FISA Court: Government Can Collect Content Along With Dialing Data Using Pen Register Orders

from the national-security-says-the-rules-don't-apply dept

The Director of National Intelligence’s office has cleared another FISA court opinion [PDF] for release. These are getting far more interesting to read, even if little seems to be changing about the FBI/NSA’s collection methods. The process is now a little bit more adversarial, thanks to the USA Freedom Act, which introduced the possibility of someone arguing on behalf of the surveilled and in the interest of privacy and the Fourth Amendment.

Unfortunately, this opinion finds the FISA court mostly unimpressed with the counterarguments. The discussion involved the use of pen register orders to capture “post-cut through” dialing digits — the sort of thing the court determined to be content, rather than metadata in the past.

This time around, the court seems more amenable to the government’s arguments that any digits obtained along with dialed phone numbers is fair game — whether or not the orders actually allow for the collection of communications content.

The government claimed it had no technical ability to capture only dialing information. Everything entered on a phone keypad would make its way back to government with the pen register. Past the point of interception, the government was supposed to discard the extra digits because they might be considered content. This is what the court determined in 2006:

The court “had made modifications to the government’s proposed pen register orders,” reads the biannual report to Congress obtained by EPIC. “Although the [FISA Court] has authorized the government to record and decode all post-cut-through digits dialed by the targeted telephone, it has struck the language specifically authorizing the government to make affirmative investigative use of possible content” unless permission is specifically granted by the court.

A decade later, the FISA court is seeing things differently.

We have reviewed the record and considered briefs from the government and from amicus curiae appointed by the court under 50 U.S.C. 1803(i) to present argument in this matter. We conclude that section 1842 authorizes, and the Fourth Amendment to the Constitution of the United States does not prohibit, an order of the kind described in the certification. Read fairly and as a whole, the governing statutes evince Congress’s understanding that pen registers and trap-and-trace devices will, under some circumstances, inevitably collect content information. Congress has addressed this difficulty by requiring the government to minimize the incidental collection of content through the employment of such technological measures as are reasonably available — not by barring entirely, as a form of prophylaxis, the use of pen registers and trap-and~trace devices simply because they might gather content incidentally.

Nor does an order authorizing such surveillance run afoul of the Fourth Amendment’s guarantee against unreasonable searches and seizures. The warrant requirement is generally a tolerable proxy for “reasonableness” when the government is seeking to unearth evidence of criminal wrongdoing, but it fails properly to balance the interests at stake when the government is instead seeking to preserve and protect the nation’s security from foreign threat. We therefore hold that surveillance of this type may be constitutionally reasonable even when it is not authorized by a probable-cause warrant. We further hold, on the facts presented here, that the order under review reasonably balances the investigative needs of the government and the privacy interests of the people.

In other words, the Fourth Amendment is perfectly fine for criminal investigations, but doesn’t really apply to national security investigations. Not really a comforting place to draw the line, considering the FBI’s shift in focus from law enforcement to becoming the NSA’s unofficial domestic wing over the past 15 years.

The problem with the removal of restrictions the court had erected earlier is that this decision doesn’t just influence the collection of dialed digits through pen register orders. Other metadata collected from other forms of communications are also affected by this ruling, as is pointed out by Marc Zwillinger, the court-appointed amicus acting on behalf of the Fourth Amendment and the general public.

The amicus curiae contends that if the government’s argument were applied to Internet pen registers, the government could collect information generated by a wide variety of activities on the Internet, including searching, uploading documents, and drafting emails.

The court leaves it up to Congress to solve the problem — which to a certain extent it has. The laws surrounding pen register orders have been updated periodically, but the most recent changes are still more than 20 years old: the Communications Assistance for Law Enforcement Act (CALEA) was passed in 1994. At that point, Congress added statutory language that said the FBI, et al, must use “technology reasonably available to it” to restrict the recording/decoding of post-cut-through digits. Twenty years later, the government is still claiming it has no way of limiting this collection. I guess “nerd harder” is only applicable to the private sector.

The point made by Zwillinger isn’t some form of privacy advocate paranoia. The Patriot Act allowed pen register orders to be deployed to capture internet metadata. As is pointed out in the opinion, Sen. Patrick Leahy expressed concern over this broadened collection and noted that without additional restrictions, the new law could be read as allowing the interception of a broad range of content, rather than just routing information. The court, however, interprets Congress’s minimal actions post-Patriot Act as being indicative of its support for the collection of content (however inadvertently) with pen register orders. In fact, it goes so far as to claim the stipulations Congress did enact did not narrow the breadth of the collections, but rather only prevented the definition from being expanded further than it already had been.

According to the FISA court, the national security ends justify the Fourth Amendment-bruising means.

[T]he relevant statute at issue in this case authorizes the use of a pen register “to protect against… clandestine intelligence activities.” 50 U.S.C. 1842(a)(1). Pursuant to that statute, the government seeks to monitor the dealings of a person, currently in the United States, who is suspected of collecting intelligence in the service of a foreign power. The purpose of the proposed monitoring is the preservation of national security. Few government interests are of a higher order. The interest at stake is no less — and may even be greater — for the foreign agent’s being present in this country. And were we to insist on a showing of probable cause and the issuance of a judicial warrant in this setting, we would impede the Executive’s ability to bring to bear against the threat those faculties — “stealth, speed, and secrecy” — needed to secure the nation’s well-being in this most fundamental and sensitive of government endeavors.

