Modern American privacy law begins with Charles Katz, an accused gambler, making a call from a Los Angeles phone booth. In a now-famous opinion, Justice John Marshall Harlan concluded that the US Constitution protected Katz's "expectation of privacy" in his call. American phone booths are now a thing of the past, of course, and Americans' expectations of privacy seem to be fast disappearing, too.
In two significant but almost-completely overlooked legal briefs filed last week, the US government defended the constitutionality of the Fisa Amendments Act, the controversial 2008 law that codified the Bush administration's warrantless-wiretapping program. That law permits the government to monitor Americans' international communications without first obtaining individualized court orders or establishing any suspicion of wrongdoing.
It's hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.
What's surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA's large-scale surveillance of Americans' international telephone calls and emails:
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.
Read the rest of this piece at The Guardian.