DOJ Says Americans Have No 4th Amendment Protections At All When They Communicate With Foreigners

from the expectation-of-privacy? dept

We’ve already questioned if it’s really true that the 4th Amendment doesn’t apply to foreigners (the Amendment refers to “people” not “citizens”). But in some new filings by the DOJ, the US government appears to take its “no 4th Amendment protections for foreigners” to absurd new levels. It says, quite clearly, that because foreigners have no 4th Amendment protections it means that any Americans lose their 4th Amendment protections when communicating with foreigners. They’re using a very twisted understanding of the (already troubling) third party doctrine to do this. As you may recall, after lying to the Supreme Court, the Justice Department said that it would start informing defendants if warrantless collection of information under Section 702 of the FISA Amendments Act (FAA) was used in the investigation against them.

Last October, it finally started alerting some defendants, leading courts to halt proceedings and re-evaluate. As two of those cases have moved forward, the DOJ is trying to defend those cases, and one way it’s doing so is to flat out say that Americans have no 4th Amendment protections when talking to foreigners.

The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

This argument is questionable on so many levels. First, it’s already relying on the questionable third party doctrine, but it seems to go much further, by then arguing that merely providing information to a foreign person means that it’s okay for the US government to snoop on it without a warrant. The DOJ further defends this by saying, effectively, that foreign governments might snoop on it as well, so that makes it okay:

Moreover, any expectation of privacy of defendant in his electronic communications with a non-U.S. person overseas is also diminished by the prospect that his foreign correspondent could be a target for surveillance by foreign governments or private entities.

With this, it appears the DOJ is trying to attack the idea of the reasonable expectation of privacy that has been the basis of the 4th Amendment in the US. They’re effectively arguing that since foreign governments might look at the info too, you should have no expectation of privacy in any communications with foreigners and thus you’ve waived all 4th Amendment protections in that content.

That’s crazy.

In fact, they flat out admit that they’re stripping Americans of any 4th Amendment rights with this claim, noting that communicating with foreigners means you’ve likely “eliminated” your 4th Amendment protections.

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

The implications of this argument, if upheld by the court is staggering. It would seem to fly in the face of basic logic and historical 4th Amendment law, all discussing how it’s the expectation of privacy that matters. And I’m fairly certain that most of us who regularly communicate with folks outside the US have quite a reasonable expectation of privacy in such communications (though, to be fair, I’ve been much more actively using encryption when talking to people outside the US lately).

As Jameel Jaffer of the ACLU points out, this eviscerates basic Constitutional protections for many Americans:

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

In the government’s view, there is no need to ask whether the 2008 law violates Americans’ privacy rights, because in this context Americans have no rights to be violated.

I’m curious if anyone wants to defend this as a reasonable interpretation of the 4th Amendment, because it seems quite clearly a complete bastardization of what the 4th Amendment says and how courts have interpreted it over the years.

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Comments on “DOJ Says Americans Have No 4th Amendment Protections At All When They Communicate With Foreigners”

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Machin Shin (profile) says:

What 4th?

“is also diminished by the prospect that his foreign correspondent could be a target for surveillance by foreign governments or private entities.”

Is it just me that sees a really huge issue with this logic. You know, like them next saying, “You have no expectation of privacy in any communication because your communication could be a target of ‘foreign hackers'”

Anonymous Anonymous Coward says:

Re: What 4th?

It is the ‘private entities’ part that got me. Someone hires a private detective to look into, say an extramarital affair or insurance fraud, and THAT looses your 4th Amendment protections? Or for that matter, a hitman?

I am gonna become a private dick, cause then I can surveil anybody, without any downside. Peeping Tom? Ha!. I am on a surveillance gig./s

Andypandy says:


This is one of the very many reasons that transparency is so important, it has taken many years for the court to let everyone know how they saw the laws that were made to help citizens retain their privacy, what they are saying now is that no American has any 4 amendment protection at all as every single American can be linked to a foreigner at some time during their life so all communications can be monitored in case they are with foreigners.

Now it is just a matter of time to see how the American people react to this, to the fact that their rights are being taken away from them.

Anonymous Coward says:

As a foreigner based outside the US the basic assumption I make about communications to someone inside the US is that secret agencies will monitor everything; very much what one would have presumed if communicating with someone in the old USSR.
Having said that I further presume that any communication with anyone in any country will also be potentially monitored by those same baleful agencies, so that at least is new. None of this causes feelings of friendship or understanding.

Mason Wheeler (profile) says:

Re: Re: Re:

There’s no secret, and the assertion at the top of the article that the idea of the 4th Amendment not protecting foreigners is “questionable” because it says “people,” not “citizens,” is absolutely ridiculous, on factual accuracy grounds alone.

The 4th Amendment doesn’t say “people.” It says “the people.” That’s important, because the 4th Amendment doesn’t exist in isolation; it’s an amendment to the Constitution, and the term “The People” is defined at the very beginning of the Constitution as the citizens.

Anonymous Coward says:

Re: Re: Re: Re:

It says “the people.”

Neither does it say individual persons.

The people of the United States have a collective right to be secure against gangs of government bandits roaming the land, assaulting women and children, breaking into houses, stealing property.

In the great case of Entick v Carrington, Lord Camden averred:

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.

