The NSA may be collecting data on Americans in the United States. What about Americans abroad?
“Foreign intelligence” is a term threaded through the surveillance debate, with a general understanding that collecting that kind of information is okay. The term is defined in a territorial sense, in the sense of intelligence originating outside of the United States. Under the FISA Amendments Act, the Attorney General and the NDI are required to adopt “targeting procedures that are reasonably designed to ensure that any [intelligence acquisition] is limited to targeting persons reasonably believed to be located outside the United States.”
If intelligence is “foreign” in that sense, the gloves seem to come off. (We’re talking not just metadata, but the contents of emails and other electronic communications, the kind of stuff which in the ordinary case clearly requires probable cause.) The FISA Amendments Act does bar “intentionally target[ing] a United States person reasonably believed to be located outside the United States.” But there doesn’t seem to be any mechanism to police that constraint or the citizenship determination (or at least not any mechanism that has been publicly disclosed).
If on the internet it’s difficult to draw the domestic/foreign line in territorial terms, it’s only more so in terms of citizenship. The surveillance is all secret, so there’s no chance to declare yourself an American. There’s really no way for the Government to know whether you are a citizen or not. There is no master list of US citizens. For every John Smith Bank of America employee temporarily in London (who might be easily flagged as a US citizen), there are many who have acquired citizenship in less obvious ways and who don’t wear their American identity on their electronic sleeve. Does the NSA have a citizenship algorithm?
This may be as much a problem with the doctrine as with the practice. Under the conventional reading of the Supreme Court’s 1958 decision in Reid v. Covert, constitutional rights are portable to US citizens. If you’re American, you have the same rights against governmental action in Paris as you do in Detroit. But even in the non-virtual world, it’s tough to know the citizenship status of people behind foreign doors you are about to knock down. There’s no evidence that anyone in the intelligence apparatus is even trying to stay true to the constitutional rule. Perhaps yet another reason for several million expatriate Americans to feel second class.