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Congress calls for change to NSA spying law

tom dial Silver badge

The pertinent part of the fourteenth amendment, only part of which is quoted, reads

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It is primarily or exclusively a restriction of action by states, not the federal government.

The legal constraints on "spying" on persons within US jurisdiction apply to those who are citizens (anywhere) or are present legally in the US, whether as immigrants or visitors. It would be interesting to see whether an illegal alien could win a case on a claim of surveillance unconstitutional under the fourteenth amendment, say by arguing successfully that evidence collected could not be used in a trial. The fourth amendment, which also covers "people" without reference to citizenship, probably would be a better choice, although law enforcement officials probably obtain warrants as a standard practice in nearly all cases anyhow.

Signals intelligence is a bit weird, because it is not always possible to ascertain the communicants' citizenship or location, and also because capturing the communications that are wanted will very often necessitate capturing and discarding a much larger volume of communications that are not wanted. That is true for capture of radio transmissions (which still continues) and it is true for capture of internet data communication. It is a matter of opinion to what degree the mechanically necessary capturing and discarding constitutes surveillance, as it also is a matter of opinion whether even maintaining a database of all domestic telephone metadata constitutes surveillance of all. It might actually matter whether it is looked at and if so what legal process stands in the way.

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