Indeed, only the collective action of society can remedy the trespasses of armed gangs. Individuals, standing by themselves, are outnumbered?powerless against the depradations.

MrWilson says:

There goes all 4th Amendment rights on the Internet

Not that the NSA hasn’t already ignored the concept of US citizens having any expectation of privacy on the internet, but since I don’t know the location of the servers or networks through which any of my electronic correspondence travels, anything could potentially be relayed to a foreign citizen or foreign government agency, and thus the 4th Amendment simply couldn’t be seen to exist anywhere online.

Heck, consider the physical world – I could have a bug in my house from some Chinese product I bought (that the US government has scared me into thinking is likely, because the US government is already doing this to US products…), so I have no reasonable expectation of privacy anywhere because I could be monitored by a foreign entity.

Just wait until we get brain bugging…

art guerrilla (profile) says:

Re: There goes all 4th Amendment rights on the Internet

not too long before we have the brain bugs…
they have cracked the problem of nanobots being rejected by our bodies, by essentially coating them with a bio-goo that lets them get around in the body without being attacked by macrophages, etc…
(heh spel czech, macrophage is a word, get over yourself)

we (and when i say ‘we’, i mean the 1%) have ALREADY ‘established’ that if the surveillance by The They(tm) is -you know- ‘unobtrusive’, then it is okey-dokey…

thus, a nanobot up every butt ! ! !
all perfectly legal-like…
(or, well, you know, like the appearance of legality, that’s all that matters…)

John Fenderson (profile) says:

The nut of the problem with the thrid party doctrine

“The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information”

This is the first time I’ve heard a government official correctly state what the third party doctrine actually means.

The problem is this — there’s no way this allows for spying or compelling others to fork over your information. The third party doctrine acknowledges (correctly, in my opinion) that the person you communicated with can do anything they like with that communication — although I would argue that contracts such as nondisclosures can limit this broad statement. But when that person is compelled or spied on, they are not deciding for themselves what is being done with that communication, so the third party doctrine would not apply at all.

In other words, I tell you some piece of information without some nondisclosure agreement. If the government asks you for that information and you voluntarily give it, there’s no Constitutional issue. If the government legally forces you to give it (say, through an NSL), the third party doctrine does not apply and this is not Constitutional. Same with spying.

Zonker says:

Re: The nut of the problem with the thrid party doctrine

So the third party doctrine combined with the communicates with foreigners exceptions to privacy, that must mean that Cablegate, the US diplomatic cables leak on Wikileaks, was completely legitimate disclosure of information and Chelsea Manning gets to go free with a full pardon. After all, the US government’s classification and privacy rules do not extend to communications with or even about foreigners or taking place outside of the United States, right? In fact, how much of the government’s communications would fall outside the expectation of privacy under these rules?

Or is the DOJ being a hypocrite again?

Lurker Keith says:

now upgraded to borderline skeptic

I’ve been on the skeptic side of the “Civil War is coming” thinking. Even my dad says it’s inevitable now… & stuff like this makes it hard to remain a skeptic.

As I posted before (in 2 articles), it’s time to sue the Government for violating the Constitution. We’re running out of peaceful options, & the clock is already in the negatives.

Michael (profile) says:

Re: now upgraded to borderline skeptic

There are three branches of government and getting the right person or group of people in charge of any of them could make a huge impact.

Getting the supreme court to rule these actions unconstitutional, getting congress to fix the actual laws, or (of course) putting someone in the White House that sees this as a problem and just stops it.

There are a lot of peaceful solutions. We don’t need to rally the minutemen quite yet.

art guerrilla (profile) says:

Re: Re: now upgraded to borderline skeptic

BUT they screw us over with a catch-22:
we won’t tell you if we are spying on you, and even if you have ‘proof’ we are spying on you, we can’t allow that proof to be divulged, therefore, you (OR ANYONE) don’t have standing to sue us for illegally spying on you…

that’s some catch, that catch-22…

Lurker Keith says:

Re: Re: Re: now upgraded to borderline skeptic

The beauty of my suggestion is standing isn’t an issue. I’m not suggesting suing over the spying. I’m suggesting carpet bombing the Government in court over ALL their violations of the Constitution, & every Citizen has standing to ensure the Constitution isn’t ignored (statements by SCOTUS otherwise would mean we need a Civil War). I’m pretty sure one of the primary purposes of the Supreme Court is to hear challenges that the Government isn’t following the Limits the Constitution has placed on it.

There is plenty of evidence (I’m not sure how to obtain or organize all of it for this, though) showing the Government under the last 2 Presidents have been trying to kill, ignore or water down Constitutionally Granted Rights, pretty much across the board. As I said, about the only Amendments they haven’t dared to try to at least weaken are directly about the formation & function of the Government, things that they CAN’T get away w/ even trying to modify. Gun Control has given them a foot in the door to weaken Rights, so it isn’t as obvious to everyday citizens not paying attention that the Government has gone Rogue.

If I was in a position to spearhead this, I might see if Popehat could help out, but I’m not. I know there has to be someone better equipped to do this than me.

Anonymous Coward says:

> I’m curious if anyone wants to defend this as a reasonable interpretation of the 4th Amendment

I’ll give it a try, but I’m not a lawyer and I’m not sure I agree with the DoJ’s statement either.

