The Supreme Court ruling in Carpenter and its implications for law enforcement in the digital age

 

In its biggest Fourth Amendment case of at least this year, the Supreme Court’s 5-4 ruling came down June 22 in Carpenter v. United States, ordering that collection of historical cell site location information, or CSLI, should “generally” require police to get a warrantAlong with many other organizations, Restore The Fourth had recognized how significant this case was likely to be, and we filed an amicus brief in the case. We argued that:

  • Despite the so-called “third-party doctrine”, even when people disclose their information to third parties, that should not mean that they do not have a reasonable expectation of privacy;
  • Over time, cell site location information will become more revealing, thanks to increased density of tower locations and the increased power of computers to algorithmically parse information;
  • Police warrantless use of CSLI comes with an unusually high risk of abuse.

The majority opinion, written by Chief Justice Roberts and joined by Breyer, Ginsburg, Kagan and Sotomayor, agreed at least with the first two of our points.

Amy Howe, writing for SCOTUSBlog, ably summarizes the facts of the case:

 

Timothy Carpenter, who was convicted and sentenced to almost 116 years in prison for his role in a series of armed robberies in Ohio and Michigan. Law-enforcement officials used cell-site records from his cellphone provider to place him in the vicinity of the crimes, but Carpenter argued that the jury should not hear about those records because the government had not obtained a warrant for them. A federal appeals court upheld his conviction, explaining that the government was not required to seek a warrant because Carpenter could not have expected cellphone records maintained by his service provider to remain private. This morning the Supreme Court reversed that ruling.

 

Here is Restore The Fourth’s Litigation Working Group chair, Mahesha Subbaraman, being interviewed on the case: https://www.kare11.com/article/news/scotus-adopts-new-rules-for-cellphone-tracking/89-566775789

When A Warrant Is Required

Perhaps the most confusing part of the ruling is that Chief Justice Roberts insistently declares that the circumstance where a criminal suspect has a reasonable expectation of privacy in records held by a third party will be “rare”, and that therefore requiring a warrant for searches of historical CSLI will not disrupt a broad swath of police practice. Though Roberts may have an expectation of rareness, in reality searches of historical CSLI are common, and are bound by the Carpenter opinion even if Roberts feels the need for a rhetorical flourish as to their rareness. For that reason, the main dissent, authored by Kennedy, is right to say that the majority’s “reinterpretation of Miller and Smith will have dramatic consequences for law enforcement, courts, and society as a whole.” The fact that it is common practice for government to requisition financial or telephonic information without bothering with the formality of a warrant is a bug, not a feature, and correcting that is part of the process of restoring the Fourth.

The majority opinion regards historical CSLI as categorically different from the kind of financial records at issue in Miller, because historical CSLI is a long-term record of people’s movements over time; but this effectively carves out a subset of particularly intrusive metadata and affords it warrant protection, rather than maintaining the content/metadata distinction that has underpinned Fourth Amendment law since the 1970s – as Kennedy’s dissent puts it, it “draws an unprincipled and unworkable line between cell-site records on the one hand and financial and telephonic records on the other.” The line will likely be much litigated.

Responding to the time limit in the case before it, the Court declared that the government asking for seven days of historical CSLI, but actually receiving only two, would trigger a warrant requirement, implicitly indicating that asking for six days’ worth would not – perhaps, even if what the government actually received was six days’ worth. This is clearer than simply saying, as courts tend to do in the area of the Fourth Amendment, that whether warrant protection is triggered “depends on the totality of the circumstances”, but not by much. Why seven days of requested data in particular? Because Carpenter says so. This rule, and the ruling more broadly, offers little to those who thirst for clarity and administrability in Supreme Court rulings.

Two Theories of Why a Warrant is Required

A matter of deep interest to court-watchers was not only whether warrant protection would be given to historical CSLI, but why. A key division on the Court continues to be between those who are comfortable with continuing to develop the sixty-year-old Katz “reasonable expectations of privacy” test, which determines whether something is a search on the basis of whether the person searched has had an “expectation of privacy” violated that “society is prepared to recognize as reasonable”; and those who prefer to examine the question of whether something is a search exclusively through a property-focused lens, to understand whether a “trespass” can be deemed to have occurred.  This particular opinion showcases that split, with the Court’s liberal Justices, plus Roberts, in the Katz camp, and Alito, Gorsuch, Kennedy and Thomas, in their different ways, in the property-rights camp. At Restore The Fourth, we don’t believe that either the Katz approach or the property-rights approach is wrong. Either can lead to a restoration of people’s privacy as against government searches and seizure; the debate on the Court between these camps has so far been immensely productive of increased protections.

Thomas dissents separately, he says, because in law, historical CSLI relating to Carpenter’s movements does not belong to him; if it does not belong to him, then it cannot be deemed a “paper or effect” of Carpenter’s; and therefore he cannot claim a violation of the Fourth Amendment with respect to him. The FCC does say that “to the extent that” CSLI should be considered property, it should be treated as the property of the customer, not the carrier. Thomas declares that this is “weak”, and Alito, in a dissent joined by Thomas, argues that the Founders did not envision a situation where the ordinary processes of requiring documents to be produced in a criminal proceeding (subpoena duces tecum) would be subject to the requirements of a warrant.

