4th Am and warrantless interception of international phone calls

[Bob Sheridan]

Volokh, Eugene wrote:

"...

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?

***

Why is it so bad to treat a search of As, Bs, and Cs going to or coming from a foreign country by mail the same as a search of As, Bs, and Cs going to or coming from a foreign country in baggage, or kept in ones papers and effects on a desk in your home?

rs



>	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
>>>>>_______________________________________________
>>>>>To post, send message to Conlawprof at lists.ucla.edu
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>>>>>
>>>>>Please note that messages sent to this large list cannot be
>>>>>          
>>>>>
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>>>>        
>>>>
>>>>>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.
>>>>>          
>>>>>
>>>>        
>>>>
>>>_______________________________________________
>>>To post, send message to Conlawprof at lists.ucla.edu
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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.
>>>      
>>>
>>    
>>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>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.
>
>  
>
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