It seems like they are saying something like, “overseas is outside the Constitution’s jurisdiction.”

The 4th Amendment starts “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”, so I guess the DoJ is arguing that foreign communications are so far removed from person, house, papers, and effects, that it is not covered.

It’s one thing to keep personal notes and expect them to not be searched without a warrant, but it’s another to log onto a computer you presumably own and send a message over wires you don’t own, managed by a company you don’t own, using electricity you don’t own, to a mail server you don’t own, run by another company you don’t own, etc, etc. Does voltage in a wire in Asia count as your property? No. Should you reasonably expect that the voltage in a wire in Asia will be private? No.

Does voltage in a wire in the USA count as your property? No (at least, not once it leaves your house). Should you reasonably expect it the voltage of a wire in the USA to be private? No (at least, not once it leaves your house).

But, since we humans attribute meaning to those voltages, and as they can be interpreted to mean a message that a human intended to be private, the govt cuts us some slack if it stays in the USA.

> They’re effectively arguing that since foreign governments might look at the info too, you should have no expectation of privacy in any communications with foreigners

They aren’t arguing this, they’re just using it as an example. Imagine a scenario where a US person confesses to murdering some high profile dignitary to a friend in the UK. GCHQ intercepts this traffic, sees that it regards the murder, and notifies the US govt. Should the govt act on this knowledge, or would acting be in breach of the 4th Amendment?

Michael (profile) says:

Re: Re:

Why are you stopping at electronic communications? Is the NSA allowed to stop mail at the border and read all of it?

What if, for instance, you are using a cloud storage service? If the server is in another country the NSA can check it out? What if it is in a country in which you can reasonably expect privacy?

Given we are talking about the US government – which has a very cozy relationship with internet providers, is it ok for them to read any data that happens to travel over a wire or server outside of the US even if the destination is in the US? I can see Verizon being “asked” to route traffic offshore so they can have a look.

I could ALMOST see an argument with specific communications with a foreign national, but it opens up too much. What if you email a US citizen that is in Canada at the moment? When is the communication fair game – if you send an email to a foreign national and it gets bounced back can they open that one?

The eitire thing is WAY too full of what-if’s.

boomslang says:

Re: Re: Re:

I’m the OP playing devil’s advocate.

I suppose, for the sake of consistency, yes they can read your mail at the border and yes they can check the overseas cloud storage. Fortunately, encryption exists. So, both mail and cloud storage will remain private even if read by a third party while in transit.

Second, the “route offshore then back to US” loophole doesn’t work because to use that loophole, you need to know that the target is located in the US, and that makes the target off limits according to the law.

For you last point, I don’t know the answer. I don’t know what protections the USA guarantees USA citizens who travel abroad, if any.

Anonymous Coward says:

Re: Re:

“overseas is outside the Constitution’s jurisdiction.”

A search or seizure which takes place outside the territorial jurisdiction of the United States is outside of the warrant requirement.

First, consider a prototypical warrant: It’s an order from the court commanding the state’s officers to go out and break into someone’s house, steal their stuff, and bring that shit back to the court.

Now it may not be obvious, but ordinarily, breaking into someone’s house, stealing their shit, and taking it someplace is wrongful. But, when the court commands officers to do that, the court kinda promises that the those officers probably won’t be held to answer for a felony. The court gets to say that in its locality.

As a corollary, if the officers go out and break into houses, and steal stuff in some other court’s locality, then it’s that other court that gets to say whether the officers are committing a serious crime.

Josh in CharlotteNC (profile) says:

Re: Re:

I think you’re setting up the voltage argument as a strawman. A personal note is a personal note whether it exists as ink on paper or a collection of electronic bits in a standard format.

Does the 4th amendment apply to an ink on paper note sent through the US postal service? Yes, of course. What about an ink on paper note sent through UPS or Fedex? Again, of course it does. Why would it not apply to a collection of bits that represent a note sent through a wire? The government doesn’t ‘cut us some slack’ – the government is absolutely prohibited from snooping on those things without a warrant that describes what is to be searched.

Additionally, the 4th doesn’t specify that my right to be secure is dependent on only communicating with other US citizens while in the US.

As to scenarios I can imagine – do you think that US courts should be accepting into evidence used to convict someone something that was gathered by a foreign intelligence service? Does it matter if they are our allies, or would something from Russia or China be good too?

boomslang says:

Re: Re: Re:

For your first point about ink on paper, I’m all for an all or nothing approach, where ‘nothing’ is selected instead of ‘all’, meaning, nothing can be accessed without a warrant.

As for your second point about the 4th, I agree.

As for the scenario, I think the USA would treat the foreign info as a tip and launch their own investigation to vet the info. They wouldn’t just blindly accept the tip as fact.

Digger says:

Re: Constitution has no boundaries for US Citizens

See, that’s the falacy, the fault, the WRONGNESS of their statements.

For US Citizens there are NO boundaries for it’s protections against domestic spying, etc.

If that were true, all our government would have to do is wait for a troublesome person to travel abroad and then snatch them, put them on trial on foreign soil and be done with constitutional rights.

Since that CANNOT happen, because everyone knows that our rights as citizens do not evaporate because we’ve crossed certain landmarks, that applies to our communications as well.