The difficulty with drawing originalist analogies is that you get to pick and choose the analogy. Thomas sketches out a situation where of course the Founders accepted that the Fourth Amendment would not be relevant to subpoenas of documents from third parties. He chooses not to sketch out a situation where the Founders are confronted by a warehouse, owned by a trading company, containing physical documents attesting to the minute-by-minute whereabouts of every resident of the American colonies, and accessible on a trivial showing by agents of the Crown. Had he chosen that analogy, then of course the Founders would have thought that the powers of the Crown over the colonials were thereby rendered excessive. Through choice of analogy, originalism sometimes risks becoming the same exercise in projection of contemporary assumptions over the Constitution that originalists decry.

We can see the difference in choice of analogy in the profound and interesting Gorsuch dissent. Gorsuch plainly and intelligently skewers the limitations of both a “king always wins” rule as envisioned by broad application of Smith and Miller, and the vagueness and plasticity of the majority opinion’s limiting language based on the Katz “reasonable expectation of privacy” test:

“At what point does access to electronic data amount to “arbitrary” authority? When does police surveillance become “too permeating”? And what sort of “obstacles” should judges “place” in law enforcement’s path when it does? We simply do not know.”

Gorsuch finds that Carpenter has, if not a full right to treat CSLI as his own property, then at least enough of a property interest for Fourth Amendment purposes that he can claim that his “papers or effects” were searched. Without entirely dismissing Katz, he charts out a method for applying a property-based theory of the Fourth Amendment whereby state legislatures’ efforts to protect people’s privacy in the data held about them by third parties could be construed by courts to create property rights in that data. He uses Ex parte Jackson (1878), a case relating to the privacy of letters sent via USPS, to indicate that there is some “constitutional floor” of protection in such records below which state laws cannot go, for example by declaring that they can be seized and searched at will. And, as he has done in prior opinions, he uses the eighteenth-century analogy of the duties of a bailee as a way of dealing with the problems caused by the third-party doctrine that would allow an originalist-minded Court to accept a property interest in both CSLI and in business records held by third parties more generally.

Evidently, Gorsuch’s Fourth Amendment analysis has not yet persuaded a substantial portion of the Court to join him; but just as Sotomayor’s innovative concurrence in Jones (2011) now underpins the majority opinion in Carpenter, it would not be surprising if Gorsuch’s theory of how the Fourth Amendment should develop in the light of technological change were to become significantly more influential in the years ahead.

Implications for National Security Surveillance

Justice Roberts emphasized that the holding that a warrant was required “does not consider other collection techniques involving foreign affairs or national security.” Though these words sound cautious, they are potentially a landmine laid under the ramifying superstructure of the surveillance state. First, of course, he is not saying that Carpenter’s reasoning could not validly apply to the oceans of metadata collected by the surveillance agencies, only that such collection was not before the Court in this ruling. Second, the emphasis is that Carpenter does not consider other collection techniques involving foreign affairs or national security, which (it will surely shortly be argued) most naturally suggests that the Court does think a warrant should apply to historical CSLI collection in particular even when it involves foreign affairs or national security, when (assumedly, given other precedents) that collection occurs in the United States.

This matters immensely, because the communications metadata of an unknown number of Americans, but probably numbering in the millions, is being collected under the authority of Section 702 of the FISA Amendments Act. The Americans being collected upon are either contacts of, or are talking about, one of over 100,000 “targets”, who can be any foreign national whose communications might be of intelligence interest to the United States – they don’t have to be, and mostly are not, terrorists. Whether, in a future ruling, the Supreme Court will be willing to explicitly rule that such collection requires a warrant depends in large part on the ability of plaintiffs in surveillance cases to resolve the aching problem of standing – i.e., to be able to prove to the Court’s satisfaction that, as US citizens, they have in fact been surveilled by a surveillance agency; and that surveillance of their historical CSLI in particular has caused them a harm that the Court is prepared to recognize.

The FBI in particular has a lot of reason to worry. The ruling may not explicitly overrule Smith v. Maryland, the phone metadata case that underpins the legal justification for mass surveillance of telephonic metadata; but it signals that a majority of the Supreme Court thinks that there are major problems in applying the reasoning of Smith to police surveillance cases.

Conclusion

Carpenter is a hugely significant ruling in the Supreme Court’s Fourth Amendment jurisprudence. For the first time, the Court has clearly recognized that citizens have a cognizable interest in a particular type of records about them held by third parties. But, as with Jones, it is important not so much for adding clarity, as for marking a step in the Court’s circuitous journey towards a clearer understanding of how law enforcement use of data affects our individual freedoms. Thanks to Chief Justice Roberts’ leadership in extending privacy protections to data generated by new technologies, and to the recent additions of Sotomayor and Gorsuch as important and very different voices willing to rein in police surveillance, we have reason for hope. We should expect a continued flood of Fourth Amendment litigation, and continued conflicts as the Court wrestles with why and how to maintain individual privacy in the digital way, in a discussion that in both its content and its results, currently far outshines the work product of the other two branches of government.

Restore the Fourth, along with P.A.N.D.A., Free the People and several other co-signing organizations, submitted a coalition letter to Senator Lindsay Graham. It urges that an amendment to the NDAA drafted by Sens. Paul and Lee be allowed to be debated. The amendment would remove the indefinite detention clause in this year’s NDAA, which is otherwise an annual bill authorizing the military’s budget.

