Since the Snowden disclosures began, the government’s massive surveillance operations under Section 702 of FISA have increasingly drawn public scrutiny. Section 702 is the authority the government uses to conduct both PRISM and Upstream surveillance — programs that allow the government to warrantlessly search the emails and web-browsing activities of Americans communicating with individuals or websites abroad. The scale of this surveillance is vast — the government has more than 92,000 “targets” under Section 702 alone — and the FBI has a practice of searching through its Section 702 databases for information about Americans in more criminal investigations than it is willing or able to count. Yet oddly, despite its widespread use of this information, the government has acknowledged relying on Section 702 surveillance in only a small handful of individual criminal cases.

Actually, the mystery goes deeper than that: Up until 2013, no criminal defendant received notice of Section 702 surveillance, even though notice is required by statute. Then, after reports surfaced in the New York Times that the Justice Department had misled the Supreme Court and was evading its notice obligations, the government issued five such notices in criminal cases between October 2013 and April 2014. After that, the notices stopped — and for the last 20 months, crickets.

What’s going on? As terrorism prosecutions mount, why have the government’s Section 702 notices once again disappeared completely? Secrecy makes it difficult to say. But one likely explanation, explored here, is that although DOJ has been forced to abandon its old theory of its notice obligations, its new interpretation of those obligations is only marginally broader. And in fact its current interpretation has the same results as the earlier one did: denying defendants notice to which they are constitutionally entitled and insulating controversial (and in my view unlawful) surveillance from court review.

Crucially, it’s not only the rights of criminal defendants that are at stake, and it’s not only Section 702 surveillance that is implicated by the government’s cramped view of its notice obligations. The government’s use of standing doctrine and the state secrets privilege in civil cases has left precious few ways of obtaining public, adversarial court review of surveillance programs. If the government can regularly avoid its duty to give notice to criminal defendants, it will have succeeded in all but closing the courthouse doors to cases challenging surveillance that affects millions.

Secret Notice Policies

If DOJ is improperly withholding notice from criminal defendants, this would not be the first time. From 2008 to 2013, DOJ did not give a single criminal defendant notice of Section 702 surveillance — even though Congress expressly required notice when it authorized the warrantless surveillance of Americans’ communications. Then, in the summer of 2013, it became apparent that Solicitor General Donald Verrilli had misrepresented DOJ’s notice policy to the Supreme Court in Clapper v. Amnesty International when he stated that defendants would get notice of such surveillance, when in fact they were not.

As criticism mounted in both the press and court filings across the country, an internal debate ensued at DOJ, with lawyers from the National Security Division attempting to justify their failure to give any defendant notice. That effort ultimately collapsed. As Charlie Savage describes in his book Power Wars (pages 586–93), when Verrilli asked a meeting of senior government lawyers whether anyone thought the National Security Division’s approach was lawful, not one raised a hand.

DOJ then resolved to change its notice policy. According to then-Attorney General Eric Holder, DOJ undertook a review of prosecutions in an effort to identify those where notice should have been given all along. Between October 2013 and April 2014, a total of five defendants received notice of Section 702 surveillance.* But then the notices stopped — and there hasn’t been one since.

Why, though, remains a mystery. To date, the public has no clear answer because DOJ continues to keep its notice policy and its interpretation of FISA’s requirements secret. In other words, there’s the law on the books and then there’s DOJ’s secret — and likely self-serving — interpretation of that law. Because of this secrecy, the public, courts, and criminal defendants are unable to determine whether DOJ’s current view of its duty to give notice is even remotely defensible. (Recall, last time, even the Solicitor General concluded that it wasn’t.)

In 2013, the ACLU sued DOJ to obtain these policies and legal interpretations under the Freedom of Information Act. If the government has a controlling legal interpretation or policy concerning Section 702 notice, FOIA requires that the government release it. DOJ recently identified more than 80 records — many of them addressing something DOJ calls its “FISA-Derived Guidance” — but it is withholding all of them in full, arguing that none of these documents contain a “binding” interpretation of its notice obligation. (The government’s indexes of these documents are here and here.) DOJ’s position might be summed up as: We changed our notice policy, we conducted a comprehensive review of criminal cases, and we started giving defendants notice (and then stopped) — but we didn’t write down the rules we’re now applying. That seems improbable, if not impossible.

