Satellite phone evesdropping Constitutional?

From a post over at the Volokh Conspiracy, Orin Kerr (not known for being a hard-core right-winger) opines that recent evesdropping on the phone calls of American citizens in the Middle East may actually be constitutional.

I think Marty is wrong, and that the monitoring probably did not violate the Fourth Amendment even if you accept the bin Laden case.

  (1) First, it appears from news reports 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. This monitoring was clearly constitutional, as the notice waived an expectation of privacy under O'Connor v. Ortega and no warrant would be required under Title III, a precondition to FISA's warrant requirement.

  (2) Second, 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 under United States v. Verdugo-Urquidez.

  (3) Ok, but what about any U.S. citizens who were monitored abroad who were not in the military and not agents of a foreign power? At this point, it's important to keep in mind that the monitoring was of satellite phones, phones that work by broadcasting signals directly to communications satellites. There are no cases on how the Fourth Amendment applies to monitoring of satellite phones, but there are a bunch on how the Fourth Amendment applies to cordless phones. Here's what I wrote on the issue in my computer crime casebook:

  In the 1980s, telephone companies began selling cordless telephones to consumers. Cordless telephones work by broadcasting FM radio signals between the base of the phone and the handset.

....

Because cordless phone intercepting devices merely pick up a signal that has been "broadcast over the radio waves to all who wish to overhear," the interception was held not to violate any reasonable expectation of privacy. .... Courts reached the same result when the suspect was using a traditional landline telephone, and happened to be engaged in conversation with someone who was using a cordless phone. 

Although there are no cases on it, I think there's a decent argument that the same argument would apply to satellite phones. There are arguments against, to be sure — arguments that I am certain commenters will make in the comment threads. But the reasoning of those cases is pretty broad. 

Anyway, for those reasons I think the monitoring here probably didn't violate the Fourth Amendment, even if we accept Judge Sand's opinion in the bin Laden case.