The power of the executive to indefinitely detain anyone deemed a threat to national security was first added to the NDAA in 2011. This clause allows the President to detain anyone they choose without charge or due process.

Congress will vote on cloture on the NDAA amendment today, determining whether the Paul/Lee amendment will even get to be considered.

With over a week passed since the #ReleaseTheMemo controversy finally came to a head, it’s time to reflect more deeply on how we got here, and how domestic surveillance under FISA should and should not be conducted.

To recap: The memo in #ReleaseTheMemo refers to the memo written by the office of surveillance hawk Rep. Devin Nunes, Chair of the House Intelligence Committee. It alleges that the FBI obtained a FISA warrant to surveil a Trump advisor based on questionable, politically motivated sources.

The controversy relates to the efforts of the FBI to determine whether Carter Page, an adviser to the Trump campaign, was a paid agent of the Russian government. Page came under FBI scrutiny from 2013 onwards. The FBI submitted an application for a FISA surveillance order in October 2016, just before the presidential election. The evidentiary basis for this order was in part based on the “Steele dossier”, a document developed by a former British intelligence operative, as part of a contract with Fusion GPS. The work was part of Fusion GPS’ contract with the Democratic National Committee and the Clinton campaign to fund `opposition research’ into Trump. The FBI noted in the application that the Steele dossier materials were politically motivated, but, following the usual `masking procedures’ in such applications, did not identify that the people ultimately paying for the Steele dossier research were Clinton and the DNC.

Rep. Nunes’s staff then developed a classified memo setting out the deficiencies they observed in the FISA application, arguing that even if the FBI had found Steele reliable as a source in the past, to rely in part on the Steele dossier materials was inappropriate given that it was funded by the Clinton campaign; and also arguing that Steele had shown himself by October 2016 to be an unreliable source by speaking to the press about the contents of the dossier. Rep. Nunes then had the House Intelligence Committee vote, on partisan lines, to release that memo, and with the White House’s consent, it was released. A competing classified memo from the Democratic minority, which took issue with the Nunes memo’s characterization of the FISA order application, was passed for release by the Committee on Feb. 5, but was then blocked by the President on the grounds that it contains classified information. Now, Democrats may seek a vote of the full House to approve the Democratic memo for release.

 

The Nunes memo controversy has made strange bedfellows

People on the left, such as billionaire Tom Steyer, are arguing that, in order to oppose Trump, we should side with the FBI – the same FBI that continues to actively suppress peaceful movements on the left for social justice, and that pays confidential informants to manipulate poor and mentally ill people into taking steps to carry out acts of violence that are planned and funded by the FBI itself.

People on the right, such as multi-millionaire Sean Hannity, are arguing that the memo is not a partisan hack piece, but is “worse than Watergate,” proving that the Obama administration illegally surveilled the Trump campaign.

The truth, for the rest of us, is both more subtle and more worrying; but to understand it, we need a little history that TV talking heads aren’t equipped to provide. It’s been a long, slow boil that has spanned a little over four decades, and, to help with it, we’ve provided a character list and glossary of abbreviations.

 

FISA I

Post-Watergate and Pre-9/11

FISA was the main reaction of Congress to President Nixon’s illegal surveillance of the Democratic National Committee, and of political dissidents more broadly, uncovered as part of the Watergate scandal. Steering between the intelligence community, who wanted no court oversight of their spying on Americans, and the civil liberties community, who wanted real court oversight, it set up the controversial “Foreign Intelligence Surveillance Court”, or “FISC.” The FISC was a secret court, composed of a rotating set of appellate judges appointed by the Chief Justice of the Supreme Court that would hear only from the intelligence community, not from the person being surveilled or from anyone representing their interests. Its orders would generally be secret. FISC-approved surveillance was of individual US persons who might be agents of foreign powers. Being such an agent was not in itself a crime, so FISC orders fell short of the Fourth Amendment’s requirements for warrants. However, in terms of the supporting documentation required, the requirements for applications for FISC orders appear to generally be more onerous than the affidavits that support findings of probable cause in ordinary criminal cases. The result was that, through to 2001, there were relatively few individualized applications for FISC surveillance orders on US persons.

 

FISA II

The PATRIOT Act

9/11 enabled the Bush administration to push a set of expansions to intelligence collection that had been floating around Capitol Hill since they were originally proposed by Joe Biden in 1995, before the Oklahoma City bombing. This included changes to FISA, such that it was now possible to submit an application for a FISA surveillance order to the FISC even where the primary purpose of the warrant application was no longer to gather foreign intelligence. The result was an expansion in FISA orders, especially relating to the activities of Muslims in the United States.

However, this didn’t go nearly far enough for the Bush administration. They wanted to conduct mass, warrantless domestic surveillance, but FISA, being limited to surveillance of individuals, would obviously not allow that. Instead, they knowingly implemented an illegal program under executive authority alone, called STELLAR WIND. STELLAR WIND involved mining a large database of the communications of American citizens, including e-mail communications, telephone conversations, financial transactions, and Internet activity. President Bush originally authorized the collection of telephone and e-mail metadata only if one end of the communications was foreign or when there was a link to terrorism, but NSA went beyond their remit and also collected the metadata of purely domestic communications. Retroactively, Bush declared that they were allowed to do so, but that analysts were only allowed to look at metadata related to terrorism.

