Balkinization

What the White House Says -- and a Basic, Yet Surprisingly Unsettled, Fourth Amendment Question

Marty Lederman

In the interest of fairness (and because my reporting below was admittedly based on third- or fourth-hand reports), I should report that DNI McConnell is now denying that he reneged on any deal with the Democrats. This from the White House:

For Immediate Release
Office of the Press Secretary
August 3, 2007

Statement by Deputy Press Secretary Tony Fratto on FISA Modernization

"This afternoon on the House floor, Rep. Alcee Hastings asserted that last night the Director of National Intelligence had accepted a House Democratic proposal on FISA modernization but the White House made him turn it down. That is flatly untrue. The DNI reviewed the legislation himself and determined that it would not provide the tools he needs to protect the country, and therefore he would not be able to look the President in the eye and say that the legislation should be signed. The Administration is working in good faith with the Congress to get this critical national security legislation passed before they depart for the rest of August."

Also, at some point today, the White House released the following "Fact Sheet on FISA Modernization," which explains what they will not accept in any legislation.

The key, I think, is the last bullet point: If the NSA is surveilling communications that originate overseas, and doing so on "switches" here in the U.S., and it turns out that the foreign party "frequently" communicates with persons here in the U.S., should the NSA have to make any showing to the FISA Court before being able to continue to intercept such communications with U.S. persons? If I understand this correctly, the Administration basically wishes to be able to listen in on virtually all communications between persons in the U.S. and persons overseas, without having to make any showing at all -- something that tapping the calls of foreigners over U.S. "switches" might effectively facilitate.

Wholly apart from whether Congress should place any limits on such activities, does the Fourth Amendment have anything to say about such international surveillance? Does a U.S. person here in the States have any reasonable expectation of privacy with respect to phone calls and e-mails with persons overseas? One might think the answer to this would (or should) be yes, but Orin Kerr yesterday pointed to at least one court of appeals decision (McNulty) suggesting that if you enage in a communication with someone else who has no constitutional expectation of privacy, then you don't, either -- in which case perhaps all international communications lack Fourth Amendment protection.

Fact Sheet on FISA Modernization

The Problem

* The Foreign Intelligence Surveillance Act (FISA) was drafted almost thirty years ago, for the purpose of establishing a process for obtaining a court order to conduct foreign intelligence surveillance in the United States.

* However, as a result of revolutions in telecommunications technology since FISA was passed, FISA now often requires the Government to get a court order to collect information on terrorists and other foreign intelligence targets located overseas.

* It makes no sense to require the Government to obtain a court order to collect foreign intelligence on foreign targets located in foreign countries. This requirement impairs our intelligence capabilities, and diverts scarce resources that would be better spent safeguarding the civil liberties of Americans, not foreigners who wish to do us harm.

* As the Director of National Intelligence has reported, as a result of this outdated law we now are "missing a significant amount of foreign intelligence that we should be collecting to protect our country." This is unacceptable at any time-but it is intolerable in the current heightened threat environment.

The Director of National Intelligence Has Proposed A Reasonable Solution

* The Administration proposed a comprehensive FISA modernization bill to the Congress several months ago. However, Congress has made it clear that they will be unable to act upon the Administration's full proposal before the August recess.

* In an effort to address this critical intelligence gap, the Director of National Intelligence has proposed a significantly narrowed proposal focused on the current, urgent need to protect our Nation.

* This new proposal would substantially enhance our capabilities to collect intelligence on targets located overseas. It would also preserve a role for the Foreign Intelligence Surveillance Court in reviewing the Government's procedures for collecting intelligence on these overseas targets. This is an effort to balance court review and our urgent need to close the current intelligence gap.

* The court review procedures would not stand in the way of starting collection of foreign intelligence immediately. The Government would have 90 days after collection has started to submit its procedures to the court for review. If the court found any deficiency, collection would continue during any and all court review processes.

What Is Not Acceptable

* Some have proposed that the Government must obtain pre-approval from a court before it conducts critical surveillance of targets located overseas. This is unacceptable. The Government must be able to act immediately, particularly in the case of national security emergencies, to protect the Nation.

* Some have suggested that FISA must be reformed, but only to permit collection against certain overseas threats like al Qaeda terrorists. This is unacceptable. There are many threats that confront our Nation, including military, weapons proliferation, and economic, and we must be able to conduct foreign intelligence effectively on all of them.

