn to what is probably the most important Amendment for purposes of U.S. intelligence law—the Fourth Amendment. 

The Fourth Amendment says:

Ø  “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.”[1]

 

3.5.3.2 Rights Guaranteed by the Fourth Amendment Generally

Your rights under the Fourth Amendment can be boiled down to just one central thing: the right to be free from unreasonable searches and seizures.

Ø  The Fourth Amendment may be the most important constitutional provision in all of U.S. intelligence law—especially as we become more and more interconnected with electronic devices in the Information Age.

o   Today, your smart phone tracks your location 24 hours a day.

o   Because of cases decided by the Supreme Court decades ago—back when Pong was the hottest computer application around—in America today the police don’t even need a warrant to demand your location-tracking data from your cell phone provider.

o   They can demand this information with a subpoena issued on their own authority alone and retroactively track you to every place you’ve been, every second of every day, for as many years as you’ve owned your phone.

o   The Court has started to pull back on some of these Orwellian developments in United States v. Jones, a case decided in January of 2012.[2]

o   But still, many civil libertarians feel this is an area in desperate need of statutory development.[3]

 

3.5.3.3 Fourth Amendment Warrant Clause Issues in Intelligence Law

Cell phone locational data is just one of many intelligence law topics with Fourth Amendment implications.

The Supreme Court’s Fourth Amendment jurisprudence is way too broad for me to even begin to address it in any depth in this introductory course.

I’ll just run through some of the topics we cover in Course II: Constitutional Law and Intelligence

Ø  “Searches” and “Seizures” Generally: I tackle questions related to the scope of the Fourth Amendment, questions like

o   How does the Fourth Amendment apply to intelligence surveillance in general?

o   What constitutes a “search” for Fourth Amendment purposes?[4]

o   What constitutes a “seizure?

o   These issues blend with statutory law questions like:

§  What is the FISA Court?[5]

§  What do agencies need to put in their application in order to obtain a court order from the FISA Court?[6]

§  What standards are applied by a FISA court judge when deciding whether to issue a court order requested by the government?[7]

§  Are these standards sufficient to satisfy the Fourth Amendment’s requirements, given the fact that the predicate offense in so-called spy surveillance cases usually involves a far less palpable suspicion of actual criminal wrongdoing?[8]

§  The FISA Court has approved virtually all of the government’s requests to target Americans since the court’s creation by statute in 1978; does the court qualify as a “neutral and detached magistrate” as guaranteed by the Fourth Amendment?[9]

 

3.5.3.4 Warrantless Collection of Information about United States Persons: Introduction to Fourth Amendment Loopholes

The most interesting topics in U.S. intelligence law don’t concern the question of when the Fourth Amendment requires a warrant.

The most interesting topics concern when the Fourth Amendment doesn’t require a warrant.

I’ve found that it is the incredible number of loopholes in the Fourth Amendment’s warrant requirement that are the most shocking and fascinating concepts for law students.

As you’ll soon find out, the loopholes that allow warrantless surveillance apply to the vast majority of modern surveillance techniques available to investigators.

Practically nothing requires a warrant anymore, and the few things that do require a warrant have their own set of loopholes that allow investigators to circumvent those protections as well.[10]

 

Ø  “Collection” Loophole: To give you an example of just one loophole in the intelligence context, take a look at the definition of “collected” in DoD Regulation 5240.1-R. 

o   Under DoD Regulation 5240.1-R, data gathered by DoD through electronic means is not considered to be “collected” until it is processed into an intelligible form.[11]

o   This means that an individual communication swept up by the NSA’s vacuum-cleaner, broad-spectrum SIGINT interception is not considered by DoD to have been “collected” as a matter of policy until an analyst processes that individual communication into something a human can read or understand.[12]

o   The Supreme Court has never addressed this issue directly, so it is unclear whether the Fourth Amendment’s prohibition against unreasonable searches and seizures would limit these broad-spectrum general seizures.

 

Ø  Warrantless Transactional Surveillance Methods: I talk about the Fourth Amendment and warrantless transactional surveillance methods.

o   By “transactional surveillance” I mean the warrantless search and seizure of the kind of records we all generate as we consume the goods and services of third-parties.

o   Many of these records are afforded virtually no protection by the Supreme Court’s interpretation of the Fourth Amendment.[13]

o   In limited cases, Congress has stepped in to create statutory protection after high-profile decisions where the Supreme Court interpreted the Fourth Amendment as leaving American citizens completely unprotected from warrantless information gathering.

o   Types of transactional surveillance we consider are things like:

§  Bank Records;[14]

§  Phone Records;[15] 

§  Pen Registers and Trap and Trace Devices;[16]

§  Email and Internet Transactional Data;[17] etc.

Ø  National Security Letters: INSERT

Ø  Border Searches:

 

3.5.3.5 Electronic Surveillance

 

Ø  Title III, Electronic Surveillance, and the “Interception” Loophole: As with other Fourth Amendment topics, statutory law plays a central role in fleshing out the legal framework governing electronic surveillance methods. 

Ø  “Wiretapping”

Ø  “Electronic Eavesdropping” (Bugging):

Ø  “Electronic Surveillance” Defined: The statutory definitions of terms like “Electronic Surveillance”[18] and “electronic storage” are central to much of modern U.S. Intelligence Law, so we’ll be talking about them a lot in later courses.

Ø  “Oral” vs. “Electronic” Communications: We’ll talk about the difference between

o    An “Oral Communication;”[19] and

o   An “Electronic Communication.”[20]

§  Including when an oral communication stops being an oral communication;[21] and

§  When an electronic communication is not really an “electronic communication”—I’m talking about things like tone-only pagers, GPS tracking devices, and electronic funds transfers.[22]

Ø  “Interception” Defined: We’ll talk about the statutory rules outlawing the “interception” of communications;[23]

Ø  SIGINT Loophole for Broad-Spectrum Collection: We’ll also talk about when interception is not “interception”—for example, when the NSA vacuums up communications but has not yet processed them into “intellible form;”[24]

Ø  The “Interception” Loophole: At first, Title III only applied to “intercepted” communications.

o   This left stored communications vulnerable to equally damaging search and seizures that were equally, if not more damaging than traditional real-time wiretapping.

o   Congress enacted the Electronic Communications Privacy Act to try to close this loophole by protecting “Stored Communications” from unauthorized search and seizure.

