The Snowden Reader
Page 29
Defendant strongly disagrees:
[R]egardless of the nominal targeting of foreign persons abroad, the §702 programs routinely acquire huge numbers of American communications in America . . . [which] implicate[ ] the Fourth Amendment. This case is a test of fundamental American liberties: the Court should reject the claim that, simply because foreign persons are being targeted, Americans lose their rights as collateral damage.
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1. Warrant Requirement
Defendant, a U.S. citizen, was not targeted under §702, but his communications were collected incidentally during intelligence collection targeted at one or more non-U.S. persons outside the United States.
The government contends the warrant requirement is not triggered by the incidental collection of non-targeted U.S. person communications during the lawful collection of communications of targeted non-U.S. persons located outside the United States. According to the government, the privacy interests of the U.S. persons are protected by the required minimization procedures. Application of a warrant requirement in this situation would be impracticable and inconsistent with decades of foreign-intelligence collection practice. The government notes that before starting surveillance of a foreign target, the government cannot know the identities of all people with whom the target will communicate, and there is always a possibility the target will communicate with a U.S. person. Thus, the government claims imposing a warrant requirement for any incidental interception of U.S. person communications would effectively require a warrant for all foreign intelligence collection, even though the foreign targets lack Fourth Amendment rights and their communications often involve only other foreigners. . . .
Defendant argues §702 violates the Fourth Amendment because it permits the “widespread capture, retention, and later querying, dissemination, and use of the communications of American citizens” without the protection afforded by a warrant. . . . Defendant notes the FISC’s statement that the NSA acquires more than 250 million Internet communications each year under §702, including acquisitions from upstream and from Internet service providers. . . . Defendant speculates that a significant number of those acquisitions would be communications with U.S. persons located in the United States and thus implicate their Fourth Amendment rights sufficiently that the court should apply a warrant requirement.
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. . . The §702 acquisition targeting a non-U.S. person overseas is constitutionally permissible, so, under the general rule, the incidental collection of defendant’s communications with the extraterritorial target would be lawful. The one distinguishing factor is the possible vast number of incidental communications collected under §702. I stress the word “possible.” It is equally likely that §702 surveillance of a non-U.S. person located outside the United States would acquire no incidental communications with a U.S. person. Consequently, I am unpersuaded incidental communications collected under §702 differ sufficiently from previous foreign intelligence gathering to distinguish prior case law, and I hold that §702 surveillance does not trigger the Warrant Clause.
Alternatively, as I explain in the next section, even if §702 surveillance triggers the Warrant Clause, no warrant is required because §702 surveillance falls within the foreign intelligence exception to the warrant requirement.
2. Foreign Intelligence Exception
Assuming the incidental collection of U.S.-person communications under §702 is subject to the same constitutional scrutiny as foreign intelligence collection targeting U.S. persons, the government contends the Fourth Amendment does not require a warrant for §702 surveillance because it falls within the foreign intelligence exception.
The Fourth Amendment’s warrant requirement applies to domestic national security surveillance. . . . Defendant argues that even if there is a foreign national security exception to the Warrant Clause, the exception’s scope is far narrower than the massive surveillance programs under §702. . . . Defendant is alarmed that the statutory definition of foreign intelligence information . . . includes information unrelated to any danger to the country. He also argues that even if the special needs doctrine covers the acquisition of the information, it should not also cover the retention and later querying of the information.
The government disagrees, arguing the special needs exceptions to the Warrant Clause include a foreign intelligence exception. The government cites numerous cases to support its argument and notes that . . . the cases involved the collection of foreign intelligence information from persons inside the United States. Because §702 targets non[-]U.S. persons reasonably believed to be outside the United States, the government contends the analysis in its cases applies even more strongly. . . .
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Notably, the FISA Court of Review applied a foreign intelligence exception “when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” . . . The court reasoned: (1) the purpose of the surveillance went well beyond any “garden-variety” law enforcement objective and involved the acquisition from overseas foreign agents of foreign intelligence to help protect national security; (2) the government’s interest was “particularly intense”; and (3) there was a “high degree of probability that requiring a warrant would hinder the government’s ability to collect time sensitive information and, thus, would impede the vital national security interests that are at stake.” . . .
Precisely on point with the case before me, the FISC held that the foreign intelligence exception also applies to §702 surveillance, even though the court’s understanding of the technical situation underlying the surveillance changed after the government released more information[.]
