Protecting Confidential Communications As Property

How confidential are private confidential communications when conducted electronically?  The United States Supreme Court will soon address this question.

The case of Clapper vs Amnesty International USA centers around private conversations that take place electronically.  Lawyers fear that powers granted to the government under the Foreign Intelligence Surveillance Act could unintentionally grant access to protected lawyer-client communications.  The ultrasecret court set up to handle such cases is supposed to ensure that abuses do not happen.  Since, however, there is no public oversight of this court, lawyers opposed to the statute argue that it is difficult to hold it to account. 

SCOTUSblog speculated that the line of questioning followed by Justice Anthony Kennedy might indicate that he favors stronger limits on the government.  He seems concerned that defense lawyers may be harmed by the program already.

Cato Institute writers expanded upon this reasoning by stating:

In Clapper v. Amnesty International, the Gun Owners Foundation, Gun Owners of America, Inc., the U.S. Justice Foundation, the Downsize D.C. Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund have argued that the Court should recognize a property interest in confidential communications. Doing so would more clearly establish the standing of the respondents in this case to challenge the global wiretapping program Congress established in the FISA Amendments Act of 2008.
William J. Olson, lead counsel on the brief, articulated the issues well in an email distributing it:

Our amicus brief in the Clapper case extrapolates from the court’s holding in Jones and identifies the property interests at stake in this case as confidential communications that are critical to the practice of law and of the enterprise of journalism. Using a property analysis, the citizens in Clapper have a protectable property interest in their electronic communications as they do in their written communications. Thus, even though plaintiffs are not “targeted” by the Government, the Government’s contention that their search and seizure of plaintiffs’ communications is only “incidental” is unavailing.

If the court does as FISA's opponents suggest, this would represent a very strong barrier between the government and its use of electronic surveillance without warrants. 
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