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The Constitutional Law of Satellite Phones

By Jack M. Balkin

Orin Kerr has a characteristically thoughtful post taking issue with my suggestion last night that the newly revealed NSA program raises serious constitutional questions.

On two points, Orin and I largely agree. First, he claims 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." To the extent that is so, then I agree, the Fourth Amendment challenge is probably negligible. But I have no idea whether and to what extent that describes the practices at issue. Second, Orin writes that "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." Again, I agree, at least so far as the monitoring was not targeted at U.S. persons.

But I had assumed from the ABC story that at least one significant practice at issue involved the targeting of U.S. persons who were not using military equipment. As to that category of surveillance, Orin remains skeptical of the Fourth Amendment argument: He argues that because several courts of appeals have held that there is no reasonable expectation of privacy in the use of cordless phones, so, too, there is no reasonable expectation of privacy in the use of satellite phones, which appear to have been the primary or exclusive means of communication at issue here.

Orin knows much more about this area of the law -- and the technology of satellite communications -- than I do; but count me uncertain. For one thing, my instinct is that the courts of appeals were simply wrong in concluding that there was no reasonable expectation of privacy in the use of cordless phones just because such phones were so technologically easy to intercept. Orin, do you think those cases were rightly decided? Do you think the Supreme Court would have agreed? I think most people would be aghast at the notion that there's no reasonable expectation of privacy in such calls. That seems to me a lot like the Olmstead-influenced doctrine -- insensitive to actual expectations in modern communications -- that preceded the Court's more real-world decision in Katz. But cf. cases such as Greenwood and Riley, which surely cut in Orin's direction.

Moreover, even if those cases were correct as to cordless phones, is it as easy for private persons to intercept satellite calls? Are such calls the virtual equivalent of announcing one's secrets in a town square? Aren't many such calls encrypted -- and doesn't (shouldn't) that fact increase the reasonable expectations of privacy, too?

One final note: The bigger story than the possible Fourth Amendment concern, its seems to me, remains the possible wholesale violations of E.O. 12333 and USSID-18 -- which have long been the bulwarks that Congress and the Executive have relied upon to prevent this sort of abuse -- and the distinct possibility that such "violations" were the result of the President having secretly rescinded or substantially amended 12333.

Full post as published by Balkinization on October 10, 2008 (boomark / email).