On Tuesday, the Office of the Director of National Intelligence (ODNI) released a redacted version of an opinion by Judge Thomas F. Hogan of the Foreign Intelligence Surveillance Court (FISC) that is chock full of revelations about how the NSA and FBI handle – and mishandle – data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). But the most notable news contained in the Nov. 6, 2015 opinion may be the FBI’s move to widen the “back door loophole” that allows it to search 702 data for information about Americans – and the FISC’s underwhelming analysis of the Fourth Amendment concerns this raises.
A quick review: Before 2007, if the NSA wanted to collect communications between a foreign target and an American from inside the US, it had to demonstrate probable cause to the FISC that the target was a foreign power or the agent of one. The Protect America Act of 2007 and the FISA Amendments Act of 2008 (FAA) removed this requirement. The FAA created FISA Section 702, which authorizes the NSA to collect communications between foreign targets and Americans without individualized FISC approval, as long as a “significant purpose” of the program is acquiring foreign intelligence.
In 2008, the FISC held that this warrantless surveillance scheme satisfies the Fourth Amendment. The court ruled that, because the targets are not Americans and there must be a significant foreign intelligence purpose, the surveillance falls under the “foreign intelligence exception” to the Fourth Amendment’s warrant requirement. When this exception applies, the surveillance may be sustained as long as it is “reasonable,” which is determined by weighing the relevant national security interests against the level of intrusion into Fourth Amendment-protected interests. The FISC found that the government has a vital national security interest in conducting foreign intelligence surveillance under Section 702. On the other side of the balance, it found that any intrusion on Fourth Amendment interests is mitigated by restrictions on the use and retention of incidentally acquired information about Americans (so-called “minimization” requirements).
Not long after this change in the law, Sen. Ron Wyden (D-Ore.) began to warn of a “back door search loophole” that could be used for the warrantless surveillance of Americans. The warning proved justified. The Justice Department, having worked Section 702 into the foreign intelligence exception by certifying that the government’s targets were not Americans and that the surveillance had a foreign intelligence purpose, and having met the constitutional reasonableness requirement by noting that incidentally collected information about Americans would be “minimized,” was allowing the FBI to run queries of Section 702 data to obtain information about Americans in ordinary criminal cases. Edward Snowden’s disclosures confirmed this practice, and the Privacy and Civil Liberties Oversight Board’s (PCLOB) report on Section 702 revealed that it was routine.
Many commentators (myself included) have noted that this loophole creates an end run around the warrant requirement in ordinary criminal cases. Until recently, however, there was at least one substantive limitation on the FBI’s ability to query Section 702 data. As reported by the PCLOB, the FBI’s minimization procedures provided that queries must be “reasonably designed” to “find and extract” either “foreign intelligence” or “evidence of a crime.” This was a far cry from the probable cause that would be needed to obtain a warrant, but it was something. The FBI, at least on paper, could not simply go on a fishing expedition through the warrantlessly obtained data.
The New FBI Procedures
As of November 2015, it appears that limitation no longer exists. Displaying the intelligence community’s penchant for defining well-understood terms to mean something entirely different, the FBI’s most recent minimization procedures, in the FISC’s words, “clarify that a search of an FBI storage system containing raw-FISA acquired information does not constitute a ‘query’ within the meaning of the procedures if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search.” This includes instances in which the search does return unminimized Section 702-acquired information, and the agent is notified of that fact but is not authorized to access the data. Because such searches are deemed not to constitute “queries,” they presumably are not subject to the requirement that “queries” must be reasonably designed to return foreign intelligence or evidence of a crime.
The new procedures also “clarify” what happens if an agent performs a search that returns Section 702 information the agent is not authorized to access. In such cases, an agent who is authorized to access the information may re-run the search and determine whether the information “reasonably appears . . . to be foreign intelligence information, to be necessary to understand foreign intelligence information, or to be evidence of a crime.” If so, the information is passed along to the original agent.
This “clean team” approach is no substitute for a limitation on the initial search. It is analogous to claiming that searches of homes are not “searches,” and thus do not require warrants, if the agents performing the search find nothing – or if an elite team steps in to perform the search and can turn over what it finds to prosecutors only if it is evidence of a crime. Previously, the procedures did not allow fishing expeditions; now they do, and it seems somewhat beside the point that the fisherman only gets to keep the fish if he catches one.
