Introduction by Ryan Goodman:
Should the FBI be allowed to access the content of Americans’ communications–emails, texts and phone calls–without obtaining a judicial warrant? That’s a key question facing Congress, with a looming deadline of April 30th. The question is wrapped up in the reauthorization of the Foreign Intelligence Surveillance Act (FISA) Section 702, which will sunset at the end of this month.
I had the opportunity to interview Andrew Weissmann, who served as FBI General Counsel in addition to other positions in the Department of Justice. Below are three highlights from our conversation. Our conversation is available as a video on this page as well as YouTube and soon as a podcast.]
A bit of background before the excerpts below: Section 702 allows U.S. intelligence agencies to collect the email, text, and phone conversations of foreign nationals located in foreign countries. As a byproduct, Americans’ communications are caught in the surveillance net as well. Subject to limitations that Congress introduced in 2024, the FBI can dip into that vast database to look for communications of Americans – without a warrant and without probable cause of wrongdoing.
Congress is presented with a three-prong fork in the road: reauthorize the tool as is, reform it with new warrant requirements, or let it sunset entirely. (For competing views on this topic at Just Security, see analysis by George Croner and by Elizabeth Goitein and Hannah James.)
Below are some key highlights, and below the highlights is the full transcript.
1. On the importance of Section 702 for U.S. national security
Weissmann:
I’m a big fan of 702 in the sense that it is–I could go on and on–but there are independent, public reports about how vital 702 is to our national security. So, people should know. I come at this discussion with a strong, strong, I won’t say bias, I’d say based on my experience and interest in having the program continue in a usable form, because I think it’s critical to our national security. And I don’t say that about every tool. …
This is one where–and I think I’m backed up by, for instance, the Privacy and Civil Liberties Oversight Board, an independent group that has done reports on Section 702 and its utility. It is an area where it can be difficult to talk about it, because not every use is made public, obviously. And so, there have been efforts to make certain things public that show just how important it is.
2. On the relative difficulty or ease of requiring the FBI to obtain a warrant to access Americans’ communications in the Section 702 database
Weissmann:
I want to step back to give some credence to the concern, like to make sure people understand why it’s not a fanciful concern and what the response is.
National security threats are plentiful. … There are just many, many threat streams and there’s a lot for the FBI to cover and other parts of the intelligence community to make sure that we are safe.
And so there are tools that are very useful, not just to prove a crime and to make a case, but there are tools that are very useful to help do that triage. … I’m just for the moment, assuming a good faith actor, is going to be thinking about how the tool can be used to help do that triage, because then there is information in this database that can help, decide is there somebody there? Is there some connection or not?
…
[On getting a warrant:] Now there’s an emergency exception. So if there was something where you really, really thought a bomb was going to go off and or something really horrible was happening, you can deal with it. But to me, the issue, then is just, do you have the resources like, you know, it’s more a resource issue than anything. Like do you have the agents to do it? Do you have the lawyers to do it? Do you have the judges to do it?
And that’s where, one of the proposals that I think is very rational and reasonable and manageable is that it is not always the case that every time the government goes to court to get a tool, to be able to use a tool, that they have to get a full blown search warrant based on probable cause. There are certain types of subpoenas, where the government has to show some factual predication, but not probable cause. They have to show sort of a reasonable basis to believe this is relevant to an investigation. Another showing is even lower than that. They have to just show that something is relevant to an investigation but there’s less factual predication.
But in either of those, including the sort of higher one, where you have to give this some facts to support why this is relevant, those are very short applications. They’re not, you know, 10, 20, 30, 40, 50 pages. They can be five pages. Where the court is–you have to see that it’s a real investigation, that there’s a real concern, and that this, what you’re asking for, relates to what that real investigation is.
What does that do? One: it stops the person who might be doing this for an abusive reason. And by the way, I think this would be fair to have, and I’m not telling you about this in terms of, like, Republican and Democrat. I have the same concern about government action, regardless of party, you can have abuse. The abuse is not limited to a particular political party. And you can also just have bad judgment. You can have the executive being overzealous. And for good reasons, like they’re trying to stop crime, but they can be sort of–-they’re not thinking about this in the most impartial way, or their theory of why this is relevant, or why these facts support it. And ones where you want a judge to have to have some oversight to say “this is not appropriate.” And that seems much, much more doable. If you have that, you know, a lower threshold than probable cause, and it is, it is much faster.
Goodman:
And one of those provisions is 2703(d) of the U.S code. And in the Mueller investigation, the final report lists using it hundreds of times over the short period of the Mueller investigation, just as an example, I think.
Weissmann:
Right, so, our investigation was about 20 months. I think the period where we were sort of active was, you know, obviously was shorter than that because in the last couple of months we’re just writing a report. So it’s roughly about 18 months. And, publicly disclosed in our report is the number of search warrants, the number of 2703(d) orders, which are these orders for electronic communications.
It’s the one which requires a sort of an additional factual predication, not the lowest one. And the number there was 230 during that approximately 18 month period. And just remember, we had one judge, that was the chief judge who is remarkable, by the way. Chief judge Beryl Howell, then Chief Judge Beryl Howell. But that’s just one judge who is handling that. And just remember, she was sitting as a normal Article III judge. She also oversaw the entire Mueller investigation in terms of the grand jury work. So she was, publicly reported, oversaw over 500 full blown search warrants. So meaning it’s not like, oh, we had a full time judge just doing the 2703(d) orders.
This was in addition to all of her regular work. This I mean, this was a part of her regular work. But it suggests that there is capacity there. And obviously Congress, if they thought this is really important and they didn’t think that the FISA court had enough staff for this, that’s within their control to add to that and the Chief Justice, you know, can make sure that the court is adequately staffed.
3. On whether the FBI’s querying the Section 702 database for Americans’ communications is a “search” under the Fourth Amendment, and thus subject to those constitutional limitations
Weissmann:
So the constitutional issue, the traditional view, and the way in which 702 has been defended is that the government complied with the Fourth Amendment when it was targeting non-U.S. persons overseas. And so it legitimately has this information in its holdings, under the Fourth Amendment. And so once it has it, it can do whatever it wants with it, and what it does in a so-called “backend,” meaning after that initial seizure of the information, is not a new Fourth Amendment event. It can do whatever it wants with the information.
