Friday, October 10, 2008

The Constitutional Law of Satellite Phones

Marty Lederman

Orin Kerr has a characteristically thoughtful post taking issue with my suggestion last night that the newly revealed NSA program raises serious constitutional questions.

On two points, Orin and I largely agree. First, he claims that "most of the monitoring was of members of the military using military-provided phones, and . . . that users were notified that the phones would be monitored." To the extent that is so, then I agree, the Fourth Amendment challenge is probably negligible. But I have no idea whether and to what extent that describes the practices at issue. Second, Orin writes that "monitoring of individuals who were not U.S. citizens, permanent residents, or otherwise had strong connections to the U.S. would not implicate the Fourth Amendment." Again, I agree, at least so far as the monitoring was not targeted at U.S. persons.

But I had assumed from the ABC story that at least one significant practice at issue involved the targeting of U.S. persons who were not using military equipment. As to that category of surveillance, Orin remains skeptical of the Fourth Amendment argument: He argues that because several courts of appeals have held that there is no reasonable expectation of privacy in the use of cordless phones, so, too, there is no reasonable expectation of privacy in the use of satellite phones, which appear to have been the primary or exclusive means of communication at issue here.

Orin knows much more about this area of the law -- and the technology of satellite communications -- than I do; but count me uncertain. For one thing, my instinct is that the courts of appeals were simply wrong in concluding that there was no reasonable expectation of privacy in the use of cordless phones just because such phones were so technologically easy to intercept. Orin, do you think those cases were rightly decided? Do you think the Supreme Court would have agreed? I think most people would be aghast at the notion that there's no reasonable expectation of privacy in such calls. That seems to me a lot like the Olmstead-influenced doctrine -- insensitive to actual expectations in modern communications -- that preceded the Court's more real-world decision in Katz. But cf. cases such as Greenwood and Riley, which surely cut in Orin's direction.

Moreover, even if those cases were correct as to cordless phones, is it as easy for private persons to intercept satellite calls? Are such calls the virtual equivalent of announcing one's secrets in a town square? Aren't many such calls encrypted -- and doesn't (shouldn't) that fact increase the reasonable expectations of privacy, too?

One final note: The bigger story than the possible Fourth Amendment concern, its seems to me, remains the possible wholesale violations of E.O. 12333 and USSID-18 -- which have long been the bulwarks that Congress and the Executive have relied upon to prevent this sort of abuse -- and the distinct possibility that such "violations" were the result of the President having secretly rescinded or substantially amended 12333.


That's kind of ridiculous. Isn't the adminstration entitled to rely on Federal Appeals court decisions? It seems to me if a ruling has not been overturned, and the various circuits don't wildly disagree, then the Adminstration is entitled to rely on the decisions as good law.

Take the inverse of the situation, if a Court of Appeals ruled that cordless phones did have a reasonable expectation of privacy, would the Adminstration be justified in speculating whether "those cases were rightly decided" and adjusting their policy based on an assumption of what the Supreme Court would have decided if it took the case?

I don't think so.

Your freakin' land line, 2 analogue wires going out to a post outside, is "easy to intercept". Hell, most houses have a connection box outside (ours does), where you just take the alligator clips and clip on to two posts (or even easier yet where they have a modular test jack, plug in the handset).


According to this analysis there is no reasonable expectation of privacy for any American making any domestic long distance call since there is no way to tell if that call is going over land lines or via satellite. Furthermore, in addition to Constitutional guarantees (if any) and protections under US wire law, there used to be a reasonable expectation under NSA USSID 18 of full protection against wiretapping unless there were an Attorney General waiver. Of course, this may have changed under Bush and General Hayden.

Color me more than sceptical of Kerr's position.

I must just be older than everyone else, but I remember the factual surround of the cordless phone cases. When cordless phones came out, the ability to "intercept" the radio type signal was something that many normal citizens had and indeed there could be and from time to time was completely inadvertent "capture" of the wayward signals.

It was the time of scanners and CBs, which were legal (later changes to laws about scanners made it illegal to sell them if they could receive frequencies allocated to the cells, but the scanners that could and can pick up the old time cordless frequencies are plethora)

But this was all also involving analog services. So if you happened (legally if you had one of the initial or old scanners) upon a frequency, you had the conversation, with no decoding necessary.

So to say that law enforcement couldn't do something that the next door neighbor, sitting in his kitchen, could legally (at the time) do, was a pretty hard sell. It would be like prohibiting the use of binoculars to look at a home.

As opposed to those raw analog signals that any scanner hitting the right frequency could listen in on word for word, my understanding is that other than the analogs, you have to have decoding equipment, not available to the guy next door. I may well be wrong about that as I'm no techie.

But the other part of the equation is the US person called back home, who may or may not have also been on a sat line. That's the biggest part of the question and issue - THEIR protection.

If they get a call on their landline and they are US citizens on US soil, explain to me the concept of the US govt being able to listen in on the call without a warrant? Without minimization? I don't buy it.

And I don't buy that they a) had a system in place to exclude calls where the US persons were receiving calls on a land line, and/or b) were following minimization for the US part of the phone call - as a matter of fact, the whistleblowers pretty much make it clear that the contrary was the case.

And I do not buy that the kind of cordless calls that a non-techie like me could sit around with other gradeschool & some high school kids with, at the time, and listen in on via a father or sibling's scanner, are subject to the same analysis as modern digitized info and sat service that I can pretty much assure you that I can't listen in on with old grade school deliquent friends.


"thoughtful" when it comes to Kerr does not always mean "right" ... but anyway ...

I think there is due to be a clear SC ruling on this area. "Expectation of privacy" is a developing concept and 21st Century communications are in place in a different world as Katz, which took place in the ever disappearing phone booth. (sorry Superman)

[Kerr is relying on lower court precedent, precedent he himself notes aren't directly on point. "decent argument" To the degree the lower court case dicta are "broad," again we need a case that clearly deals with it. Or, federal statutory law that guards against it]

"monitoring of individuals who were not U.S. citizens, permanent residents, or otherwise had strong connections to the U.S. would not implicate the Fourth Amendment"

Said individuals, especially in the 21st Century, often talk with U.S. citizens, media groups, advocacy groups, and so forth. This is why people like Naomi Klein are worried about the new dispensation.

Likewise, the deciding justice (Kennedy) in U.S. v. Verdugo-Urquidez suggests such people would have "some" 4A rights in certain contexts. I admit this is a bit picky ("implicate") especially in this specific context.

Anyway, in a global communication marketplace, it is perfectly sensible to protect the privacy of such communications with some safeguards for non-citizens etc., especially given they will often communicate with actual citizens (even if case law, per Kerr, say "tough noogies").

A few years back Rep. Jim McDermott got into a world of hurt by leaking a tape of a Newt Gingrich conference call about how Gingrich was going to evade a House ethics probe. Rep. Gingrich was using an unencrypted analog phone and the couple that intercepted & taped the call, the Martins, were using basic ham radio equipment. If there are no restrictions on tapping cordless or cellular phones, why did Rep McDermott end up with a $1M+ judgment against himself?

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