Sorry CIA, NSA, FBI, TSA, your actions are treasonous and you all are Traitors to our Country.

Anonymous Coward says:

Re: Re:

“Imagine a scenario where a US person confesses to murdering some high profile dignitary to a friend in the UK. GCHQ intercepts this traffic, sees that it regards the murder, and notifies the US govt. Should the govt act on this knowledge, or would acting be in breach of the 4th Amendment?”

This is a completely false comparison. In the above situation, GCHQ immorally, but likely legally, ‘intercepts’ private communications in the UK, sees this talk of murder, and notifies the US government. If the US government acts on it, it would be doing so as the result of being notified by GCHQ. Only how it acts as a result could be a breach of the 4th amendment.

Now on the other hand, if the NSA ‘intercepts’ the same private communications in the US, that absolutely is a violation of the 4th amendment, regardless of whether a non-US person is involved. The key difference is where the communication takes place, and what they’re trying to pass off is the idea that if any non-US person or place is involved, that that somehow negates the fact that the US and US citizens are also involved.

Anonymous Coward says:

Re: threats to American national security?

That was in order of increasing levels of threat. However, even that’s a little misleading, since the relative values of the threats are not assessed. On a scale of 1-10, China and AQ are near 1, and the others are near 10.

At worst, China and AQ can kill a few million of US. The other guys want to enslave US all.

broken says:

ifs & buts

don’t have to route through another country.

in this twisted logic, DoJ can interpret any digital contact with what is considered foreign entity within US boundaries i.e. UN buildings, foreign embassies etc. or even a digital packet routed beyond US jurisdiction into international zone can be considered a fair game. That is, since all satellite signals can cross beyond US boundaries, all communications through satellites can be intercepted as having made foreign contacts…

what fantasy novel are they reading in these departments?

David says:

Let me get this right...

4th amendment protection depends on all communication partners being American citizens.

So if I am talking to myself, I have an expectation of privacy, but if I am talking to a potted plant, I don’t?

I don’t have an expectation of privacy if a cat is sitting in the room while I am talking to a friend? Because there are listeners which are clearly not American citizens?

If Groucho Marx lived today, he’d be leading the Department of Justice since apparently the greatest qualification is keeping a straight face.

Anonymous Coward says:

Re: Let me get this right...

“if I am talking to myself, I have an expectation of privacy, but if I am talking to a potted plant, I don’t?”

Yes, you do, because a potted plant is not a “non-U.S. person located outside the United States” (quote is from the US argument above).

” expectation of privacy if a cat is sitting in the room while I am talking to a friend?”

Same argument. If your friend is a “non-U.S. person located outside the United States” then you don’t have a justified expectation of privacy, otherwise you do.

“listeners which are clearly not American citizens?”

If your friend is outside the US and is not a US person then the US says no expectation of privacy otherwise yes. And note, a US person is NOT the same as a US citizen. A US person is officially defined as a US citizen or a permanent resident (an alien lawfully admitted to residence within the US, like me). So talking to a foreign citizen who a permanent resident IS protected.

Anonymous Coward says:

What a bunch of crooked garbage.

Please someone start a website that lists the people responsible for this crap.

As of now this information comes from so many different places, it is hard to keep track of who did what and when.

Maybe a wiki page with name – date of offence against the citizens – offence description.

I will be happy to donate your choice of blindfolds, rope, or a wall.

We may not agree with everything our gov does, but this piecemeal removal of our constitution is just getting to be too much.

Mike Masnick (profile) says:

Re: Curious About Edge Case

What about when a citizen in the US communicates with a US citizen, say, in Canada?

1) Do we have legal expectation of privacy for this call?

In that case, I believe you do. From my understanding (and I could be wrong), the NSA does interpret “US persons” to be both anyone inside the US (even non-citizens) and any US citizen abroad.

Anonymous Coward says:

Re: Re: Curious About Edge Case

Interesting. I am a US citizen, but I happen to live in a different country. If all they have is a phone number or an IP address, how are they going to determine who I am, and if in fact I am a US citizen, without bruising a whole lot of law that they do not care about?

Anonymous Coward says:

Re: Re: Re: Curious About Edge Case

“. I am a US citizen, but I happen to live in a different country. If all they have is a phone number or an IP address, how are they going to determine who I am, and if in fact I am a US citizen, “

I seem to recall this is where they are supposed to have a reasonable confidence (51% or more) that you are not a US person. It was in the Snowden stuff somewhere. So if they know you are a US person or strongly suspect it (and yes they are supposed to try to ascertain and not guess), then they’re supposed to abide by your 4th amendment protections.

Anonymous Coward says:

Re: Re: Re:2 Curious About Edge Case

Right. It is that ascertain part that is of concern. In order for them to find out I am a citizen, they pretty much have to violate my rights. As with ‘does a tree make a noise when it falls if no one is around to hear it’, I don’t need to know that my rights were violated for them to be violated.

The government is taking the position, well we gonna violate all your rights, but then take no action if it isn’t needed, and since you don’t actually know that we already violated your rights, you have no standing to find out if we actually violated your or anybody else’s rights. See, no harm no foul.


That is not right.