 

FISA III

The FISA Amendments Act and the Institutionalization of Mass Surveillance

STELLAR WIND was revealed, reluctantly, by the New York Times in late 2005, and several lawsuits were brought against telecommunications companies for participating in a manifestly illegal program. Congress’s reaction was the FISA Amendments Act of 2008, which gave the telecommunications companies immunity, and retroactively legalized the President’s illegal surveillance of the American people. The FISA Court of Review (FISC-R), a circuit-level court that meets extremely rarely to consider appeals of FISC decisions, also in 2008 became the first Court to rule that there was a “foreign intelligence exception” to the Fourth Amendment.

Now, FISA was no longer entirely about surveillance of individuals; despite the Fourth Amendment’s `particularity’ requirements, there were now so-called `programmatic warrants,’ where the FISC authorized surveillance on thousands or tens of thousands of `targets’ at a time. The `targets’ were all non-US persons; but the people they communicated with were often US persons. The number of US persons whose communications are `incidentally’ collected in this way is unknown, but probably numbers in the millions; NSA and FBI have tried strenuously for six years to avoid giving even an estimate of how many.

Two elements of this statutory authorization are especially controversial: “about surveillance” and “FBI backdoor searches.”

“About” surveillance relates to surveillance that is “about”, but not to or from, a foreign target. It is particularly likely to intercept US domestic communications. NSA has currently voluntarily suspended about collection, in order to get the FISC to sign off on continued collection under Section 702 of the FISA Amendments Act, which covers the mass collection programs. However, Congress’s reauthorization has directed that if NSA gets permission to restart about collection, and Congress does not act to prohibit it within 30 days, NSA can restart and even expand it.

“FBI backdoor searches” are warrantless FBI searches of NSA’s foreign intelligence database, to find information relating to domestic crimes. Such information can form the basis of criminal prosecutions, but is almost never in itself introduced in court, because if it is, defendants can challenge the method of its collection. Instead, using a practice known as `parallel construction,’ the law enforcement agency reconstructs a plausible chain of evidence and inferences that can be introduced and challenged in court, that conceals the origin of the criminal case in a tip provided by the 702 database.

In January of 2018, these surveillance powers, including “Section 702”, were reauthorized by Congress for a second time, in the teeth of growing opposition from around 40% of Congressmembers and Senators.

 

Indications of Ongoing Individualized Political Surveillance

As we can see from this history, the mere fact that individualized, politically motivated domestic surveillance is illegal is not enough to stop the NSA from doing it if it wants to, and the fact that FISA is the only statutorily approved method of doing it doesn’t mean that it is in fact the only method.

The most recent evidence of such non-FISA surveillance is the whistleblower testimony of Russell Tice, who left the NSA in 2006. He depicts a highly compartmentalized program within NSA (meaning that that only a small number of people with the agency have access to it), which targeted presidential candidates Barack Obama and Hillary Clinton, House and Senate Intelligence Committee members, Supreme Court Justices, and others with significant influence over NSA’s budget and activities. There is no evidence that this program has ended since then, or that it has ever been monitored by the FISC.

 

FISA: The Final Chapter?

Returning to Carter Page, what happened to him was almost certainly legal under FISA as originally passed. From the competing memos now being released, the FBI was not fully clear with the FISC as to the fact that Steele’s firm was being paid by Fusion GPS, which in turn was being paid by the DNC. The Grassley memo suggests that the FBI represented Steele as being a reliable source past the point where they should have re-evaluated his credibility in light of his desperate efforts to share the contents of his dossier with the press. But the FBI did not appear to need the Steele dossier in order to demonstrate a sufficient basis under current law for the FISC to approve a surveillance order.

However, that doesn’t, of itself, make it OK. Even in ordinary criminal prosecutions, requiring probable cause, officers are often slack in making sure that evidence for every assertion in a warrant affidavit is soundly based. They know that, because so few cases actually go to trial, it will be rare for their lack of thoroughness to be punished, investigated, or even suspected. This case, being high-profile, is now being deconstructed in the public eye, revealing procedural failings that are common, and commonly go unpunished and unnoticed by the courts. In the context of targeting a presidential campaign adviser for surveillance, the FBI should have meticulously ensured that every t was crossed and i dotted, and they did not. They should have assessed, in particular, whether Steele’s credibility had been compromised. They should also have requested to have the source of funding for the Steele dossier unmasked as part of the FISA application process. The White House should have been especially careful to avoid even the perception of political interference with an ongoing investigation, and in both the cases of the Carter Page investigation and the Hillary Clinton investigation, it appears that they were not careful enough.

FISC is a forty-year experiment in allowing the intelligence agencies to derogate down from probable cause requirements, in the hope that allowing them some latitude would encourage them to refrain from broader abuses. That experiment has failed. The history shows that allowing the intelligence community and the FBI to subvert constitutional norms only encourages them to push further; every compromise solution is taken as permission to stretch its language to the limit, and to collect and investigate as much as possible. Politicians enable this process because they are afraid that they will be blamed after a terrorist attack if they do not give the maximum latitude possible to the intelligence agencies and law enforcement.

