Modern American privacy law begins with Charles Katz, an accused gambler, making a call from a Los Angeles phone booth. In a now-famous opinion, Justice John Marshall Harlan concluded that the US Constitution protected Katz's "expectation of privacy" in his call. American phone booths are now a thing of the past, of course, and Americans' expectations of privacy seem to be fast disappearing, too.

In two significant but almost-completely overlooked legal briefs filed last week, the US government defended the constitutionality of the Fisa Amendments Act, the controversial 2008 law that codified the Bush administration's warrantless-wiretapping program. That law permits the government to monitor Americans' international communications without first obtaining individualized court orders or establishing any suspicion of wrongdoing.

It's hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.

What's surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA's large-scale surveillance of Americans' international telephone calls and emails:

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

That phrase – "if not completely eliminated" – is unusually revealing. Think of it as the Justice Department's twin to the NSA's "collect it all".

The government filed the legal briefs last week in two criminal cases, one in Colorado and another in Oregon, in which the defendants are being prosecuted based on evidence acquired under the Fisa Amendments Act. Both defendants have sought to have the government's evidence suppressed on the grounds that the surveillance law is unconstitutional. (The ACLU joined with the defense team in the Colorado case to make that argument.)

In support of the law, the government contends that Americans who make phone calls or send emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans' privacy rights are further diminished in this context because the NSA has a "paramount" interest in examining information that crosses international borders.



And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can't reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn't name them – might be monitoring those communications, too.

The government's argument is not simply that the NSA has broad authority to monitor Americans' international communications. The US government is arguing that the NSA's authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

In the government's view, there is no need to ask whether the 2008 law violates Americans' privacy rights, because in this context Americans have no rights to be violated.

The government's arguments deserve more attention than they've received. They show how high the stakes are not just in the Colorado and Oregon prosecutions but in all of the cases in which the government is relying on evidence acquired under the 2008 law.

They also bring into sharp relief the substantial distance between the limited legislative reforms currently being considered by Congress and the deeper reforms that are actually needed.

While the current version of the reform bill, the USA Freedom Act, would make some necessary changes to a handful of surveillance laws, it would not narrow the surveillance powers granted by the 2008 law. Nor would it narrow the surveillance powers the NSA derives from the presidential directive that regulates the NSA's surveillance activities outside the United States.

Reform is urgently necessary, and years overdue, but this imperfect legislation would leave some of the government's most sweeping authorities intact – and to a large extent it would leave the privacy rights, of Americans and non-Americans alike, to the mercy of the NSA. The US Congress should pass the USA Freedom Act, but this legislation must be the beginning of reform, not the end.