Ø  The Electronic Communications Privacy Act: Closing the “Interception” Loophole: Since modern communications don’t have to be intercepted in route in order to be seized, we’ll also talk about the updates to the interception ban made by the Electronic Communications Privacy Act that outlaw warrantless seizure “Stored Electronic Communications;”[25]

 

Ø  The “Communications” Loophole: Warrantless Cyber Searches and Seizures of Non-Communications Data and First Amendment Work Product: INSERT

Ø  Contemporary Problems Caused by Statutory Framework’s Pre-Internet Focus on Seizure of “Communications” Rather than Data: Title III was enacted in 1968, which is why it is so focused on stopping the “interception”[26] of “communications.”

o   That long ago before the Internet revolution, there was no stored data, and all they had to worry about was people wiretapping their phone calls in route.

o   Today, the focus on “interception” is obsolete and so is the focus on “communications.”

o   The Electronic Communications Privacy Act closed the “interception” loophole by protecting “stored communications,” but this still kept in place the second major loophole that still plagues U.S. intelligence law to this day—as of the recording of this lecture in summer 2012. 

o   I’m talking about the “Communications” loophole.

o   Title III, the ECPA, and the Foreign Intelligence Surveillance Act all focus almost exclusively on electronic surveillance of “communications.”

o   Since “communications” data makes up only a tiny part of most modern personal computer storage, the fact that only “communications” data is protected leaves Americans exposed to warrantless searches and seizure of non-communicated data by malicious intelligence gatherers—both governmental and private-sector.

o   In later courses, we’ll talk about how the focus on “communications” in these old statutes affects the way in which Americans computers can be subjected to cyber-search and seizure of non-communicated data and First Amendment work product.

o   Under these old laws, even the definition of “electronic storage” is worded so that it only applies to stored “communications.”[27]

o   This means that the statutory protections related to “electronic storage” don’t protect 99% of the data stored on most people’s hard drives. 

o   This leaves gaps that might allow malicious intelligence gathering by government officials or private contractors who are seeking to manufacture a criminal case against a targeted American journalist, researcher, or peace activist because of their First Amendment activities.

§  Even though the Fourth Amendment would prevent such warrantless searches even despite the gaps in these statutory safeguards, the governmental action requirement might encourage outsourcing of harassment to private intelligence contractors for purposes of developing or manufacturing criminal evidence against an American citizen whose First Amendment activities are adverse to privatized intelligence profiteering. 

§  Staying clear of any “stored communications” to avoid potential criminal liability under the ECPA if caught and acting completely remotely from your physical location, this intelligence hacker could conduct a comprehensive cyber seizure of all your computer’s data, copying it bit-by-bit so he can search throughit later at his leisure.

§  During his warrantless search, he could search your systems data, look for incriminating thoughts saved into documents, he could look through your web browsing history, he could record any stored passwords for access to your online accounts, he could seach for any pirated music or unlicensed software installed on your system that might provide the basis for a criminal charge against you.

§  Also, in the case of First Amendment targeting of journalists, scholars, and peace activists, etc., the malicious hacker is bound to steal copies of drafts and other First Amendment work product that can provide insight on your current projects and future plans.

§  This First Amendment work product is not protected under most provisions contained in the obsolete Title III/ECPA or FISA statutory frameworks because this work product was never communicated to anyone and therefore does not represent either an “intercepted communication” or a “stored communication.”

§  Successful theft of such personal information can be exploited in countless ways by an intelligence gatherer seeking to disrupt your First Amendment activities or damage your career and personal life.

§  It’ll provide comprehensive information about every aspect of your life—both personal and professional.

§  He’ll know your contacts, your work history listed on resumes, your tax returns, your personal financial data in programs like Quicken, significant others, flirtations, online interests, and virtually anything else most modern Americans routinely incorporate into their computers and electronic devices.

§  There is really no limit to the damage a malicious intelligence gatherer could cause to your life through warrantless cyber seizure and search of your non-communications data.

§  Yet, “communications” data is all that most intelligence law statutes protect. 

o   We talk about what this means for government and private contractors engaged in targeting American citizens on U.S. soil.

 

Ø  Still More Holes Caused by the “Communications” Loophole: Warrantless ELINT/FISINT Surveillance of Real-Time Non-Communicated First Amendment Activities and Work Product: INSERT

Ø  ELINT/FISINT Surveillance: Another interesting issue involves the use of ELINT or FISINT techniques like TEMPEST, or Van Eck Phreaking, to surveil computer monitors of targeted persons in real-time from hundreds of yards away.[28]

o   What makes this technique interesting is that it doesn’t necessarily involve the surveillance of data being communicated to a third-party, but rather can be used to steal non-communicated data from targeted Americans.

o   For example, it can be used to see the target’s passphrase as they type it into their personal computers, or it could be used to monitor the drafting of a letter or manuscript.

o   These aren’t “communications” so they fall between the cracks of many applicable intelligence law statutes—like FISA, which define “electronic surveillance” so it applies only to communicated data, not uncommunicated data typed into a keyboard or through side-channel leaking.

o   The Supreme Court issued a ruling in 2001 in a case called Kyllo v. United States, which clearly indicates that the use of FISINT/ELINT-type technology to surveil a person in their home would be unconstitutional.[29]

o   The Court has not had the opportunity, however, to decide the constitutionality of warrantless ELINT or FISINT methods.

o   Until we get a definitive case deciding the question, it is possible that less scrupulous agencies are exploiting the ambiguity to justify warrantless use of these methods in the meantime.

§  Very interesting stuff!

 

 

3.5.3.6 Concealed Monitoring

 

Ø  “Concealed Monitoring” Defined: “Concealed monitoring means targeting by electronic, optical, or mechanical devices a particular person or a group of persons without their consent in a surreptitious and continuous manner. Monitoring is surreptitious when it is targeted in a manner designed to keep the subject of the monitoring unaware of it. Monitoring is continuous if it is conducted without interruption for a substantial period of time.”[30]

Ø  Concealed monitoring where the individual has a reasonable expectation of privacy;[31]

o   INSERT SUPREME COURT CASE: Open Fields Doctrine

Ø  Overflights: California v. Ciraolo (1986):

Ø  Dow Chemical

Ø  Videotaping Public Spaces: Courts have held that the Fourth Amendment does not prevent the government from introducing evidence from the warrantless videotaping of public spaces even if they are remote and nobody else is around.[32]

o   If you’re outside your home, the Supreme Court generally affords you no protection from even constant and comprehensive surveillance.[33]

Ø  Telephone-Pole Camera Example: Defined so as not to include placing a telephone-pole video camera outside your front door in order to monitor you as you come and go from your home, and also to monitor every person and license plate that comes to visit you as well.[34]

o   Backyard: In a few cases, courts have been unwilling to apply the “Open Fields Doctrine” to telephone-pole surveillance of the curtilage of a home, but the use of these cameras is still fine if the government obtains a court order for the video surveillance.[35]

Ø  Video Cars: The FBI frequently places a “video car” in a location where individuals do not have a reasonable expectation of privacy—like outside in a parking lot where drug sales go on.[36]

o   These “video cars” are typically equipped was multiple hidden cameras, multiple video recording equipment, and a transmitter that allows conversations and activities that take place in the vicinity of the car to be monitored and recorded by investigators from a remote location.

§  No more all-night stake-outs sitting in a van drinking coffee.

§  They might be sitting in an office drinking coffee, or maybe even in a van nearby if the situation might demand quick response, but the “video car” is the only part of the operation that is on the front lines.

§  Old-fashioned, KGB-style stakeouts are just too conspicuous for them to do anymore.

§  They’d have old ladies calling the cops every ten minutes, reporting strange men with mustaches sitting in a van parked on the side of the road.

§  It could easily be mistaken for something else.

o   Tip: If you see dudes sitting in a van doing surveillance nowadays, they’re probably low-rent private investigators watching stalking some rich guy’s girlfriend, or maybe intelligence contracts on an outsourced project.

§  Either that or private security hired to be purposefully conspicuous in order to frighten off would-be criminals.

 

3.5.3.7 Physical Searches

We also talk about old-school methods like “physical searches.”

Ø  The requirements related to “physical searches” are fleshed out considerably by statutes and administrative rules, beginning with the definition.