The Constitutional Analysis
How can back door searches be constitutional? Until now, we haven’t seen the FISC’s reasoning, and apparently the court was never forced to articulate it. But thanks to the participation of amicus in this case – a result of last year’s USA Freedom Act – the FISC was presented with a Fourth Amendment argument against back door searches and was required to address it. The result is not confidence-inspiring.
The court began by disclaiming any intent to assess the constitutionality of back door searches on their own. The government argued – and the court agreed – that the search itself does not constitute a “separate Fourth Amendment event.” Instead, the court must assess the reasonableness of Section 702’s scheme “viewed as a whole” – not any one part of it.
As sensible as this approach may sound, it has its limits. The government cannot insulate a program of searches that do not qualify for any exception to the warrant requirement by inserting it into a larger program that does. Moreover, assessing the reasonableness of a program as a whole does not mean the court may simply ignore parts of that program. The applicability of the foreign intelligence exception and the constitutional reasonableness of Section 702 both turn on the existence of a significant foreign intelligence interest. If there is no such interest underlying the practice of back door searches, then a scheme that allows those searches cannot be sustained under the Fourth Amendment, even if “[t]he government’s national security interest in conducting acquisitions pursuant to Section 702 ‘is of the highest order of magnitude’” (emphasis added).
Implicitly recognizing this, the FISC made a weak attempt to superimpose a national security justification onto back door searches, stating: “Although the queries at issue here are designed to find and extract evidence of crimes believed to be unrelated to foreign intelligence, such queries may nonetheless elicit foreign intelligence information, particularly since the Section 702 collection is targeted against persons believed to possess, receive, or communicate such information.” It added, “Such unexpected connections may arise only rarely, but when they do arise, the foreign intelligence value of the information could be substantial.” In other words, the government has an overriding national security interest based on the slim possibility that it might unexpectedly happen across information other than what it’s actually searching for. To say the least, this smacks of a result-driven analysis.
The FISC then turned to the other side of the balancing test, and found the intrusion into Fourth Amendment interests to be less weighty for two reasons. First, the data may only be used or shared if it is foreign intelligence, necessary to understand foreign intelligence, or evidence of a crime. But that’s just another way of saying that the FBI may only use the data if it’s useful. That hardly mitigates the intrusion of the search. No court would hold that a search of a person’s home is not a significant intrusion as long as the fruits could only be used if they constituted evidence of a crime. (One also wonders about the court’s confidence that the FBI will adhere to even this minimal restriction, given that 30 of the opinion’s 80 pages are devoted to detailing multiple incidents of non-compliance by both the FBI and NSA – but that’s a subject for another post.)
Second, the FISC offered the consolation that back door searches are not a very big part of the Section 702 program. It noted: “[O]nly a subset of the information acquired by the government pursuant to Section 702 is subject to queries by the FBI.” How many communications are represented in that subset? The opinion doesn’t say. How many queries aimed at obtaining information about Americans are performed on it? When the PCLOB asked this question, the FBI said it could not provide the information because it doesn’t keep track.
Continuing to downplay the significance of back door searches, the FISC cited the government’s representation that “FBI queries designed to elicit evidence of crimes unrelated to foreign intelligence rarely, if ever, produce responsive results from the Section 702-acquired data.” (So much for the compelling government interest in happening upon foreign intelligence information when conducting non-foreign intelligence searches…?) But Americans’ Fourth Amendment interests are not limited to searches in cases “unrelated to foreign intelligence.” Even the Foreign Intelligence Surveillance Court of Review has upheld foreign intelligence surveillance of American targets only where those Americans were foreign powers or their agents; and Congress has required the government to prove this to the FISC. Back door searches allow an end run around this process, too.
In any case, the implication behind both of these observations is that a program may be constitutionally reasonable “as a whole” even if small parts of it are constitutionally unreasonable. That is a dangerous and unsupported approach to assessing constitutional reasonableness. There is a critical difference between finding that a program is constitutional “as a whole,” and finding that most of a program is constitutional.
In short, the FISC’s five-page analysis of this complex and important Fourth Amendment question is flawed in a number of respects, presenting a solid basis for appeal. Except… no one can appeal it. The USA Freedom Act created a panel of amici, but gave them no right to petition the FISCR to review rulings in the government’s favor. Thus, for the time being, the back door that gives the FBI routine, warrantless access to Americans’ communications remains wide open.