Page 152 - Privacy in a Cyber Age Policy and Practice

140 PRIVACY IN A CYBER AGE

a. Under the U.S. Constitution
As with the phone records collection program, critics have charged the
government with a violation of Fourth Amendment rights in the case of
PRISM. NSA officials have asserted that non-U.S. persons do not enjoy
Fourth Amendment protections. 130 This reasoning is backed by the courts.
In United States v. Verdugo-Urquidez, the court held that the “Fourth
Amendment does not apply to the search and seizure by U.S. agents of
property owned by a nonresident alien and located in a foreign country,”
on the grounds that “the people” protected by the Constitution’s Fourth
Amendment “refers to a class of persons who are part of a national com-
munity or who have otherwise developed sufficient connection with this
country to be considered part of that community.” 131 The majority did not
offer a clear definition of “sufficient connection” but maintained that the
Fourth Amendment did not apply to property located abroad that belonged
to a foreign national with no residential connection to the United States. 132
As former Attorney General William Barr put it, “our conventional
criminal justice system is designed to apply to people within our politi-
cal community, but it doesn’t make sense to extend those rights to foreign
enemies who are trying to slaughter us. These people are just like the Nazi
saboteurs.” 133 On what ground can terrorists, who are willing to kill and
die to undermine the values that undergird the American system of justice,
claim to enjoy the very rights and privileges they seek to destroy? 134
In contrast, the dissenting justices, Brennan and Marshall, challenged
the majority’s interpretation and contended that the respondent, Verdugo-
Urquidez, had developed a sufficient connection with this country because
“our Government, by investigating him and attempting to hold him
accountable under U.S. criminal laws, has treated him as a member of our
community for purposes of enforcing our laws. He has become, quite liter-
ally, one of the governed.” 135 In short, Brennan and Marshall argued that
the government’s authority to criminalize, investigate, and prosecute both
domestic and foreign conduct originates in the Constitution. As such, the
actions the government takes in enforcing that authority is similarly sub-
ject to constitutional constraints. The two justices further affirmed that
in light of the increasingly globalized reach of American law enforce-
ment and the government’s efforts to “hold foreign nationals criminally
liable under federal laws for conduct committed entirely beyond the ter-
ritorial limits of the United States that nevertheless has effects in this
country,” the extension of constitutional protections to foreign nationals
was particularly critical. 136
The majority, however, maintained that such an interpretation would have
a detrimental impact on not just law enforcement’s but also the military’s
activities abroad, as non-Americans with no substantive links to the United