Ø  Under FISA, 

o   “Physical search’ means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”[37]

Ø  Disclosure of Information Gained Through Physical Searches as a Felony: FISA-ordered physical searches and felony penalties for disclosure of information gained from such searches;

 

3.5.3.8 Searches and Examination of Mail

Another form of warrantless surveillance approved by the Supreme Court’s Fourth Amendment jurisprudence is “Mail covers.”[38]

Ø  Mail Covers: “Mail cover means the process by which a record is made of any data appearing on the outside cover of any class of mail matter as permitted by law, other than that necessary for the delivery of mail or administration of the Postal Service.”[39]

o   “DoD intelligence components may request U.S. postal authorities to examine mail in U.S. postal channels, for counterintelligence purposes, in accordance with applicable postal regulations.”[40]

o   “DoD intelligence components may also request mail covers with respect to mail to or from a United States person that is outside U.S. postal channels, in accordance with appropriate law and procedure of the host government, and any Status of Forces Agreement that may be effect.”[41]

Ø  Mail Searches:

o   Searches of Mail Within United States Postal Channels: “Applicable postal regulations do not permit DoD intelligence components to detain or open first-class mail within United States postal channels for foreign intelligence and counterintelligence purposes, or to request such action by the U.S. Postal Service.”[42]

§  “DoD intelligence components may request appropriate U.S. postal authorities to inspect, or authorize the inspection, of the contents of second-, third-, or fourth-class mail in United States postal channels, for such purposes, in accordance with applicable postal regulations. Such components may also request appropriate U.S. postal authorities to detain, or permit the detention of, mail that may become subject to search under this section, in accordance with applicable postal regulations.”[43]

o   Searches of Mail Outside United States Postal Channels: “DoD intelligence components are authorized to open mail to or from a United States person that is found outside United States postal channels only pursuant to the approval of the Attorney General. Requests for such approval shall be treated as a request for a nonconsensual physical search under subparagraph C7.3.2.2., of Procedure 7.”[44]

o   “Heads of DoD intelligence components may authorize the opening of mail outside U.S. postal channels when both the sender and intended recipient are other than United States persons if such searches are otherwise lawful and consistent with any Status of Forces Agreement that may be in effect.”[45]

Ø  Administrative Definitions: These definitions can tell you when DoD intelligence components consider mail to be “mail within U.S. postal channels and when it is mail considered to have “left U.S. postal channels.”[46]

o   This can be useful for DoD intelligence personnel wishing to conduct warrantless search of mail, but don’t want to violate federal mail tampering laws that protect mail in U.S. postal channels.

 

3.5.3.9 Physical Surveillance

The next category is “physical surveillance,” which sounds a lot like “physical searches” but is a lot less physical.

Ø  “Physical Surveillance” Defined: “The term physical surveillance means a systematic and deliberate observation of a person by any means on a continuing basis, or the acquisition of a nonpublic communication by a person not a party thereto or visibly present thereat through any means not involving electronic surveillance.”[47]

Ø  GPS, Beeper, and Transponder Tracking: I also spend a lot of time discussing the application of the Fourth Amendment and relevant statutes to the government’s use of new technical surveillance equipment to target U.S. persons without warrants.

o   Technologies like:

§  GPS Tracking Devices (formerly beepers and transponders).[48]

§  We discuss the Supreme Court’s more recent decision in United States v. Jones, decided in January of 2012.[49]

o   The various warrantless physical search methods allowed by the Fourth Amendment are also defined by statutes and administrative rules—methods like:

§  “Trash covers;”[50]

§  Automobile Searches, even when the doors are locked with the windows rolled up![51]

§  Search of shipping containers by customs officials working in coordination with law enforcement;[52]

 

3.5.3.10 Undisclosed Participation in Organizations

 

Ø  Use of secret-police HUMINT methods like

o   Confidential informants;[53]

§  Wired for sound;[54]

§  Wired to tape;[55]

Ø  First Amendment Rights Only Protected from Targeting Inside Your Home: Remember from our First Amendment discussion that the Supreme Court has held that the First Amendment does not apply to domestic intelligence activities that spy on First Amendment activities of groups.

o   Since the Fourth Amendment basically provides virtually no protection for individuals outside their homes, the Supreme Court’s interpretationof the First and Fourth Amendment together mean that the government is free to spy on the domestic activities of any American citizen who engages in any First Amendment activities outside of their home.

o   The reasons why this is true involve interpretation of all the Supreme Court’s holdings on both the Fourth Amendment as well as First Amendment and standing decisions in cases like Laird v. Tatum, which I discussed in the last lesson on the First Amendment.

o   For not, this is all you need to know—the government is free to spy on you and your First Amendment activities without any constitutional limitations 99% of the time.

o   There are some statutory restrictions I’ll talk about in Lesson 4: Introduction to Statutory Law, but for now, just know that the Constitution provides you virtually no protection from domestic intelligence targeting.

Ø  FBI Use of Paid Covert Informants to Spy on First amendment Activities: As a result of our lack of Constitutional rights protecting us from First Amendment targeting, the FBI and other agencies routinely use paid undercover informants to spy on Americans’ First Amendment activities that are carried out in groups.

o   They are also spending millions of dollars to invest in technology that allows them to spy on Americans’ First Amendment activities carried out online via social networks either in-person or online through sites like Facebook,Twitter, YouTube, etc.;[56]

o   Since you do not have a “reasonable expectation of privacy” in things you say to others, the Fourth Amendment doesn’t apply to social networks and the government can surveil and even copy every communication or post you make through these sites without a warrant and without any constitutional limitations whatsoever.

o   This allows for comprehensive surveillance of the vast majority of Americans’ First Amendment activities.

Ø  Example: DHS’s Second-Life Data Dump: For example, the virtual world called “Second Life” government authorities copied the entire servers for the virtual world, seizing every communication, interaction, and thought conveyed by the millions of Americans who use that site to socialize with others.

o   Under the Supreme Court’s interpretation of the First and Fourth Amendment, the only Constitutional law question is—“Why didn’t they seize all this information sooner?”

o   They probably just hadn’t thought of it.

o   The second somebody at Homeland Security thought about it, they went in and seized all the data, allowing them to surveil the activities of millions of Americans without warrants and without particularized suspicion of any kind.

 

3.5.3.11 The Third-Party-Consent Loophole as the Gateway to Orwellian Domestic Intelligence Surveillance

The last thing I want to mention before we move on is the problem of so-called consent searches in U.S. intelligence law.

Although this isn’t as high-tech and recent as the communications-related loopholes I just discussed, I saved this loophole for last in order to highlight how critically important it is to the current state of Americans’ Fourth Amendment rights in U.S. Intelligence Law as well as general criminal law enforcement.

 

I’m talking about third-party-consent loophole.

This one loophole is the granddaddy of all loopholes.

It creates an endaround the Fourth Amendment rights of almost any American citizen an intelligence or law enforcement official would like to target.

This loophole is responsible for the elimination of Fourth Amendment rights as a practical matter.

It represents one of the biggest loopholes in the Supreme Court’s jurisprudence that has allowed for the expansion of secret police activities targeting American citizens because of their First Amendment activities within the United States.

