4th Am and warrantless interception of international phonecalls

James Maule maule at law.villanova.edu
Mon Dec 26 12:10:32 PST 2005


The constitutional law concerns raised by this question reach beyond
Fourth Amendment issues. They include the question of nexus. For
example, if someone in Kansas "visits" a vendor that has its on-line
servers running in Canada or Oregon, is the person "present" in Canada,
or Oregon, such that those jurisdictions could subject the Kansas
resident to a sales tax (or similar exaction) in the same manner as if
the person took their physical molecules into those jurisdictions?

I don't have an answer, and the treatment I would prefer is nothing
more than my own opinion. Relying on current technological constructs
(such as the difference between "pushing" and "pulling" data) is
problematic, because the technology changes so quickly.

But I wonder if the Supreme Court, when it eventually decides these
questions, will manage to apply a consistent standard across the entire
spectrum of questions raised by what Brooks calls (correctly, I think) a
"limitless" digital environment. Perhaps consideration of the wider
array of questions would inform discussion of the more specific inquiry
at hand?

Jim Maule

>>> "Holland, Brooks" <bholland at lawschool.gonzaga.edu> 12/26/2005
12:37:02 PM >>>
The comparison isn't odd, since a logical analogy can be advanced, but
it sure seems troubling in its breadth. When the 1s and 0s are traveling
into the country via phone or cable lines, the person in her Kansas
home, for example, has little to no control over, or even knowledge of,
the fact that information she's accessed may have crossed the U.S.
border, and yet under this rule her home now has become part of a
limitless "digital border" that seemingly encompasses virtually every
data entry point anywhere in the country. Under this border search
theory, for instance, if UCLA decided to maintain its web servers in
Canada or Mexico for cost-efficiency reasons, would the correspondence
of this entire email listserve be subject to warrantless inspection,
since the data would have to "cross the border" into the U.S. for us to
receive it at our computers? I'm no an expert on digital technology, and
perhaps an inherent technological limitation exists or easily can be
imposed here that I'm ignoring, but otherwise this border-search theory
strikes me as limitless. By contrast, with a rule that when you
physically seek to cross the U.S. border and bring a physical thing with
you the government may search that thing as a condition to entry, the
end-point to governmental power absent a judicially-authorized warrant
is much more clear.

Best,
Brooks

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 12/26/2005 8:57 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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Please note that messages sent to this large list cannot be viewed as
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