There is no substitute for the full requirements of the Fourth Amendment, or for scrutiny of government surveillance requests in an adversarial court process. As FISA originally intended, individuals against whom a FISA order request is granted should be able to obtain copies of the FISA application and supporting documents, just as they are already in theory able to see their FBI files.

More broadly, given how deeply the FISC has been corrupted, and the kinds of abuses it has happily acquiesced in, it may well be that its time, and the time of the Watergate compromise, have passed. We are renewing our call for a new congressional Church Committee, where Congress frankly and openly discusses what changes are needed to intelligence collection, without, as happened in the recent 702 debate, being held hostage by leaders of both parties content with the status quo. As part of that public debate, members should be especially conscious of the risks posed by political surveillance, and should codify an especially high standard for NSA and any intelligence-collecting agency when conducting surveillance of people seeking or holding political office.

Beyond this, there must be meaningful accountability for NSA agents who lie to their overseers about the surveillance that is being conducted. Congress winks at being lied to about this, and should not.

Last, elected officials will not feel obliged to honor the Constitution unless there is a serious prospect of their losing office for not doing so. Watch this space as we develop strategies to address this problem.

 


Cast and Glossary

Richard Nixon

  • Richard Nixon – 37th President of the United States, from 1969-1974
    • Resigned in the face of impending impeachment after illegally surveilling the Democratic National Committee

Russell Tice

  • Russell Tice – Former intelligence analyst for the United States Air Force, Office of Naval Intelligence, Defense Intelligence Agency (DIA), and National Security Agency (NSA)
    • Revealed in 2005 that the NSA and DIA were engaged in unlawful and unconstitutional wiretaps on presidential candidates and the Intelligence Committees

Carter Page

  • Carter Page – Former campaign advisor to the Trump campaign
    • Has been a focus of the FBI’s investigation into alleged Russian collusion by the Trump campaign

Christopher Steele

  • Christopher Steele – Former British intelligence officer
    • Authored a dossier that claims Russia maintained a file of compromising information on Donald Trump

Devin Nunes

  • Devin Nunes – Republican chair of the House Intelligence Committee
    • His staff authored a memo alleging evidence of political motivation in the acquisition of a FISA surveillance warrant that targeted a Trump advisor

Chuck Grassley

  • Chuck Grassley – Republican chair of the Senate Judiciary Committee
    • Penned a letter in January that was released this week that made similar critiques of the same FISA warrant

 

  • FISA – Foreign Intelligence Surveillance Act of 1978
    • Established procedures for the physical and electronic surveillance and collection of foreign intelligence information

  • FISC – The Foreign Intelligence Surveillance Court
    • Oversees requests for surveillance warrants by federal law enforcement and intelligence agencies

  • USA PATRIOT Act – `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001’
    • Granted new executive powers regarding ‘enemy combatants’ and gave the government broad powers to obtain ‘business records’ from companies related to someone potentially involved in terrorism

  • STELLAR WIND – An illegal surveillance program begun by the Bush administration
    • Allowed the NSA to mine large databases of the communications of American citizens

  • FISA Amendments Act of 2008 – A bill retroactively legalizing STELLAR WIND
    • Gave telecommunications companies immunity for providing access to communications data

  • Section 702 – A section of the FISA Amendments Act
    • Used as legal authority for the PRISM and UPSTREAM mass surveillance programs revealed by Edward Snowden

  • NSA – National Security Administration
    • Responsible for global monitoring, collection, and processing of information and data for foreign intelligence and counterintelligence purposes

  • FBI – The domestic intelligence and security service of the United States, and its principal federal law enforcement agency
    • Has jurisdiction over violations of more than 200 categories of federal crimes

  • “About surveillance” – Any surveillance that is “about”, but not to or from, a foreign target
    • Can often very easily include communications of American citizens

  • “Backdoor searches” – Warrantless FBI searches of NSA’s foreign intelligence database
    • Performed to find information relating to domestic crimes having no relation to terrorism

You’ve probably seen the buzz around #ReleaseTheMemo on social and other media. But perhaps you found it hard to follow from a privacy advocate’s point of view.

The House Intelligence Committee in Congress agreed to share a document that allegedly described abuses of FISA surveillance, pending the president’s approval. 

Now that it’s finally been released, let’s take a look if it lived up to the hype…

The predictions:

  • It would describe political surveillance, conducted with the knowledge of President Obama, of people involved in the Trump campaign
  • It would show the bias inherent in the Mueller investigation of President Trump
  • It would vastly misrepresent the underlying intelligence reports
  • It would be unprecedented to release to the public reports of such a highly classified nature, potentially compromising national security
  • It would provide substantial evidence for the need of greater oversight of FISA surveillance

The precedents:

The realities:

  • Its main point is that the FBI failed to disclose bias by former British intelligence officer Christopher Steele against Trump as part of its application for a FISA warrant; But it was already well-known that Steele’s firm received payment from Democrats, that he was vehemently opposed to Trump’s election, and that his dossier constituted opposition research
  • It doesn’t lessen any suspicion of collaboration between the Trump campaign and Russian operatives, because that has been shown from other sources than the Steele dossier
  • Perhaps the FBI should have caveated better on the FISA application as to Steele’s motivations.
  • However, the memo doesn’t seem to substantively reveal improper political surveillance by the FBI motivated by political animus against Trump
  • From our standpoint, the memo seems to have been released as a parry in the knife fight of partisan struggles; it doesn’t reveal material relevant to Restore the Fourth’s mission
  • Suggestions of the memo compromising national security seem to be overblown; the memo could easily have been part of a public discussion prior to this, and the fact that it wasn’t suggests that our system vastly overclassifies information, and is reluctant to let the public know about things we’re in fact fully capable of understanding.
Let your senator know that nothing less than real NSA surveillance reform will do.