“Derived From”

Based on what can be gleaned from the public record, it seems likely that defendants are not getting notice because DOJ is interpreting a key term of art in Fourth Amendment law too narrowly — the phrase “derived from.” Under FISA itself, the government is obliged to give notice to a defendant when its evidence is “derived from” Section 702 surveillance of the defendant’s communications. There is good reason to think that DOJ has interpreted this phrase so narrowly that it can almost always get around its own rule, at least in new cases.

It is clear from public reporting and DOJ’s filings in the ACLU’s lawsuit that it has spent years developing a secret body of law interpreting the phrase “derived from.” Indeed, from 2008 to 2013, National Security Division lawyers apparently adopted a definition of “derived” that eliminated notice of Section 702 surveillance altogether. Then, after this policy became public, DOJ came up with something else, which produced a handful of notices in existing cases.

Savage reports in Power Wars that then-Deputy Attorney General James Cole decided that Section 702 information had to have been “material” or “critical” to trigger notice to a defendant. But the book doesn’t provide any details about the legal underpinnings for this rule or, crucially, how Cole’s directive was actually implemented within DOJ. The complete absence of Section 702 notices since April 2014 suggests DOJ may well have found new ways of short-circuiting the notice requirement.

One obvious way DOJ might have done so is by deeming evidence to be “derived from” Section 702 surveillance only when it has expressly relied on Section 702 information in a later court filing — for instance, in a subsequent FISA application or search warrant application. (Perhaps DOJ’s interpretation is slightly more generous than this, but probably not by much.) DOJ could then avoid giving notice to defendants simply by avoiding all references to Section 702 information in those court filings, citing information gleaned from other investigative sources instead — even if the information from those alternative sources would never have been obtained without Section 702. This approach would eliminate much of the paper trail showing how Section 702 was used in a given investigation, allowing DOJ to later downplay the significance of the surveillance and avoid triggering its own narrow rule. Significantly, this would explain how DOJ concluded that it had to give notice in a handful of past cases, where Section 702 information was explicitly cited in court documents, but has been able to engineer the complete absence of Section 702 notices in new cases.

This approach would also be consistent with efforts to conceal other types of surveillance from courts and defendants — including DOJ’s reported embrace of parallel construction. Recent disclosures show that agents are regularly instructed to avoid referencing sensitive surveillance in affidavits, court proceedings, and investigative reports, a process designed to sidestep the government’s notice and discovery obligations. Moreover, when prosecutors have no choice but to rely on an email collected under Section 702 at trial, they may be re-obtaining the same email using a less controversial legal process and withholding notice — as they appear to have done for key emails in the recent Abid Naseer prosecution in New York. Press reports strongly suggest that the government collected these emails via PRISM surveillance of a Pakistani target — after being tipped off by British intelligence — but the government later maintained in court filings that it obtained the messages using other methods and that it had no duty to give notice.

Obscuring the use of Section 702 surveillance in these ways, and then withholding notice as a result, denies criminal defendants due process and is unlawful. While several Supreme Court decisions (for example, here and here) make clear that express reliance on information in a later search application is one way that evidence may qualify as “derived,” it is certainly not the only way. Investigations can rely on information that never appears in any court application — for instance, information that sparks an initial interest in a target or later provides an important tip for investigators. The test in the Court’s doctrine is a flexible and expansive one, precisely because investigations unfold in many different ways. According to the Supreme Court, evidence is considered derivative even when it was “acquired as an indirect result” of an earlier search, up to the point at which the connection to that surveillance becomes “so attenuated as to dissipate the taint.”

Parallel construction does not alter the “derived” analysis, either. If the government has relied on Section 702 surveillance — even indirectly — in gathering its evidence, the defendant is entitled to notice of that surveillance. The government cannot avoid giving notice by putting artificial distance between its surveillance and its evidence. Reobtaining identical information by other means does nothing to change the fact that the evidence is still the fruit of the same tree.

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DOJ deprives defendants of notice in order to keep them from challenging secret surveillance in court. And DOJ keeps its notice policies secret in order to ensure that defendants do not even learn that they are being deprived of notice based on controversial or edgy legal interpretations. Because these surveillance programs affect so many, the public has an abiding interest in understanding the government’s notice policies, but for now they are quintessential secret law.


* The five cases are: United States v. Muhtorov, No. 12-cr-00033 (D. Colo.); United States v. Mohamud, No. 10-cr-00475 (D. Or.); United States v. Hasbajrami, No. 11-cr-00623 (E.D.N.Y.); United States v. Khan, No. 12-cr-00659 (D. Or.); and United States v. Mihalik, No. 11-cr-0833 (S.D. Cal.).