Josh in CharlotteNC (profile) says:

Re: Re: Re: Curious About Edge Case

And that’s why general warrants and dragnet communication are entirely incompatible with the 4th. There is no way to legally and constitutionally collect everything and try to sort it out later.

Look, I’m a reasonable person. If there’s a specific reason for the NSA or other government agency to be targeting someone (foreign or not) and getting their communication, and I happen to communicate with that person, then of course they’re going to read what I said/wrote. That’s perfectly fine – assuming they had a specific reason to be obtaining the target’s communication. If they’ve got that specific reason, then there is no reason they couldn’t get a specific warrant for that target’s communication.

Other than sheer laziness, I don’t see why a warrant requirement, and competent oversight by a non-rubberstamping FISA court is so difficult.

Cpt Feathersword says:

Re: Re: Curious About Edge Case

But if you send your communication via the Canadian post or a Canadian ISP or telco, or carry it with you in a sealed envelope as you cross the border? Then you forfeit any reasonable expectation of privacy, according to the authorities of the Land of the Free and their pernicious third-party doctrine.

All reasonable people now expect that the US Government snoops everywhere and collects everything – they’ll blackbag your office, keylog your computer, backdoor your router, and hoover 70% of all internet traffic – and before you know it, it will be published to the whole world by the next Manning or Snowden.

Why wait for the spooks to leak your secrets? Do all your business in public, post it yourself on Facebook, and cut out the middleman.

The expectation of privacy was a naivete of the 18th century, according to our distinguished Juris Doctors of the new millennium. Just let it go already, you’re holding back progress.

Anonymous Coward says:


(the Amendment refers to “people” not “citizens”)
The US Constitution only Applies to CITIZENS!!!!

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to OURselves and OUR posterity, do ordain and establish this Constitution for the United States of America.”

The Constitution protects American Citizens from the American Government regardless of location.

The government CAN monitor other noncitizens communications, but they cannot monitor a Citizen without warrant to comply with the 4th. This is the law according to the Constitution so long as at least 1 member of the persons being monitored is a Citizen. There is no exception given that just because a foreigner is involved that a person loses their rights! If a foreigner is chatting with a Citizen then a warrant is required. The Language is PLAIN and CLEAR yet the water is so easy to muddy with so much stupid walking around!

Everyone seems to be massively ignorant about these things!

Anonymous Coward says:

Re: Re: Appears that you are the ignorant one

Really? How in the world do you see protecting a Citizens 4th amendment rights as being treason?

You clearly fell off the top of the stupid tree and aggressively face planted every branch on the way down.

There would be only one way for them to lawfully monitor 1/2 of the conversion without breach of the 4th. And would be if an agent is standing next to the person on the non-Citizen side of the call.

Anonymous Coward says:

Re: Re: Re: FAIL

Well using all caps for words is pretty silly, multiple exclamation marks tend to be the sign of a deranged mind and it should be U.S. not US.
The fact that you’ve capitalised the first letter of constitution looks odd, but may be a thing in the U.S. so I won’t mention it.

The Nazis were very nasty people, but I’m not sure their insistence on correct spelling or grammar is generally noted as one of their defining characteristics, whether it was something they did or not.

Anonymous Coward says:

Re: Re: FAIL

Well lawfully admitted persons should be protected by treaties that have been agreed to between nations, but I would not have a problem with treating lawfully admitted citizens with the same protections as citizens for the most part, however the Constitution just does not say that.

But if a person is here unlawfully, as in were previously asked to leave and never come back, and especially if they are committing crimes, then it should be clear that they have NO rights, and whatever happens, happens.

Anonymous Coward says:


According to the founders, liberty is not limited to citizens. The constitution needs to be interpreted in context. The Declaration of Independence makes it clear that all people have equal rights, that they are born with these rights, and that among these rights is liberty.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

non-thinker says:

Re: Re: FAIL

The justification for all the government’s exceptions to the Constitution:

“that they are endowed by their Creator with certain unalienable Rights”

Since there is allegedly no such Creator – there can be no such Rights. Until it can be proven beyond a shadow of a doubt that the world we live in has been created – versus shear astronomical happenstance, the Constitution is wholly void and without substance. How unfortunate that it seems we are all irrelevant.

John Fenderson (profile) says:

Re: Re: Re: FAIL

That’s also a fail of an argument — First, that’s not the Constitution, that’s the Declaration of Independence (which has no legal force). Second, when they used the term “their Creator” they didn’t really mean “god” as such. They meant “whatever force you think made you” and included “nature” as a one of the options. In that sense, there certainly is a “creator.” We were, after all, created even if purely by natural forces.

Anonymous Coward says:


The US Constitution only Applies to CITIZENS!!!!

Who was it who decided that only Ayran heterosexual people had rights? Some Austrian born painter if I Remember rightly.

As soon as you start limiting who has rights you are on the slippery road to concentration camps, along with the killing of those who do not have rights on any whim at all; like GITMO and drone strikes. While a warrant does not apply directly to foreigners, NSA should still show good reason to whoever has oversight of their activities before spying on a person, company or organization.

Anonymous Coward says:

Re: Re: FAIL

Keep things in context please.

How does Citizen mean Aryan heterosexual, are you processing the English language or one made up on the spot? Citizen is anyone that is either naturally born here, or naturalized (legally becoming citizen), or born from a parent that is currently a citizen. This can include anyone, its not race/gender/religious/politically/whatever specific.

