Did Obama Just Destroy the U.S. Internet Industry?

The reason that foreigners want to have their contracts adjudicated in US courts, one of the main reasons they buy US real estate or buy US Treasuries and trade the NYSE for much lower expected returns than they would demand elsewhere, is that they have faith in the rule of law in the US. Not perfect faith, but real faith. Not faith in the moderation and good intentions of the US (or CA, NY or MD) government (though they have some of that too) but faith that their US interests are protected in law by things like the Takings Clause of the US constitution - and usually by statute law as well - even while they go on living outside the US as non-citizens of the US. Nor is this something that matters only to foreigners: this trust from foreigners is one of the major pillars of the US' wealth and power. Look at places like the PRC or the UAE http://en.wikipedia.org/wiki/DIFC_Courts which are avidly trying to cultivate an image as a place where your real estate won't be swiped and your court case won't be nobbled to favour a crony.

Now, slowly but steadily, these non-resident aliens (like me) are cottoning on to what FISA 702 means for them. And what it seems to mean is that the rule of law doesn't apply to their Facebook or Google accounts the instant the Federal government chooses to get involved. As a non-lawyer reading FISA 702 http://www.govtrack.us/congress/bills/110/hr6304/text the remarkable thing is that it's not establishing a process where the US government presents a vague counter-terrorism or national-security rationale to a secretive, questionably-independent court. It seems to be a process where the US government can help itself to anything it wants from any specified non-resident alien without even having to state any motivation at all, and in which the FISC court's only role is to confirm that the targets (probably!) aren't US citizens or residents. Does the government feel like doing a spot of industrial espionage on your company's email or file uploads? Sam's your uncle. There aren't any reasons even in principle why the FISC might refuse to issue the FISA order - and the government is spared even the embarrassment of having to state its intentions in court. Your internet company could appeal, but the whole process seems to work on the basis that as a non-resident alien you'll have no applicable Fourth Amendment rights, and 702 seems to clear aside any rights you might have under statutory law ("Notwithstanding any other provision of law"). And in any case what information about the Federal government's interest in you would Google or Facebook have to base an argument on? And once it has your data the US seems to be free to do nearly anything it wants with it - share it with your US competitors? Why not? - unless it tries to take the data to court. (See sec. 106 http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg178... )

Now it's true that CIA could (and maybe does) attempt to hack the EADS servers in (I'm guessing) Toulouse in search of engineering goodies to share with Boeing, with just as much impunity under US law. But at least EADS has a chance to try and secure its systems from hacking attempts, instead of being instantly defeated the moment the US decides to file some paperwork, and it can get whatever benefit it can from the fact that the industrial espionage would be illegal under French law. So FISA 702 seems to completely reverse the normal position: in legal terms your person and your property are usually better protected from the US government inside the US than outside it. And of course the final touch is that you'll probably never get to hear about any of the intrusions, so even if you're the world's richest person or organisation with all the best lawyers they won't be doing you any good. It seems that the only legal restraint on the US' behaviour with the online data of non-resident aliens is that it can't request a wide-ranging search like "everyone in Pakistan who searched for 'X'", though even that may not be the case: https://news.ycombinator.com/item?id=5845878 .

(Again IANAL. If someone qualified can correct important errors in my understanding of FISA I will be very grateful!)

So, imagine that the US Congress passed a law permitting the Federal government to expropriate any US property for almost any purpose from any non-resident alien at any time, for no particular reason, without compensation or even notice. Throw in some very effective judicial secrecy into the process established by law as well. Provide some unverifiable assurances that the Federal government will probably only choose to use the law against very bad people. Imagine that this law appeared to be holding up nicely against Congressional and legal challenge, at least for now. And please bear in mind that no non-resident alien would give a hot damn about which intriguing Constitutional arguments were being used to (rightly or wongly) deny them the protection of the Fifth Amendment. How would Wall Street, US real estate and the broad US economy be affected? It's not a perfect analogy at all, but it gives you some idea of what may be coming down the line for US internet companies.

The rights are inherent in the nature of the situation (i.e., humans living in a social order based on equality of individuals under the law). The scope of the protection of those rights varies from jurisdiction to jurisdiction (and vanishes entirely where jurisprudence is slave to political demagoguery).

The fourth Amendment isn't the source of the right, it guarantees that the right won't be abridged by government action. As the Constitution is defined by and for the people of the United States, that the protections "guaranteed" (in quotes because the guarantee has to be maintained by vigilance) don't extend to those who are not the people of the United States isn't logically surprising, but can remain somewhat disappointing (politically and ethically).

Prepare to be jumped on by "anti-imperialists".