Chapter 18 - The Fourth Amendment and National Security

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Chapter 18 - The Fourth Amendment and National
Security
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Olmstead v. United States, 277 U.S. 468 (1928)

• Did this court apply the 4th amendment to
  wiretaps?
• How did you make phone class in those days?
• Were phone lines all private?
• How might this have influenced the court?

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Federal Communications Act of 1934

• Makes it a crime for any person to intercept
  and divulge or publish the contents of wire and
  radio communications.
• Did the court apply this to federal agents?
• Did the court apply it to national security?

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Katz v. United States, 389 U.S. 347 (1967)

• Did the Court find a constitutional right to
  phone privacy?
• Would this apply to private persons?
• What limits did the Omnibus Crime Control Bill of
  1968 set on wiretapping?
• What if the phone company hears a suspicious
  conversation as part of routine monitoring?
• Did the Bill address national security?

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US v US District Court (Keith), 407 US 297 (1972)

• What is the underlying crime?
• Was there foreign involvement?
• What was the nature of the evidence gathering?
• Was there a warrant?
• How were the searches authorized?

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The Government's Argument

• Did the Omnibus Crime Control Bill control?
• What language excluded this sort of crime?
• What is government arguing that this clause
  means?
• Does the court buy this?

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What Does the Constitution Require?

• What is the real question before the court?
• Whether safeguards other than prior
  authorization by a magistrate would satisfy the
  Fourth Amendment in a situation involving the
  national security. . . .
• What is the argument that the AG is a substitute
  for a warrant?
• Why does the court remind us that it is most
  suspicious of the government in national security
  cases?
• Why does this undermine the AG as a substitute?

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Issues with Warrants

• What if they are not prosecuting you - how do you
  contest a search?
• How do you even know they are watching you?.
• Why does the government not want to ask a judge
  to approve a warrant?
• Are these legitimate concerns?
• What does the court rule?
• Does the court leave the door open for statutory
  modifications of the warrant requirement?

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Title III (18U.S.C. 2518(1)(b)-(d) (2000))

• What are the specific requirements of Title III
  for electronic communications?
• What other electronic communications are
  protected by Title III?
• Are these greater than the constitutional
  requirements for a warrant?
• Why are these problematic for national security
  surveillance?
• Could this be cured by requiring only the
  constitutional minimum?

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Domestic organizations with foreign
objectivesZweibon v.Mitchell, 516 F.2d 594 (DC
Cir. 1975)

• What is the group?
• What foreign policy problems where they causing?
• Did the DC court require a warrant?
• What about for wiretapping American citizens
  living in Berlin?

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US v. Ehrlichman, 376 F Supp 910 (1974), affirmed
546 F2d 910 (1976)

• Who did the break in?
• Whose office did they break into?
• Why?
• Did the defendants have a warrant?
• Who is on trial?
• Is this a fight over the admission of warrantless
  information?
• Why do warrants matter in this case?

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The Authority

• Was there any urgency in this break in, i.e., did
  they have to get a warrant?
• Would a judge have given them a warrant?
• What legal issues are involved in this search?
• Where do the defendants claim to get the legal
  authority for the search?
• Is this a foreign intelligence case?
• Can the president order this?
• Why does it not matter anyway in this case?

13
US v. Truong Dinh Hung, 629 F2d 908 (1982)
(post-FISA)

• What was Truong doing that lead to this case?
• How was he caught?
• Why didn't the government arrest him at once?
• How did they conduct the investigation?
• How was this authorized?
• Who do they catch as the source?

14
Admitting the Evidence

• How is this case distinguished from Keith?
• What factors did the court base this finding on?
• Why do Defendants say the evidence should not be
  admitted?
• Does the nature of the surveillance change once
  they have established that defendant is selling
  secrets?
• How does the primary nature of the search change
  at this point?
• What test does the government want for deciding
  when national security surveillance standards
  apply?
• What did the circuit court order?

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The Primary Purpose Doctrine

• What was evidence that the nature of the search
  changed in Truong?
• What does the government need to do at this point
  if it wants to continue the search?
• What if the national security search shows up
  unrelated crimes by persons not involved in
  national security activities?
• For example, sellers of clandestine credit card
  readers who sell to terrorists