more on NSA Hasn't Read 4th Amendment (Apparently)

[David Farber <dave () farber net>]

Begin forwarded message:

From: Harvey Silverglate <has () harveysilverglate com>
Date: January 25, 2006 11:29:44 AM EST
To: dave () farber net
Subject: RE: [IP] more on NSA Hasn't Read 4th Amendment (Apparently)

Bob is in error. Under the Fourth Amendment, only "reasonable"  
searches and
seizures are allowed. There is a requirement that all searches and  
seizures
must be pursuant to a court-issued search warrant, and then they are  
deemed
reasonable UNLESS it turns out that the issuing magistrate did not have
sufficient "probable cause" to issue the warrant (that is, the  
application
for the warrant was factually and legally short of giving "probable  
cause").
But the courts have approved over the decades certain "exigent"
circumstances where a search is deemed reasonable even in the absence  
of a
warrant - such as an automobile stop under suspicious circumstances,  
or a
search pursuant to an otherwise lawful arrest, or a search of  
premises where
clearly the evidence would disappear if there were a delay  
sufficiently long
to obtain a search warrant. Searches in all of these circumstances --
pursuant to a warrant issued upon presentation of probable cause to a  
judge
or magistrate, or performed under "exigent" circumstances justifying the
waiver of the warrant requirement -- are deemed "reasonable" within the
meaning of the Fourth Amendment.
                Harvey Silverglate

-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Wednesday, January 25, 2006 9:50 AM
To: ip () v2 listbox com
Subject: [IP] more on NSA Hasn't Read 4th Amendment (Apparently)



Begin forwarded message:

From: "Atkinson, Robert" <rca53 () columbia edu>
Date: January 25, 2006 9:36:56 AM EST
To: dave () farber net
Subject: RE: [IP] NSA Hasn't Read 4th Amendment (Apparently)

We should probably let the Supreme Court decide.

But, my recollection from law school is that Warrants are only  
required for
what would otherwise be an "unreasonable" search and seizure. That is
because, quite obviously, not every search and seizure requires a  
Warrant.
So, the first step in a Fourth Amendment inquiry is to classify the  
search
or seizure as either "reasonable (without a Warrant)" or "unreasonable
(without a Warrant)".  Warrants based on "probable cause"
are then required for the latter category.

What is "reasonable" and "unreasonable" has evolved and will evolve over
time, based in part on citizens' changing expectations and technological
developments. (Do citizens expect e-mail to be secure when many  
arrive with
warnings that state that they are not secure and can be intercepted  
by third
prties?) Reasonableness is also based on the specific circumstance of  
the
case in question (i.e., "exigent circumstances" can make what would  
be an
"unreasonable" search or seizure into a "reasonable" one that doesn't
require a warrant).

The reality is that the Fourth Amendment is flexible and evolving.
That's why there are so many Fourth Amendment cases for the Supreme  
Court.

Bob

-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Wednesday, January 25, 2006 7:48 AM
To: ip () v2 listbox com
Subject: [IP] NSA Hasn't Read 4th Amendment (Apparently)



Begin forwarded message:

From: Zach Sparer <zsparer () comcast net>
Date: January 25, 2006 1:29:28 AM EST
To: dave () farber net
Subject: NSA Hasn't Read 4th Amendment (Apparently)

For IP.



http://onegoodmove.org/1gm/1gmarchive/002801.html#002801



The link points to a video of a discussion between the creator of the
domestic eavesdropping program -- NSA's Michael Hayden -- and a reporter
during a briefing.  Video is a snip from Keith Olbermann's Countdown.



---------------------------



Text of Fourth Amendment:



"The right of the people to be secure in their persons, houses,  
papers, and
effects, against unreasonable searches and seizures, shall not be  
violated,
and no Warrants shall issue, but upon probable cause, supported by  
Oath or
affirmation, and particularly describing the place to be searched,  
and the
persons or things to be seized."



-------------------------



Transcript of video:



Reporter: My understanding is that the Fourth Amendment of the  
Constitution
specifies that you must have probable cause to be able to do a search  
that
does not violate an American's right against, uh, and unlawful  
searches and
seizures.



Hayden: Uh, the Fourth Amendment actually, uh protects all of us from
unreasonable search and seizure. That's the test.



Reporter: But the...but the...measure is probable cause.



Hayden: The Amendment says "unreasonable search and seizure."



Reporter: But does it not say "prob--



Hayden: No.  The Amendment says "unreasonable search and seizures."



Reporter: The legal standard is probable cause.



<break>



Hayden: Just to be very clear, okay, and believe me, if there is any
Amendment of the Constitution that the employees of the National  
Security
Agency are familiar with, it's the Fourth.  Alright?  And it is a
reasonableness standard in the Fourth Amendment.



-------------------



This isn't funny.  It's not sad, and it's not "nothing."  This is scary.



Zach Sparer

Law Student, University of Pittsburgh







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