* Some have suggested that we must wait to modernize FISA. This is unacceptable. Congress must act now to give our intelligence professionals the tools they need to uncover plots in time to protect our homeland.

* Some have suggested that a court order should be necessary before our intelligence professionals are able to gather any information about a foreign target who happens to contact someone in the United States frequently. This is unacceptable.

Posted 8:06 PM by Marty Lederman [link]

Comments:

i don't understand how the last bullet point makes any sense:

"Some have suggested that a court order should be necessary before our intelligence professionals are able to gather any information about a foreign target who happens to contact someone in the United States frequently. This is unacceptable."

my bold.

how would anyone know if the foreign target frequently contacted someone in the USA before gathering any information?

what am i missing?

# posted by

selise : 8:59 PM

Selise: You're missing the Kool-Aid.

To add to it, FISA gives the AG time to get a warrant after the fact. If they're onto something big, they invariably get it. The bill's preclearance mechanics can even further grease the path, by anticipating exigencies.

Calls that stream into a particular US person shouldn't necessarily be tapped. The ACLU ticked off chilled speakers for the Michigan District Court. Suppose the foreigner is a peaceful Iraqi oil union activist and the US person is an attorney giving advice on the proposed oil privatization law. A judge should balance the interests. We've seen enough go wrong with the NSA letters, and that's pretty much all we've been allowed to see.

I remain skeptical as to what really blew up. The "some have suggested" refrain shows they're not exactly going on the merits.

# posted by

occasional observer : 9:55 PM

1) As for the question of whether McConnell had made a deal with Hoyer, Hoyer basically settled that on the House floor tonight. He acknowledged that McConnell had not "endorsed" or "supported" the House Democrats' bill, but had said some rather positive things about it relative to the status quo.

2) On the substantive issue raised in the final paragraph of the White House statement, I think you correctly identify the most serious policy question.

Advocates of that position say that in the good old days, when most international traffic was handled over satellite, FISA was written deliberately to allow NSA surveillance without warrant of this traffic because satellite interception was deemed not to occur within the United States. So long as U.S. persons were not identified and targeted, the other three elements of FISA's four-prong definition of "electronic surveillance" in 1801(f) were not triggered.

But today, when most international traffic is carried by fiber-optic cables, it can only be intercepted feasibly at land-based switches. The NSA wants to do it all at the switches conveniently situated in the United States, but runs smack into the FISA definition of 50 USC 1801(f)(2).

So yes, the White House is effectively asking for unfettered authority to tap most all international traffic. They may even be right that the silent legislative intent in 1978 was to allow that. But no one wants to say that out loud. Such is what secret law and secret courts lead to.

# posted by

JaO : 10:00 PM

OB: thanks, i try to avoid as much kool-aid as possible.

i don't see why congress is acting on this demand, without 1) it making sense and 2) full disclosure by the administration.

"I remain skeptical as to what really blew up. The "some have suggested" refrain shows they're not exactly going on the merits."

agreed.

# posted by

selise : 10:02 PM

The Fourth Amendment is currently held to require that a search be "reasonable". By the early 20th Century court decisions settled on the principle that a search without a warrant to gather evidence in a criminal case was presumtively unresonable and such evidence should be excluded. However, another smaller set of cases determined that warrantless searches for national security purposes were presumtively reasonable and constitutional. Since such searches never generated criminal cases, they seldom came before courts and exclusion by itself was meaningless.

FISA was passed to create a statutory requirement for warrants in national security investigations specifically because there was no constitutional prohibition. The FISA warrant is not the search warrant mentioned in the Fouth Amendment. It is only good for national security matters. Thus if the government obtained a FISA warrant expecting to intercept terrorist communication, but instead discovered someone importing drugs into the country, the existence of a FISA warrant would not necessarily allow the intercept and and subsequently collected evidence based on that intercept to be admitted into a criminal case.

FISA was passed when it was discoverd that the FBI used a pretense of national security to spy on civil rights and anti-war groups. Statements by the committees at the time make it clear that it was intended to prevent abuse against specifically targed political enemies, not to protect the privacy of random individuals whose communications might be unintentionally intercepted.

Thus FISA requires a warrant to intercept communications anywhere if the target is a specific US person, or to intercept communications at a point in the US if a US person is a party to the communication. A warrant is not required to intercept the same conversation 13 miles offshore. In 1978 when the law was passed, most international traffic was carried by satellite, and that traffic could be freely intercepted by the NSA almost anywhere using ground stations outside the US (say at Gitmo).

