In the New York Times, Eric Lichtblau has a major scoop describing some of the secret rulings of the Foreign Intelligence Surveillance Court, aka the FISC (and sometimes just called “the FISA court”). According to Lichtblau’s sources, described as “current and former officials familiar with the court’s classified decisions,” the FISA court has issued over a dozen significant rulings. Some of the rulings are “nearly 100 pages long.” Although Lichtblau purports to summarize the rulings, I find his descriptions a frustrating read. Maybe it’s just me, but I find Lichtblau’s writing to be sufficiently vague that his distillation of the opinions leaves me with more questions than answers. In this post, I want to go through what Lichtblau says about the Fourth Amendment rulings of the FISA court and why his descriptions leave me confused. I’ll try to get to the statutory issues in a future post.
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
Two thoughts. First, there’s already lots of appellate caselaw indicating that the need to find terrorists is a “special need” triggering the special needs exception. See, e.g., Cassidy v. Chertoff, 471 F.3d 67, 82-84 (2d Cir. 2006) (Sotomayor, J.); In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance, 551 F.3d 1004, 1011 (For. Intel. Surv. Ct. Rev. 2008). If the FISA court has held the same thing, that’s not noteworthy. It’s just the FISC following the FIS Court of Review to which it is bound under principles of vertical stare decisis. It’s hard to imagine them reaching a contrary view.
Second, if the FISC has done something unusual with the special needs exception, then, it must be with its scope. On this, Lichtblau says that “the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment” under the special needs doctrine. But I’m not sure what that means. Does “communications data” mean just non-content metadata that is generally understood to be outside Fourth Amendment protection? If so, then I don’t understand Lichtblau’s description. If there is no Fourth Amendment “search” in the first place, you never get to the special needs doctrine to say whether a warrantless search is okay. Alternatively, perhaps “communications data” includes the contents of communications. But in that case, I don’t know in what circumstances the FISC was saying that the special needs exception applied. The Fourth Amendment is exquisitely fact-specific. You can’t apply the special needs doctrine without facts. Given that, it’s hard to know if an application of the special needs doctrine was routine or plainly wrong without knowing what the facts were that the court was considering.
Lichtblau also writes:
The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.
This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”
Again, I have two thoughts. First, if the FISC has ruled that all metadata is outside the Fourth Amendment, that’s not a surprise. That’s what the weight of appellate caselaw has held, too. See, e.g., Smith v. Maryland, 442 U.S. 735 (1979) (telephony metadata unprotected); United States v. Forrester, 495 F.3d 1041 (9th Cir. 2007) (Internet metadata unprotected). And correctly so, in my view. See Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1017-38 (2010). True, the appellate caselaw has dealt with collection of metadata on individual suspects, not collection of metadata on large groups or even millions of people at once. But existing Fourth Amendment doctrine doesn’t provide an obvious hook to say that this should make a difference.
Second, the remainder of what Lichtblau writes in the passage above leaves me confused. Is Lichtblau just saying that the metadata collection is outside the Fourth Amendment but that obtaining contents is protected (but covered by the special needs doctrine, requiring some cause but not a warrant)? Or is Lichtblau saying that accessing even just the metadata database is some kind of search requiring justification? Lichtblau’s first sentence above seems to say the former, but the follow-up second sentence seems to indicate the latter.
Perhaps the former reading is more natural. That’s what Lichtblau wrote, and it also is consistent with the relevant appellate precedent. In contrast, a ruling that querying a metadata database is a “search” would require some creative doctrinal innovation. That seems less likely, on the whole.
On the other hand, I’m reminded of my post from last month, Why Does a Terry Standard Apply to Querying the NSA Call Records Database?. Recall that DNI James Clapper had said the following about the NSA call records program:
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.
I then asked:
[W]hat’s the legal basis for [the reasonable suspicion] standard? The standard described here is a Terry standard, a Fourth Amendment standard for when the police can stop a person temporarily and subject them to questioning introduced by Terry v. Ohio. I’m not aware of anything in FISA that requires that standard. Nor is there anything in the Fourth Amendment that would seem to require it, as the call records are unprotected under Smith v. Maryland. Perhaps this is just the minimization standard that the FISC has imposed as a matter of policy?
Maybe, but maybe not. Perhaps the Terry standard applies because the FISA court has some novel rulings requiring it as a matter of Fourth Amendment law. Specifically, perhaps the FISA court has issued some creative rulings — creative in a net pro-privacy and pro-civil-liberties direction — adopting a theory by which (a) querying the metadata database is a search, but that (b) the special needs doctrine applies and demands reasonable suspicion for each query.
If so, that would be a remarkable development. It would mean that the FISC has created a secret body of caselaw that identifies Fourth Amendment rights where the published appellate caselaw suggests that none should exist. If so, perhaps such rulings are based on the “mosaic theory” adopted by the DC Circuit opinion overturned in United States v. Jones, but then suggested in the Jones concurring opinions? Or did the FISC rulings predate the DC Circuit’s opinion, which was from 2010? Who knows.
Anyway, it will be fascinating to see what else we learn of these FISA court opinions. There has been a lot of recent pressure on the Administration to release the Kraken — er, I mean, release the FISC opinions. I would guess that this leak coming from “current and former officials” is an authorized leak designed to see if revealing some information will take the pressure off to reveal more. If I’m right, we’ll see if it works, or if this leak only creates more pressure to release the opinions or at least reveal more about them.