And, to be fair, the law developed in this area in a very, very different where they were thinking about the search of a home …
That’s sort of the old law, and it is one that the government relies on to say, “hey, what are you talking about? Backend use? There’s no such thing as a restriction on backend use. So if we want to go into the soup, the 702 soup, we can. Yes, we got it for the purposes of looking at non-U.S person overseas, but now we can look at whatever we want. And we can use it for whatever purpose.”
That’s the traditional answer to why there’s no constitutional issue. The problem with that is myriad. One: with the advent of electronic data and the fact that you don’t just do a search of your home, Ryan, and right then and there, do the triage. Instead, you’re allowed to just take your home and all of its contents, and I’m speaking metaphorically, and you’re allowed to take your home and bring it back to your FBI office. And then, as needed, you just go in and look for what you want to look for. And just to be clear, with electronic data, it’s not just your home. It’s like your entire city. I mean, the volume is enormous.
So, the old law doesn’t really fit that issue anymore because you’re taking so much. So there’s a seizure of the vast, vast amounts that are happening. Not just for the little time of that one search. You’re seizing the whole thing, taking it back to your office, and then periodically searching through stuff. So the law in various ways and various courts, but not yet in the Supreme Court, has been looking at restrictions on so-called backend.
I hate the term backend because it’s not a backend. When you take your home to the FBI and it’s there for, you know, perpetuity essentially, that is a continued seizure, it’s not a backend seizure. It’s not a front-end seizure, it’s a continuing seizure until they get rid of it or return it.
And it’s also a continued search. So, just in terms of the plain language of the Fourth Amendment, I think that you see a lot of pressure that the courts are under, and there’s various district court and court of appeals decisions dealing with restrictions going–even after that initial taking, and even an initial search.
And the second is, and you know, this because, I teach criminal procedure at NYU, which is the idea that even under the old law, once you have something in your possession “you can do anything you want with it” – is not the law. I mean, I just, this is one where it drives me crazy and I say, I, I teach the same thing to my students day in and day out.
Let me give you an example: let’s go back to your home search where the FBI is allowed to look for items A, B, and C. And they take a whole bunch of stuff and they take it back to their office. And let’s assume one of the things is your laptop, and they were allowed to seize it, but pursuant to a search warrant, but they can look for A, B, and C. So the way searches are done with electronic data is it’s very rare that someone’s going to look through page by page for A, B and C. They can, they can do that. But more often they’re going to be saying, they’re going to put in the word A, and look for those items that show up on your computer and do the same thing for B and the same thing for C. But you know what a violation of that court order is that allowed them to search for A, B and C? Looking for D or E or F.
So you can’t just go in. It’s in your possession. You cannot look for anything other than what you were authorized to look for, even though it’s in your possession. So the idea that just because you have it, means that there are no limitations, is not the law. …
That’s sort of a good refutation of the idea that the Fourth Amendment simply does not apply to–and it’s only sort of a policy call as to–what happens to this vast database that you have. And so this, to me, is an area where, as I said, we don’t have a Supreme Court decision on it, but it’s fraught, fraught with issues.
I should point at the Supreme Court, I know lots of people think they’ll never be ruling, sort of on a privacy basis here, but there’s three very, very important Supreme Court decisions that are: it’s the Jones case, the Carpenter case and the Riley case where the Court has very much restricted what the government can do in the face of electronic data. …
This is what I teach my students, which is we don’t know where the Court’s going to go on this, but we are very much in a state of transition because of the world we live in, which is this world of big data.
4. On the litigation risks: How the DOJ/FBI could benefit from a warrant requirement
Goodman:
Especially wearing the cap, you know that you would wear in the past of FBI general counsel: how do you think about that litigation risk in the following sense? Because the courts might very well go in the direction of seeing it the way that you just described it, that this is actually a Fourth Amendment event, and it needs to be regulated by the Fourth Amendment.
If the government is collecting information on people without getting a warrant, and then the government later in time wants to use that information in a national security criminal prosecution, a criminal case, is the government running a litigation risk that would be reduced by statutorily, let’s say, imposing a warrant requirement?…
Weissmann:
It is a proper way to think about it. It is a complicated issue. I’ve had that exact issue of cases coming down. I was the FBI general counsel when the Jones decision came down about GPS tracking. And you do think about not just the case and what it means in terms of what you have to do for that case. But you think about: where is the Court going?
Now there are lots of issues and lots of defenses. And but I can tell you, when you have an area that is, where it starts looking like it, it is gray now or it may very well be a problem going forward, the sort of traditional advice that you give is, can you get a warrant? And if you can, get it. Why? Because your job is to help agents protect their investigation. That is, I’m talking now, as like when I was an assistant United States Attorney or when I worked at the FBI.
And so you want to make sure that you’re complying with the law now, and what the law may be in the future. And you want to then make sure that, let’s say you’ve got an incredibly important investigation, think of some crime that you think is horrific, whether it’s child predators or organized crime, murders, whatever it is, and there’s an incredibly important investigation. You do not want to have evidence suppressed. You do not want to jeopardize that case. So you’re thinking about what is the best way to sort of have a belt and suspenders approach, if you can do it?
And so the trick is, if you, you know, and the problem is when the agents say, like, we just don’t have probable cause, so what do you think we should do? And then you try and work through that. But if you can get a warrant, there’s just so many benefits that come from that, that it’s like it’s not that hard to do the paperwork. And if you have it, if you have the probable cause, then the court will sanction what you’re allowed to do. And it’s so good for litigation going forward.
I’ve been a defense lawyer. This, you know, there’s nothing worse in some ways if you’re trying to, in good faith, challenge the government’s actions when the government’s gotten a warrant. That’s the gold standard under the Fourth Amendment. That’s what, at most, the Fourth Amendment requires is that you have gotten a judicially approved warrant based on probable cause. If you’ve taken that step, then you’ve it’s sort of like you’ve done the right thing.
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Full Transcript
Ryan Goodman
Should the FBI be allowed to access the content of Americans’ communications–emails, texts and phone calls–without obtaining a judicial warrant? That’s a key question that’s facing Congress right now, with a looming deadline of April 30th to make a decision. And what the decision is all about is a major surveillance authority: the ability of the U.S. intelligence community to spy on foreigners abroad who pose a significant national security threat to the United States.
