4th Am and warrantless interception of international phone calls

[Thai, Joseph T.]

Good question.  Here's my quick take, before present-opening overtakes
emailing.  While the "international" aspect of the phone calls (and
emails?) intercepted may support a rough analogy to the border search
cases, I believe there are important (dispositive?) differences between
the two situations.  The border search cases have implicated the
government's interest in keeping dangerous or undesirable items or
persons from crossing into our country, not preventing dangerous ideas
from getting in.  Justifying a "search" on the latter ground would
implicate First Amendment concerns typically not present in the border
search context, except where expressive materials are concerned.
Moreover, where ideas are concerned, the concept of "border" could be
expanded radically beyond the physical limits of our country, to any
channel of communication that may have an international component.  For
example, would surveillance of domestic access of international websites
qualify as a "border search"?

Joseph T. Thai
Associate Professor
University of Oklahoma College of Law
thai at ou.edu

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Saturday, December 24, 2005 5:15 PM
> To: conlawprof at lists.ucla.edu
> Subject: 4th Am and warrantless interception of international phone
calls
> 
> 	Some early press accounts suggested that the administration's
> interception program focused on international phone calls (i.e., ones
> where one party is in a foreign country).  I don't know if those
> accounts were correct, but they in any event bring up an interesting
> question:  Does the border search exception to the Fourth Amendment
also
> allow "searches" of cross-border phone calls and e-mails?
> 
> 	Eugene
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