Gitmo has nothing to do with the Constitution until a Citizen is imprisoned there inside of it. It does however seem to be in breach of some Geneva Conventions so those do apply as we signed the treaty. Additionally its our national reputation that is at stake operating it the way we do.

This not a slippery slope, the idea that everyone including non-citizens are protected by the Constitution is the slippery slope!

Go and read the Preamble, we secure this for ourselves and no one else!

Trevor says:

Connect the dots

1. Citizens United considers companies “people” in some instances.

2. DOJ claims the 4th Amendment does not apply to non-US citizens.

3. DOJ claims that US citizens’ expectation of privacy under the 4th Amendment is waived when communicating with non-US citizens, who have no expectation of privacy or 4th Amendment protection, all under the third party doctrine.

4. (Future) DOJ claims the lack of 4th Amendment protection applies to foreign corporations as well, based on Citizens United idea that corporations are people in some instances. DOJ stretches this to include searches not protected by 4th Amendment.

5. (Future) DOJ claims that since you transmit your data to a foreign company over the internet through servers based outside the US, you are “disclosing” that information to a “third party” not protected by the 4th Amendment. Therefore, there is no expectation of privacy in information handled by foreign corporations.

6. (Future) DOJ claims that since domestic companies (also considered people in 4th Amendment context – Applies to 1st as well as 4th) communicate with foreign companies, which have no 4th Amendment protections, are thus not able to claim 4th Amendment protection for searches of THEIR databases, which include US citizens’ data. (You Google “Vacation in Spain.” Google provides links to websites hosted in Spain. Therefore, Google transmitted your data to Spain. Thus, NO 4th Amendment protection.)

Looks like a slippery slope, but they seem to be heading in a direction very similar to this…

Anonymous Coward says:

Re: Connect the dots

How about all the multinational corporations that partially exist in the US? Are they American, foreign or something in between? I would think that the logic used in this document would lead to these companies as being completely foreign and open to the NSA.

Oh and since the document also seems to preclude nonamericans from being considered as persons so that means there are no persons in the rest of the world

Jon Renaut (profile) says:

Maybe reasonable

I’m not a lawyer, though I married one and seem to spend most of my time with them.

If you take it as fact that non-citizens have no 4th Amendment rights, then saying something to a non-citizen is essentially equivalent to putting it in plain sight.

Let’s say your neighbor is murdered. They find him chopped up into little pieces. It’s horrible. They naturally knock on your door to see if you heard anything. If you answer the door holding an axe, covered in blood from head to toe, you have put out in the open that you are very likely the crazy person who murdered the neighbor. If you answer the door in a clean shirt and politely answer their questions, they will have to find some evidence and get a warrant to go find the bloody axe you shoved in the coat closet.

So telling something to a person who has no 4th Amendment protection is basically the same thing. You have taken something that you could have kept “hidden” where a warrant is needed to access it, and put it out in the open where anyone can discover it.

Since this is a pretty horrible result, I think we ought to go back and look at the assumptions that got us here. But given those assumptions as fact, I don’t think this is an unreasonable conclusion.

Chronno S. Trigger (profile) says:

Re: Maybe reasonable

I think that does a fairly good job of explaining the DOJ’s interpretation of the 4th amendment. The only way that interpretation works is if you look at non-citizens as non-people: they have no rights so the DOJ can do what they will.

You’re absolutely right that we have to go back and have another look at the assumptions that got us here. The US Bill of Rights should apply to what the government can do concerning all people, not just US-Citizens.

Jon Renaut (profile) says:

Re: Re: Maybe reasonable

The only way that interpretation works is if you look at non-citizens as non-people

Unfortunately that’s exactly what we do.

Didn’t Mike mention a week or three back that the Constitution is pretty careful to use “citizen” most of the time, but sometimes uses “people”? As in, some parts are deliberately meant to apply just to citizens, and some to all people? This is a reasonable distinction to make, as certainly citizens should have some rights not granted to all people.

But if that’s the case, and the 4th Amendment says “people”, then it’s pretty clear it’s meant to apply to everyone.

Anonymous Coward says:

Re: Maybe reasonable

If you take it as fact that non-citizens have no 4th Amendment rights

But this is certainly wrong.

Suppose a Canadian tourist is visiting New York City and staying in a hotel. A group of armed men breaks into the tourist’s hotel room, assaulting the tourist, briefly holding him captive, while they tear through his suitcases, looking for cash and credit cards. The armed men take away the cash, credit cards, and the tourist’s camera.

If the armed men are the servants of the state, then that trespass with force and arms needs a damned good reason.

Anonymous Coward says:

Re: Maybe reasonable

“If you take it as fact that non-citizens have no 4th Amendment rights, then saying something to a non-citizen is essentially equivalent to putting it in plain sight.”

This is where the argument hinges, as I see it. They are saying that if a non-US person or location is involved, then they have the legal right to take the private information from the US person directly, rather than taking it from the ‘plain sight’. I might be able to agree with taking it from the ‘plain sight’, but using that lack of reason to take it from the US person is still a violation of the 4th amendment. Further, you’re analogy is false (primarily) because of the assumption of criminal activity, which is not necessary with regard to what the D.O.J. is saying.

