Posted by on September 23, 2013 in Blog

By Isaac Levey
Legal Fellow

Last week, the top-secret court that hears applications for national security-related surveillance publicly released an opinion requiring telecommunications companies to turn over a huge cache of information to the National Security Agency (NSA). The information, known as “metadata,” includes comprehensive records that the company has, essentially covering all the telephone calls its subscribers make. The metadata doesn’t include personal information, such as subscribers’ names and addresses (although it does include phone numbers), and it doesn’t include any “communicative content:” that is, the order doesn’t allow the NSA to actually listen to what’s said during the calls.

That this collection is taking place isn’t news; this program of bulk metadata collection was the first of the major stories about the NSA that its former contractor Edward Snowden disclosed over the summer. This is, however, the first time we have been allowed to see the legal reasoning that the Foreign Intelligence Surveillance Court (FISC) has used to conclude that the program is legal and constitutional. The opinion, which can be found in full here, largely agrees with the Department of Justice’s legal defense of the program, and although the court didn’t have access to DOJ’s analysis in writing its opinion, the Government presumably made similar arguments when the court was considering its decision. The decision was handed down on July 19, but FISC only decided to declassify it this week due to “the public interest in this matter.”

The court’s opinion doesn’t say anything particularly surprising: it holds that the surveillance is authorized under Section 215 of the Foreign Intelligence Surveillance Act (FISA), the so-called “business records” provision. As I have previously explained, Section 215’s text can plausibly be read to authorize this dragnet collection, because all it requires is that the records be “relevant” to an investigation of terrorism. Since the ability to literally see all calls that all Americans have made will obviously help the Government fight terror (probably), legally speaking the dragnet collection is “relevant.” And under controlling Supreme Court precedent – at least as FISC, DOJ, and lower courts generally understand it – no person has any constitutionally protected privacy in their phone records: the government can look through them with impunity, even without a warrant, as long as they don’t actually listen in on conversations. But this reading of the “letter of the law” would seem to violate the “spirit of the law”: the entire reason FISA was adopted was to create a judicial process to oversee this kind of intelligence collection and limit it to cases where the investigation was actually based on individualized, legitimate suspicion of the person being investigated. And the Constitution’s Fourth Amendment – which prohibits “unreasonable searches and seizures” – is designed to prohibit “general warrants” which authorize government fishing expeditions into citizens’ private materials, hoping something will turn up. So this FISC opinion, while it makes the legal arguments one might expect, is deeply troubling in what it concludes. The principles it adopts would allow unlimited investigation of just about any private records, including Americans’ financial information, medical records, or where people drove, with no greater justification than that the materials were ‘relevant’ to some government purpose.

The court also based its reading of Section 215 on the conclusion that Congress agreed with its interpretation. It invoked a well-known judicial rule that when a court interprets a statute to mean X, Y, and Z, and Congress doesn’t change the law, courts will generally assume they read it correctly to mean X, Y, and Z (i.e., because Congress would have corrected the statute if the court’s reading was wrong). The court explained that Congress had an opportunity to review a 2011 DOJ report on bulk metadata collection before it reauthorized FISA Section 215, and that since it knew this program was going on, we should assume Congress wanted it to continue. But that reasoning obviously assumes that Congress actually knew what was happening, and there’s good reason to doubt that assumption. The report was released to Congress’ intelligence committees, but some Congressmen, including Reps. Justin Amash (R-Mich.) and Rush Holt (D-N.J.), have claimed they never had an opportunity to see the report because the House Intelligence Committee withheld it. If this is true, not only does it undercut the validity of FISC’s reading of Section 215, but it also raises serious questions as to whether the House Intelligence Committee and its Chairman, Rep. Mike Rogers (R-Mich.), are properly doing their jobs.

How We Fix This

The most serious problem here goes far beyond academic questions of statutory construction, and even the troubling scope of bulk data collection under Section 215: at bottom, this illustrates the undemocratic nature of FISA’s framework of secret law. The NSA is conducting a massive surveillance operation, stamped with judicial approval through FISC, and the American people never would have known without Edward Snowden’s revelations. These concerns explain why we support current proposals in Congress to increase the publicity of FISC’s deliberations and decisions. Rep. Adam Schiff (D-Cal.) has introduced the Ending Secret Law Act, which would require more frequent publication of FISC opinions, and Sen. Jeff Merkley (D-Or.) has introduced the same bill in the Senate. Each bill has supporters in both parties. Schiff, who is on the House Intelligence Committee, has also introduced a bill that would create a “public advocate” to raise privacy and civil liberties concerns in important cases 1before the FISC, making it a more truly adversarial court.

These structural reforms are more important than any specific limits or authorizations on electronic surveillance. Whatever you think is the right balance between liberty and safety, and just how much privacy we’re willing to give up in the name of fighting terrorism in the twenty-first century, all serious people should agree that we need to have these conversations out in the open. If we are willing to sacrifice our liberty for security, we should do it openly and democratically, not through a silent opinion by a secret court which only hears argument from one side. A functioning democracy – and a society composed of adults – needs to make these fundamental decisions in public.

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