But it also creates a database of communications in which, currently, the FBI’s able to dip in and search for Americans’ emails, texts and phone calls, without a judicial warrant. And that’s what Congress is facing, this kind of a question as to whether or not to reauthorize this spying tool, and if so, whether or not to place constraints on the FBI to go to court and get a warrant if it wants to access Americans communications.
I had a wide ranging conversation with Andrew Weissman, who served in many capacities in the Department of Justice, including the FBI’s general counsel.
As we record this, conversation Congress faces a trilemma, or a three pronged fork in the road. And the fork in the road, the way I describe it is, one: Congress has the choice of reauthorizing a major national security surveillance authority, as it has always existed or has existed over the last years. Clean reauthorization. But if it does so, then it means that the FBI continues to have access to the database that’s created, which contains the content of Americans’ communications, emails, texts, phone calls. So that’s route one. Just clean reauthorization. Route two is to reauthorize the surveillance authority, but impose a new set of conditions, such as, require the FBI to go get a warrant from a federal judge in order to access Americans’ communications. And then the third is do nothing. And if Congress does not act, then the existing authority sunsets and goes away. And that existing authority is, section 702 of the Foreign Intelligence Surveillance Act (FISA). And that’s what we’re going to be discussing. And Andrew Weissmann and I are going to discuss this in different ways. But I think just to start to level-set, Andrew, do you want to kind of lay out for people what exactly section 702 is when I say a major national security surveillance tool?
Andrew Weissmann
Sure. So the government has a lot of ways that it gathers information in criminal cases and in national security matters. So people who are listening to this may be familiar with subpoenas and search warrants. Those are traditional criminal tools. And there are various prerequisites that the government has to meet. And generally the view is the more intrusive a tool, the more factual predication, the more facts you need to do that.
And as you said, Ryan, another issue is sort of the more intrusive generally, the more that a court needs to be involved. So for instance, for a subpoena, that is a fairly low-showing that the government has to have and they don’t need to usually go to court to get approval. But to get a search warrant, like if they wanted to search your house, that’s a standard thing where you’d have to go get a warrant from a judge and you’d have to meet a standard called probable cause.
Now there’s something else, which is, people who are listening to this may have heard of the term a “wiretap,” or a “bug,” or an “electronic interception.” And that’s, like, if somebody wants to tap your phone, and there are a lot of requirements. You need a warrant, you have to have probable cause, and you have to make lots and lots of showings, to get that interception. And it’s only up for a certain period of time. And then it goes down automatically unless you can make new showings to a court, because it’s considered so intrusive to be able to get that kind of information. These days, a similar thing happens when you want to get emails, because the courts have realized that emails can be very similar to listening in on a conversation or oral conversation. And so that’s sort of on the traditional criminal side.
On the national security side, there are electronic interceptions that are very similar to what happens on the criminal side. You have to go to court and it’s under something called FISA, which is a national security tool where it allows you for foreign intelligence purposes–think, spies, and trying to catch spies, or think about terrorist groups and trying to prevent terrorist attacks and track them down–so that you can get an electronic interception under FISA.
And then there’s the thing that we’re here talking about, which is a separate codification, statutory authority that Congress has created, and something called section 702. It’s called section 702 because that’s the section number, so it’s not terribly creative. And section 702 is a little complicated. So, bear with me.
Section 702 allows the United States to get certain types of information, without getting an individualized judicial warrant. So under section 702, the government is getting gobs of information, lots of public information about the volume of information. It in many ways dwarfs all the other things I just talked about–and certainly, sort of traditional FISA warrants, individual warrants. And so the government is allowed to get this tons and tons of information about foreign intelligence. But here’s, like, the critical thing. The targeting of who’s actually being intercepted, who you’re trying to target in that has to be a person who is a non-U.S. person. So for this discussion, just think of it like a non-citizen. It’s actually– that’s not quite a citizen, a U.S. person. It’s not quite the same thing. But, somebody who is a foreigner.
But even more than that, it has to be a foreigner who is geographically overseas, so that you can use 702 to get information, that is foreign intelligence information from a foreigner who is overseas, geographically. And the reason for that, the reason that there’s that special category, is because the Supreme Court of the United States has said that the constitutional prohibitions of the Fourth Amendment, which governs search and seizure here in the United States, does not apply to foreigners geographically overseas.
I’m giving sort of big, broad brush statements of the law. And so if you’re targeting getting that kind of information that the statute is saying you can do that, but, the court has to see that that’s what your program is. That’s what you’re trying to do. And they authorize that program of, you know, the government wants to intercept X for the next year. But, we’re going to be targeting these foreigners overseas. And the court says, “yes, you can do that.” And then it has to get reauthorized, every year. And obviously the time period can change, and the court has some oversight, but there is no individualized warrant. Why? Because the Supreme Court has said, if you’re targeting people who are foreigners overseas, the Fourth Amendment restriction that protects everyone in this country, citizens, non-citizens, everyone in this country, just pointedly everyone in this country. So to the extent that you’re hearing, people say, “oh, non-citizens are not protected.” If they’re in this country, that’s not where the law is now. Everybody in this country is protected by the Fourth Amendment. And so, there you would have all these heightened restrictions and you need warrants and you need all these other things that I’ve talked about.
But 702 allows this huge–it’s not quite an exception, but it’s this huge area where the government does not have to have that sort of factual predication. Can I just put it in big, bold terms here? It means that the government doesn’t have to say that they have some real reason to be going after person A versus person B, because there’s no factual predication that is required, so long as the targeting is of somebody who is not a U.S. person and they are overseas.
Ryan Goodman
Right. And, related to foreign intelligence information.
Andrew Weissmann
Of course, it has to be. The whole idea of why it’s a national security tool is whether it’s traditional FISA, meaning the warrant based things that happen in the United States or whether it’s happening overseas. It has to be foreign intelligence.