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None of defendant’s arguments persuade me to stray from the FISC’s holding. . . . There is no reasonable argument the government’s need for the acquisitions is merely routine law enforcement. The government’s need for speed and stealth have not lessened since the FISC . . . found that application of the warrant requirement would be impracticable. When I balance the intrusion on the individual’s interest in privacy, namely the incidental collection of U.S. persons’ communications, against these special needs when the government targets a non-U.S. person believed to be outside the United States, I conclude the foreign intelligence exception applies and no warrant is required.
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3. Reasonableness
Application of the foreign intelligence exception does not end the analysis: “even though the foreign intelligence exception applies in a given case, governmental action intruding on individual privacy interests must comport with the Fourth Amendment’s reasonableness requirement.” . . .
To analyze whether a government search is reasonable under the Fourth Amendment, the court examines the totality of the circumstances. . . . The court weighs “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy.” . . .
a. General Contentions
Defendant claims §702 is presumptively unreasonable because it does not require a warrant, even though the acquired telephone calls and emails are within the core zone of privacy protected from government intrusion. . . .
Defendant claims the Warrant Clause is the key metric in determining reasonableness. He disputes that the programmatic authorizations and certifications from the FISC . . . offer the protections traditional warrants afford. . . .
Because §702 lacks these protections, defendant contends its use is either presumptively unreasonable or, alternatively, the extreme disconnect between §702 procedures and basic Fourth Amendment warrant protections shows the unreasonableness of searches and seizures under §702. Even though the FISC approves general programs and procedures under §702, defendant argues the FISC does not review the government’s specific targeting decisions or its later access of seized communications. Defendant contends the government shou
ld not be allowed to read the contents of American citizens’ electronic communications without a judicial finding of probable cause. Further, defendant argues the government interest in acquiring “foreign intelligence information” is unreasonable under the Fourth Amendment because the term is so broadly defined . . . , it goes well beyond threats to national security.
According to the government, surveillance under §702 satisfies the Fourth Amendment’s general reasonableness test. It claims the significant interest in national security, in light of FISA’s statutory safeguards, outweigh the privacy interests of U.S. persons whose communications are incidentally acquired. The government suggests U.S. persons have limited expectations of privacy in electronic communications with non-U.S. persons outside the United States.
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b. Comparison of Section 702 to Protections Afforded by a Warrant
I will first address defendant’s arguments comparing the protections provided by a warrant to those provided under §702.
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In specifically addressing arguments about prior judicial review, probable cause, and particularity, the FISA Court of Review refused to “reincorporate into the foreign intelligence exception the same warrant requirements that we already have held inapplicable.” . . . The court explained, “the more a set of procedures resembles those associated with the traditional warrant requirements, the more easily it can be determined that those procedures are within constitutional bounds.” . . . With this guidance in mind, I turn to the arguments.
Without the protections of the particularity requirement, defendant contends the communications of American citizens are swept up by §702 surveillance in a dragnet fashion prohibited by the Fourth Amendment. Defendant also contrasts the Warrant Clause’s requirement of a supporting affidavit under oath with the §702 procedures for authorization. Defendant is concerned the §702 procedures fall far short of the oath or affirmation provision of the Warrant Clause, particularly because the certification does not deal with particular persons or events.
The government notes the Attorney General and DNI must certify that targeting and minimization procedures are in place which are consistent with the Fourth Amendment and that a significant purpose of the acquisition is to obtain foreign intelligence information. The government contends the certification requirement represents an important internal check on the actions of the Executive Branch . . . [and] argues the targeting procedures determine that “the user of the facility to be tasked for collection is a non-United States person reasonably believed to be located outside the United States.” . . .
The lack of an oath requirement in §702, as well as any argument the government will not follow the law, is unpersuasive. Absent evidence of fraud or misconduct, a presumption of regularity attaches to obtaining a warrant. . . . I have seen no evidence of government fraud or misconduct in this case. . . .
Turning to the particularity requirement, §702 surveillance uses targeting and minimization procedures approved by the FISC. . . . Section 702 limits surveillance only to non-U.S. persons reasonably believed to be located outside the United States. . . . A significant purpose of the acquisition must be to obtain foreign intelligence information. . . .
The FISA Court of Review concluded . . . pre-surveillance procedures were sufficient to satisfy Fourth Amendment concerns. . . . Executive Order 12333 included a requirement that surveillance targeting U.S. persons reasonably believed to be outside the United States had to be based on a finding by the Attorney General of probable cause to believe the target was a foreign power or agent of a foreign power. . . . Section 702, however, prohibits targeting a U.S. person under any circumstances, even if the person is located outside the United States and acting as a foreign power or agent of a foreign power. Consequently, I conclude this difference does not diminish the particularity to the point of making the collections unreasonable under the Fourth Amendment.
