Class #10: The Extraterritorial

Fourth Amendment

Professor Emily BermanThursday, September 25, 2014

Thursday, September 25, 2014

Wrap Up Third Party Doctrine Discussion•Smith v. Maryland

•Section 215

The Extraterritorial Fourth Amendment•Reid v. Covert

•United States v. Verdugo-Urquidez

•In re Terrorist Bombings of the U.S. Embassies

2

Facts:

• Warrantless installation of a pen register

by a telephone company, at the request of

the police, in pursuit of a robbery suspect.

Holding:

• There is no reasonable expectation of

privacy in the phone numbers you dial.

Third-Party Doctrine:

• There is no reasonable expectation of

privacy in information voluntarily given

to third parties.3

NSLs (No ex ante judicial oversight):

• Demand for, inter alia, ISP customer

information that is “relevant to an

authorized investigation to protect against

international terrorism or clandestine

intelligence activities.”

PATRIOT Act Section 215 (FISC oversight):

Government can get an order “requiring

the production of any tangible thing” for

which there is reason to believe that it is

“relevant to an authorized investigation.”4

Verizon Order leaked from Edward Snowden:

• FISC order requires the production “an

electronic copy of the following tangible

things: all call detail records or “telephony

metadata” created by Verizon for

communications (i) between the US and

abroad; or (ii) wholly within the US, including

local phone numbers.”

• Required production of all such records in

Verizon’s custody, as well as production of

such records on an “ongoing daily basis” for

the duration of the order. 5

1. Judge Eagan, In re Application of the FBI

Requiring the Production of Tangible Things

from [Redacted] (FISC 2013)

Statutory argument & defining “relevance”

Constitutional argument

2. Judge Pauley, ACLU v. Clapper (SDNY 2013)

Constitutional argument

2d Cir. Argument from Sept. 2 on CSPAN.org

3. Judge Leon, Klayman v. Obama (D.D.C. 2013)

Constitutional argument

D.C. Cir. Argument on Nov. 4, 20146

Facts:

• FBI agents installed a GPS tracking device

on a suspect’s car without a valid warrant.

Issue:

• Whether the government must get a

warrant, even though physical

surveillance would not require a warrant.

Scalia, J. (Majority):

• This is a search within the meaning of the

4A because “the government physically

occupied private property for the purpose

of obtaining information.” 7

Reality check:

• “With increasing regularity, the Government

will be capable of duplicating the monitoring

undertaken in this case by enlisting factory- or

owner-installed vehicle tracking devices or

GPS-enabled smartphones.”

This is important:

• “GPS monitoring generates a . . . wealth of detail

about [a person’s] familial, political,

professional, religious, & sexual associations.”

Rethinking Smith?:

• “It may be necessary to reconsider” third-party

doctrine. 8

FISC Opinion from 2011:

“NSA had been routinely running queries of the

metadata using querying terms that did not

meet the required standard for querying.”

The rules had been “so frequently and

systematically violated that it can fairly be said

that this critical element of the overall . . .

regime has never functioned effectively.”

9

“The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable

searches and seizures, shall

not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.”

The Fourth Amendment

10

Facts:

• Several women killed their U.S.

servicemen husbands while stationed

overseas.

• They were tried on U.S. military bases

under U.S. military law.

Question:

• Whether the trial violated the women’s

5A & 6A rights to a grand jury

indictment followed by a jury trial.11

Plurality (Black, J.):

• (709): Regardless of where they are located,

government agents “can only act in

accordance with all the limitations imposed

by the Constitution.”

Harlan, J., concurring:

• (711): “[There are provision in the

Constitution which do not necessarily apply

in all circumstances in every foreign place.”

• Local setting, practical necessities, &

alternatives should be taken into account.12

Facts:

• DEA agents executed a search of the

property of a Mexican citizen in Mexico.

Question:

• Whether the 4A applies to the search

and seizure by US agents of property

owned by a non-resident alien and

located in a foreign country.

13

Majority (Rehnquist, J.):

• (713): “The people” in the 4A “[r]efers to a

class of person who are part of national

community or who have otherwise

developed sufficient connection with this

country to be considered part of that

community.”

• (715): “[A]liens receive constitutional

protections when they have come within

the territory of the US and developed

substantial connections with this country.”14

Kennedy, J., concurring:

• (716): “The conditions and considerations

of this case would make adherence to the

4A warrant requirement impracticable

and anomalous.”

• Practical barriers to the warrant

requirement:

Absence of local judges

Differing conceptions of reasonableness

and privacy abroad

Need for cooperation with foreign officials15

Brennan, J. & Marshall, J., dissenting:

• (717): “When we tell the world that we expect

all people wherever they may be, to abide by

our laws, we cannot in the same breath tell

the world that our law enforcement officers

need not do the same.”

Blackmun, J., dissenting:

• (717): “[W]hen a foreign national is held

accountable for purported violations of US

criminal laws, he has effectively been

treated as one of ‘the governed’ and

therefore is entitled to 4A protections.” 16

Facts:

• El-Hage, a US citizen, was convicted of

involvement with bombings of the US

Embassies in Kenya and Tanzania.

• He argues that evidence against him

derived from searches of his home and

surveillance of his conversations should be

suppressed because they were not

supported by a warrant.

How would the Reid plurality answer this

question? The Verdugo majority?17

Joe has just completed his MD at Johns Hopkins,

and has returned to his native South Africa to

practice medicine.

U.S. government officials then discover that several

members of Joe’s graduating class at Hopkins had

been fraudulently writing prescriptions for

OxyContin in return for cash payments.

To determine whether there is any evidence that

Joe has participated in these activities, the FBI’s

Baltimore Field Office contacts the FBI agents

stationed in Cape Town and asks them to search

Joe’s house for evidence. They do so.18