Ryan Goodman
And so the right, so the big, huge question that Congress is facing is, through the collection of this vast database, Americans’ communications are, incidentally, picked up as well. And you can just imagine all the ways in which that happens. Maybe it’s the foreign nationals’ communications that are targeted, but they’re speaking to people in the United States or maybe people in the United States, you even have emails to one another, and then those end up getting into other email communications with the foreign national where they’re forwarded, etc. So down below in the Foreign nationals emails, lo and behold, there’s communications just between two Americans not even having a foreign national, on either side of that communication.
Andrew Weissmann
Or just think about an email chain where you could have like ten friends, but if one of them is, you know, a foreigner overseas and it’s foreign intelligence, like, and nine of the people are, are in America, or they’re U.S persons. It only takes one as that person is being targeted and all that other stuff can get scooped up, and this is where it’s really important for people to understand the volume. We’re talking about tens and tens of millions of communications, huge scooping up–like, hoovering and vacuuming up–of massive amounts, foreign intelligence data targeting this group that’s not protected by the Fourth Amendment. So a vast array.
And the way I like to think about it is that the fit is just not the same as what we’re sort of traditionally used to. And this is what I mean by that: It’s always the case–let’s say we’re just taking a domestic, search warrant–it’s always the case that if I get a job, I get a warrant here for your home, I may find and have to look through lots of information that is about people who are not being targeted. Like, I might have information there. Your family, there’s always going to be excess, right? Because you’re looking through to get the stuff that you’re allowed to look for. If you’re looking to look for A, B and C, then there’s lots and lots of stuff you’ll look through.
But the fit is, sort of like, if you look at a home or you look at an email account for a certain period of time, you know, from X date to Y date, there’ll be stuff that’s surplusage, you know, excess, and that’s what’s called “incidental,” “incidental collection.” And there’s kind of no way under our current law to avoid that, It happens all the time.
But one of the things that happens with these vast amounts of electronic data, both here domestically, but certainly when we’re talking about this overseas, is that ratio changes dramatically. And you can have just an enormous amount of surplusage so that it starts looking like the tail is wagging the dog.
And you have an enormous amount that’s gathered, but what’s actually sort of the, the foreign intelligence information about somebody who is a non-U.S. person overseas can be a very, very small fraction of that. And under 702 the government has collected all of that. Whereas, if someone was doing a traditional search of your home, Ryan, the government goes in, they do the search. They right then and there, do the triage of what they’re allowed to look for and take versus what they have to leave there. And yes, there might be a little bit of slippage. Let’s say, you know, I’m authorized to take this notebook and it has some stuff about you, but has some stuff about other people. There’ll be a little bit of–the fit isn’t perfect, but it’s not at all like, you know, there’s one email that’s useful, but I get to take the whole account. So the fit becomes quite problematic. And why is that an issue in what we’re talking about? Think about what I said about what 702 has allowed for with respect to foreigners overseas.
Everyone else has Fourth Amendment rights. And so, to the extent that the government has collected this huge amount, you’re now going to have this issue of, is it just incidental collection that you have all these people where this information was taken, and if they had been the ones who had been targeted, the Fourth Amendment would have had to have been complied with?
Because the Fourth Amendment applies to anyone in the United States and any U.S. person anywhere in the world. And so, that is a problem that Congress is dealing with in terms of: how do you deal with the government trying to now go into the 702 data and not look just for the foreign, overseas actor, but now going in and looking for the American, who’s in England or the American who is in New York or Washington, D.C., or Arkansas?
Because there’s going to be this huge array of information which if the government had been targeting that initially, if that was the target, they would have had to get it into an individualized warrant and make a probable cause showing.
Ryan Goodman
So, one of the big questions is, and I’ll kind of tee this up for you, why isn’t the FBI, let’s say, is the agency, which is usually the one that’s most concerned in these conversations. Why is it that when the FBI goes into that 702 vast database and what’s called the “back door,” to the back door, they say, “okay, well, we’ve collected all of these email communications, etc. and now we’re going to go for looking at this very particular American who is in London, or as you say, in New York or DC, looking for communications.”
Andrew Weissmann
– or Arkansas.
Ryan Goodman
Yeah. Or Arkansas, or anywhere. Looking for their communications that might be in that database. And the technical term or the term that’s used is querying the database. Now, others would say it’s searching the database. That’s what they’re doing. So why isn’t that on its own terms, when the FBI decides to go in and search the database, a Fourth Amendment event? Why is that not a Fourth Amendment search–that the FBI should therefore have to, comply with the requirements of the Fourth Amendment, which is either that there’s a reasonable expectation of privacy on the part of those Americans, so that the only way in which the federal government should, generally speaking, as you say, access Americans content of their communications is if the government has either at a minimum, has probable cause and in all likelihood needs to get a warrant from a judge to do that?
Why isn’t that, in fact, the way in which we should properly look at the constitutional question that Congress can now back up with codifying that? So actually, putting in place the requirement to get a warrant?
Andrew Weissmann
So that is one complicated, and compound question. So there is a constitutional issue there. And there’s a statutory issue, meaning there is: what would the Constitution require? And what is it appeared to require now, what are the challenges to what’s currently happening that is constitutional in either its constitutional vulnerability? Because the law is very unsettled here, and there’s a lot of risk with respect to where the Supreme Court may land in terms of the constitutional question.
Very separate from that is the policy question which Congress can deal with, which is, they can always have a higher floor, they can make higher requirements, and that’s the whole issue when they’re deciding right now, as we’re doing this, whether to reauthorize section 702. And as you said, a straight reauthorization of the exact same terms, whether they just let it die, or whether, they change, sort of, the requirements that need to be shown. They can sort of deal with that, regardless of the constitutional question, they can deal with, sort of, should they have a higher floor?
Obviously they may decide, based on the constitutional risks, that there’s certain things they want to do because they want to make sure that they’re anticipating what could happen. So as opposed to passing a statute that would be struck down in some way as unconstitutional, they can try and anticipate that and protect Americans, and non-Americans, rights in passing a new statute.
So, there’s sort of those two pieces. Tell me which one you want me to sort of discuss first, whether it should be the constitutional or the statutory, because they’re sort of very separate issues. But it’s a little complicated.
Ryan Goodman
Yeah. So let’s just first, work through the constitutional question, since you’ve already discussed why the Fourth Amendment doesn’t apply to the front-end of section 702 targeting foreign nationals abroad, discussing foreign intelligence information. What’s your view of whether or not the Fourth Amendment actually does regulate the search or the querying of the database by the FBI?
