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.

If you leave it behind....

....it's mind to find. (OK, so I'm no Johnny Cochrane.)

Fourth Amendment Doesn't Protect Spit on the Sidewalk: Facts: Rape suspect walking on a street spits on the sidewalk. An investigator is following the suspect, and he collects the spit; a DNA test proves a match. Holding: No Fourth Amendment violation.

[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids), see [citations] when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids.

Strip-searching Doe v. Groody

Hat tip: Memeorandum...

...continued in full post...

Patterico comments:

The question at issue was whether the warrant, when read together with the affidavit, covered the other occupants (or at least provided the police a good-faith basis to believe that it did). I heard Erwin Chemerinsky on Hewitt today claiming to have read the decision, yet he didn’t even mention that the issue was the scope of the warrant. He just ranted about how Alito wrote a decision protecting cops from liability for strip-searching a 10-year-old.

I can’t yet say whether I agree with Alito’s dissent; my initial impression is that, while Alito has some good points about how to read warrants, the majority has the better of the argument. But it’s only an initial impression; I don’t criticize decisions until I have read them thoroughly.

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John Hinderaker comments:

The majority held that the warrant did not authorize the officers to search anyone but the drug dealer himself. Alito disagreed. In my opinion, Alito got much the better of the argument. You can judge for yourself by reading the decision here. Alito wrote:

First, the best reading of the warrant is that it authorized the search of any persons found on the premises. Second, even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.

Voice of Reason comments:

the crowd over at Democratic Underground is having a field day with. Let's look at a few choice comments:

Although the case is technical, what it boils down to is this: Alito approves of cops strip-searching little pre-pubescent 10 year old girls. Read that again: Alito approves of cops strip-searching little prepubescent 10 year old girls.

Scalito's a creep. When a man thinks like that, you have to wonder what he's done to his own children.

The whole case just makes me shiver. I have daughters that age. Who wouldn't I try to kill, cop or not, if they tried to do that to my babies? What's more, Scarlito has a teenage daughter. And he'd let the cops do that to HER?

For a ten year old prepubescent girl that's tantamount to a lesbian rape. And to have your Mommy powerlessly forced to watch! Jesus! You couldn't show that in a Quentin Tarrantino movie w/o an NC 17 rating! Larry Flynt would be banned in Cincinnati if he showed that in Hustler. But Scalito thinks it's OK. Let's destroy him with this. He's a sick, perverted rape-enabler.

Morons. Should ten-year-old girls ever be strip searched? Whether the answer is affirmative or negative, that was not what Alito was called upon to decide, and it is not what he should have considered. Here's what was at issue: <snip> The question before the Third Circuit in this case was whether the reading given the warrant by the executing officers went beyond the bounds established by Vantresca.

His conclusion?

Personally, I don't think it did. The officers clearly acted in good faith and in accordance with what they believed was their authority. The only question is whether their belief was reasonable, and given the contents of the affidavit attached to the warrant and the warrant's clear deference to the affidavit on other matters, I believe it is. But again, this is a matter on which reasonable people can disagree.

Drug sniffing dogs and other invasions of privacy

Orin Kerr comments on one of the latest Supreme Court decisions. The Court upheld the use of drug-sniffing dogs to find illegal drugs.

One aspect of the law which strikes me as troublesome has to do with the definition of what the Fourth Amendment protects.

The mercifully short opinion for the Court by Justice Stevens relied heavily on Stevens' own 1984 opinion, United States v. Jacobsen, which had held that the police do not conduct a "search" when they perform narcotics tests because narcotics are illegal contraband; interfering with a person's drugs does not violate their Fourth Amendment rights because Fourth Amendment rights in illegal narcotics cannot be constitutionally "reasonable." While this may seem a bit odd at first, it actually has substantial roots in existing law: as I argued in a recent article, a "reasonable expectation of privacy" is not the same as the expectation of privacy of a reasonable person, but rather is a term of art keyed heavily to property law. Because a person cannot have a property right in narcotics, the thinking goes (whether rightly or wrongly), interfering with his drugs does not infringe a property right and therefore does not constitute a search.

I wonder. How far could this reasoning be extended? Could a court rule that a person doesn't have a property right in stolen property, and so a warrantless search of property for stolen property does not constitute a search? Why or why not?

I've had a bit of a debate with Eugene Volokh about one issue that appears in this decision:

One interesting aspect of today's opinion is that Justice Stevens had to distinguish the Court's 2001 thermal imaging case, Kyllo v. United States, in which Stevens had dissented. Kyllo held (more or less) that it is a search for the police to point an infrared thermal imaging device at the exterior wall of a private home. To reconcile the holding of Place with Kyllo, Stevens reasoned that the key was the nature of the information that surveillance method yielded. The thermal imaging device was used to obtain intimate details in the home, whereas the drug-sniffing dog only indicated the presence or non-presence of illegal narcotics. ... In particular, dogs can sniff narcotics from the exterior of a car because the bags holding the narcotics are not perfectly sealed; some of the drugs leak out into the open, and the dogs can smell that. In the language of Stevens' Kyllo dissent, this was "off the wall" surveillance, not "through the wall" surveillance. But Stevens had no room to make this argument after Kyllo, so he had to focus on the nature of the information obtained rather than the way the search was conducted.

In the debate, the subject was radiation monitors which might be used to find nuclear weapons hidden somewhere in a city. The question was, could you use radiation detectors to locate a cache of fissile material in someone's home?

(Eugene referred to "Geiger counters", but these, and indeed, any gas-filled detector, are not the best instruments to use to find fissile material.)

Eugene spent a great deal of energy on the issue of how a non-directional radiation detector could be used to obtain information about what's going on inside a private dwelling. In the case of a person using a radiation monitor, he could stand on the street outside an address and measure levels of ambient radiation. Such a monitor is usually not directional, though with some effort it could be made directional. (Moving it from one side of the car to the other would give you some spatial discrimination, for example.) Absent any built-in or improvised directional resolution, the investigator would have to move the instrument from place to place and observe how ambient levels changed. At best, he'd be able to show that radiation levels rose as you got closer to a particular address. With this information, you could obtain a search warrant. You are not building an image of the distribution of radiation sources inside the building. Or, if you want to build a plot of radiation levels and call that an "image", it is one with resolution that is coarser than the size of the building involved.

A thermal imaging device, on the other hand, builds an image using infrared radiation which penetrates the wall of a building. It is a device which is capable of directly recording very precise spatial information in an area that is inside the boundary of private property. The image it can be used to create has a resolution that is finer – by a good margin – than the size of the building.

Maybe that's the ticket.

As long as the smallest object you can resolve with whatever imaging/detection technology you have is larger than the boundary of the private area you are searching near, it's OK to use that particular imaging/detection technology to obtain information about what's going on inside that area.