 

Ø  The Third-Party Consent Problem: So how does third-party consent destroy the Fourth Amendment rights of American First Amendment targets as well as everybody else?

o   It happens through procedures that are referred to euphemistically as:

§  “Consensual Monitoring;”[57] or

§  “Consent Interceptions.”[58]

o   The “consent” part of this type of surveillance is misleading because it almost never means that the target of the surveillance has consented to the search.

§  Rather, it almost always means that investigators have coerced the consent of a third party or used an undercover informant’s consent to enable warrantless audio and video surveillance of unconsenting Americans.[59]

§  These Americans are subjected to warrantless surveillance unaware that their Fourth Amendment rights have been waived for them vicariously by the police or a police agent. 

§  This kind of third-party “consent” is just one of the many ways investigators can circumvent the Fourth Amendment rights of any American citizen who they are desperate to imprison.

Ø  Hypothetical: The Dangerous World of a First Amendment Target in Love: For those of you thinking about a career as a civil rights advocate or writer specializing in domestic intelligence abuses—first, let me advise you against it.

o   It sucks.

o   Trust me.

o   But in case you’re still determined to challenge intelligence abuses, let me explain how third-party consent might affect your Fourth Amendment rights in the real world.

§  Keep in mind also, that under the law as it stands in the summer of 2012, the tactics I’m about to tell you are perfectly legal. 

o   Let’s say your First Amendment activities critical of domestic intelligence abuses are successful enough to get you targeted by the NSA.

§  Ordinarily, FISA and the Fourth Amendment would prevent them from searching and seizing data from your private laptop without—at a minimum—a court order from the FISA court.

§  But let’s say that you live with your girlfriend and on a few occassions you’ve let her use your computer to check email.

§  Assume also that your First Amendment activities are starting to expose some serious misconduct by intelligence community officials and at least one of them wants throw you in jail by any means necessary.

§  They task either federal or state-level investigators to go and threaten your girlfriend and her family.

§  They tell her that she’s an accessory to your thought-crime and she’s going to be prosecuted for some incredibly scary-sounding offense unless she agrees to work as an informant for the government.

§  They tell her that if you’re really not doing anything illegal then you have nothing to hide and there’s no reason for her not to consent to monitoring.

§  This sounds reasonable to her, since she knows you’re not committing any crimes, so she agrees.

§  The Intelligence Community has just hit the jackpot.

§  You have just lost all of your Fourth Amendment rights, and you’ll never even know that it happened.

Ø  Welcome to 1984: What does her third-party consent mean for you?

o   What this means, effectively, is that you have no Fourth Amendment rights anymore.

§  It happened in the blink of an eye, and without you even knowing it.

§  By signing that consent form, your girlfriend signed away all of your Fourth Amendment rights along with her own.

o   Your girlfriend’s consent has opened the door to an Orwellian world of warrantless surveillance options that would make the East German Stasi look like civil libertarians.

Ø  Video Cameras and Listening Devices inside Your Home: Without any Fourth Amendment rights to worry about, investigators could legally place listening devices and video cameras inside your home to monitor you 24 hours a day without a warrant.

Ø  Multi-Year Marathon Surveillance: Since no warrant is required for third-party-consent searches there is no judicial supervision and no time limit.

o   Ordinarily, Title III surveillance warrants limit the period of surveillance to 30 days before renewal is required.

o   FISA orders allow surveillance of a U.S. person for 90 days before renewal is required.

o   With no court-order requirement, investigators can legally surveil you forever without ever having to explain the need for continued harassment to a judge.

Ø  No Minimization Procedures: Third-party consent also eliminates the need for officials to adhere to the mandatory minimization procedures for either Title III or FISA surveillance.

o   This is because this isn’t Title III or FISA surveillance.

o   In fact, it’s not even “electronic surveillance” at all, because that term is defined by FISA to include only ….

o   Since this Orwellian Stasi Surveillance is “consensual” it is not even “electronic surveillance.”

o   Not the 24-hour video cameras, the audio recordings, the GPS tracking, the telephone recording, the Internet surveillance, the cyber search and seizure of your laptop.

o   None of it is “electronic surveillance” because of your girlfriend’s consent.

o   They’re just your ordinary, run-of-the-mill, completely reasonable activities by law-abiding government officials that in no way represents the kind of unreasonable search or seizure forbidden by the Fourth Amendment.

o   Not at all.

o   Because your girlfriend consented to let these officials stalk you without a warrant and without your knowledge.

o   Completely reasonable.

Ø  No Transparency with Targeted Americans: So what are the other consequences of this reasonable warrantless surveillance?

o   In addition, with no court-order requirement there is also no post-surveillance disclosure requirement.

o   Ordinarily, after Title III electronic surveillance has terminated, police have to inform the target of the surveillance within a reasonable time.

§  At the end of court-ordered surveillance, authorities have to tell you what they’ve done.

§  You get notice once the surveillance is finished, the same way you get a copy of a search warrant when your home is searched.

Ø  Warrantless Cyber Searches and Seizures: The Supreme Court’s third-party consent doctrine also makes it possible for them to search and seize data from your personal computer without telling you, if they get your girlfriend to claim that she had joint access to the machine.

o   If you let your girlfriend use your computer, they can use this as a justification for conducting a warrantless search and seizure of all the data and First Amendment work product on your computer based on the third-party consent of your girlfriend. 

§  They can either do it remotely, or with your girlfriend’s assistance while you’re away from the apartment.

Ø  Warrantless Communications Search and Seizure: In addition, if you and your girlfriend share an Internet connection, investigators might be able to force her to consent to allowing them to monitor all Internet traffic from your home.

Ø  Warrantless Interception of Oral Communications: At the very least, investigators will certainly be able to intercept and record all of your telephone calls and in-person conversations with your girlfriend.[60]

o   They can ask her to ask you specific questions or engage you in conversations on topics intended to elicit incriminating or unflattering oral statements from you that can be recorded and selectively edited to be played back for juries or other audiences whose opinions investigators wish to manipulate against you.

o   In order to keep the secret-police tactic secret, the agents listening in and taping your conversations may testify about what they heard instead of making the person who betrayed you testify on the stand.[61] 

Ø  Warrantless Automobile Search and Tracking: If you let your girlfriend drive your car, investigators can use her consent to install audio and video surveillance devices in the car.

o   They may be limited to turning these devices on when she’s not present, but they will have them installed and ready to go if they need them.

o   Even after the Supreme Court’s decision in United States v. Jones, holding that the Fourth Amendment requires a warrant before police can install a GPS tracking device on your car and track you 24 hours a day, the police may still rationalize using such tactics against you without a warrant based on the coerced consent of your girlfriend who you let drive your car from time to time.

Ø  Third-Party Consent Life of a First Amendment Target: This is just the tip of the iceberg when it comes to what’s legally permissible for authorities to do to an American First Amendment target without a warrant and without meaningful accountability or oversight when they are operating with third-party consent under the law as it exists today.

o   Third-Party-Consent makes it possible for investigators to threaten your loved ones and steal your Fourth Amendment rights from you in secret.

§  Without any Fourth Amendment rights, there are virtually no restrictions on the government’s ability to target you with even the most invasive surveillance methods.

·         This even includes warrantless searches of your computers, warrantless eavesdropping on conversations inside your home, and even video cameras inside your bedroom monitoring you 24 hours a day.

