Documents released yesterday as a result of litigation brought by Yahoo show how the court charged with assessing government intelligence surveillance requests secretly applied a broad exception to the Fourth Amendment to authorize sweeping surveillance of digital records without a warrant. The FISA Court (FISC) opined that this exception to the Fourth Amendment permits programmatic surveillance of many individuals – including Americans – with no connection to a crime or terrorism. The documents also showed the FISC threatened to fine Yahoo a quarter-million dollars per day unless Yahoo acquiesced to the surveillance.
The newly declassified FISC opinion provides insight into the FISC’s strikingly broad view of the government’s surveillance power, and a very limited role for the Fourth Amendment in protecting against it.
The Supreme Court has never ruled on whether there is a foreign intelligence exception to Fourth Amendment’s warrant requirement, though other courts had found a limited exception. The newly declassified FISC opinion provides insight into the FISC’s strikingly broad view of the government’s surveillance power, and a very limited role for the Fourth Amendment in protecting against it. The FISC’s secret evisceration of Fourth Amendment protections should bolster efforts to pass the USA FREEDOM Act, which would make the FISC’s decisions more available to the public and more informed by the perspective of a “special advocate” of privacy rights at FISC proceedings.
[See CDT’s blog post on why a former FISC judge’s concerns about a special advocate are overblown.]
The documents – 1500 pages of memos, briefs, affidavits and court opinions – detail an extraordinary legal battle, conducted in secret, between the government, which pressed an expansive view of its surveillance authority under the 2007 Protect America Act (the predecessor to Section 702 of FISA) and Yahoo, which raised constitutional and legal arguments based on the privacy interests of its users. To our knowledge, Yahoo is the only U.S. provider to bring a direct challenge to this surveillance at its inception. Yahoo ultimately lost the battle, leading to Yahoo’s inclusion in the government’s PRISM program, which also swept up numerous other online service providers.
In 1972, the Supreme Court ruled that surveillance for “domestic security” purposes did not merit a general exception to the Fourth Amendment’s warrant requirement, but did not address whether a warrant is required for foreign intelligence surveillance involving U.S. persons. The Supreme Court has never acknowledged a general exception for gathering foreign intelligence information. Subsequent circuit court opinions, including the Fourth Circuit, found a limited exception for foreign intelligence information in “carefully limited” situations “in which the interests of the executive are paramount.” Where there is no foreign connection, the Fourth Circuit held, the surveillance more closely resembles criminal surveillance that must be authorized by a warrant.
Far from a “carefully limited situation,” the FISC expanded on these concepts and scaled them more broadly than the circuit courts. The FISC found that the “special needs” exception to the Fourth Amendment for gathering foreign intelligence information enabled the government to conduct programmatic surveillance of thousands of non-U.S. persons, even though it would also capture the communications of a substantial number of U.S. persons. The FISC ruled that the “foreign intelligence exception” exists when a “sufficient” purpose of the surveillance is gathering foreign intelligence, and a “sufficiently authoritative official” has probable cause to believe that the target is an agent of a foreign power. In Yahoo’s case, the FISC found these criteria were met because Sec. 702 of FISA already required “a significant purpose” of the surveillance be to gather foreign intelligence, and Executive Order 12333 required the Attorney General to decide whether probable cause existed before authorizing surveillance conducted in the United States that might ordinarily require a warrant. The FISC appellate court upheld the FISC’s opinion.
The effect of this complex legal wrangling is that the FISC may find that a warrant is not necessary to collect foreign intelligence in a surveillance program that targets non-U.S. persons abroad no matter how massive the surveillance program is, how many Americans’ communications are swept in by mistake or because they communicate with a foreign target, or how long the surveillance runs. All that remains, according to the FISC’s view, is whether the surveillance is “reasonable” – a low bar that is more easily met.
The FISC’s limited view of the scope of Fourth Amendment protection for metadata had already been revealed. The FISC had secretly ruled that the Fourth Amendment posed no barrier to the NSA’s collection of records of phone calls to, from, and within the U.S. In the Yahoo case, which involves communications content, the FISC’s “foreign intelligence exception” to the Fourth Amendment takes secret law to a disturbing new height.
The USA FREEDOM Act would enact these much-needed improvements.
The FISC decides some of the most challenging Fourth Amendment questions with the broadest impact on society – both American and global – of any court, yet does so in a highly secretive venue with virtually no input except that of the U.S. government pressing its surveillance demands. This highlights how urgently Congress should provide greater transparency of the FISC’s opinions and ensure that its proceedings are informed by views other than those of the government.
The USA FREEDOM Act – currently under consideration in the Senate – would enact these much-needed improvements. The bill would create a Special Advocate tasked with supporting privacy in critical FISC deliberations, and would require disclosure of FISC opinions that significantly impact the law. While some have claimed this could harm FISC proceedings, these concerns are unwarranted. The public had to wait far too long to have the full record on how the FISC applies its “foreign intelligence exception” to the Fourth Amendment, and shouldn’t have to wait any longer for these important improvements to our foreign intelligence surveillance laws.