Perhaps you’ve been following the continuing debate in Congress on NSA surveillance, and the expiration of Section 702 of the FISA Amendments Act that makes the dragnet possible. If so, then you likely heard that Thursday the House voted down Rep. Amash’s amendment, the USA RIGHTS Act, that would have given us real mass surveillance reform. You may also know that they approved a bill, S.139, which extends Section 702 for 6 more years.

Here’s how your representatives voted on:

We still have a chance for meaningful surveillance reform this coming Tuesday when the Senate takes up S. 139. We need 41 senators to come to the aid of the Constitution by voting no on cloture for S. 139. 27 Senators voted yesterday against the Senate considering S. 139 at all, so we only need 14 more.

If S. 139 were to pass, that would not only mean six more years of the NSA spying on American citizens, but also an expansion of ‘about collection’ abilities by law enforcement.

A no vote for cloture on S. 139 will stop it from even being considered, and open the door to considering real reform. We’re urging everyone to contact their senator’s office – but especially if you are a constituent of one of the pivotal senators below.

Find Your Senator

After much Congressional debate to expand or reform NSA surveillance late last year failed to deliver a conclusion before the sunset of Section 702 of the FISA Amendments Act, it was temporarily extended to January 19th as part of a continuing resolution. to On January 5, the Rules Committee for the House of Representatives introduced S. 139, the first proposed bill since that sunset and extension.

As-is, this bill would not reform NSA surveillance programs to be in line with the Constitution. In particular, it lacks a strong warrant requirement. As such, Restore the Fourth is not supporting this bill. Currently, we are asking people to contact their representatives and urge them to support the one amendment being allowed to S. 139, which would replace it with Rep. Justin Amash‘s excellent USA Rights Act. This would:

  • End backdoor searches and require warrants
  • Close a loophole where law enforcement could engage in ‘reverse targeting’ such that they ostensibly choose a foreign target when their true interest is a US citizen that target is communicating with
  • Codify the ban on ‘about collection’
  • Restore the Privacy and Civil Liberties Oversight Board’s authority to report on foreign surveillance programs

“The USA RIGHTS Act is the best chance for real reform in a decade. Congress should grab this chance to restore our lost liberties with both hands.” -Alex Marthews, National Chair, Restore the Fourth

 

CLICK HERE TO GET CONNECTED TO YOUR CONGRESSPERSON AND SENATORS TODAY!

Summary

To the surprise of few, Congress is once again failing to function. Congress is in a pickle, and is structurally unable to return to anything resembling “regular order”; The reform or renewal of Section 702 (which allows the infamous ‘backdoor searches’ on American citizens) may be kicked down the road to the spring as a result; we should watch carefully who becomes the new Ranking Minority member of the House Judiciary Committee.

Background

The budget process in Congress is so broken that it has only “worked” (in the sense of having all 12 appropriations bills pass both houses on time) four times in the last forty years. Congress has increasingly relied not on the individual committees, but on the leaders of the House and Senate to pass “omnibus” appropriations bills, and to draft “continuing resolutions” (or CRs) to keep the government open in the interim at existing funding levels.

The strategy of threatening repeated shutdowns of the government, in the manner of Sen. Ted Cruz and the Freedom Caucus, has proved highly successful for Republicans. Not only have voters not punished them for it; voters have rewarded them by giving Republicans control of the House, the Senate and the Presidency. In response, the bureaucratic state – the officials in senior civil service positions – have tried to minimize the damage of shutdowns by defining which employees and departments are essential enough to not be shut down.

In practice, this means that the kinder and more laudable parts of the federal government – the national parks, help for the elderly and disabled, scientific grantmaking – get shut down, but the government’s mass surveillance programs and the bloated Department of Defense get to continue spending money like water for the sake of “national security.”

The 702 surveillance reform debate

702’s surveillance authorities expire as of December 31. All the time is being sucked up with arguments over whether there will be an omnibus spending bill, and if so, what compromises will be acceptable to both Democrats and the Freedom Caucus. The deadline to fund the government is this Friday. We’re expecting there to be a two-week “continuing resolution” Friday to give space for a broader “omnibus” spending bill to pass by December 22, enabling Congressmembers to head home for Christmas and New Year’s. So what will happen to 702?

Well, the intelligence community has begun to float the idea that maybe the legal authorities for mass surveillance don’t absolutely need to be renewed by December 31 after all. This is because mass surveillance depends on programmatic “certificates” issued by the FISA Court. These were last approved on an annual basis on April 26, giving the intelligence community potentially four extra months to persuade Congress to let them continue doing an end-run around constitutional protections for US persons before they really start to panic.

If that happens, it will provide more space for reformers as well, because of an absence of congressional consensus to formally renew these authorities. At the same time, it may be that the leadership of House Judiciary will change. John Conyers, the ranking minority member, has retired under a cloud of sexual harassment allegations. Rep. Jerrold Nadler is the acting ranking member, but it looks like ardent surveillance reformer Rep. Zoe Lofgren is thinking of challenging him for the position. If she were to become the ranking member, it would substantially brighten the prospects for real reform of 702 surveillance authorities.