Andrew Weissmann
So this is one where we do have, we do know what the position is, various government actors, because Section 702 has come up before for reauthorization. And I should say, by the way, I’m a big fan of 702 in the sense that it is–I could go on and on–but there are independent, public reports about how vital 702 is to our national security. So, people should know. I come at it–I come at this discussion with a strong, strong, I won’t say bias, I’d say based on my experience and interest in having the program continue in a usable form, because I think it’s critical to our national security. And I don’t say that about every tool. And we could discuss that.
This is one where–and I think I’m backed up by, for instance, the Privacy and Civil Liberties Oversight Board, an independent group that has done reports on Section 702 and its utility. It is an area where it can be difficult to talk about it, because not every use is made public, obviously. And so, there have been efforts to make certain things public that show just how important it is.
But I wanted to make that as a, as a sort of, it’s important for people to know, sort of, how I come at this. I’m not somebody who comes at this with a view that it’s a tool that we should do everything we can to make it harder to use because it’s really not necessary. And it just leads to spying on Americans. And it’s abused. And so, given the abuse and given the lack of utility, it should be, you know, we should try and kill it off. That is not where I’m coming at this from.
So the constitutional issue, the traditional view, and the way in which 702 has been defended is that the government complied with the Fourth Amendment when it was targeting non-U.S. persons overseas. And so it legitimately has this information in its holdings, under the Fourth Amendment. And so once it has it, it can do whatever it wants with it, and what it does in a so-called “backend,” meaning after that initial seizure of the information is not a new Fourth Amendment event. It can do whatever it wants with the information.
And, to be fair, the law developed in this area in a very, very different area where they were thinking about the search of a home of, you know, right, to use that example of your home, Ryan Goodman. And so the idea is, once the triage has been done, you get to take it to your house. I mean, so you get to take this up from your house that is relevant back to your office. And then that search has been done, even though it is a continued seizure. The court sort of says and has said, “we just look at that one moment in time.” And so the backend is sort of less important to the court in analyzing from the expectation of the Fourth Amendment.
That’s sort of the old law, and it is one that the government relies on to say, “hey, what are you talking about? Backend use? There’s no such thing as a restriction on backend use. So if we want to go into the soup, the 702 soup, we can. Yes, we got it for the purposes of looking at non-U.S person overseas, but now we can look at whatever we want. And we can use it for whatever purpose.”
That’s the traditional answer to why there’s no constitutional issue. The problem with that is myriad. One: with the advent of electronic data and the fact that you don’t just do a search of your home, Ryan, and right then and there, do the triage. Instead, you’re allowed to just take your home and all of its contents, and I’m speaking metaphorically, and you’re allowed to take your home and bring it back to your FBI office. And then, as needed, you just go in and look for what you want to look for. And just to be clear, with electronic data, it’s not just your home. It’s like your entire city. I mean, the volume is enormous.
So, the old law doesn’t really fit that issue anymore because you’re taking so much. So there’s a seizure of the vast, vast amounts that are happening. Not just for the little time of that one search. You’re seizing the whole thing, taking it back to your office, and then periodically searching through stuff. So the law in various ways and various courts, but not yet in the Supreme Court, has been looking at restrictions on so-called backend.
I hate the term back end because it’s not a backend. When you take your home to the FBI and it’s there for, you know, perpetuity essentially, that is continued seizure, it’s not a backend seizure. It’s not a front-end seizure, it’s a continuing seizure until they get rid of it or return it.
And it’s also a continued search. So, just in terms of the plain language of the Fourth Amendment, I think that you see a lot of pressure that the courts are under, and there’s various district court and court of appeals decisions, dealing with restrictions going–even after that initial taking, and even an initial search.
And the second is, and you know, this because, I teach criminal procedure at NYU, which is the idea that even under the old law, once you have something in your possession “you can do anything you want with it” — is not the law. I mean, I just, this is one where it drives me crazy and I say, I, I teach the same thing to my students day in and day out.
Let me give you an example: let’s go back to your home search where the FBI is allowed to look for items A, B, and C. And they take a whole bunch of stuff and they take it back to their office. And let’s assume one of the things is your laptop, and they were allowed to seize it, but pursuant to a search warrant, but they can look for A, B, and C. So the way searches are done with electronic data is it’s very rare that someone’s going to look through page by page for A, B and C. They can, they can do that. But more often they’re going to be saying, they’re going to put in the word A, and look for those items that show up on your computer and do the same thing for B and the same thing for C. But you know what a violation of that court order is that allowed them to search for A, B and C? Looking for D or E or F.
So you can’t just go in. It’s in your possession. You cannot look for anything other than what you were authorized to look for, even though it’s in your possession. So the idea that just because you have it, means that there are no limitations, is not the law. One of the things, and this is speculation on my part that I am very concerned about, is when DOGE came in and was trying to sort of have–we want to have sort of federated searches and we want all of government databases to be able to be searched, so that it’s like I’m going to look for, for A, B and C or D or V or F–Well, not all information can be searched for, for anything. So, a court, when they give you a search warrant says you can look for only certain items. It can be broad, but there will be limits on what you can search for.
So, even leaving my speculation apart about something I’m concerned about, it’s like, that’s sort of a good refutation of the idea that the Fourth Amendment simply does not apply to–and it’s only sort of a policy call as to–what happens to this vast database that you have. And so this, to me, is an area where, as I said, we don’t have a Supreme Court decision on it, but it’s fraught, fraught with issues.
I should point at the Supreme Court, I know lots of people think they’ll never be ruling, sort of on a privacy basis here, but there’s three very, very important Supreme Court decisions that are: it’s the Jones case, the Carpenter case and the Riley case where the court has very much restricted what the government can do in the face of electronic data. And this problem of data being able to be ingested automatically by the government, and there, sort of, use of that.
So this is one where it, you know, this is what I teach my students, which is like, we don’t know where the court’s going to go on this, but it is we are very much in a state of transition because of the world we live in, which is this world of big data.
Ryan Goodman
And I guess one question that that raises, especially wearing the cap, you know, that you would wear in the past of a FBI general counsel: how do you think about that, litigation risk in the following sense? Because the courts might very well go in the direction of seeing it the way that you just described it, that this is actually a Fourth Amendment event, and it needs to be regulated by the Fourth Amendment.
