Chapter 18 - The Fourth Amendment and
National Security
Olmstead v. United States, 277 U.S. 468
(1928)
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Did this court apply the 4th amendment to
wiretaps?
How did you make phone class in those days?
Were phone lines all private?
How might this have influenced the court?
Federal Communications Act of 1934
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Makes it a crime for any person ‘‘to intercept and
divulge or publish the contents of wire and radio
communications.’’
Did the court apply this to federal agents?
Did the court apply it to national security?
Katz v. United States, 389 U.S. 347 (1967)
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Did the Court find a constitutional right to phone
privacy?
Would this apply to private persons?
What limits did the Omnibus Crime Control Bill of
1968 set on wiretapping?
 What if the phone company hears a suspicious
conversation as part of routine monitoring?
 Did the Bill address national security?
US v US District Court (Keith), 407 US 297
(1972)
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What is the underlying crime?
Was there foreign involvement?
What was the nature of the evidence gathering?
Was there a warrant?
How were the searches authorized?
The Government's Argument
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Did the Omnibus Crime Control Bill control?
What language excluded this sort of crime?
What is government arguing that this clause
means?
Does the court buy this?
What Does the Constitution Require?
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What is the real question before the court?
 ‘‘Whether safeguards other than prior authorization by
a magistrate would satisfy the Fourth Amendment in a
situation involving the national security. . . .’’
What is the argument that the AG is a substitute for a
warrant?
Why does the court remind us that it is most suspicious
of the government in national security cases?
 Why does this undermine the AG as a substitute?
Issues with Warrants
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What if they are not prosecuting you - how do you
contest a search?
 How do you even know they are watching you?.
Why does the government not want to ask a judge to
approve a warrant?
 Are these legitimate concerns?
What does the court rule?
 Does the court leave the door open for statutory
modifications of the warrant requirement?
Title III (18U.S.C. §2518(1)(b)-(d) (2000))
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What are the specific requirements of Title III for
electronic communications?
What other electronic communications are protected by
Title III?
Are these greater than the constitutional requirements for
a warrant?
Why are these problematic for national security
surveillance?
Could this be cured by requiring only the constitutional
minimum?
Domestic organizations with foreign objectives
Zweibon v.Mitchell, 516 F.2d 594 (DC Cir. 1975)
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What is the group?
What foreign policy problems where they
causing?
Did the DC court require a warrant?
What about for wiretapping American citizens
living in Berlin?
US v. Ehrlichman, 376 F Supp 910 (1974),
affirmed 546 F2d 910 (1976)
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Who did the break in?
Whose office did they break into?
 Why?
Did the defendants have a warrant?
Who is on trial?
Is this a fight over the admission of warrantless
information?
Why do warrants matter in this case?
The Authority
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Was there any urgency in this break in, i.e., did they have
to get a warrant?
Would a judge have given them a warrant?
 What legal issues are involved in this search?
Where do the defendants claim to get the legal authority
for the search?
 Is this a foreign intelligence case?
Can the president order this?
 Why does it not matter anyway in this case?
US v. Truong Dinh Hung, 629 F2d 908
(1982) (post-FISA)
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What was Truong doing that lead to this case?
How was he caught?
Why didn't the government arrest him at once?
How did they conduct the investigation?
How was this authorized?
Who do they catch as the source?
Admitting the Evidence
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How is this case distinguished from Keith?
What factors did the court base this finding on?
Why do Defendants say the evidence should not be
admitted?
 Does the nature of the surveillance change once they
have established that defendant is selling secrets?
 How does the primary nature of the search change at
this point?
What test does the government want for deciding when
national security surveillance standards apply?
What did the circuit court order?
The Primary Purpose Doctrine
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What was evidence that the nature of the search
changed in Truong?
What does the government need to do at this
point if it wants to continue the search?
What if the national security search shows up
unrelated crimes by persons not involved in
national security activities?
 For example, sellers of clandestine credit card
readers who sell to terrorists