Dangerous New Uses for Government Eavesdropping

APRIL 27, 2016 1:22 PM EST
By Noah Feldman

The U.S. government claims the right to eavesdrop at-will on your e-mail when you're writing to someone who lives abroad. Now it wants to be able to use those e-mails to convict you of a crime.

That's what's happening to Aws Mohammed Younis al-Jayab -- and he’s not the only one. The legal basis is the 2008 Amendment Act to the Foreign Intelligence Surveillance Act, which says the government may monitor communications from within the U.S. to foreigners abroad, or vice versa, without first obtaining a warrant to authorize the surveillance.

No court has yet reviewed the law’s constitutionality because until 2013 the government didn’t tell anyone that it had been doing this. The Supreme Court ruled in 2013 that no one had legal standing to challenge the law based merely on the speculation that it might be applied to them.

Jayab is different. The government can charge him with a crime only by using evidence gathered from his intercepted e-mails. So it’s put him on notice that it intends to rely on material collected without a warrant per the FISA. That gives Jawab standing to challenge the law.

Rightfully, Jayab should win -- and the details of his case show why. It’s one thing for the government to intercept communications with foreigners for intelligence-gathering purposes. I would consider that a close debate. But it’s quite another to use those intercepts as evidence at trial. Such use badly erodes our Fourth Amendment protections, especially in an era when so much electronic communication spans the globe and where we move across borders frequently.

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http://www.bloombergview.com/articles/2016-04-27/dangerous-new-uses-for-government-eavesdropping