Secret Court Takes Another Bite Out of the Fourth Amendment

Defenders of the NSA’s mass spying have lost an important talking point: that the erosion of our privacy and associational rights is justified given the focus of surveillance efforts on combating terrorism and protecting the national security. That argument has always been dubious for a number of reasons. But after a November 2015 ruling [.pdf] by the secretive Foreign Intelligence Surveillance Court (FISC) was unsealed this week, it’s lost another chunk of its credibility. The ruling confirms that NSA’s warrantless spying has been formally approved for use in general criminal investigations. The national security justification has been entirely blown. 

That’s because the secret court, over the objection of its hand-selected amicus, determined that once information is collected by the NSA for “foreign intelligence” purposes under section 702 of the FISA Amendments Act, that information can be searched by the FBI for regular criminal investigations without any need for a warrant or prior court oversight. Although the FISC has signed off on the FBI’s procedures claiming this authority for years, this ruling from late 2015 may be the first time the FISC has actually considered their legality.

Section 702 is the law that the government uses to conduct two massive NSA programs: access to communications as they travel the Internet backbone (called Upstream) and access to communications stored with service providers like Google and Facebook (called Prism).

According to this ruling, communications like email and Facebook posts collected by the government under the broad authority of section 702 that the FBI has access to—including all “raw” Prism data—can be mined for any “evidence of a crime” and used against you, even if you’re inside the United States.

The amicus appointed by the FISC, Amy Jeffress a former DOJ attorney, argued:

the FBI may query the data using U.S. person identifiers for the purposes of any criminal investigation or even an assessment. There is no requirement that the matter be a serious one, nor that it have any relation to national security…[T]hese practices do not comply with….the Fourth Amendment. 

The FISC Court did not listen to its amicus. Instead it applied some faulty (not to mention scary) bootstrap reasoning. 

The court questioned whether it’s constitutional for the FBI to query NSA intelligence databases to find information to use against Americans in regular criminal investigations unrelated to national security. Government lawyers suggested that “targeting” and “minimization” procedures erase the harm that surveillance causes to Fourth Amendment principles, though we’ve explained why those procedures impose inadequate limits and allow unconstitutional spying to continue.  We’re also reminded of Justice Roberts’ recent observation: “the Founders did not fight a revolution to gain the right to government agency protocols.”

Nevertheless, the FISC court decided that, instead of determining whether the Fourth Amendment was violated by the specific use of NSA collected information against particular Americans in criminal investigations, it only had to determine whether the program “as a whole” violated the Fourth Amendment.  To do that, it perverted a prior case decided by the FISA appeals court, called the FISCR.

That case, In Re Directives [.pdf], upheld national security surveillance as a “special need” not subject to the Fourth Amendment’s normal warrant requirement, and reasonable specifically because this surveillance was not used for “garden-variety law enforcement.” While we disagree with the In Re Directives case, it plainly rested its analysis on when “surveillance is conducted to obtain foreign intelligence for national security purposes.”

But according to the FISC, that justification only applies at the time of initial collection (including the kind of massive overcollection that is occurring under 702) and can be completely abandoned once the government has its mitts on your communications. 

The upshot is that the government needs a national security or foreign intelligence purpose only for the initial collection and analysis of information. Once it has communications in its custody, those limitations no longer apply and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant. 

Of course we know that the government has lost track of how many things are illegal. So it’s open season. 

This is a constitutional problem. Quite apart from the bait and switch opportunities it creates for the FBI, it’s like saying it’s OK for school officials to set up a drug testing program for non-law enforcement purposes, and then once it’s set up, they can completely abandon that purpose and start testing students to simply to put them in jail. Or that the government can set up a program to test pregnant women for drugs with a goal to get them into treatment, but also hand the information over to the police and use the threat of prosecution as additional leverage.

The Supreme Court rejected the latter scenario as unconstitutional in Ferguson v. City of Charleston in 2001. Other Supreme Court cases make clear that even holistic, programmatic assessments of Fourth Amendment “reasonableness”—like the one the FISC engages in here—must take into account the invasiveness of these programs. Searching vast databases containing the full content of emails and every website visited by nonsuspect Americans without a warrant is about as invasive as it gets.

This FISC decision is flawed for all of these reasons. But we won’t get a chance to present those flaws to the court of appeals, much less the US Supreme Court, because in cases before the secret surveillance court only the government, not the amicus (or those of us whose communications are swept up in these massive programs) is allowed to appeal.

Still, two things are good about this decision. First, we know about it. Second, the court appointed an amicus who did try to get the court to recognize at least some of the Fourth Amendment problems with the government’s actions. Those are both new developments for the FISC, and both are due to parts of the USA Freedom Act that EFF championed. 

We still have a long way to go, but without those sections of the law, we wouldn’t be able to raise our concerns here. Just as important, we wouldn’t be able to use this bad decision to educate Congress about yet another reason why it should let section 702 expire when it comes up for renewal in December 2017.