 

I spend much of Course II explaining the convoluted judicial opinions interpreting the Fourth Amendment, and how it has left Americans with precious few rights vis-à-vis intelligence agencies and law enforcement.[62]

 

Footnotes

[1] U.S. Const. amend. IV (“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.”).

[2] United States v. Jones, 565 U.S. __ (2012) (holding that the “Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment”).

[3] See Brief of the American Civil Liberties Union Foundation, the ACLU Foundation of Texas, the Electronic Frontier Foundation, the Center for Democracy and Technology, and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Affirmance, In the Matter of the Application of the United States of America for Historical Cell Site Data, No. 11-20884 (5th Cir. 2012) (On Appeal from the United States District Court for the Southern District of Texas, Houston Division, Civil No. 4:11-MC-00223) (arguing, inter alia, that “the government needs a warrant based upon probable cause to obtain access to 60 days’ worth of historical cell phone location data”). 

[4] Katz v. United States, 389 U.S. 347 (1967); see also Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, Fourth Amendment, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_4th_Amendment_2002.pdf (“The test propounded in Katz is whether there is an expectation of privacy upon which one may ‘‘justifiably’’ rely. [Citing “389 U.S. at 353] Justice Harlan, concurring, formulated a two pronged test for determining whether the privacy interest is paramount: ‘‘first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’’’ Id. at 361.”]”).

[5] See Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“FISA establishes two special courts, the U.S. Foreign Intelligence Surveillance Court (FISC) and the U.S. Foreign Intelligence Surveillance Court of Review (Court of Review), comprised of federal judges to address applications for court orders authorizing such electronic surveillance, physical searches, installation and use of pen registers and trap and trace devices, and production of tangible things. Under 50 U.S.C. § 1803(a), the Chief Justice of the United States must publicly designate eleven U.S. district court judges from seven of the United States judicial circuits, of whom no fewer than three must reside within 20 miles of the District of Columbia. These eleven judges constitute the U.S. Foreign Intelligence Surveillance Court (FISC), which has jurisdiction over applications for and orders approving electronic surveillance, physical searches, pen registers or trap and trace devices or orders for production of tangible things anywhere within the United States under FISA. If an application for electronic surveillance or a physical search under this Act is denied by one judge of this court, it may not then be considered by another judge on the court. If a judge denies such an application, he or she must immediately provide a written statement for the record of the reason(s) for this decision. The Chief Justice also publicly designates the three U.S. district court or U.S. court of appeals judges who together make up the U.S. Foreign Intelligence Surveillance Court of Review (Court of Review). [50 U.S.C. § 1803(b)] This court has jurisdiction to review any denial of an order under FISA. [ 50 U.S.C. §§ 1803(b); see also, 50 U.S.C. §§ 1822(d), 1861(f)(3)]”).

[6] 50 U.S.C. § 1804; see also Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“An application for a court order authorizing electronic surveillance for foreign intelligence purposes may be sought under 50 U.S.C. § 1804. An application for such a court order must be made by a federal officer in writing on oath or affirmation to an FISC judge. The application must be approved by the Attorney General based upon his finding that the criteria and requirements set forth in 50 U.S.C. § 1801 et seq. have been met. Section 1804(a) sets out what must be included in the application:

Ø  (1) the identity of the Federal officer making the application;

Ø  (2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;

Ø  (3) the identity, if known, or a description of the specific target of the electronic surveillance;

Ø  (4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that —

o    (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and

o    (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

Ø  (5) a statement of the proposed minimization procedures;

Ø  (6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;

Ø  (7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate —

o    (A) that the certifying official deems the information sought to be foreign intelligence information;

o    (B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

o    (C) that such information cannot reasonably be obtained by normal investigative techniques;

o    (D) that designates the type of foreign intelligence information being sought according to the categories described in 1801(e) of this title; and

o    (E) including a statement of the basis for the certification that —

§  (i) the information sought is the type of foreign intelligence information designated; and

§  (ii) such information cannot reasonably be obtained by normal investigative techniques;

Ø  (8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;

Ø  (9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;

Ø  (10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and

Ø  (11) whenever more that one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device. The application for a court order need not contain the information required in Subsections 1804(6), (7)(E), (8), and (11) above if the target of the electronic surveillance is a foreign power and each of the facilities or places at which surveillance is directed is owned, leased, or exclusively used by that foreign power. However, in those circumstances, the application must indicate whether physical entry is needed to effect the surveillance, and must also contain such information about the surveillance techniques and communications or other information regarding United States persons likely to be obtained as may be necessary to assess the proposed minimization procedures. 50 U.S.C. § 1804(b).”).

[7] See Foreign Intelligence Surveillance Court Rules of Procedure, available at http://www.uscourts.gov/rules/fisa.html; see also  Procedures for the Review of Petitions Filed Pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, As Amended, available at http://www.uscourts.gov/rules/fisa.html; see also Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“The FISC and the Court of Review may establish rules and procedures, and may take such actions, as are reasonably necessary to administer their responsibilities under FISA. [50 U.S.C. § 1803(f)(1), added by P.L. 109-177, Subsection 109(d)] The FISC has established the Foreign Intelligence Surveillance Court Rules of Procedure, and Procedures for the Review of Petitions Filed Pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, As Amended have also been adopted.”).

[8] See generally American Law Division, Congressional Research Serv., Probable Cause, Reasonable Suspicion, and Reasonableness Standards in the Context of the Fourth Amendment and the Foreign Intelligence Surveillance Act (2006), available at https://intelligencelaw.com/files/pdf/law_library/crs/memo_1-30-2006.pdf (“Probable cause is bit different under FISA. Ordinarily, probable cause speaks to the probability of the existence of a certain fact, e.g., probable cause to believe a crime has been, is, or is about to be committed and that the search will result in the discovery of evidence or contraband. FISA authorizes issuance of a surveillance or search order predicated upon the probability of a possibility; the probability to believe that the foreign target of the order may engage in spying, or the probability to believe that the American target of the order may engage in criminal spying activities, 50 U.S.C. 1805(a)(3)(A), 1824(a)(3)(A), 1801(b)(1)(B), (b)(2)(A). [FISA permits recourse to this reduced application of the probable cause standard in spy cases but not in terrorism cases, In re Sealed Case, 310 F.3d 717, 739 (F.I.S.Ct.Rev. 2002)(“Congress allowed this lesser showing for clandestine intelligence activities – but not, notably, for other activities, including terrorism . . .”).] But it is the predicate not the standard that is changed. The probable cause standard is the same in FISA as in a criminal context: would a prudent individual believe that a fact is probably true. It is the focus that is different. Would a prudent individual believe that spying may occur.”).

[9] FISC is often criticized as being merely a rubber-stamp process for U.S. intelligence agencies to obtain hassle-free search warrants to monitor communications of suspected “spies” and “terrorists.” Among the many criticisms of the court is the fact that during its first twenty-one years of operations FISC denied zero petitions out of the 11,883 requests it received from government agents. See Helene E. Schwartz, Oversight of Minimization Compliance Under the Foreign Intelligence Surveillance Act: How the Watchdogs Are Doing Their Jobs, 12 Rutgers L.J. 405, 445 (1981); Lawrence D. Sloan, Note, ECHELON and the Legal Restraints on Signals Intelligence: A Need for Reevaluation, 50 Duke L.J. 1467, 1496 (2001); see also Elec. Privacy Info. Ctr., Foreign Intelligence Surveillance Act Orders 1979-2004, http://www.epic.org/privacy/wiretap/stats/fisa_stats.html (last visited Mar. 24, 2006) (demonstrating that from 1979 to 2004, a total of four petitions for FISA warrants were denied, each in 2003).