Mass surveillance should be debated on its own, not reapproved quickly in the early hours of the morning at the last possible moment when nobody is looking. Four months may give us the time we need to get Congress to a better place on 702 mass surveillance.

Fixing The Problem

The hard truth is that the broad problem of the collapse of regular order in Congress is very unlikely to be fixed, because fixing it requires members of Congress to act against their immediate interests. If the recent tax bill had not been stampeded through with no hearings and no time for anybody to read it through, it would not have passed, and Republicans would have no victory to go home with to their voters. There are no votes in restoring regular order, and no officeholder will lose office as a result of Congress’s spectacular and increasing dysfunction. A president so passionately committed to process that he or she did not mind not having a policy legacy of any kind, could restore regular order by vetoing any bill not passed in a procedurally correct manner; but it seems unlikely that Congress can correct it on its own. The best we can manage is Senators who will bleat about how terrible the process is, but then vote for the result anyway.

Sign the petition at dontlettrumpspyonus.com!

 

Section 702 Lets Spy Agencies Snoop on Americans – Without a Warrant.

In an end run around the Constitution, spy agencies have warped Section 702 of the FISA Amendments Act into a way to unconstitutionally snoop on Americans.

The law was intended to allow intelligence agencies to monitor communications of foreign individuals outside the United States. But spy agencies like the NSA have claimed this authority allows them to scan through and collect the emails and phone calls of innocent Americans. Then, the government routinely does “backdoor searches” of this information, where they may look up information about U.S. persons, even for reasons completely unrelated to intelligence gathering.

It’s the same law the NSA claims justified the scandalous programs uncovered by Edward Snowden, like the PRISM program, which forces tech companies to turn over data on their servers, and Upstream collection, which automatically searches all internet traffic that crosses tapped lines connecting the U.S. with the rest of the world.

Flying in the face of the Fourth Amendment, the government searches this information specifically for Americans at least tens of thousands of times a year without a warrant, without evidence of a crime, and without independent oversight.

The so-called “USA Liberty Act” (H.R. 3989), which was recently introduced in the House, should be significantly improved to match the forthcoming strong surveillance reform being proposed by Senators Wyden and Paul. We’re disappointed that strong reformers in the House, such as Rep. John Conyers and Rep. Jerrold Nadler, have allowed their good name to be used to give the impression that the “USA Liberty Act” is anywhere near what is needed. Here’s why it falls so far short:

H.R.3989 doesn’t stop backdoor searches, which is when the government searches through the hundreds of millions of communications it collects yearly for information on Americans and people on U.S. soil – all without a warrant. Instead, the bill okays accessing and sharing this information for foreign intelligence purposes, a loophole big enough to drive a truck through.

It fails to permanently end “about” collection, an illegal practice the NSA says they’ve stopped that allows for warrantless spying on Americans’ communications that merely mention an intelligence target. Collections should be limited to communications that are “to” or “from” a target.

It doesn’t prevent the government from secretly using surveillance information in court against defendants. Despite tens of thousands of searches by the government of Section 702 data, only a handful of defendants have ever received notice of it – and only after the Department of Justice was caught misleading the Supreme Court about its practices.

It doesn’t stop Section 702 information from being used in investigations and prosecutions that have nothing to do with national security, because the bill doesn’t place any meaningful limits on when and how data collected under Section 702 can be shared with other agencies or used in court.

It gives the NSA too many free passes. The bill adds some transparency measures but doesn’t enforce them, giving the NSA leeway to ignore transparency reports to Congress, and only a small amount of information would trickle out to the public. And there’s no independent oversight into how President Trump and Attorney General Sessions interpret the law.

 

Spying Powers Are Already Being Abused. Under Trump Things Could Get Far Worse

Even before an authoritarian like Trump came to power, the spying powers on the books were consistently abused. The government has shown a persistent inability to follow rules that are supposed to protect Americans, as chronicled in a 2017 report by Demand Progress. Judges on the FISA Court have called the violations “a very serious Fourth Amendment issue” and complained of “an institutional ‘lack of candor’” from the spy agencies.

Surveillance powers are still being turned against activists and people of color. Muslim student associations on college campuses are infiltrated and disrupted; protesters against pipelines at Standing Rock and elsewhere are targets; and Trump’s FBI just this month was revealed to have created a new designation of “black identity extremists” to target the Black Lives Matter movement. With Trump’s clear authoritarian impulses and tendency to target vulnerable populations, Congress extending these spying powers to Trump would be catastrophic.

 

Sen. Ron Wyden and Sen. Rand Paul Get It Right with the USA RIGHTS Act

By comparison, the USA RIGHTS Act is expected to end backdoor searches, permanently ban “about” collection, and provides notice when intelligence information is used in criminal proceedings. It also is expected to contain a number of additional important provisions, including strengthening transparency around FISA court opinions, preventing solely domestic surveillance under Section 702, and much more.

 

October 5, 2017USA Liberty Act Allows FBI’s End-Run Around The Constitution To Continue

On Thursday, the House Judiciary Committee will be filing the so-called “USA
Liberty Act”, an attempt to deal with the fact that the main statutory authority for the
government’s mass surveillance programs is due to expire December 31.