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In sum, I do not find the lack of procedures associated with warrants make §702 searches unreasonable under the Fourth Amendment.
c. Balancing the Governmental Interests Against the Intrusion on Privacy
I will now turn to balancing the legitimate governmental interests against the intrusion on an individual’s privacy.
It is undisputed the government’s interest in protecting the national security is compelling. . . .
Defendant points to the statutory definition of foreign intelligence information to argue the government interest is too broadly defined, and thus intrudes on individual privacy too much, to justify the mass acquisition of Americans’ electronic communications. The statute states:
(e) “Foreign intelligence information” means—
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(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
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. . . Defendant is concerned the government could interpret the “conduct of the foreign affairs of the United States” broadly enough to cover such items as international trade, rather than just threats to national security.
I note the discovery in this case all concerned protecting the country from a terrorist threat and did not stray into the broader category of the conduct of foreign affairs. . . .
Under §702, the intrusion of an individual’s privacy is due to the incidental collection of the individual’s communications during the acquisition of the communications from a targeted non-U.S. person reasonably believed to be outside the United States. The government contends U.S. persons have limited expectations of privacy when communicating electronically with non-U.S. persons outside the United States. The government reasons the U.S. person assumes the risk that the foreign recipient will give the information to others, leave it freely accessible to others, or that the U.S. or foreign government will obtain the information.
The Fourth Amendment does not prohibit the government from obtaining information a person revealed to a third party, even if revealed in confidence. . . . This concept also applies to electronic communications. . . .
Defendant offers the government cannot seize these communications without the consent of the recipient, which is an argument in favor of only the recipient’s expectation of privacy in the communication. The sender’s expectation of privacy has still been diminished.
Defendant also claims the minimization procedures for §702 surveillance . . . provide no meaningful protection because the exclusions from the minimization procedures swallow the rule. As a result, the illusory minimization procedures make §702 search and seizures unreasonable under the Fourth Amendment.
As I explain next, I conclude the minimization procedures contribute to the reasonableness of §702 under the Fourth Amendment.
The government refers to a recently declassified document to support the reasonableness of §702 minimization procedures. The government also notes the FISC has repeatedly found materially equivalent minimization procedures sufficient in the context of traditional FISA electronic surveillance and physical search. Because these searches target U.S. persons in the United States, they are more likely to capture communications of non-targeted U.S. persons than the foreign communications captured under §702. The government additionally relies on the . . . oversight provisions requiring regular reports to the FISC and congressional oversight committees on the implementation of minimization procedures and the FISC’s Rule of Procedure . . . which requires the government to report all instances of non-compliance.
The FISC has concluded the §702 minimization procedures are consistent with the Fourth Amendment. . . .
Section 6 of the declassified minimization procedures discusses the retention and dissemination of foreign communications of or concerning United States persons, putting limits on both. For example, the identity of the United State
s person is deleted in any dissemination of the information unless certain requirements are met. I do not agree with defendant that the minimization procedures provide no meaningful protection. On the contrary, I agree with the FISC that the minimization procedures contribute to the reasonableness of §702 under the Fourth Amendment.
d. Querying After Acquisition
I now turn to defendant’s most persuasive argument. He argues that even if §702 warrantless surveillance is lawful, subsequent querying of the information after acquisition is a search requiring a warrant under the Fourth Amendment.
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The government strongly disagrees. It distinguishes defendant’s cases as analyzing government action beyond the scope of the warrant (or warrant exception). I agree with this characterization. . . .
Unfortunately, I do not find much assistance in most of the government’s analogies. . . . Law enforcement computer queries of license plates and driver’s licenses take place in a highly regulated arena and, in the case of license plates, are based on information displayed for all to see. . . . DNA profiles retained in a database to allow later law enforcement searches are from people who have been arrested or convicted. . . . Neither of these limited invasions of privacy can be compared to the incidental acquisition of communications of U.S. persons.
The government also draws an analogy to minimization procedures under the Federal Wiretap Act which allow the government to use evidence from a wiretap to prove a crime unrelated to the original purpose for the wiretap. This analogy is more helpful because it addresses the use of communications obtained incidentally to those acquired by the wiretap.
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Because the government complied with all §702 procedures concerning targeting and minimization, the government contends its actions were within the scope of the relevant legal authority and are thus distinguishable from defendant’s cases. In its view, subsequent queries of information lawfully obtained, which do not implicate any reasonable expectation of privacy beyond that implicated in the initial lawful collection, do not constitute separate searches under the Fourth Amendment. The government claims this is true even if U.S. person identifiers are used in the querying.