If the government is collecting information on people without getting a warrant, and then the government later in time wants to use that information in a national security criminal prosecution, a criminal case, is the government running a litigation risk that would be reduced by statutorily, let’s say, imposing a warrant requirement? Are they at least getting a warrant and they can maybe avoid, that kind of, concern that the courts say you illegally obtained the material because you violated the Fourth Amendment in obtaining this American’s communications from this database without ever going to a court to get it. Is that a proper way of thinking about that concern?
Andrew Weissmann
It is a proper way to think about it. It is a complicated issue. I’ve had that exact issue of cases coming down. I was in the FBI general counsel when the Jones decision came down about GPS tracking. And you do think about not just the case and what it means in terms of what you have to do for that case. But you think about: where is the court going?
Now there are lots of issues and lots of defenses. And but I can tell you, when you have an area that is, where it starts looking like it, it is gray now or it may very well be a problem going forward, the sort of traditional advice that you give is, can you get a warrant? And if you can, get it. Why? Because your job is to help agents protect their investigation. That is, I’m talking now, as like when I was an assistant United States Attorney or when I worked at the FBI.
And so you want to make sure that you’re complying with the law now, and what the law may be in the future. And you want to then make sure that, let’s say you’ve got an incredibly important investigation, think of some crime that you think is horrific, whether it’s child predators or organized crime, murders, whatever it is, and there’s an incredibly important investigation. You do not want to have evidence suppressed. You do not want to jeopardize that case. So you’re thinking about what is the best way to sort of have a belt and suspenders approach, if you can do it?
And so the trick is, if you, you know, and the problem is when the agents say, like, we just don’t have probable cause, so what do you think we should do? And then you try and work through that. But if you can get a warrant, there’s just so many benefits that come from that, that it’s like it’s not that hard to do the paperwork. And if you have it, if you have the probable cause, then the court will sanction what you’re allowed to do. And it’s so good for litigation going forward.
I’ve been a defense lawyer. This, you know, there’s nothing worse in some ways if you’re trying to, in good faith, challenge the government’s actions when the government’s gotten a warrant. That’s the gold standard under the Fourth Amendment. That’s what, at most, the Fourth Amendment requires is that you have gotten a judicially approved warrant based on probable cause. If you’ve taken that step, then you’ve it’s sort of like you’ve done the right thing and you’ve done the right thing.
Ryan Goodman
And I just want to pick up on something you said there about, just, you know, doing the paperwork, to go get that warrant. One of the concerns raised by some, national security folks who’ve worked in the government and the like is, “well, if the Congress imposes a warrant that’s going to hamper U.S. national security investigations,” counterintelligence investigations and the like.
And the argument is, look, sometimes time is of the essence. It’s very early in the stages of trying to figure out some national security threat. They’re not interested at that moment about criminal prosecution. They just want to figure out what’s going on and then prevent some kind of national security calamity. And for them to, in that moment, have to go get a warrant from the court is imposing a high cost–is the argument.
I’m just laying out the argument as it goes. I’m not articulating my own view on that. But, the proposed legislation, I should say, just to make clear by, for example, Senator Mike Lee and, Senator Wyden does allow–it does have an emergency exemption–it also says, well, if you’re in an emergency, you could go ahead and query the database for the Americans communications and then very shortly thereafter, go get the court approval.
Andrew Weissmann
By the way, just to be clear, that is something that happens domestically also, you know. Domestically, the Fourth Amendment requires certain paperwork; it requires all sorts of things. But there are, with FISA there can be emergency exceptions. But as you said, it requires, you know, the Attorney General’s approval.
The Attorney General has to have, like, signed off on it. And then within very short order, you need to go to court and make sure it is blessed. And, that the court agrees that there is probable cause and that the court agrees there was an emergency. So this is not an emergency exception that somehow swallows the rule. It’s extremely rare.
I’m trying to think, when I was the FBI general counsel, I can only think of one instance where that came up, and I can’t even remember if we ended up having to do it or whether we thought we could get caught, because in this day and age, courts are around. I mean, this is not the olden days where it’s like it’s happening on a weekend. And, how are we going to get to, you know, a certain judge’s courthouse and who’s going to be on duty, and that could take forever to drive there, and we have to type up the paperwork. I literally mean type up the paperwork with the typewriter.
Now you can do things electronically. You can have telephone conferences or Zooms like this one. And so you can do things so much quicker. And that’s something that the Supreme Court has recognized that technology can be used to protect peoples’ privacy because it’s so much easier when you say you should get a warrant. The Supreme Court and I think it [was] Chief Justice Roberts, in a decision, had said, you know, when you can reasonably get a warrant, get one in a particular situation.
Ryan Goodman
And can you talk a little bit more about other tools that are available to prosecutors and national security investigators?
Andrew Weissmann
Should we just go back to– I’m not sure we finished the topic of the paperwork and the issue of, you know, people who say, you know, does it pose a real problem if you had a warrant requirement?
Ryan Goodman
Yeah, no, that’s actually exactly where I was still at. Because I want you to talk about your own experiences, FBI general counsel prosecuting major national security cases, investigating them. What are other analogs to what we’re talking about in terms of a new warrant for FISA section 702 that already exist in the law, that are already tools that we can draw lessons from, in terms of having to go to court and get approval for that, kind of, investigative tool that can, acquire individuals information like this.
Andrew Weissmann
Well, okay, I, I think I want to step back to give some credence to the concern, like to make sure people understand why it’s not a fanciful concern and what the response is.
National security threats are plentiful. And there’s so many things that, the FBI, when it’s functioning well–again, I don’t have any experience at the FBI since, you know, for, for a very, very long time. I left in 2013. But there are just many, many threat streams and there’s a lot for the FBI to cover and other parts of the intelligence community to make sure that we are safe.
