Kerr on Specter

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It's worth reading Orin Kerr's analysis of Specter's FISA Bill. Key passage:
This explicit incorporation of Fourth Amendment law as the sole test of the statute is troubling, I think, because the Fourth Amendment standards for electronic surveillance are tremendously murky right now. For example, courts have held that you don't have a reasonable expectation of privacy in calls to or from cordless phones, and they have used reasoning that would also appear to apply as well to cell phone calls. (You have statutory privacy protection, which is much stronger than constitutional protection, but not constitutional protections.) If you don't have a reasonable expectation of privacy in your cell phone calls, which those cases suggest is the case, Specter's bill would mean that the NSA can tap every cell phone in the country of every US citizen, for entirely domestic calls, all without a warrant. This monitoring wouldn't be "electronic surveillance" because (based on the cordless phone cases) the Fourth Amendment doesn't apply.

Similarly, right now it's really uncertain whether one can have a reasonable expectation of privacy in your e-mail, and if so, when such protection exists. (Again, there is statutory protection, but constitutional protection is really uncertain.) Some scholars suggest that there is such protection, others suggest there isn't; as a matter of doctrine, the answer is essentially unknown. But if the statutory standard hinges on constitutional protection, and it may be that there isn't any constitutional protection at all, then t may be that there is no statutory protection either. And since the government's applications are secret, we wouldn't know it.

Of course, e-mail isn't the only kind of Internet communications and it's not any clearer that you have an expectation to privacy for your VoIP, IM, or Web traffic. This is a particularly interesting question for VoIP, since you can call somebody on their landline phone from your ordinary POTS phone and have it transition to VoIP somewhere in the middle. What's your expectation of privacy there?


I wonder if the "expectation of privacy" standard should thereby prevent the government from cracking codes (even weak ones like DES) if applied to these sorts of things.

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