Sunday, February 12, 2006

Metaphors and the Constitution: Wiretapping as Search

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 af´Čürmation, and particularly describing the place to be searched, and the persons or things to be seized. (US Constitution, Amendment IV)

The controversy over NSA wiretapping involves two different legal issues. One is whether the actions are illegal, the other whether they are unconstitutional--whether a statute permitting them would be in violation of the Fourth Amendment. A group of legal professionals ranging from Richard Epstein to Lawrence Tribe have produced a summary of the arguments against the administration's position on both issues. In my view and theirs, the illegality of the actions is clear. They think the actions are also unconstitutional; I am less sure.

The Constitution says nothing at all about wiretapping. It says nothing about eavesdropping on conversations, which might seem the closest equivalent given 18th century technology. What it regulates are searches. Past court decisions have treated wiretaps as searches and so required warrants for them. But a wiretap is only a metaphorical search--it differs from a literal search in important ways, some of which raise problems for interpreting the Consitutional restrictions.

Suppose George has been having a possibly criminal correspondence with Thomas. The government gets evidence against George, obtains a search warrant, searches his house and finds letters from Thomas and drafts of letters to Thomas. They have obtained information about both George and Thomas, but they only needed a warrant against George, since only his house was searched.

Now fast forward a few hundred years. The government gets a warrant to tap Bill's phone--but what they are actually "searching" is not Bill's house but his conversations with George. Still legal--but the distinction between searching Bill and searching George has vanished.

Finally, consider a conversation between George and Usamah. Usamah is not an American, so the government is, constitutionally speaking, free to tap his phone without a warrant. But George is an American person--and they are listening to his conversation too. Do they need a warrant? Under the terms of FISA they do--but is that a constitutional requirement, or only a statutory one? Is the wiretap equivalent to searching both houses, or to searching Usamah's house and finding letters from George?


Anonymous said...

David writes: "Finally, consider a conversation between George and Usamah. Usamah is not an American, so the government is, constitutionally speaking, free to tap his phone without a warrant."

If the bill of rights is an enumeration of rights that the people (i.e., the citizens) retain, then your statement follows directly. OTOH, if it's a list of further restrictions on government power over and above the enumeration of powers in artcle 1 sec 8, then it's not clear why these restrictions would not apply even in dealings with foreign nationals.

Malachi said...

What about the 10th amendment?

The bill of rights weren't intended be the list of all rights. In fact, one argument against the bill of rights was that it would be used to limit peoples rights, hence the 10th amendment.

What role do you think the 10th amendment plays in this case?

Todd Mitchell said...

David raises an important distinction. People often confuse "illegal" behavior with "unconstitutional" behavior, when they are not necessarily one and the same.

But for determining the provisions concerning indictment or impeachment, the distinction is irrelevant. If Bush et al's actions broke the FISA law, that would certainly satisfy a "high crimes and misdemeanors" provision. He could argue the "constitutionality" of his actions as a defense (as Nixon infamously did), but the case of statutory illegality seems rather cut and dried, imo.

markm said...

Since the colonies had laws against eavesdropping that they retained when they became states, it should be easy to find the right to keep private conversations private among the unenumerated rights of the 10th Amendment. But that's not how wiretapping law has evolved. Nor would a constable who tried to overhear a plot to blow up the powder magazine have been at all likely to spend time in the stocks for eavesdropping, so I think this right was somewhat limited.

IIRC, wiretapping was not originally considered a "search". For one thing, there was little expectation of privacy in the early telegraph and telephone systems. At least two men had to read your telegram to send and receive it, and telephones had chatty human switchboard operators as well as party lines. When Congress finally got around to regulating domestic wiretaps (about 1934?), they chose to use the existing mechanism of search warrants to provide authorization for necessary wiretaps, and the courts developed the "wiretap = search" analogy from there.

`Koa said...

Thank you for writing on this subject, I am in a class on government, and we are talking about wiretapping today as a debate project.

I will link to you in my blog on blogger, and I am letting you know.

Thanks, again,

P.S. I will post a reply with my thoughts on the matter soon.