The product of lengthy negotiations between ranking minority member Rep. John Conyers (DMI),
committee chair Bob Goodlatte (R-VA) and others, it unfortunately showcases that a
bipartisan solution is not always a good one.

“The least the bill could have done,” says Restore The Fourth National Chair Alex Marthews, “would have been to fix the backdoor searches problem.”1

An unknown, but probably very large, number of Americans’ communications are being collected by the NSA’s systems without a warrant ‘for foreign intelligence purposes’, and then exploited by domestic agencies like the FBI for use in ordinary criminal investigations of all kinds. It’s common for the FBI to claim a connection of an investigation to foreign intelligence or counterterrorism, even when the `connection’ is nothing more than `the suspect read something on the Internet or traveled abroad.’2

The USA Liberty Act would still allow the FBI to warrantlessly search the NSA’s stored communications based on such a claim. It says a warrant is needed if the FBI already has a domestic crime it’s investigating, and wants to find more evidence among the content of Americans’ communications held by the NSA; but (a) it requires no warrant for metadata hits anyway, and (b) those aren’t the really worrying situations.

Instead, we’re worried about the stage where the FBI doesn’t really have a crime in mind yet, but is trying to find dirt on people. It has been historically very easy for them to claim a “foreign intelligence” connection in the case of any immigrant, or a “counterterrorism” connection in the case of any Muslim; effectively, if this is codified into law, the Fourth Amendment might as well be a dead letter for such people’s online communications. Under the practice of “parallel construction”, the FBI actually starts with a person of interest, uses NSA data to find the initial evidence of a crime, and then “backfills” a plausible chain of non-NSA evidence so that their use of intelligence-derived information is not challengeable in court.3 This bill won’t fix that. Most
Americans brought up on charges based on NSA-derived information are never told where that evidence came from. We don’t even know in aggregate or in general an estimate of how many Americans NSA’s “PRISM” and “UPSTREAM” programs, governed by Section 702, have had their data warrantlessly seized; Congressmembers have been asking for six years for an estimate, and the intelligence community has stolidly refused to give one.4

This bill does some good things. For example, it extends whistleblower protections to
intelligence community contractors. It codifies a ban on so-called “about collection.” But given all we have learned as a nation about mass surveillance on us since December 2012, when this law last came up for renewal, it should at the very least require a warrant for all domestic agencies’ searches of intelligence databases.

1 For more on Restore The Fourth, see www.restorethe4th.com.
2 See, among many others, the case of Tarek Mehanna of Sudbury, MA
3 See a fuller explanation at https://en.wikipedia.org/wiki/Parallel_construction.
4 This sorry history is detailed at https://www.emptywheel.net/2017/03/17/ron-wydens-history-of-bogus-excuses-for-not-counting-702-us-person-collection.

 

Contact:
Alex Marthews
National Chair, Restore the Fourth
rt4chair@protonmail.com
781-258-2936

Jonathan Capra
Communications Chair,
Restore the Fourth
fongaboo@protonmail.com

November 3, 2017Restore the Fourth (RT4) and the Identity Project (IDP) have collaboratively submitted their formal comments to the U.S. Department of State regarding Proposed Information Collection: Supplemental Questions for Visa Applicants. This supplementary procedure would subject certain applicants for visas for admission to the United States to the following additional inquiry items:

  • Travel history during the last fifteen years, including source of funding for travel
  • Address history during the last fifteen years
  • Employment history during the last fifteen years
  • All passport numbers and country of issuance held by the applicant
  • Names and dates of birth for all siblings
  • Name and dates of birth for all children
  • Names and dates of birth for all current and former spouses, or civil or domestic partners
  • Social media platforms and identifiers, also known as handles, used during the last five years
  • Phone numbers and email addresses used during the last five years

RT4 and IDP address conflicts between this proposed policy and the U.S. Constitution, the International Covenant on Civil and Political Rights (ICCPR), and the Paperwork Reduction Act (PRA). This practice stands to encroach on freedom of speech, freedom of the press, freedom of movement, freedom of association, freedom of assembly, and freedom from unreasonable searches and seizures.

The proposed inquiries stand to be lacking in specificity or granularity. How comprehensive is the request for emails, phone numbers, and ‘social media’ handles? What is considered ‘social media’ in the absence of any statutory, regulatory, or legal definition? For example, is an applicant expected to remember every web site on which they have registered as a commenter? Are applicants expected to obtain and provide cellphone tower location tracking logs? Public transit or road-toll RFID-chip movement logs? License-plate reader motor vehicle movement logs? In-vehicle GPS logs? Or “merely” airline, train, intercity bus, and/or hotel reservation and ticketing records?

These additional inquiries exposes applicants to guilt by association based on family members, domestic partners, or people who provide funds for travel. They also expose applicants to legal sanctions in their home countries. For instance, Saudi Arabia is a U.S. ally with which the U.S. Department of State might be expected to share information obtained through this collection of information. This could include information that could identity Saudi Arabian citizens or residents who have engaged in activities protected by the First Amendment but are considered capital crimes in their homeland, such as blasphemy.

The Department of State has been processing visa applications for almost two centuries without requiring this information. It is not necessary for the proper performance of the functions of the Department of State.

 

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