And so tools, there are tools that are very useful, not just to prove a crime and to make a case, but there are tools that are very useful to help do that triage. And as you’re seeing hundreds and thousands of potential problems, trying to get a handle on, I mean, everything has to be checked. But to get your sense of what are the most problematic and what could be the most problematic for this country, I am sympathetic to the concern about what tools can be out there to help from the beginning, at the beginning lede, all the way to the end. And so that’s where I think that concern comes from. And when people say that, I always assume good faith, even though, yeah, there are bad actors. And then we’ll talk about sort of, you know, how 702 can be abused. I’m just for the moment, assuming a good faith actor, is going to be thinking about how the tool can be used to help do that triage, because then there is information in this database that can help, decide is there somebody there? Is there some connection or not?
And one of the things, that because we’re not talking about just taking 702 and getting rid of it, at least I’m not, because I don’t think that’s the right solution, the issue of, let’s just take one example. You know, you have a huge pool of 702 data. You obviously can look at it for the foreigner overseas, but now you want to look at it for someone in the United States, or for a United States person anywhere in the world. One option is that you can first question the database as to whether that even exists. That is, you don’t look at the content, you don’t look at, like, what did Ryan Goodman say to Andrew Weissman? You just want to know, did Ryan Goodman even have an email with Andrew Weissman so that you don’t waste your time with, like, getting a warrant and doing all this stuff, and it turns out I didn’t even talk to him.
So if you can do the initial query–which just tells you, does it even exist there? And to me that helps the FBI because it’s like, okay, well, don’t do any more work because there isn’t anything there. And it and it says if, you know, if you’re going to do the work, it’s because, in fact, you know, there is some conversation. And so now you want the content.
And so that helps us already do some triage. So, you know, if you have a foreigner overseas and let’s say that there really is some national security issue that the person is part of some terrorist cell and you’re concerned about something imminent, again, this is going to be a fraction. But, you know, this is what you worry about if you are in the national security world, about, you know, you want to be what’s called “left of boom”, meaning you want to be preventing any terrorist attack before it happens. You want to be “left of the boom.” And, it will be easier to say, “Okay, did this person speak to anyone in the United States during X time period?” And then within that segment, if let’s say you, you come up with three communications, but you don’t know the content yet, then you could go to the court and get a warrant.
Now there’s an emergency exception. So if there was something where you really, really thought a bomb was going to go off and or something really horrible was happening, you can deal with it. But to me, the issue, then is just, do you have the resources like, you know, it’s more a resource issue than anything. Like do you have the agents to do it? Do you have the lawyers to do it? Do you have the judges to do it?
And that’s where, one of the proposals that I think is very rational and reasonable and manageable is that it is not always the case that every time the government goes to court to get a tool, to be able to use a tool, that they have to get a full blown search warrant based on probable cause. There are certain types of subpoenas, where the government has to show some factual predication, but not probable cause. They have to show sort of a reasonable basis to believe this is relevant to an investigation. Another showing is even lower than that. They have to just show that something is relevant to an investigation but there’s less factual predication.
But in either of those, including the sort of higher one, where you have to give this some facts to support why this is relevant, those are very short applications. They’re not, you know, 10, 20, 30, 40, 50 pages. They can be five pages. Where the court is–you have to see that it’s a real investigation, that there’s a real concern, and that this, what you’re asking for, relates to what that real investigation is.
What does that do? One: it stops the person who might be doing this for an abusive reason. And by the way, I think this would be fair to have, and I’m not telling you about this in terms of, like, Republican and Democrat. I have the same concern about government action, regardless of party, you can have abuse. The abuse is not limited to a particular political party. And you can also just have bad judgment. You can have the executive being overzealous. And for good reasons, like they’re trying to stop crime, but they can be sort of–-they’re not thinking about this in the most impartial way, or their theory of why this is relevant, or why these facts support it. And ones where you want a judge to have to have some oversight to say “this is not appropriate.” And that seems much, much more doable. If you have that, you know, a lower threshold than probable cause, and it is, it is much faster.
Ryan Goodman
Right. And one of those provisions is, 2703(d), of the U.S code. And in the Mueller investigation, the final report lists using it hundreds of times over the short period of the Mueller investigation, just as an example, I think.
Andrew Weissmann
Right, so, we were up for, our investigation was about 20 months. I think the period where we were sort of active was, you know, obviously was shorter than that because in the last couple of months we’re just writing a report. So it’s roughly about 18 months. And, publicly disclosed in our report is the number of search warrants, the number of 2703(d) orders, which are these orders for electronic communications.
It’s the one which requires a sort of an additional factual predication, not the lowest one. And the number there was 230 during that approximately 18 month period. And just remember, we had one judge, that was the chief judge who is remarkable, by the way. Chief judge Beryl Howell, then Chief Judge Beryl Howell. But that’s just one judge who is handling that. And just remember, she was sitting as a normal Article III judge. She also oversaw the entire Mueller investigation in terms of the grand jury work. So she was publicly reported, oversaw over 500 full blown search warrants. So meaning it’s not like, oh, we had a full time judge just doing the 2703(d) orders.
This was in addition to all of her regular work. This I mean, this was a part of her regular work. But it suggests that there is capacity there. And obviously Congress, if they thought this is really important and they didn’t think that the FISA court had enough staff for this, that that’s within their control to add to that and the Chief Justice, you know, can make sure that the court is adequately staffed.
Ryan Goodman
So let’s end by discussing the issue that you flagged earlier, which is compliance.
And, there has been some writing around this big question that’s going on right now in the country as to whether or not Congress should just do clean reauthorization and pose a warrant, etc. There’s some writing in defense of a clean authorization by commentators who do not believe that the right policy response is a warrant of any sort. And their argument, I think, oftentimes rests on the prior track record, in which, let’s just stipulate. Which is a big “if,” what I’m about to stipulate. But if we stipulate that they are correct in the sense of most recent reporting by the Department of Justice’s Inspector General in the staff report by the Privacy, Civil Liberties and Oversight Board (PCLOB) would suggest that there is actually compliance right now with the statute in terms of when the FBI goes into the database, the FBI is abiding by statutory and internal regulatory requirements that they access that information only when they believe that they have a reasonable likelihood that it will return, foreign intelligence information on the searches that they’re conducting, of Americans communications.
What I always wonder about when I’m reading those pieces is just how much they’re resting on the past track record. And we’re not dealing just with the past track record, we have to think about concerns about how this tool could be abused.
