4th Am and warrantless interception of international phone calls

[Thai, Joseph T.]

I was thinking more of Supreme Court cases, but a quick look at Ickes
confirmed my suspicion that it was a case involving actual physical
transport of material--a computer with child porn--through the physical
border shared with Canada.  Thus, there was nothing unusual about the
CA4's recognition of the applicability of the border search exception in
that case.  But wouldn't it be odd to say that a warrantless search of a
computer in a Kansas home may be justified as a "border search" on the
ground that it may contain child porn downloaded from a Canadian
website, or that a warrantless search of an answering machine in the
same Kansas home for a crime-facilitating message from Iraq may be
justified as a "border search" as well?  In those cases, it seems to me
that the government's interest is closer to that of ordinary crime
control, rather than typical border control.

Merry Christmas!

Joe

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 8:34 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: 4th Am and warrantless interception of international
phone
> calls
> 
> 	Good argument, but what do people think of U.S. v. Ickes,
> 393 F.3d 501 (4th Cir. 2005) -- and, I'm told, other cases like it --
> which applied the border search exception to searches of the contents
of
> a computer?  Note that the concern here (and in Ickes) wasn't
dangerous
> *ideas*, but content that's harmful for other reasons (e.g., it's
child
> pornography, as in Ickes, or it facilitates crime by the speaker's
> criminal confederates).
> 
> 	Eugene
> 
> Joseph Thai writes:
> 
> > 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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