Privacy vs. National Security

I just got back from a week at moot court camp at PHC. The camp was extremely intense, perhaps overly so, but moot court itself was a lot of fun. The topic was "National Security vs. Privacy." The problem (you can read it here; note, however, that William Denolf did not appear in the problem we worked with) was extremely complicated and there were no easy answers, but ultimately I came down on the Libertarian side of the issue (surprise!). In brief, the government needed a warrant to surveil Bronner and Comerford.

Here's why (a summary of my petitioner case):

Reasoning
In the 1967 case Katz v. United States, the Supreme Court ruled that an individual is not subject to warrantless search if he has a reasonable expectation of privacy. As we look over the facts of this case, we will see that 1) the petitioners had a reasonable expectation of privacy, 2) the government did not meet the warrant requirement, and 3) the result of these two facts is that the search was unreasonable and therefore unconstitutional.

Bronner and Comerford had a reasonable expectation of privacy. In Katz, the Supreme Court ruled that this must be twofold: it must be subjective, and it must be objective. A subjective expectation of privacy answers the question, "Did the individuals believe that their communication was private?" That Bronner and Comerford did was directly stated in the problem. In Katz the Court ruled that "what an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Our problem states that BATM, of which the petitioners were members, "took measures aimed at making additional government surveillance difficult if not unlikely." Obviously, they sought to preserve their communication as private and therefore had a subjective expectation of privacy.

An objective expectation of privacy asks the question, "Was the individuals' expecation of privacy one that society is willing to accept?" The answer to this is a resounding "yes." These were private emails that the government was surveilling. The petitioners were "surely entitled to assume that their communication would not be broadcast to the world" [Katz]. To read the Constitution more narrowly, is, according to Katz, to "ignore the role that public telephone [in this case, wireless internet] has come to play in private communication."

As a result of the petitioners' reasonable expectation of privacy, the government needed a warrant to surveil. In U.S. v U.S. District Court and Katz, the Supreme Court ruled that there are two requirements for a warrant: it must be granted prior to search, and it must be granted by a neutral magistrate. Neither of these requirements were met. The government stumbled upon the information and continued to search without even attempting to apply for any warrant of any kind at any point throughout the case. Obviously, no neutral magistrate was ever involved. None whatsoever.

As a result of Bronner and Comerford's reasonable expectation of privacy and the government's failure to meet the warrant requirement, the search was, in the language of Katz, "per se unreasonable" and therefore, unconstitutional.

On the respondent side, one of the best arguments we had was the international nature of the communication. Regardless of one's beliefs as to the international elements of the case, it remains an undisputed fact that the petitioners' communication was international in nature. And the government has the power to surveil international communication. In U.S. v. Montoya de Herdandez, the Supreme Court noted that at the border, even first class mail may be searched without a warrant. The Court wrote that "the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause." Since the petitioners were communicating through foreign email accounts and foreign servers, the government certainly had the power to search.

This was never discussed in a moot court round, but there is a critical flaw in this argument, and that is that email is not first class mail. The argument implies that if first class mail may be searched at the border, then surely email - a less private form of communication - may be searched also. But the difference between first class mail and email is that with first class mail, something physical crosses the border, whereas with email, electrons cross the border. The purpose of border searches of first class mail is to prevent the introduction of illegal substances into the country; simply glancing at the context of Montoya definitively settles this. The reasoning for warrantless searches of first class mail may not be applied to email.

The issue at stake here is not surveillance, but warrantless surveillance. We should certainly uphold the president's power to preserve national security, but we must insist that he follow the proper channels when doing so.