The streak continues. The Fourth Amendment is mostly null and void when it comes to national security, whether it’s the FBI using pen register orders to collect communications content or the DHS/CBP pawing through electronics/traveling dozens of miles from the border to hassle inland citizens.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “FISA Court: Government Can Collect Content Along With Dialing Data Using Pen Register Orders”

Subscribe: RSS Leave a comment
That One Guy (profile) says:

'National Security: No Privacy Allowed'

The purpose of the proposed monitoring is the preservation of national security. Few government interests are of a higher order.

‘Few’ does not mean ‘none’, and ‘constitutional’ still(or should) trumps ‘national security’ every time. If it’s not constitutional(and I’d certainly argue that mass indiscriminate surveillance ‘just in case’ doesn’t even come close to qualifying, nor would ‘getting a proper warrant is just too hard‘) all the ‘national security’ arguments around fail to be sufficient justification.

Under that (horrific) logic pretty much anything whatsoever is fair game so long as you can claim ‘national security’.

Intercept and scan all personal data you can get your hands on? With ‘National Security’ it’s perfectly fine.

Demand that someone not only hand over their personal electronic devices but unlock them as well, with threat of jail time and charges for non-compliance? No worries, ‘National Security’ to the rescue.

Don’t have enough evidence to qualify for an actual warrant, or want to do things that a warrant doesn’t allow? Knock yourself out, ‘National Security’ has got it covered.

The cowards on the FISA ‘court’ may have no problem sacrificing their privacy and rights in the name of ‘National Security’, but they most certainly should not be allowed to sacrifice the rights and privacy of others as well just because the government has them spooked over those scary foreigners/terrorists/criminals/communists.

Jason says:

The cliché about how “terrorists can’t destroy this country, we can do it all by ourselves” never rings more true than when things like this happen. When any or all Constitutionally guaranteed rights can be waved away with a stack of legal opinions, just what is it that’s left to separate us from any of the autocratic nations we claim to be “better” than?

Anonymous Coward says:

Reveal it all

How about this coming election, we take the newest elected senators and house members that up until now were nobodies, and force the government to turn over and delete records that have been collected on them. The people affected will of course be shown what records were available and the resulting shitstorm should put an end to this whole thing. The collect it all and save it forever option has been enabled long enough that our currently sitting president, probably has blackmail info available to all and sundry who wish to be able to use it to force their own agendas. Future leaders will just have that many more years worth of collected info on them available to sift and search for the nuggets that will make them putty in the hands of the agencies with the real power.

Avior says:

Destroying what they're claiming to protect.

The purpose of the proposed monitoring is the preservation of national security.

Not when it is destroying what the “nation” is supposed to be about.

Few government interests are of a higher order.

The nation was founded on the principle that citizen interests were supposed of a “higher order” than “government interests”. The government is now trying to reverse that. Shame.

That One Guy (profile) says:

Re: Re:

Well clearly it’s because the USG is always right and can do whatever they want(because again, they’re always right), but when other people do the same to the USG then it’s a horrible action threatening the very core of the nation and a gross violation of the rights, privacy and security of the public, which of course is of vital importance(right after US National Security of course).

You know, kinda how like the USG used to(no idea if they still do post-CIA torture report) talk about how torture is a terrible thing and should never be done. Unless it’s a US agency doing it, in which case why get so upset, they had it coming as bad guys.

Anonymous Coward says:


U.S. Constitution – Amendment 4
Amendment 4 – Search and Seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Anonymous Coward says:

article 6 p 4

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

DannyB (profile) says:

FISA Court -- you're doing it wrong

Dear FISA Court,

You’re doing it wrong.

In the interest of the citizens, the taxpayers, you need to reform how you do business.

It would be fare more efficient on taxpayer resources to issue one, and only one ruling that the government can get anything it wants, any time it wants, from anyone it wants, and for any reason whatsoever, real, imagined or spontaneously invented at the moment of need. Without any recourse, due process, or oversight. (Hint: take a lesson from Hollywood on this.)

Other tyrant fascist dictator police states have figured out this efficiency long ago. Why are you dragging your feet. Act like a FISA court ought to act. That’s the entire reason the FISA court was established — not that anyone would admit that.

That One Guy (profile) says:

Re: FISA Court -- you're doing it wrong

Yeah, at this point they really do need to just come out and admit, “We will side with the government on every major issue, giving them anything and everything they want, and will only push back on minor procedural issues to make it look like we care about the public.”

On the other hand, if they did do something like that they’d be out of a job, so maybe they continue the charade simply to keep the cushy job rubber-stamping everything put in front of them.

Anonymous Coward says:

they'd be out of a job,


From what I understand FISC is periodically convened from judges hand selected by John Roberts. Apparently the patriot act considered alleviating the need for checks and balances, a “feature”.

It isn’t like you can’t figure out who they are if you really wanted to. They probably play golf together when they’re not drinking wine out of skulls. (My guess is they are probably all bonesmen, since Bush was)

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...