In 1990, the Supreme Court fatefully ruled 6-3 in Verdugo-Urquidez that the Fourth Amendment did not exist for foreign nationals who had not established a sufficient nexus with the United States to be part of its “people.” In a blistering dissent, Justices Brennan and Marshall (peace be upon them) argued that “If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them.” Brennan and Marshall argued that Constitutional rights apply whenever the U. S. government seeks to exert its authority; it is not possible for it to be legal for the U. S. government to act outside the boundaries of the very Constitution that created it.
Time has shown us all how right Brennan and Marshall were.
As a result of Verdugo-Urquidez, an enormous and complicated apparatus developed to determine when the subject of surveillance was a U. S. person (and therefore entitled to the Fourth Amendment’s protection) and when the subject was not a U. S. person. The NSA has adopted extremely permissive rules for determining whether communications belong to a U. S. person: for example, all Tor users are assumed to be foreign, even though the U. S. government itself funded the development of Tor. If surveillance is conducted abroad, then the NSA has been allowed safely to assume that the Fourth Amendment does not apply, and that the permissive procedures of Executive Order 12333 apply instead.
Now, a new paper by Dr. Sharon Goldberg of Boston University and Dr. Axel Arnbak of the University of Amsterdam has identified a method by which the NSA could divert a communication from a U. S. person to another U. S. person so that it travels outside the United States, can be collected abroad by the NSA and assumed to be non-U. S. communication, and then gets sent back to the United States with none of the parties involved being any the wiser. [Disclosure: Dr. Goldberg is a personal friend.]
The authors are careful to state that they have not found evidence that the NSA does this; but there is evidence of another kind of collaboration that has much the same effect. The “Five Eyes” surveillance alliance, comprising the United States, Canada, the United Kingdom, Australia and New Zealand, has for decades allowed those countries to evade restrictions on domestic spying by having their close allies spy on their people for them.
The fact that differential protections, ratified in Verdugo-Urquidez, exist for Americans subject to U. S. government surveillance versus non-Americans, provides an enormous incentive for the NSA and the other surveillance agencies to define away the category of communications subject to “American” protections. Now, any American using encryption, any American communicating with or about a target of an investigation, and even Americans communicating with those Americans, are not Americans any more for surveillance purposes. What started as an attempt to deny a foreign national the protections of the Fourth Amendment, has become a loophole that allows the denial of the Fourth Amendment to millions of American citizens.
These facts also show that the territorial focus of Verdugo-Urquidez has been thoroughly abused in the context of the Internet, and is impractical in a digitally interconnected world. It is so difficult to determine from outside the system the nationality of the people communicating, that we have only two choices: to protect everyone, or to protect no-one.
Or, as Brennan and Marshall put it:
“When we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same […] We cannot expect others to respect our laws until we respect our Constitution.”