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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