II In emphasizing the foregoing, I do not for a moment mean to suggest that this case is not important, or that significant non-privacy interests may not justify a congressional decision to distinguish records stored domestically from those stored abroad. It is important to recognize, however, that the dispute here is not about privacy, but rather about the international reach of American law. That question is important in its own right, and some further clarifications are in order about the division of responsibility between the courts and Congress in addressing it. The courts have a significant role in the protection of privacy, because the Constitution sets limits on what even the elected representatives of the people can authorize when it comes to searches and seizures. Specifically, the courts have an independent responsibility to interpret the Fourth Amendment, an explicit check on Congress’s power to authorize unreasonable searches. What searches are unreasonable is of course a difficult question, particularly when courts are assessing statutory authorizations of novel types of searches to deal with novel types of threat. In that context, courts need to be especially cautious, and respectful of the judgments of Congress. See, e.g., ACLU v. Clapper, 785 F.3d 787, 824–25 (2d Cir. 2015). But it is ultimately the courts’ responsibility to ensure that constitutional restraints on searches and seizures are respected. Whether American law applies to conduct occurring abroad is a different type of question. That too is sometimes a difficult question. It will often be tempting to attempt to protect American interests by extending the reach of American law and undertaking to regulate conduct that occurs beyond our borders. But there are significant practical and policy limitations on the desirability of doing so. We live in a system of independent sovereign nations, in which other countries have their own ideas, sometimes at odds with ours, and their own legitimate 6

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