RickMan (profile) says:

Communication with Foreigners

So if this is truly what the policy is, then it should be the same for all government communications with Foreigners, Foreign Governments, etc. They have no idea what will be done with those communications so by default they are public information. Since they are public information how can they be classified.

So by the DOJs own logic they prosecuted Ms. Manning under false pretenses and have no reason to deny any FOIA requests for document concerning communications with foreign entities.

zip says:

“… it’s the expectation of privacy that matters. And I’m fairly certain that most of us who regularly communicate with folks outside the US have quite a reasonable expectation of privacy …”

My expectation of privacy has always been zero (perhaps due to knowing too much). The NSA’s primary duty, since its inception in the Cold War era, has been to monitor all domestic communications to the outside world — particularly long-distance telephone calls. Like just about everything else during the Cold War, one of the (implied) justifications was that since the Soviet Union was (presumably) doing it, then the US needed to also, just to ‘level the playing field’. (Since the Soviets were planning nuclear extermination of the United States [or so everyone was told] then eavesdropping was therefore a small price to pay in the fight to prevent our planned extinction.)

Of course the existence of mass-wiretaps completely trashes the 4th Amendment, but because it’s been the US government’s standard operating policy continuously since World War II, it seems a well-established precedent.

But since the Internet has made it difficult to accurately differentiate between domestic and foreign origins, the NSA therefore needs to record everything just to maintain its historic mandate.

Anonymous Coward says:

Re: Re:

So what you are saying, in order to make mass murder legal vis-a-vis US Government Et Al, all they need to do is just do a lot of of it so that people have no reasonable expectation of life?

No wonder we are going down hill fast. This is the most fundamental problem with corrupt human beings. The constant re-wording of the meaning of things to justify anything.

It really, really just seems that the only way to make a human understand is to mass slaughter their own people. The history of the world proves that slavery is possible because most of us are cowards. The US was different, enough of us decided that we would be cowards no longer and make a nation that would refuse the oppression of government in any form… 200 years later… oppression is back in every sense of the word, yet we still piddle with the meanings of things as though these have not already been long settled in courts many decades ago.

zip says:

Re: Re: Re:

“So what you are saying, in order to make mass murder legal vis-a-vis US Government Et Al, all they need to do is just do a lot of of it so that people have no reasonable expectation of life?”

Just consider the 2nd Amendment. For most of this country’s history, “the right of the people to keep and bear arms” meant exactly what it said, not one iota less. But now that gun control has been a fact of life for the last 80 years, practically no one today thinks the 2nd Amendment should be interpreted literally, as in the private ownership of military-grade weaponry (though to be fair, many American colonists in 1776 had better weaponry -privately owned- than the British army issued its soldiers in which to fight them).

Anonymous Coward says:

Re: next step...

We are already in this step just like TSA, if you buy a plane ticket then you are knowingly waiving your right to have your testicles/breasts NOT juggled. And you can already be taken away with “NO RIGHTS” if that foreigner is considered a terrorist you are conspiring with. Go ahead and try it if you don’t believe me. Same with Civil Forfeiture laws! WE HAVE NO RIGHTs! We merely exist at the pleasure of our masters!

So the REAL next is that we just make a law that says, stepping outside of your home relieves you have any 1st, 2nd, & 4th amendment rights… because making a new law can just trump any amendment. This is FACT TOO! 2nd amendment has long been trashed with this despite the Signers of the Damn Declaration of Indefuckingpendence making it CRYSTAL CLEAR just what the 2nd means!

Anonymous Coward says:

Re: Re: next step...

“…because making a new law can just trump any amendment. This is FACT TOO!”

Technically, no. As the highest law of the land, the U.S. Constitution (or any part thereof) can only be undone with a Constitutional amendment. See this for more.

In practice, yes, they shit all over dignity, decency, the Constitution, morality, ethics, etc. while simultaneously spitting in everyone’s collective face. Just don’t let them convince you that it’s legal.

Anonymous Coward says:

Collect It All

That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

By the government’s reasoning, even citizen-to-citizen domestic communications would be searchable because there is always the risk that any recipient “will give information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.”

That One Guy (profile) says:

Wide ranging indeed

An argument like this plays right into the NSA hands, by giving them justification for scooping up every bit of data they can, because in this interconnected world, who doesn’t, at least occasionally, communicate with people from a different country, whether knowingly or not?

Before the internet really got going, and communications were limited to mail and telephone, you had to specifically, and intentionally, contact someone in another country, and you knew that they weren’t in the same country as you. Now though? The only way to tell really is if the one you’re talking to tells you.

Combine the uncertainty with the NSA’s ‘51% probability that they’re foreign is good enough for us’ idea, and if this is argument is accepted, there won’t be any limits at all for what data they can gather, because everyone might be communicating with someone in a foreign country.

Lurker Keith says:

Re: Vote!

Anther problem w/ waiting for an Election is the Executive Branch, who is the primary one doing the violating of the Constitution, won’t be up for Election for another couple of years. Do you really want to let Obama & his flunkies further degrade our Constitutionally GUARANTEED Rights before we can effect change? & how can we be sure the next guy will actually bring said change? Isn’t that what Obama ran on? Look where we are when we used an Election to try to change things: further down the rabbit hole.