[10] For a concise history of expanding domestic surveillance mechanisms in the United States just during the 5 years following September 11, 2001, see Josh Meyer, Five Years After: Hidden Depths to U.S. Monitoring, LA Times, Sept. 11, 2006, at A12.

[11] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C2.2.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“[…] Data acquired by electronic means is "collected" only when it has been processed into intelligible form.”).

[12] See generally U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C2.2.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Information shall be considered as "collected" only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties. Thus, information volunteered to a DoD intelligence component by a cooperating source would be "collected" under this procedure when an employee of such component officially accepts, in some manner, such information for use within that component. Data acquired by electronic means is "collected" only when it has been processed into intelligible form.”).

[13] See generally Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, Fourth Amendment, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_4th_Amendment_2002.pdf (“Some expectations, the Court has held, are simply not those which society is prepared to accept. [Citing E.g., United States v. Miller, 425 U.S. 435 (1976) (bank records); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed from one’s telephone); Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell); Illinois v. Andreas, 463 U.S. 765 (1983) (shipping container opened and inspected by customs agents and resealed and delivered to the addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in sealed plastic bags left at curb for collection).]”).

[14] United States v. Miller, 425 U.S. 435 (1976).

[15] Smith v. Maryland, 442 U.S. 735 (1979).

[16] 18 U.S.C. § 3127(3) (Title 18—Chapter 206: Pen Registers and Trap and Trace Devices) (“As used in this chapter [18 U.S.C. §§ 3121 et seq.]—(3) the term "pen register" means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;”); see also Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“A trap and trace device identifies the source of incoming calls, and a pen register indicates the numbers called from a particular phone. Since neither allows the eavesdropper to overhear the “contents” of the phone conversation, they were not considered interceptions within the reach of Title III prior to the enactment of ECPA. [United States v. New York Telephone Co., 434 U.S. 159 (1977).] Although Congress elected to expand the definition of interception, it chose to continue to regulate these devices beyond the boundaries of Title III for most purposes, 18 U.S.C. 3121 - 3127.”).

[17] The USA PATRIOT ACT expanded the statutory  trap and trace/pen register provisions to cover transactional data from email and other Internet communications. 115 Stat. 288-91 (2001); see also Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“The USA PATRIOT Act enlarged the coverage of sections 3121-3127 to include sender/addressee information relating to e-mail and other forms of electronic communications. [115 Stat. 288-91 (2001).]”).

[18] NOTE: The definition of “electronic surveillance” is particularly important in U.S. Intelligence Law as it determines the applicability of many statutory law protections under the Foreign Intelligence Surveillance Act of 1978. The Act governs, inter alia, “electronic surveillance” that is conducted for foreign intelligence purposes within the United States. If a particular surveillance activity falls outside of the statute’s definition of “electronic surveillance,” then it is completely unregulated by most of FISA’s “electronic surveillance” provisions. See generally Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 (f) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: Electronic Surveillance) (“‘Electronic surveillance’ means—(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”); see also Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.5(c), 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“Electronic surveillance means acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a non-electronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter.”); see also U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ DL1.1.9 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (defining “electronic surveillance” as the “[a]cquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction finding equipment solely to determine the location of a transmitter. (Electronic surveillance within the United States is subject to the definitions in the Foreign Intelligence Surveillance Act of 1978 (reference (b)).)”).

 

NOTE: The Protect America Act of 2007 temporarily removed application of this definition to any surveillance of persons located overseas. This even included electronic surveillance of U.S. persons.

Ø  The Protect America Act, P.L. 110-55 was signed into law on August 5, 2007. Many of the provisions were set to expire in 6-months, and were extended briefly for an additional 15 days before expiring on February 16, 2008. See Pub. L. No. 110-182 (extending effectiveness of the Protect America Act for 15 days beyond the original sunset date).

Ø  This statute inserted a clarification into FISA’s definitions redefining “electronic surveillance” so as not to be interpreted as applying to any surveillance conducted on persons reasonably believed to be located abroad. See FISA § 105(A), 50 U.S.C. § 1805a (2007) (“Nothing in the definition of electronic surveillance under section 101(f) [50 U.S.C. § 1801(f)] shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.”). This provision sunset on February 16, 2008, subject to saving provisions that validated orders approved during the statute’s short lifespan. The provision was repealed on July 10, 2008 by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.

Ø  The Protect America Act of 2007 gave the AG and DNI the power to order communications service providers, custodians, or other persons (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications.” See FISA § 105(B), 50 U.S.C. § 1805b (2007). This provision sunset on February 16, 2008, subject to saving provisions that validated orders approved during the statute’s short lifespan. The provision was repealed on July 10, 2008 by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.

Ø  FISA Section 105B, codified at 50 U.S.C. § 1805b (2007), contained the now repealed procedures that were in effect during the 6-month U.S. citizen intelligence collection extravaganza.

Ø  The Protect America Act of 2007’s modifications in FISA § 105B, codified at 50 U.S.C. § 1805b (a) (2007), was repealed by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.

Ø  For secondary analysis of the Protect America Act of 2007, see Elizabeth B. Bazan, Congressional Research Serv., P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34143_8-23-2007.pdf.

[19] 18 U.S.C. § 2510(2) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(2) "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;”).

[20] 18 U.S.C. § 2510(12) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(12) "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—(A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device (as defined in section 3117 of this title [18 U.S.C. § 3117]); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;”).

[21] Under 18 U.S.C. § 2510(2), an “oral communication” is only an “oral communication” if the person making it exhibits “an expectation that such communication is not subject to interception under circumstances justifying such expectation.” The second the person speaking doesn’t exhibit an expectation that their oral communications are not subject to monitoring, or that monitors feel the circumstances do not justify his expectation that his communication be free from interception, then that communication ceases to be an “oral communication” under 18 U.S.C. § 2510(2) and all laws restricting interception of “oral communications” no longer apply. See generally 18 U.S.C. § 2510(2) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(2) "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;”) (emphasis added).

[22] For example, 18 U.S.C. § 2510(12)’s definition of “electronic communication” does not include “(A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device (as defined in section 3117 of this title [18 U.S.C. § 3117]); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.” 18 U.S.C. § 2510(12) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(12) "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—(A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device (as defined in section 3117 of this title [18 U.S.C. § 3117]); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;”) (emphasis added).

[23] 18 U.S.C. § 2510(4) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(4) "intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.[;]”).; compare with U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C5.3.2.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“‘Interception:’ Interception means the acquisition by the United States Signals Intelligence system through electronic means of a nonpublic communication to which it is not an intended party, and the processing of the contents of that communication into an intelligible form, but not including the display of signals on visual display devices intended to permit the examination of the technical characteristics of the signals without reference to the information content carried by the signals.”).

