Letters to the Editor
DCLaw1
Published Letters: 807 Editor's Choice: 2
-
greysky
[Read the article: The strong and tough Democrats]
[Read more letters about this article: Here]What you smell is my fear that another neocon will be elected president, especially given the complicity of the MSM (why I read GG in the first place). I take nothing for granted.
My point exactly. Except that what you do seem to take for granted is the assumption that the GOP will be able to win elections by distorting what Democrats have done. This assumption was at least severely shaken by the "thumpin" the Democrats gave the Republicans in 2006, despite the Republicans' best efforts to demagogue national security issues, including the wiretapping controversy.
-
shooter
[Read the article: The strong and tough Democrats]
[Read more letters about this article: Here]I have to leave for a bit to get some exercise (this blog is turning me into a mushroom), but let me just say this in parting as regards your question about border searches of laptops.
I was able to find online a couple summaries of court decisions going both ways. There does seem to be an emerging circuit split, which means the question is by no means settled. Also, as someone already pointed out, at least one of the cases permitting warrantless searches of the electronic contents of a laptop found that there was reasonable suspicion of wrongdoing, which falls far short of a blanket exception.
Even in a case (if one exists) where the court permitted a warrantless search of not just the physical contents but the data on a laptop coming into the country, I would argue that this is significantly distinguishable from a blanket exception for international calls. The difference is that, in the case of a laptop, agents are searching for data (pictures, files, etc.) which are themselves illegal in this country, bringing the search more closely in line with a physical search of a bag for, say, illegal drugs or contraband. On the other hand, a phone conversation is purely expressive and not inherently capable of containing something that is itself illegal or dangerous solely by virtue of its crossing into this country. Moreover, because phone communications are purely expressive, they also implicate much stronger First Amendment concerns, which makes a stronger case that intercepting them would require some showing of probable cause that they might contain foreign intelligence information or evidence of a crime.
Even still, I think the constitutionality of searching for data on a laptop without a warrant or suspicion of wrongdoing is far from certain, and it does seem to be a largely unsettled issue among the courts. The argument against it is primarily that the courts must not separate the exception for border searches from the reasoning underpinning that exception. That is, the exception must not be reduced to the crass formulation that if the thing or information searched crosses international boundaries, it automatically has no 4th Amendment protection. Instead, we must remember that the exception was narrowly carved out primarily in order to uphold the government's ability to protect its borders and people from inherently dangerous or illegal materials physically entering its sovereign land.
Gotta go for now.
-
foreign communications
[Read the article: The strong and tough Democrats]
[Read more letters about this article: Here]I've been thinking about the implications of our new FISA, in particular the much discussed provision allowing the government to monitor communications "directed at" someone "reasonably believed" to be outside the US, without having to get a court order whatsoever.
We are increasingly an internationalized country and an integrated globe. Modern communications systems, transportation systems, and the exponential expansion of multinational commerce and international tourism mean that the probability of the average citizen engaging in some sort of international communication is higher than ever. In some cases, it is a significant portion of a person or corporation's communications.
Journalists, particularly during times of war or global unrest, communicate internationally on a regular basis. Politicians, Members of Congress, and representatives of lawful intergovernmental organizations do so as well. All these people often must relay potentially sensitive, confidential, and privileged information through email, phone, or fax across international boundaries.
Most often, a defense of an alleged violation of the 4th Amendment hinges upon an argument that the target had no "reasonable expectation of privacy." Increasingly, the courts have adopted the circular premise that, as our technological capability to invade privacy (data mining, remote sensing, etc.) increases, our expectations of privacy diminish, thereby allowing the government to utilize these ever-expanding technological capabilities without violating the 4th Amendment.
Not only do I reject this perniciously circular reasoning, but when it comes to international communications, I argue that the precise opposite is true. Because more and more of our transactions, business, and other communications are unavoidably international, we in fact carry our "domestic" expectations of privacy into the international realm. Tell the mother of a college student in France that she has no reasonable expectation of privacy in their conversation about a sick relative. Tell a businessman or lawyer faxing a client trade secrets or confidential information from India to the US that he has no reasonable expectation of privacy in that communication. Sure, these people may come to begrudgingly accept the likelihood of government intrusion in such instances, but this surrender is itself the product of the government's aggressive testing of our ever-shrinking boundaries of privacy. It's practically like telling someone they should have no expectation of privacy in their purely domestic phone calls because there's a well-known episode of 24 in which CTU scans an entire city's phone conversations for any mention of Jack Bauer's name.
In effect, as the tools and necessity for international communication increase, so has the government's power to intrude on those communications. This is completely backward.