If you repealed FISA things would revert to the pre-1978 state, the NSA would be able to do anything it wanted and there would be no Fourth Amendment problem. Therefore, any reform of FISA cannot, by simple logical reasoning, pose a constitutional problem.

# posted by

Howard : 10:24 PM

-- Therefore, any reform of FISA cannot, by simple logical reasoning, pose a constitutional problem. --

I agree. The point of the recently passed "modernization" lies in presumptively answering the question of constitutionality via a statutory proclamation -- the statute aims to avoid the need to establish that (constitutionality) in court, in order to overcome recalcitrant switch owner/operators who hold that FISA is the sole authority for the desired acquisitions. Now the administration will have the power of compulsion via court order.

See also immunity and the promise to pay switch owner/operators for hardware and manpower to accomplish the vacuuming operations.

# posted by

cboldt : 10:34 PM

So yes, the White House is effectively asking for unfettered authority to tap most all international traffic. They may even be right that the silent legislative intent in 1978 was to allow that. But no one wants to say that out loud. Such is what secret law and secret courts lead to. -- JaO

FISA was passed when it was discoverd that the FBI used a pretense of national security to spy on civil rights and anti-war groups. Statements by the committees at the time make it clear that it was intended to prevent abuse against specifically targed political enemies, not to protect the privacy of random individuals whose communications might be unintentionally intercepted. -- Howard

My hypothetical of an Iraqi oil union activist on the horn with a US lawyer seeking advice on the oil privatization law goes to the issue. It implicates a privacy interest and a bad motive to snoop. And it's not far-fetched. We like to think of resisters to Bush's plans for Iraq as terrorists, but the oil unions are the very opposite.

It should be easily resolved. All Harry Reid needs to do is douse the Senate lights again, hold a séance, and summon Frank Church. He has the weekend.

# posted by

occasional observer : 11:07 PM

Marty: Wholly apart from whether Congress should place any limits on such activities, does the Fourth Amendment have anything to say about such international surveillance? Does a U.S. person here in the States have any reasonable expectation of privacy with respect to phone calls and e-mails with persons overseas?

There are those who argue that there is no REP for international calls under a special needs exception, but no one can point to any case to that effect. Orin has blogged about that theory a few times, including here.

The applicability of REP under FISA is actually significant beyond the Fourth Amendment itself, because the term of art is hard-wired into three of the four prongs in the 50 USC 1801(f) definitions of "electronic surveillance." It actually narrows the scope of the FISA statute itself, even though FISA is not enforcing the Fourth Amendment, and the Fourth may or may not apply directly. (Note that this is a more narrow definition than that that which defines ordinary Title III eavesdropping. Under Title III, warrantless surveillance in interstate commerce is criminalized more generally, without reference to REP.)

There are cases that have allowed border searches of physical computers, but in criminal prosecutions (which might test the theory in open court) federal attorneys are cautioned not to push the envelope to surveillance:

"Importantly, agents and prosecutors should not interpret Roberts as permitting the interception of data transmitted electronically to and from the United States. Any real-time interception of electronically transmitted data in the United States must comply strictly with the requirements of Title III ... "

I have wondered sometimes what would happen if, under the secret precedents that operate within the FISA court, there was secret caselaw that upheld the theory that REP did not obtain in international calls. Since there is no public case one way or another to contradict such a secret holding, maybe FISA could be crippled for international calls and none of us would ever know.

Such is what secret law and secret courts can lead to.

# posted by

JaO : 11:47 PM

"My hypothetical of an Iraqi oil union activist on the horn with a US lawyer seeking advice on the oil privatization law goes to the issue." If a hypothetical US program were intercepting this conversation, then FISA requires a warrant if the US lawyer is the target of the intercept, but if the Iraqi is the target then FISA only requires a warrant if the conversation is intercepted inside the US. If the conversation is intercepted by US equipment in Iraq, or anywhere 13 miles offshore, then no warrant is required even though a US person is part of the conversation.

Before 9/11 a sequence of Executive Orders went beyond FISA to require a FISA warrant for any intercept involving a US party no matter where the conversation was collected. This was rescinded after the attack.

Obviously FISA does not prevent any US administration from targeting a whole range of admirable people overseas. It was solely focused on protecting domestic political enemies. As the Congressional committees explained at the time, the fact that FISA does not prohibit some egregious behavior does not mean it is acceptable. Congress passed FISA to prevent the problems that had already occurred while leaving maximum flexibility for future legitimate national security activity.

