Volume 55
Issue 1
Winter '18

Another Bite out of Katz: Foreign Intelligence Surveillance and the “Incidental Overhear” Doctrine

Written By: Elizabeth Goitein

Abstract

Although the “reasonable expectation of privacy” test set forth in Katz represented a historic expansion of the Fourth Amendment’s right to privacy, it has few defenders among privacy scholars today. It is vulnerable to critique on a number of fronts: it is circular and gives courts little guidance;1 it is not able to keep up with technology, given the lag time between the hardening of expectations and judicial review;2 its two prongs require a subjective assessment that is easily gamed,3 combined with an empirical analysis that courts are not well-positioned to undertake;4 and so on.

Perhaps the most visible critique relates to one of Katz’s offshoots: the so-called “third-party doctrine,” under which courts have held that a person loses any reasonable expectation of privacy in information voluntarily disclosed to a third party.5 Critics argue that this doctrine falsely equates privacy—which encompasses, or should encompass, the limited disclosure of information to trusted associates of one’s choosing—with secrecy.6 They note that it is particularly untenable in an era in which we must routinely disclose communications, as well as information about those communications (known as “metadata”), to Internet service providers, mobile phone companies, and other intermediaries.7

The third-party doctrine is indeed deeply flawed and in need of rethinking. That rethinking, however, is well underway. Both on the legislative front and in the courts, an overhaul of the doctrine—one that, at a minimum, recognizes privacy in the content of electronic communications, if not the metadata—appears inevitable, even if it is coming decades later than it should have.8 On the other hand, there is an area in which both legislative policy and the Fourth Amendment case law are moving in the direction of providing less protection for the privacy of electronic communications: foreign intelligence surveillance.

Part I of this article presents the factual background for this legal development. Mass warrantless surveillance of foreign targets’ communications with Americans is a relatively recent phenomenon, stemming from changes in statutory law and technology. In particular, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISA Amendments Act), which created Section 702 of FISA, eliminated the requirement that the government obtain an individualized court order when wiretapping communications between foreign targets and Americans from inside the United States.9 At the same time, technological advances have eroded practical constraints on collection, storage, and analysis.10

Part II of the article surveys the case law on the constitutionality of surveillance undertaken pursuant to Section 702. Until recently, only the Foreign Intelligence Surveillance Court (“FISA Court”) was able to review the law’s constitutionality because the Department of Justice failed to notify criminal defendants when using evidence derived from Section 702 surveillance. The Department changed its notification policy in 2013, however, and since then, federal courts in three circuits have had the opportunity to weigh in on the issue.11 All of them concluded that the challenged surveillance was lawful.12 Most based their rulings, in part, on a line of decades-old cases holding that a warrant to wiretap telephone calls need not name every person whose communications will be intercepted.13 From these cases, the courts derived the so-called “incidental overhear” rule: Those in contact with a surveillance target can claim no greater rights or protections than the target herself.14 Because the targets of surveillance under Section 702 are foreigners without Fourth Amendment rights, the courts concluded that no warrant is required to obtain the communications of Americans in contact with them.

Part III critiques these decisions. It starts with the basic premise that the government must obtain a warrant to invade an American’s reasonable expectation of privacy, unless the search falls within an established exception to the warrant requirement. It then posits that Americans have a reasonable expectation of privacy in their communications with foreigners overseas—a proposition that the courts reviewing the constitutionality of Section 702 surveillance appeared to accept. Finally, Part III examines the “incidental overhear” cases and demonstrates that they did not establish an exception to the warrant requirement. Instead, they held that a warrant need specify only the phone line to be tapped and the conversations to be seized. Communications that meet these specifications fall within the warrant—not within an exception to the warrant requirement—and may be seized, even if the communicants are not named targets. By misunderstanding and misapplying this case law, the recent decisions on Section 702 surveillance threaten to take an enormous bite out of the constitutional protection for private communications recognized in Katz.

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1. See, e.g., JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA 60 (2000) (“Harlan’s test was applauded as a victory for privacy, but it soon became clear that it was entirely circular.”); Michael Abramowicz, Constitutional Circularity, 49 UCLA L. REV. 1, 60–61 (2001) (“Fourth Amendment doctrine, moreover, is circular, for someone can have a reasonable expectation of privacy in an area if and only if the Court has held that a search in that area would be unreasonable.”); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 SUP. CT. REV. 173, 188 (“[I]t is circular to say that there is no invasion of privacy unless the individual whose privacy is invaded had a reasonable expectation of privacy; whether he will or will not have such an expectation will depend on what the legal rule is.”).

2. See, e.g., Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 EMORY L.J. 527, 550–52 (2017); see also United States v. Jones, 565 U.S. 400, 427–31 (2012) (Alito, J., concurring) (noting that “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative” in part because Congress can better gauge shifting public opinion).

3. See Orin S. Kerr, The Fourth Amendment in Cyberspace: Can Encryption Create a “Reasonable Expectation of Privacy?”, 33 CONN. L. REV. 503, 507 (2001) (noting that “it is generally difficult to contest a defendant’s claim to a subjective expectation of privacy”); see also Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984) (“[C]onstitutional rights are generally not defined by the subjective intent of those asserting the rights. The problems inherent in such a standard are self-evident.”).

4. See, e.g., ROBERT M. BLOOM, SEARCHES, SEIZURES, AND WARRANTS: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 46 (2003) (“How do we know what society is prepared to accept as reasonable? Because there is no straightforward answer to this question, ‘reasonable’ has largely come to mean what a majority of the Supreme Court Justices says is reasonable . . . .”); Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. REV. 1511, 1522 (2010) (“The Court rarely takes any steps to determine what society deems reasonable. Clearly, the justices have no special ability to sense the collective desires and values of all citizens of the United States. They instead are just stating their own preferences and opinions, whether they are consistent with society’s or not.”).

5. See Smith v. Maryland, 442 U.S. 735, 743–45 (1979); United States v. Miller, 425 U.S. 435, 442–43 (1976).

6. See infra Part III.A.

7. See id.

8. See id.

9. See infra Part I.

10. See id.

11. See Patrick C. Toomey, Why Aren’t Criminal Defendants Getting Notice of Section 702 Surveillance—
Again?, JUST SEC. (Dec. 11, 2015 9:01 AM), https://www.justsecurity.org/28256/arent-criminal-defendants-noticesection-
702-surveillance-again.

12. See infra Part II.A–C.

13. See United States v. Kahn, 415 U.S. 143, 150–55 (1974); United States v. Donovan, 429 U.S. 413, 423–28
(1977).

14. See United States v. Mohamud, 843 F.3d 420, 439–41 (9th Cir. 2016); United States v. Hasbajrami, No.
11-CR-623 (JG), 2016 WL 1029500, at *8–9, (E.D.N.Y. Mar. 8, 2016); United States v. Mohamud, No.
3:10–CR-00475–KI-1, 2014 WL 2866749, at *15, (D. Or. June 24, 2014).