On Orin Kerr and the Constitution across borders

|The Volokh Conspiracy |


As faithful readers of the VC know, Orin Kerr and I occasionally disagree about questions of Internet law, an area where our interests overlap considerably. But Orin's recently-published paper on "The Fourth Amendment and the Global Internet" is a must-read —authoritative and comprehensive, a terrific resource for anyone thinking seriously about what Orin calls "the clash between the territorial Fourth Amendment and the global Internet"—application of 4th Amednment doctrine to Internet communications, and the many difficulties of "adapt[ing] to the reality of a global network in which suspects, victims, and evidence might be located anywhere." Legal scholarship at its best.

He covers a lot of ground, starting with the Supreme Court's decision in United States v. Verdugo-Urquidez, which held that a person must have sufficient "voluntary connections" to the United States—either lawful presence in the United States at the time of the search or some substantial connection such as citizenship or lawful residency—to enjoy the protection of the Fourth Amendment at all. That is, "some people in the world have Fourth Amendment rights, and many others do not," which leads him to ask and analyze three questions: "how should online contacts with the United States factor into whether a person has Fourth Amendment rights? Second, how does the Fourth Amendment apply when the government does not know if a target has sufficient contacts to establish Fourth Amendment rights? And third, how does the Fourth Amendment apply when the government monitors communications between those who lack Fourth Amendment rights and others who have those rights?"

Next, he asks a series of questions assuming that the subject of monitoring has Fourth Amendment rights: how does the subject's location (or the location of the data) affect the analysis of whether the search was "unreasonable" within the meaning of the Fourth Amendment?

It's a rich mine of interesting and important law. But for me, the really interesting question is the one he expressly) sets aside: is the Verdugo-Urquidez rule itself, and the strict territorial demarcations on which it is based, the right one for the 21st century Constitution? Orin takes the Verdugo rule as a given; as he notes, he "accepts the basic principles of existing doctrine and considers how courts should apply those principles in light of the unprecedented globalism of today's Internet." Fair enough. But why don't we extend Fourth Amendment rights to foreigners outside of our borders? The Fourth Amendment, of course, only prohibits "unreasonable" searches and seizures—why should the government be empowered to behave unreasonably towards anyone, with or without a citizenship or residency or locational connection to the United States? Why should the Constitution not prohibit US agents from searching the contents of Angela Merkels e-mail inbox?

It's a question that comes up frequently in Internet law, in connection with other constitutional rights. it was, for instance, very much central to the debates about SOPA (Stop Online Piracy Act) a few years ago. The animating principle behind SOPA—which targeted "foreign infringing websites" for elimination through the Domain Name System—was one that was premised on the notion that the operators of "foreign infringing websites" have no due process rights that we have to recognize (because, like the 4th Amendment, the 5th Amendment due process guarantees have a territorial component), so we can summarily remove their websites from the global Internet without compunction, in a manner that would be unconstitutional if applied to US citizens. It struck me as a flawed view of the world then, and it does again in reading Orin's article.

[Update: Readers interested in the question of whether protection against unreasonable searches and seizures was considered a natural right by the Framers should have a look at the Comments below, where Orin and several commenters have an interesting and useful discussion about that question.]