CA2 has posted the oral argument audio in US v. Hasbajrami, an important case argued yesterday on the 4th Am and Sec 702 surveillance. You can download the 78-minute, 63.4 MB audio file at this link: ca2.uscourts.gov/decisions/isys…
"The word 'target' doesn't have a lot of Fourth Amendment history." -- Judge Lynch, who is (as expected) very active in the argument.
Lynch is pressing defense counsel on the idea that, traditionally, if the govt is monitoring someone lawfully and another person enters the monitored convo, isn't the monitoring still legal? Inserting of the new person doesn't change things.
The challenge here, in my view, is that it's different if the monitoring is legal b/c no one monitored has 4A rights and then someone w/ 4A rights enters the convo. See here for why: stanfordlawreview.org/wp-content/upl…
See, in particular, pages 311-16.
Lynch later asks an intriguing question: If you accept that the initial collection of the convo was lawful, what conventional doctrine wouldn't then allow use of it w/o legal process? I think the answer is in US v. Ganias, and in particular the unanswered questions in Lynch's /1
en banc opinion with J. Livingston. Which doesn't answer if it's ultimately lawful, but that's the set of issues that needs to be considered, I think. Cf. Use Restrictions on Non-Responsive Data, texastechlawreview.org/wp-content/upl…
First mention of Carpenter: 35-minute mark, from Judge Lynch, who is now raising and debating counterarguments to his own earlier arguments to counsel.
