from the some-language-tricks-and-funny-games dept
I already wrote a post about how the FISA Court rejected the arguments of the public advocate that it appointed to review the legality and constitutionality of the infamous backdoor searches. However, I wanted to put up a second post as well, digging a little deeper into what the ruling itself means, rather than just focusing on the public advocate part of it. Because it’s pretty scary. We already knew that, once that data was collected under the Section 702 PRISM program, the NSA opened it up to both the CIA and FBI to search on for other purposes.
However, as Elizabeth Goitein explains over at Just Security, even then there were some limitations:
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.
But the details of this newly revealed ruling show that that limitation has gone away — basically because the FBI changed its own minimization procedures in part to pretend English words don’t mean what they really mean. In the past, the NSA has reinterpreted many English words to mean things different than their plain English meaning. In this case, the FBI has decided to redefine the word “query”:
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.
Got that? A query is no longer a query and the FBI has much broader authority to do backdoor searches than was previously known. As the EFF notes in response to this, this seems to fly in the face of legal precedent and the Constitution:
This is a constitutional problem. Quite apart from the bait and switch opportunities it creates for the FBI, it’s like saying it’s OK for school officials to set up a drug testing program for non-law enforcement purposes, and then once it?s set up, they can completely abandon that purpose and start testing students to simply to put them in jail. Or that the government can set up a program to test pregnant women for drugs with a goal to get them into treatment, but also hand the information over to the police and use the threat of prosecution as additional leverage.
The Supreme Court rejected the latter scenario as unconstitutional in Ferguson v. City of Charleston in 2001. Other Supreme Court cases make clear that even holistic, programmatic assessments of Fourth Amendment “reasonableness”?like the one the FISC engages in here?must take into account the invasiveness of these programs. Searching vast databases containing the full content of emails and every website visited by nonsuspect Americans without a warrant is about as invasive as it gets.
And it’s not just the FBI that gets much broader access to these backdoor searches. Marcy Wheeler points out that the decision reveals that the NSA and CIA basically wrote themselves a note last summer saying that they no longer needed to follow minimization procedures… and the judge is cool with that. Here’s the paragraph in the ruling:
The NSA and CIA Minimization Procedures included as part of the July 15, 2015 Submission each contain new language stating that ?[n]othing in these procedures shall prohibit the retention, processing, or dissemination of information reasonably necessary to comply with specific constitutional, judicial, or legislative mandates.? See NSA Minimization Procedures at 1; CIA Minimization Procedures at 4-5. These provisions were not included in the draft procedures that were submitted to the Court in June 2015, but appear to have been added by the government thereafter. They are not discussed in the July 15, 2015 Memorandum.
As Wheeler notes, this is just the NSA and CIA deciding unilaterally that they can ignore minimization. The judge even pointed out that this move “could undermine the Court’s ability to find the procedures satisfy the above-described statutory requirement.” However, the judge, Thomas Hogan, then decides that this is kind of okay because government lawyers told him informally (yes, really!) that they don’t intend to abuse this very much:
The Court understands based on informal communications between Court staff and attorneys for the government that NSA and CIA intend to apply the similar provisions at issue here in the same narrow manner.
Wheeler has a lot more on this particular part of the ruling and how troubling it is. But, in short, it has also broadened the ability of the government to snoop through these massive troves of data. The reliance on informal promises not to take it too far mean very little. As former NSA and CIA director Michael Hayden has said, his job was to push up as close to the boundaries of what was legal as possible. Once Congress or the courts told him what was legal (or, in some cases, the President unilaterally), he would make use of that. Why would that not be the case here? Or, as Wheeler explains more vividly:
I?m not sure how that?ll be effective when President Trump decides he can pass an Executive Order requiring NSA to keep all the US person data it collects but not tell FISC about it, because the order they report on this to him is part of the minimization procedures they say they can blow off.
And, of course, none of this can be appealed, because even though there are the arguments from the public advocate (which didn’t include this last part about ignoring minimization), only the government itself can appeal a ruling, and they got everything they wanted here (and possibly more).
The only actual way to fix it at this point is for Congress to step in and rewrite the law, but the chances of that happening appear to be slim to none.
Filed Under: 4th amendment, backdoor search, backdoor searches, cia, definitions, fbi, fisa court, fisc, law enforcement, mass surveillance, nsa, prism, query, section 702