-----Original Message----- From: Daniel Weitzner [mailto:djweitzner@csail.mit.edu] Sent: Tuesday, January 24, 2006 9:37 AM To: dave@farber.net Cc: Ip; Tim Finin Subject: (for IP) Re: [IP] More on Hayden on NSA program Hi Dave and Tim, Applying 4th Amendment principles is generally a puzzle. This situation is even more complex because the Administration seems to be arguing that most of the statutory rules that usually apply (FISA, Wiretap Act) just don't. So there are really two questions: -can the Administration program avoid FISA? -if so, is it permissible under the 4th Amendment? Most of the arguments from the Administration have focused on the first part of this question -- do the statutes apply? By going to the substance of the 4th Amedment, Hayden re-opens a lot of settled questions about wiretapping. In particular, if it's the case that the surveillance was conducted in order to discover patterns of activity, rather than get at communications of people already under sufficient suspicion to justify a probably cause warrant or a FISA order, then we have to get in the question of the 4th amendment status of pattern detection. Some people characterize this a fishing expedition. I think that there are interesting parallels with suspicionless searches such as roadblocks. A recent case on this subject, Indianapolis v. Edmonds, 531 U.S. 32 (2000) illuminates some of the issues Tim raises: "The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.... While such suspicion is not an "irreducible" component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply." The court in Edmonds struck down an Indianapolis policy department practice of erecting roadblock that randomly stop drivers to check for illegal drugs. Though random checks to stop immediate driving- related hazards such as drunk driving had previously been approved, the Court here rejected the illegal drug roadblock because the Fourth Amendment does not allow "suspicionless searches" except in "special circumstances." Ordinary crime control is not a special circumstance, but the Supreme Court went on to say: "...the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to ***thwart an imminent terrorist attack*** or to catch a dangerous criminal who is likely to flee by way of a particular route. See 183 F. 3d, at 662-663. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control." (emphasis added) How does this rule on physical searches of cars (which have largely lost their 4th Amendment protection) apply to electronic surveillance? I'm sure we hear a lot about this from all sides. Danny On Jan 23, 2006, at 9:32 PM, David Farber wrote:

-----Original Message----- From: Tim Finin [mailto:finin@cs.umbc.edu] Sent: Monday, January 23, 2006 9:13 PM To: dave@farber.net Subject: More on Hayden on NSA program

I was puzzled when I heard this exchange on the radio. General Hayden was clearly denying that "probable cause" was the standard for what is allowed in the fourth amendment. But the Constitution seems to say otherwise. It turns out that there's a trick involved, so pay close attention.

Here's the exchange:

Q: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says.

Q: But the measure is probable cause, I believe.

HAYDEN: The amendment says unreasonable search and seizure.

Q: But does it not say probable ...

HAYDEN: No. The amendment says unreasonable search and seizure... Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable."

And here is the fourth amendment:

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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The trick is this -- "probable cause" is only needed to get a warrant for a search, so if you forgo asking for a warrant to be issued, you are home free. Slam dunk. This Law stuff is pretty neat.

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