Extraterritorial surveillance.

[Aimee Farr]

George:
> On 24 Sep 2001, at 17:49, Robert wrote:
> > It is not a crime for an agency of another country to eavesdrop
> on you as
> > long as they are physically located outside the U.S. Similarly,
> it is not
> > illegal for a US agency to intercept messages in another
> country, as long as
> > they do it from outside the that country.
> >
>
> You're on crack.  The anti-eavsdropping laws don't have
> exemptions for agents of foreign governments, the suggestion is
> absurd.

Electronic surveillance occurring outside the territorial U.S. is not
regulated by Title III or state surveillance statutes. The Fourth Amendment
is implicated if American officers are the instigators. If there is U.S.
involvement, the Fourth will be violated if the surveillance violated the
law of the foreign jurisdiction. [1]

The catch, as always, is the suppression remedy. (Note that Congress did not
give a suppression remedy for electronic communications.) With regard to
foreign surveillance, the justification has been that suppression does not
serve a deterrent to foreign actors. (What they fail to consider, is that
this cooperation is prone to abuse, especially in regard to economic
espionage. Foreign intelligence agencies service their own agendas, and
these agendas are increasingly tied to private interests. It's a legitimacy
blanket for blackmail, source recruitment, infiltration and so on....) If
the U.S. liaisons acted in good faith reliance as to the foreign operation,
they are entitled to the good faith exception. If it's a silver plate
service, without involvement, you can use in it prosecution. [2] The general
rule is that it has to "shock" the judicial conscience to be excluded, or
"Taunt Happy-Fun Court" in cypherpunk lingo.

For domestic group surveillance related to national security interests, see
United Sates v. United States District Court, 407 U.S. 297 (1972),
http://supct.law.cornell.edu/supct/cases/name.htm
[construing 2511(3)in 1972; pre-FISA] (Title III did not reach national
security surveillance, and the President could not conduct warrantless
surveillance against exclusively domestic organizations). The same arguments
are being made today.

Surveillance law in the United States is the study of the backbone of the
judiciary, bent by the ignorance of congress, due to the machinations of the
executive branch.

~Aimee


[1] See United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995); United
States v. Peterson, 812 F.2d 486, 491 (9th Cir. 1987); United States v.
Phillips, 1979 WL 1505 *16 (M.D.Fla.). But see United States v. Andreas,
1998 WL 42261, *3, (N.D. Ill.), aff'd, 216 F.3d 645, 660-661 (7th Cir.
2000).

*Administration* analysis @ http://www.cdt.org/security/010919terror.pdf on
the proposed Section 105 Use of Wiretap Information From Foreign
Governments: "Under current case law, federal prosecutors appear to have the
ability to use electronic surveillance conducted by foreign governments in
criminal proceedings. As criminal law enforcement becomes more of a global
effort, such information will come to play a larger role in federal
prosecutions. To ensure uniformity of federal practice, this section
codifies the principle that United States prosecutors may use against
American citizens information collected by a foreign government even if the
collection would have violated the Fourth Amendment. Under the proposal,
such information may not be used if it was obtained with the knowing
participation" or at the direction of American law enforcement personnel,
if gathered in violation of constitutional protections."

[2] See United States v. Mature, 982 F.2d. 57, 61 (2nd Cir. 1992). See also,
(short cites)... Mitro, 880 F.2d 1480; DeLaplane, 778 F.2d 570; Maher, 645
F.2d 780; Derewal, 703 F. Supp. 372 (supplying tip does not rise to the
level of "involvement").