The Courts Can’t Cope With Suspicionless Surveillance

The new Fourth Circuit ruling in the long-running Wikimedia Foundation case illustrates a key problem with obtaining redress through the courts for coming under suspicionless mass surveillance.

Let’s start with the good news. Remarkably, the Wikimedia Foundation (“Wikimedia”) managed, through nine years of ferocious and expensive court battles, to establish that it had standing as an “aggrieved person” to challenge NSA’s mass, suspicionless “Upstream” collection of Internet traffic. That in itself, in this type of case, is not trivial; it was this hurdle that eventually denied justice in the long-running Jewel v. NSA class action.

However, the barriers to reaching the merits in litigating government surveillance programs have been stacked so high, that Wikimedia still had a long way to go.

In order to have the court determine whether Wikimedia had in fact suffered harm, it was necessary to proceed to the discovery stage. Whether discovery is permitted in such a case is governed by the rule in United States v. Reynolds, 345 U.S. 1, 11 (1953)), which formally established the state secrets privilege, and which allows a court to “dismiss the case prior to discovery on the belief that the evidence at issue bars the case as it […] bars the defense from presenting a valid defense.”

In a very similar Ninth Circuit case, AlHaramain vBush, 507 F.3d 1190, 1192 (9th Cir. 2007), the court found that “Simply saying “military secret,” “national security” or “terrorist threat” or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be – and has been – provided for us to make a meaningful examination.”

However, in this case, the Fourth Circuit has allowed the government to assert a claim of what it calls a “reasonable danger to national security” that necessitates discovery not to proceed, when the government “premises its defense only on far-fetched hypotheticals” (Judge Diane Motz at p. 56, dissenting). This sets up a potential circuit split that the Supreme Court could resolve; but it’s unlikely the Supreme Court would take the case, and if it did, its deference to the executive on matters of mass surveillance makes an adverse ruling more likely than a favorable one.

Wikimedia had sought to have the NSA explain, in camera (or privately in chambers) to the judge, why it believed itself to be innocent of the allegation that it had violated Wikimedia’s Fourth Amendment rights, by seizing copies of Wikipedia pages without first making any sort of showing that Wikimedia was engaging in criminal activity or activity threatening the United States. The Fourth Circuit read closely section 106(f) of FISA to mean that this kind of discovery could only be required in situations where the government was attempting to use the foreign intelligence-derived information in a case against a defendant. There was no case being brought against Wikimedia, so Wikimedia could not compel discovery.

Let’s think carefully about what this means. As it stands, in the Fourth Circuit, the only situation where the NSA can be compelled to respond to discovery by a plaintiff is in cases of particularized surveillance, connected with an actual criminal case. The court’s reasoning makes it virtually impossible for anyone whose communications are scanned for selectors (“searched”) but not retained by the NSA, to challenge the surveillance.

Does it matter if the government collects your stuff without a warrant, but never uses it against you in a court of law?

Yes, it does. The mere fact that the government has collected your stuff gives it a sword of Damocles to hang over your head. The point isn’t that you’re getting stabbed right now; the point is that, so long as the sword is there, you have a permanent sense of dread that you might be, and that’s an injury in itself.

In a Fourth Amendment analysis, conducting generalized, mass, suspicionless surveillance should be more offensive, not less, than conducting particularized surveillance. The Founders despised, and sought to eliminate general warrants, precisely because they were general; they didn’t want Crown agents rummaging through entire towns looking for contraband.

The generalized nature of the surveillance at issue should in fact be evidence in Wikimedia’s favor, that the government is engaging in conduct which on the merits is grossly unconstitutional. The Fourth Amendment confines searches and seizures to being “reasonable”, with “reasonableness” being further cabined as being based on “probable cause” of a person being involved in an actual crime, as determined by “oath or affirmation” to an independent judge. It’s absurd enough that, in this case, Wikimedia only achieved standing because it was able to show that the NSA’s searches were plausibly so general as to be treated like they were universal with respect to international traffic. But for the court then to rule, in its next breath, that Wikimedia cannot continue onward to reach the merits of a Fourth Amendment challenge, precisely because the government’s seizure that is being challenged lacks particularity to Wikimedia (as part of a criminal case), is atrocious.

It’s this impossible conundrum that makes it hard to see how the courts will ever adequately address generalized surveillance. At Restore The Fourth, we’re centrally concerned with the Fourth Amendment. Implicit in that focus is a belief that the courts should be able to address, and to help to restore, some of the damage wrought on the Fourth Amendment by mass surveillance programs, the war on terror, and the war on drugs. However, it’s rare for either the Foreign Intelligence Surveillance Court or the regular Article III courts to rule against the government on the merits on matters of mass surveillance programs. Few judges, even those who are stern adherents of the Fourth, want to be in the position of being told that by shutting down an aspect of foreign intelligence collection, they have put U. S. national security in “reasonable danger.” Probably, that would be a lie, just like the lie that established the state secrets privilege in Reynolds in the first place, or the other government lies that have sustained the surveillance state to this point. But it’s the kind of lie that, if you don’t accept it as true, can kill your career.

If FISA is now being interpreted to bar claims of injury from generalized, but not from particularized surveillance, what comes next?

The current Congress is unlikely to produce a comprehensive, intelligent, rights-friendly revision and updating of FISA. Their last effort to do so, the FISA Amendments Act of 2008, was not any of those things, and legitimated the abuses Snowden later revealed. Congress holds within it many friends of FISA reform, but Reps. Pelosi and Schiff oppose it, as does Senator McConnell and President Biden. The ongoing negotiations over Privacy Shield with the EU currently offer the best prospect of achieving reforms to generalized government surveillance. In the meantime, however, the trouble the courts have in grappling with this issue, reinforces the importance to all of us of encrypting our communications, to deny NSA routine access to everything that makes us human.

How the 2020 Democratic Presidential candidates stack up on the surveillance state

Today, Restore The Fourth launches its voter guide for the 2020 Democratic primaries.

Mass state surveillance is less about who’s in the Oval Office and more about senior intelligence community officials and tech company executives. Their institutional imperatives plow ahead with only limited influence from the White House either way. It’s not clear that even a President who assumed office pledging to undermine the surveillance state would still be able to do so.

However, there are still meaningful differences between the different candidates for President. We don’t make endorsements or dis-endorsements, but it’s part of our mission to educate the public about those differences, and existing sources don’t draw together adequately the necessary information for privacy-oriented voters.

This cycle, we’re analyzing candidates’ track records and statements with respect to seven factors: (a) NSA surveillance; (b) FBI surveillance of domestic dissent; (c) DHS border surveillance; (d) police accountability; (e) commercial privacy and online publisher liability; (f) encryption; and (g) attitude to national security whistleblowers.

This necessarily casts a broader net than our congressional surveillance scorecard. Votes are the clearest indication of where a candidate stands, but some candidates have never held elected office. Where appropriate, we are also including and contextualizing candidate statements and non-legislative actions. This guide focuses on the Democratic candidates; ahead of the other parties’ debates, we will aim to do the same.

A / A- : Tulsi Gabbard : Bernie Sanders : Elizabeth Warren

B+ / B / B- : Beto O’Rourke : Cory Booker : Kamala Harris

C+ / C / C- : Julian Castro : Pete Buttigieg : Andrew Yang

D / D- : Amy Klobuchar : Joe Biden

Unclassified: Tom Steyer

Continue reading How the 2020 Democratic Presidential candidates stack up on the surveillance state