[24] See U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C5.3.2.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“‘Interception:’ Interception means the acquisition by the United States Signals Intelligence system through electronic means of a nonpublic communication to which it is not an intended party, and the processing of the contents of that communication into an intelligible form, but not including the display of signals on visual display devices intended to permit the examination of the technical characteristics of the signals without reference to the information content carried by the signals.”) (emphasis added).

[25] See Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“In its original form Title III was ill-suited to ensure the privacy of those varieties of modern communications which are equally vulnerable to intrusion when they are at rest as when they are in transmission. Surreptitious “access” is as least as great a threat as surreptitious “interception” to the patrons of electronic mail (e-mail), electronic bulletin boards, voice mail, pagers, and remote computer storage. Accordingly, Title III/ECPA also bans surreptitious access to communications at rest, although it does so beyond the confines of that apply to interception, 18 U.S.C. 2701 - 2711. These separate provisions afford protection for e-mail, voice mail, and other electronic communications somewhat akin to that available for telephone and face to face conversations under 18 U.S.C. 2510-2522. Thus, subject to certain exceptions, it is a federal crime to: intentionally either access without authorization or exceed an authorization to access a facility through which an electronic communication service is provided and thereby obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage in such system, 18 U.S.C. 2701(a). [Citing E.g., State Analysis, Inc. v. American Finacial Services Ass’n, 621 F.Supp.2d 309, 317-18 (E.D. Va. 2009); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548, 555 (S.D.N.Y. 2008).]”).

[26] 18 U.S.C. § 2510(4) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(4) "intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.[;]”).

[27] 18 U.S.C. § 2510(17) (Title 18—Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications) (“As used in this chapter [18 U.S.C. §§ 2510 et seq.]—(17) "electronic storage" means—(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;”) (emphasis and underlining added).

[28] These specialized surveillance methods fall into the category of “signals intelligence” (“SIGINT”) See U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ DL1.1.23 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (defining “signals intelligence” as “[a] category of intelligence including communications intelligence, electronic intelligence, and foreign instrumentation signals intelligence, either individually or in combination.”).

[29] Kyllo v. United states, 533 U.S. 27 (2001) (Official Case Syllabus: "Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo's life, only amorphous hot spots on his home's exterior. Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant. Pp. 3-13. (a) The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a Fourth Amendment "search" has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U.S. 207, 213, 90 L. Ed. 2d 210, 106 S. Ct. 1809, ruling that visual observation is no "search" at all, see Dow Chemical Co. v. United States, 476 U.S. 227, 234-235, 239, 90 L. Ed. 2d 226, 106 S. Ct. 1819. In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507: A "search" does not occur -- even when its object is a house explicitly protected by the Fourth Amendment -- unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e.g., California v. Ciraolo, supra, at 2 1. Pp. 3-5. (b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's interior -- the prototypical and hence most commonly litigated area of protected privacy -- there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home's interior that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman v. United States, 365 U.S. 505, 512, 5 L. Ed. 2d 734, 81 S. Ct. 679, constitutes a search -- at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 6-7. (c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government's argument that the thermal imaging must be upheld because it detected only heat radiating from the home's external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home. Also rejected is the Government's contention that the thermal imaging was constitutional because it did not detect "intimate details." Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See e.g., United States v. Karo, 468 U.S. 705, 82 L. Ed. 2d 530, 104 S. Ct. 3296; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U.S. 170, 181, 80 L. Ed. 2d 214, 104 S. Ct. 1735. Pp. 7-12, 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735. (d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable cause -- and if not, whether there is any other basis for supporting admission of that evidence. Pp. 12-13. 190 F.3d 1041, reversed and remanded.").

[30] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C6.2.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Concealed monitoring means targeting by electronic, optical, or mechanical devices a particular person or a group of persons without their consent in a surreptitious and continuous manner. Monitoring is surreptitious when it is targeted in a manner designed to keep the subject of the monitoring unaware of it. Monitoring is continuous if it is conducted without interruption for a substantial period of time.”).

[31] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C6.2.3 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Whether concealed monitoring is to occur where the subject has a reasonable expectation of privacy is a determination that depends upon the circumstances of a particular case, and shall be made only after consultation with the legal office responsible for advising the DoD intelligence component concerned. Reasonable expectation of privacy is the extent to which a reasonable person in the particular circumstances involved is entitled to believe his or her actions are not subject to monitoring by electronic, optical, or mechanical devices. For example, there are ordinarily reasonable expectations of privacy in work spaces if a person's actions and papers are not subject to ready observation by others under normal working conditions. Conversely, a person walking out of his or her residence into a public street ordinarily would not have a reasonable expectation that he or she is not being observed or even photographed; however, such a person ordinarily would have an expectation of privacy within his or her residence.”).

[32] See United States v. Sherman, 990 F.2d 1265 (9th Cir. 1993) (upholding introduction of evidence gained through warrantless video surveillance of public places); see also United States v. Taketa, 923 F.2d 665 (9th Cir. 1991).

[33] See Max Guirguis, Electronic Visual Surveillance and the Reasonable Expectation of Privacy, 9 J. Tech. L. & Pol'y 143 (2004).

[34] See United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000), cert. denied, 121 S. Ct. 629 (2000) and cert. granted, judgment vacated on other grounds, 121 S. Ct. 621 (2000) (holding that warrantless installation of video camereas on telephone poles did not violate the Fourth Amendment).

[35] See U.S. v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (holding that power-pole video surveillance of the backyard of the defendant’s home was a “search” under the Fourth Amendment, but also holding that the search warrant authorizing the surveillance had been proper.). The Court of Appeals for the 5th Circuit distinguished prolonged power-pole video surveillance from the warrantless overflights in public airspace approved by the Supreme Court in California v. Ciraolo, 476 U.S. 207 (1986) because the overflights involved in that case were quick and temporary intrusions quite distinct from the lengthy and invasive 24-hour video monitoring involved in power-pole video surveillance at issue in U.S. v. Cuevas-Sanchez.

[36] See e.g. United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000), cert. denied, 121 S. Ct. 629 (2000) and cert. granted, judgment vacated on other grounds, 121 S. Ct. 621 (2000) (describing a 2000 version of the video car as follows: “The officers also utilized a ‘video car’ equipped with three hidden cameras, two VCRs, and a transmitter that allowed officers to record and listen to conversations in and around the car as they were occurring.”).

[37] 50 U.S.C. § 1821(5) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter B: Physical Searches) (“‘Physical search’ means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) "electronic surveillance", as defined in section 101(f) of this Act [50 U.S.C. § 1801(f)], or (B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101(f) of this Act [50 U.S.C. § 1801(f)].”); see also U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C7.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Physical search means any intrusion upon a person or a person's property or possessions to obtain items of property or information. The term does not include examination of areas that are in plain view and visible to the unaided eye if no physical trespass is undertaken, and does not include examinations of abandoned property left in a public place. The term also does not include any intrusion authorized as necessary to accomplish lawful electronic surveillance conducted pursuant to Parts 1 and 2 of Procedure 5.”).

[38] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.2.3 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Mail cover means the process by which a record is made of any data appearing on the outside cover of any class of mail matter as permitted by law, other than that necessary for the delivery of mail or administration of the Postal Service.”).

[39] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.2.3 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Mail cover means the process by which a record is made of any data appearing on the outside cover of any class of mail matter as permitted by law, other than that necessary for the delivery of mail or administration of the Postal Service.”).

