NSA surveillance may be legal – but it’s unconstitutional

Re:NSA surveillance may be legal – but it’s unconstitutional by leoc on Saturday June 22, 2013 @10:02AM (#5923606)

> As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad.

But PRISM, as opposed to "upstream collection", isn't (necessarily) about searching foreigners abroad, or even at the border. It's about searching their stuff held on servers (sometimes) located inside the US and run by US companies as part of a business agreement with those foreigners. (However I have heard it suggested (IANAL) that sufficient legal cleverness can allow this to be characterised as a border search.)

> But it has never recognized a foreign intelligence exception to the warrant requirement when foreign-targeted searches result in the collection of vast stores of citizens’ communications.

Maybe. However the FISA appeals court certainly appears (IANAL) to have decided that a foreign-intelligence exception exists https://news.ycombinator.com/item?id=5917223 . Once again, from the Yahoo! case ruling http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf :

2 . The Foreign Intelligence Exception . The recurrent theme permeating the petitioner's arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment's Warrant Clause. 6 The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.

And again, this is a ruling on a law which allowed intentional targetting of US persons, though outside the United States.

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Re:NSA surveillance may be legal – but it’s unconstitutional by pyre on Saturday June 22, 2013 @11:19AM (#5923880)

  | However I have heard it suggested (IANAL) that
  | sufficient legal cleverness can allow this to be
  | characterised as a border search.

Every airport is considered a 'border.' So even cities that are greater than 100 miles from a land border, or the ocean have a 100 mile circle around their airport where 'border searches' can happen. It doesn't take much legal cleverness to apply this to foreigners accessing US-based resources while sitting at home in a foreign country.

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Re:NSA surveillance may be legal – but it’s unconstitutional by leoc on Saturday June 22, 2013 @11:50AM (#5924000)

But a PRISM 702 doesn't even apply while you access your cloud data; it's simply an authorisation to go in and take any or all of it (and then monitor your later accesses) regardless of whether you've even been near it recently or not. In any case, even if a PRISM search is a border search (not necessarily a search at the border) it's certainly not a search conducted abroad, at least when the servers with the user data are inside the US.

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Re:NSA surveillance may be legal – but it’s unconstitutional by jessriedel on Saturday June 22, 2013 @07:35PM (#5925578)

The 100-mile number is taken from a federal law that was found to have no importance with respect to constitutionality. The Supreme Court made is clear that border searches must actually involve border crossing.

http://scholar.google.com/scholar_case?case=6933260753627774...

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Re:NSA surveillance may be legal – but it’s unconstitutional by pyre on Sunday June 23, 2013 @06:37AM (#5926988)

Tell that to the US Border Patrol searching an detaining people that just happen to be near the border. It's especially fun for people that have their visa status in limbo because the State Department is processing an update. They are allowed to stay here, but all of their official papers are expired, so Border Patrol throws them in jail for a few days until they sort things out with the State Department. This all happens on regular roads that are not within distance of a border crossing.

This case is from 1973, and while it may presumably apply here, the CBP doesn't seem to think that it does.

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