And so can you talk about what you think on that question? And in the sense of given what we described as the tool, what’s at stake here? What are the concerns of abuse?And abuse could be intentional. The word abuse in some ways suggests that as a connotation. Or, it could also just be, we could talk about it as noncompliance. So it’s not necessarily intentional. Yeah. Mistakes are made.
There’s been–here’s an agent who decided to query the database, but they actually didn’t even think about what is there. Or do they have a basis for thinking that they would return foreign intelligence information by looking for these Americans’ communications?
Andrew Weissmann
So let me, so one, I’m not going to fight your hypothetical. I am going to take as a given the, the conclusion or the I’m going to take here the, the hypothetical conclusion that things have gotten better. But I just need to add a footnote that I have a lot of questions about that. And I would need to know a lot more before I actually accepted that. I just think we have such a huge track record of abuse and lack of transparency about what’s going on. So I have lots and lots of questions about that data. Obviously, also, assuming something has gotten better now, itself tells you very little about what when it might happen in the future, particularly, under this administration, but also under other administrations.
There’s a reason that, as Chief Justice Roberts says, “just trust us” when the government says, “oh, don’t worry, you don’t have to do that, just trust us. We’re going to do the right thing.” He has said repeatedly at oral argument, that’s not the way it works. And you have judicial oversight for that reason. And the Fourth Amendment requires, getting a court approval in a whole variety of contexts, per this Supreme Court and many, many other, Supreme Courts, precisely say that you have a determination prior to the violation, not in other words, you don’t have a violation and then they go, okay, now let’s figure out what the remedy is. That’s the whole point of having a court approve something in advance. The Supreme Court has made it absolutely clear–I completely agree with them–that the point of the Fourth Amendment is to prevent the violation. It’s not to redress the violation after the fact.
I think that one of the things we haven’t talked about, which really goes to abuse and is, I think, a huge concern under any administration, I really want to stress this, it’s not contingent on my reaction to my lack of respect for the way in which I see law enforcement happening now, it really grows out of just my decades of experience as a criminal prosecutor and some experience in the intelligence community.
It’s something that the statute on its face says it’s prohibiting but would be very difficult to monitor. And that is something called reverse targeting. Or sort of pretextual targeting. So remember, when we started out, I said, so, if they want to use 702 and the person is overseas and they’re not a U.S. person, that’s allowed. But let’s assume that they really want to know about you, Ryan. And you’re a U.S. person and you’re not overseas. You’re here. Well, if they wanted to focus on you again, assuming foreign intelligence, if they wanted to focus on you, and that was the target, they need to get a warrant. They need to go to court. They need probable cause. There’s all these belts and suspenders that are required by the Fourth Amendment. And it’s not just paperwork. I mean, they have to show factually to a court why it is appropriate to do this. But if they say, “well, who do we think Ryan Goodman has talked to? Well, you know what? I think he had a friend overseas in England. Let’s do this in a sort of good faith way. Let’s assume that there’s a, we can show some national security interest in that person, frankly, because they’re talking to Ryan Goodman, who we do have reason to be concerned about. So let’s try and say we’re going to do 702, we don’t need court authorization for 702. We don’t have to show the factual predicate to a court. So we’re going to target Ryan Goodman’s friend overseas. And that is a true target. We have, like, a good faith belief. In other words, we have some minor threshold, but it’s not having to go to court. But we also have an interest in someone in America.” That’s a valid use, they could say, of 702. So we’re now targeting two people. And even though it may be tail and dog, which is that, you know, they wouldn’t the standard is not would they have gone after the foreigner but for knowing Ryan Goodman? The standard that the government can have is, you know, there’s a legitimate–we have determined that we have a legitimate basis and we do not have to have that reviewed by anybody outside of the executive branch.
And in fact, it may be true that it but it could, but it just meets that very, very low standard. But the actual purpose, like the whole “but for” reason is they really want information about you. And to me, there is no valid basis for that. Now, if I was sitting in my, if I was like, now wave a magic wand and I am the general counsel of the FBI, I’d be like, we’re not doing that and there is no harm to us. There’s no legitimate harm to us. I mean, you know, it’s like that’s like the argument is like saying, well, isn’t there harm by requiring a search warrant in the United States of people who are here? Yeah, that interferes with law enforcement. When Chief Justice Roberts said that to get cell site data in a criminal investigation, you need a warrant. Well, that hurts law enforcement in the sense that it’s better for them. It’s better to not have to get a warrant. In other words, that’s the price of privacy and securing all of our privacy. And now, granted, I’m not saying this is easy. It’s not. This is not one where it’s like black and white, in my view.
But I think that the–especially when the, one of the proposed remedies is that the standard for the government to go into the soup, that sort of 702 soup is a standard that the FBI uses now internally. But when all the all this the statute would be doing is saying, okay, well, you’re saying you’re doing this internally. So now you shouldn’t have a problem just doing it externally. Like what’s your–if you’re so confident that you’re applying this standard internally correctly, fine. We’ll have a judge review it. And you know what? Let’s assume you have a 2% error rate. Well that’s, given the volume, we want to make sure that that’s not happening, whether it’s intentional or whether it’s just a difference in judgment. We want a court to oversee it. And that, to me, is, it’s something I actually in a, in a different life had actually proposed in that, in that sort of iteration of 215 and it was done for a while. I just don’t see that as a problematic issue, especially when the standard is when it’s been used.
I should point out that the Supreme Court has made that sort of move in terms of analyzing something. So, as you know, Ryan, we were recently teaching Miranda and the court’s decision about needing to read people who are in custody, their rights under Miranda. And that was a huge decision by this Supreme Court at the time. It still is. And one of the things that the Court did in that case is they said when law enforcement was saying, “don’t do it, it will hurt us” is, the justices said. But the FBI is doing that now anyway. So how can you say it’s going to, like. the sky is going to fall when the preeminent law enforcement agency in the country is doing it?
And obviously doesn’t think that it’s going to hurt them so much that they don’t want to do it. They think it’s something they can live with and is appropriate. So, I do think that that way of thinking is a useful one for people in Congress thinking about these policy decisions.
Ryan Goodman
Great. So thanks. Thanks for the conversation. And, just drawing from all your vast experience in these matters, it’s really helpful to clarify these issues.
Andrew Weissmann
Thank you, Ryan.