[40] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.3.3.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“DoD intelligence components may request U.S. postal authorities to examine mail in U.S. postal channels, for counterintelligence purposes, in accordance with applicable postal regulations.”).

[41] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.3.3.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“DoD intelligence components may also request mail covers with respect to mail to or from a United States person that is outside U.S. postal channels, in accordance with appropriate law and procedure of the host government, and any Status of Forces Agreement that may be effect.”).

[42] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.3.1.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Applicable postal regulations do not permit DoD intelligence components to detain or open first-class mail within United States postal channels for foreign intelligence and counterintelligence purposes, or to request such action by the U.S. Postal Service.”).

[43] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.3.1.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“DoD intelligence components may request appropriate U.S. postal authorities to inspect, or authorize the inspection, of the contents of second-, third-, or fourth-class mail in United States postal channels, for such purposes, in accordance with applicable postal regulations. Such components may also request appropriate U.S. postal authorities to detain, or permit the detention of, mail that may become subject to search under this section, in accordance with applicable postal regulations.”).

[44] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.3.2.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“DoD intelligence components are authorized to open mail to or from a United States person that is found outside United States postal channels only pursuant to the approval of the Attorney General. Requests for such approval shall be treated as a request for a nonconsensual physical search under subparagraph C7.3.2.2., of Procedure 7.”).

[45] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.3.2.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Heads of DoD intelligence components may authorize the opening of mail outside U.S. postal channels when both the sender and intended recipient are other than United States persons if such searches are otherwise lawful and consistent with any Status of Forces Agreement that may be in effect.”).

[46] See generally U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C8.2.1 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Mail Within United States Postal Channels includes: C8.2.1.1. Mail while in transit within, among, and between the United States, its territories and possessions (including mail of foreign origin that is passed by a foreign postal administration, to the United States Postal Service for forwarding to a foreign postal administration under a postal treaty or convention, and mail temporarily in the hands of the United States Customs Service or the Department of Agriculture), Army-Air Force (APO) and Navy (FPO) post offices, and mail for delivery to the United Nations, NY; and C8.2.1.2. International mail enroute to an addressee in the United States or its possessions after passage to United States Postal Service from a foreign postal administration or enroute to an addressee abroad before passage to a foreign postal administration. As a rule, mail shall be considered in such postal channels until the moment it is delivered manually in the United States to the specific addressee named on the envelope, or his authorized agent.”).

[47] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C9.2 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“The term physical surveillance means a systematic and deliberate observation of a person by any means on a continuing basis, or the acquisition of a nonpublic communication by a person not a party thereto or visibly present thereat through any means not involving electronic surveillance.”).

[48] See United States v. Knotts, 460 U.S. 276 (1983) (holding that the government’s use of a “beeper” tracking device to track location of a container of chemicals was not a “search” when its use did not reveal any information that could not have been gained by police through in-person visual surveillance); see also United States v. Karo, 468 U.S. 705 (1984).

[49] United States v. Jones, 565 U.S. __ (2012) (holding that the “Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment”).

[50] California v. Greenwood, 486 U.S. 35 (1988).

[51] South Dakota v. Opperman, 428 U.S. 364 (1976) (holding that one does not have a legitimate expectation of privacy in an automobile left with the windows rolled up and the doors locked).

[52] Illinois v. Andreas, 463 U.S. 765 (1983).

[53] See Hoffa v. United States, 385 U.S. 293 (1966).

[54] On Lee v. United States, 343 U.S. 747 (1952).

[55] Lopez v. United States, 373 U.S. 427 (1963).

[56] Lewis v. United States, 385 U.S. 206 (1966).

[57] The term “consensual monitoring” is misleading because it usually does not involve the consent of the targeted individual. In order for the FBI to engage in so-called “consensual monitoring” of an American citizen, they need only the consent of their own agent or informant. This third-party consent effectively eliminates the Fourth Amendment rights of the targeted American and allows investigators to engage in even the most invasive methods of electronic and technical surveillance without a court order or any judicial supervision for as long as the agents desire. Under the Supreme Court’s Fourth Amendment jurisprudence, this is perfectly constitutional behavior. See generally United States v. Matlock, 415 U.S. 164 (1974).

Third-party consent has become standard tactic used by FBI agents and other federal- and state-level law enforcement officers in any domestic investigations where a targeted American citizen’s Fourth Amendment rights present a barrier to unbridled intelligence gathering. See generally U.S. Dep’t of Justice, The Attorney General's Guidelines for Domestic FBI Operations, § VII (A) (Sept. 29, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/ag_guidelines_2008.html (“Monitoring of communications for which a court order or warrant is not legally required because of the consent of a party to the communication.”).

[58] United States v. White, 401 U.S. at 751 (1971)(“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights . . . . For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks”); see also On Lee v. United States, 343 U.S. 747 (1952); see also Lopez v. United States, 373 U.S. 427 (1963); see also Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“Consent interceptions are common, controversial and have a history all their own. The early bans on divulging telegraph or telephone messages had a consent exception. The Supreme Court upheld consent interceptions against Fourth Amendment challenge both before and after the enactment of Title III. [On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); United States v. White, 401 U.S. 745 (1971).] The argument in favor of consent interceptions has always been essentially that a speaker risks the indiscretion of his listeners and holds no superior legal position simply because a listener elects to record or transmit his statements rather than subsequently memorializing or repeating them.”).

[59] See generally United States v. Matlock, 415 U.S. 164 (1974) (holding that the voluntary consent of a third-party to search the living quarters of a co-habitant was legally suffient to render the seized materials admissible in evidence at the co-habitant’s criminal trial); see also Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding a search based on the third-party consent of a non-resident. This case involved a defendant’s enraged ex-girlfriend who had moved out of the apartment several weeks earlier and had since been beaten by the defendant. After the beating, she contacted police and brought them to the defendant’s apartment. Using the key she had kept after moving out several weeks prior, she let the police into his apartment where they discovered illegal drugs and drug paraphenelia in plain view. They went back to the bedroom where the found the defendant asleep. Police arrested him, using the contraband they’d discovered in his apartment without a warrant as evidence. Despite the illegitimacy of the ex-girlfriend’s consent, the Supreme Court held that her consent was sufficient to allow police to search her ex-boyfriend’s apartment without a warrant.); see also generally Mary I. Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Cal. L. Rev. 1593, 1649-50 (1987).

[60] United States v. White, 401 U.S. at 751 (1971)(“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights . . . . For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks”).

[61] In both On Lee v. United States, 343 U.S. 747 (1952) and United States v. White, 401 U.S. 745 (1971), the informant providing the third-party consent did not testify against the defendant at trial. Instead, an agent who heard the recorded conversations testified about their content. This has the effect of shielding the secret police tactic from public scrutiny. It also is an effective means of replacing what some might see as an unsympathetic “snitch” with an upstanding law enforcement officer as the prosecution’s chief witness. Any sympathy the jury members might have felt for the targeted American at seeing the secret-police methods used to target her will be lost or at least dampened by the emotional distance placed between the jury and the extreme nature of her targeting by police.

[62] See generally Scott E. Sundby, “Everyman”’s Fourth Amendment: Privacy or Mutual Trust between Government and Citizen?, 94 Colum. L. Rev. 1751, 1789-90 (1994).

 


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