# posted by

Howard : 12:23 AM

Howard: "there would be no Fourth Amendment problem. Therefore, any reform of FISA cannot, by simple logical reasoning, pose a constitutional problem."

Well, there would be "no" problem if we follow the principles suggested by your reading of earlier case law. Things change and develop over time in this department all the time. Privacy concerns, for example, led to changes in constitutional understanding.

This does underline the problem with focusing on FISA solely. I'm sure a reasonable argument can be made the spirit of Church's concerns apply more broadly than H's reading of FISA. But, ultimately, it doesn't matter as much if we demand a healthy respect for privacy and limitation of gov't power.

On that end, even if FISA didn't originally apply to the oil lobbyist, SHOULD be our concern now.

# posted by

Joe : 1:13 AM

Howard: Obviously FISA does not prevent any US administration from targeting a whole range of admirable people overseas. It was solely focused on protecting domestic political enemies.

What a crock.

If that is all Congress cared about, it would have just criminalized surveillance of "political enemies."

But that is not at all where Congress drew the line. As far as U.S. persons go, by the language of FISA, everyone is protected except an "agent of a foreign power."

# posted by

JaO : 1:28 AM

Marty Lederman said in the opening post,
>>>>>* Some have proposed that the Government must obtain pre-approval from a court before it conducts critical surveillance of targets located overseas. This is unacceptable. The Government must be able to act immediately, particularly in the case of national security emergencies, to protect the Nation . . . .

. . . . Some have suggested that a court order should be necessary before our intelligence professionals are able to gather any information about a foreign target who happens to contact someone in the United States frequently. This is unacceptable. <<<<<

The following question is not a constitutional question but a question of fairness: Why are people inside the USA more deserving of protection of privacy than people outside the USA? This is not a national security issue, because a communication can be a threat to national security whether the communicators are both inside the USA, both outside the USA, or one inside and one outside the USA.

# posted by

Larry Fafarman : 2:51 AM

Why did anyone take on face value anything the impeached ex judge Hastings has to say?

# posted by

Bart DePalma : 10:59 AM

JaO said (1:28 AM) --

>>>>>> Howard: Obviously FISA does not prevent any US administration from targeting a whole range of admirable people overseas. It was solely focused on protecting domestic political enemies.

What a crock.

If that is all Congress cared about, it would have just criminalized surveillance of "political enemies." <<<<<<

That's ridiculous -- Congress would not put such vague language as "political enemies" into a law, nor would Congress be so candid about its real purpose. I'm not saying that the real purpose of Congress was to protect "domestic political enemies" -- I don't know -- all I am saying is that it is wrong to assume that this was not the real purpose. Congress often uses indirect, devious methods, just like the original grandfather clauses. The original grandfather clauses did not say outright that only whites could vote -- these clauses only waived poll taxes and literacy tests for those who voted prior to 1867 or thereabouts and their descendants. And when the federal auto emissions laws were initially enacted, the other states were apparently jealous that only California was made eligible for waivers of federal preemption of auto emissions standards, so in the interest of fairness, the waivers were made available to "any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966." Of course, only California qualified. I don't know why Congress thought it was fooling anyone.

# posted by

Larry Fafarman : 12:19 PM

Larry Fafarman,

Everyone who knows the history of FISA understands that protecting against political abuse was one motivation. But to assert that it was the only motivation is preposterous. Congress explicitly opted to fill a hole previously carved out of Title III relating to foreign powers and their agents. Read the legislative history and learn.

Even more preposterous is to confuse the textual effect of the law with some vaguely reconstructed intent, and to assert as Howard did that the law itself is "soley focused" on such narrow situations.

# posted by

JaO : 1:46 PM

Re: the last bullet point:

"* Some have suggested that a court order should be necessary before our intelligence professionals are able to gather any information about a foreign target who happens to contact someone in the United States frequently. This is unacceptable."

Does this mean that the argument (and the FISA court opinions) may have been about the probability of intercepting a conversation of a person in the U.S. when tapping a foreign target abroad? That if there was little "expectation" of snooping such, the occasional lapse could be overlooked (provided proper minimization procedures were followed), but that when there was frequent contact with people in the U.S., such surveillance was a violation of FISA because the agents knew (or should have known) in advance that they would undoubtedly be picking up conversations covered under 50 USC § 1801(f)(2)?

Cheers,

# posted by

Arne Langsetmo : 4:10 PM