In two recently-filed and largely overlooked legal briefs, the Department of Justice defended the constitutionality of the FISA Amendment Act, which codified President Bush's warrantless wiretapping program.
As Jameel Jaffer notes in The Guardian, this isn't particularly surprising, given the Obama administration's aggressive defense of bulk surveillance and the collection of metadata.
However, this is what's surprising: the Obama administration is now arguing that the Constitution – and citizens' privacy rights contained therein – are not in play when it comes to U.S. citizens' communications with people or interests abroad.
"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."This view – that Americans do not have any privacy rights when contacting someone outside the U.S. – is a radical one. For it attempts to upend the long-held view, established in Katz v. United States, that Americans have a reasonable "expectation of privacy" during a phone call or private communication, and that such communication is constitutionally-protected by the Fourth Amendment.
Essentially, the DOJ is arguing that if I email my colleague in Sydney, or call my financial advisor in Toronto, my privacy rights are "eliminated" by my communication crossing the U.S. border. Meaning: the NSA can record my phone calls and collect data contained in my emails without a warrant.
Why? Because, according to the DOJ, I have no rights as a U.S. citizen which protect my privacy in such circumstances.
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.This is a really big deal. According to the DOJ, no American has privacy rights when contacting someone abroad, which makes any such communication open to infinite surveillance without a warrant.
In the government's view, there is no need to ask whether the 2008 [Bush-era] law violates Americans' privacy rights, because in this context Americans have no rights to be violated.
It doesn't matter who you are, or who you're communicating with. You have no privacy rights, according to the Obama administration. For the sake of 'national security,' they must be "completely eliminated."
David Harris-Gershon is author of the memoir What Do You Buy the Children of the Terrorist Who Tried to Kill Your Wife?, just out from Oneworld Publications.