4th Am and warrantless interception of international phone calls

[Thai, Joseph T.]

In the end, it may boil down to my lack imagination, but I do find it
"odd" to extend cases permitting searches of things at the physical
border (even if they contain bits of data or ideas) to cases involving
searches of things in the interior of the country.  Perhaps my analog
view of border cases is becoming obsolete in a "borderless" digital
world.  But I do think a court applying the border cases to borderless
border searches of phone calls and emails would have to seriously
grapple with the vast implications of doing so.  The scope and degree of
the intrusion that such searches may entail may be much greater.  So, in
response to your original question, my point (perhaps not so artfully
stated) simply has been that an analogy to the existing border search
cases is not one that is easy to make, or that should automatically be
assumed.

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: Monday, December 26, 2005 10:58 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: 4th Am and warrantless interception of international
phone
> calls
> 
> 	Sure, Ickes involved actual physical transport of a computer;
> but the court upheld a search of the *data* on the computer.  The
> government wasn't looking for drugs, bombs, or illegal aliens; it was
> looking for constitutionally unprotected communications that the
> computer would contain.  Why is it so "odd" to treat a search of 1s
and
> 0s going to or coming from a foreign country by phone or e-mail the
same
> as a search of 1s and 0s going to or coming from a foreign country in
> baggage?
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: Thai, Joseph T. [mailto:thai at ou.edu]
> > Sent: Saturday, December 24, 2005 9:30 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: 4th Am and warrantless interception of
> > international phone calls
> >
> >
> > 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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> > > _______________________________________________
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> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can
(rightly or
> wrongly) forward the messages to others.