Search, Seizure, and Extraterritoriality

Abstract

This paper analyzes how recent courts have approached the question of if, and how, the Fourth Amendment Warrant Clause operates extraterritorially as applied to U.S. citizens. For example, if the U.S. government seeks to wiretap a suspected U.S. citizen turned al-Qaeda member, must a warrant be obtained? What if the individual is simply a U.S. citizen traveling abroad? Or further, what if it is an American corporation, the assets of which the U.S. government seeks to freeze in another country? In such scenarios, courts have not provided a consistent answer to whether the Fourth Amendment applies, and more importantly, what it requires if its protections do in fact apply outside of American borders. The paper grapples with these issues, bringing together two lines of doctrine which, as of yet, have not been discussed together in the recent decisions. Specifically, domestic Fourth Amendment doctrine has provided little guidance to courts answering the above question, while another line of cases grappling with extraterritoriality more generally has been somewhat misapplied to provide make shift solutions. This paper argues that these two lines of doctrine must be considered together to more closely analyze the question of whether the Warrant Clause operates abroad.