No, we tried an Election, & that backfired because Politicians are allowed to lie to the Public & the Government pretends it can keep what they think the Law means a Secret.

Until lies, secrets & money are removed from Government, there’s no guarantee an Election gets us out of this.

Lurker Keith says:

Re: Re: Vote!

Oh, & it’s the Electoral College that actually elects the President, not the Popular Vote; & the EC doesn’t have to (though it should) bother paying attention to the Popular Vote (that’s happened more than once).

So, even if we were to manage to get someone else elected to the White House, there’s still no guarantee the Electoral College would put him or her in. I pointed out, not too long ago, that one scenario I could see for starting a Civil War was a landslide Popular Vote victory by a Third Party Candidate, but a Democrat or Republican still end up placed in the White House by the Electoral College.

The only way an Election would be guaranteed to fix the current situation is if there was major upheaval in the House & Senate & tons of new people, intent on erecting barriers to Constitutional Violations, were elected in, which is, currently, probably the least likely scenario to play out.

Anonymous Anonymous Coward says:

Aha, let the sheeple know!

“Glenn Greenwald?s new book headed to Hollywood”

Oh, oh…I can see the fight now. Who will be playing Edward and who will be playing Glenn?

On the other hand, publicity that is directed at the general public should be a good thing. Hopefully, Sony (yeah I know) will allow the director to delve into the nitty gritty. Then the public will actually know what is going on.

Big Media sure won’t tell them.

slick8086 says:

Bill of Rights

The Bill of Rights purpose is to guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings, and reserve some powers to the states and the public.

It sets specific limits on what the US Federal Government can do. No where does is say that that these limits on the Federal Govt only apply if other governments have the same or similar limits.

This is like a 13 year old getting caught sneaking in late and pointing at the 17 year old sibling and saying, “Well they get to stay out as long as they want so why cant I?”

reader says:

Terminal logic fail

* Every * commun8 action assumes these risks. An american talking to an american assumes the risk that the other person might waive rights or get tapped by GCHQ or the NSA, too…. Does this mean that NY commun8 action has no privacy expectation, just became it might be legally accessed via the other person….?

David says:

Re: Abstracting the argument.

And since the Americans have given up the expectation of life, liberty, and the pursuit of happiness, they get that taken as well from the government.

In the end, all of the constitution boils down to one thing: you don’t deserve what you are not willing to fight for. It was that way for the founders of the republic, and it is the same way for those who have sold it away.

GEMont (profile) says:

Constitutional toilet paper

“In the government’s view, there is no need to ask whether the 2008 law violates Americans’ privacy rights, because in this context Americans have no rights to be violated.”

Cannot help but wonder if the old three-step dance applies to this situation as well. If so, and NSA can indeed spy on anyone within 3 steps of separation from the original callers involved in a overseas call, then this means that according to the internal policies of the NSA, Americans have no rights to be violated, period.

Whatever says:


Late to the party here, but damn the comments on this one make me giggle. It’s the same type of people who scream “US law shouldn’t apply to Kim Dotcom” yet when US law specifically does not apply because a communication happens to someone outside the US, you freak out again.

Please pick one side of an argument and stick with it.

LNA says:

This is such a borderless law. What about all communications with foreigners, like blogs? No rights? It interferes with #1. What about 1st generation Americans, who talk to their mom from another country? No rights? What if I think he’s local and it turns out he’s from another country? No rights? What if I’m on a boat with a bunch of people from all over, no rights? The USA gov’t employs foreigners, now does the USA gov’t have no rights? The companies of the USA employ foreigners, and as entities, now there are no rights? Then there is no security! Piracy, it’s not just for hipsters anymore; the gov’t wants it, and in its greed, won’t get where it wants to go.

Urgelt (profile) says:

Defending the Indefensible

The author asked for a defense of the US Government position.


Let’s start with what ‘reasonable expectation of privacy’ means.

In an age when we *know* the NSA is sucking down vast gulps across the internet backbone and phone data, obviously, people who send unencrypted communications have no reasonable expectation of privacy.

This is circular logic, of course. They’re spying on us, so there’s no reason to expect privacy, so they get to spy on us.

So the legality of spying hinges on the fact that we found out.

So. NSA spying was illegal until Snowden blew his whistle. But now it’s okay!

Really, they ought to give Snowden a medal.

I’m glad we got that sorted out.

Chylene Ramsey says:

This whole piece of rubbish is hilarious!! They are looney-tunes! For one, it is brazenly unconstitutional–they CAN’T makes any such policy or law. It’s not even HINTED at in the Constitution, therefore, they haven’t the authority. Two, even if the Supreme Court has a sudden attach of dementia and passes this ha-ha, Congress will instantly vote it into extinction if you all make enough fuss about it. (Yes, they can do that. ) Three, what is the heck will Obama do when he gets his daily orders from the RIIA (London) if he can’t communicate with foreigners? Hell, he’s a foreigner himself! Everyone will have to use pass drops to communicate with him?? And what about the 12 million hoodlums–er, illegals–er, Hispanics of a non-legal persuasion if no one can communicate with them? Think maybe their feelings will be hurt and they’ll get all sulky and go back home? That would be nice.

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