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

[David Farber <dave () farber net>]

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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