The Clock Is Ticking: Why Congress Needs To Renew America’s Most Important Intelligence Collection Program (Part III) – Analysis

By George W. Croner*

(FPRI)

The Legality of Section 702

From its statutory construct to its practical application, the Section 702 Program represents a carefully configured national intelligence undertaking that is demonstrably critical to national security. In 2012, when the provisions of the FAA were last extended, the Attorney General and the Director of National Intelligence informed Congress that Section 702 collection produced “significant intelligence that is vital to protect the nation against international terrorism and other threats” while urging its reauthorization as “the top legislative priority of the Intelligence Community.”^[1] Recently, the Attorney General and the Director of National Intelligence again informed the Congress that the importance of the intelligence derived from the Section 702 Program made the renewal of Section 702 their “top legislative priority” for 2017.^[2] But, is the Program constitutional? Despite a chorus of opposition, principally from civil liberties organizations, the answer is “yes.”

Although Section 702 has been the focus of extensive examination by Congress both at the time of its initial enactment in 2008 and when first reauthorized in 2012, many opponents seeking to abolish or materially eviscerate its present form insist that minor tweaking is futile because Section 702 as currently configured violates the Fourth Amendment, and perhaps the First Amendment,^[3] and, as such, is constitutionally infirm.

The Fourth Amendment challenge is the one most frequently expressed and has been addressed by the FISC, the FISCR, several U.S. district courts, and was a particular focus of the PCLOB. Only infrequently has the constitutionality of Section 702 been contested by a person demonstrably affected by the Section 702 Program;^[4] instead, opposition is generally expressed as a facial challenge to Section 702, an approach that carries a heavy burden of persuasion since it requires a showing that there is no application of the statute that can pass constitutional muster.^[5] Thus, a facial challenge to Section 702 is demonstrably futile since, in its pristine statutory form authorizing the acquisition of communications of non-U.S. persons located outside the United States to acquire foreign intelligence, Section 702 is unquestionably a constitutionally valid exercise of congressional power. Every court to have considered the question has so ruled.

Nonetheless, considering the constitutionality of the Section 702 Program poses some uniquely challenging questions precisely because, as the PCLOB recognized, it is a complex surveillance program – “one that entails many separate decisions to monitor large numbers of individuals, resulting in the annual collection of hundreds of millions of communications.”^[6] Moreover, the analysis is further snarled because the only constitutional interests at stake are not those actually targeted for surveillance—as foreigners located outside the United States they lack any Fourth Amendment rights^[7]—the constitutional issue arises for those U.S. persons who, although not targeted, have their communications incidentally acquired. Properly expressed, then, the question is whether the Section 702 Program, as it is conducted, runs afoul of the Fourth Amendment.

Because it is large scale programmatic surveillance, the operation of the Section 702 Program captures telephone and internet communications of U.S. persons in three ways,^[8] and any Fourth Amendment analysis must take into account the cumulative impact of these privacy intrusions and, ultimately, balance those intrusions against the limitations and protections built into the Program that mitigate them.

Since Section 702 acquisitions are collected without a warrant, they are warrantless seizures. But not every seizure requires a warrant to be valid under the Fourth Amendment. In In re Directives [Redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act^[9], the FISCR examined the question of whether a warrant was required for Section 702-type surveillance^[10] in a setting where, as the court observed, “[t]he recurrent theme permeating the [electronic communication service provider’s] arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment’s Warrant Clause.”^[11] Conceding that the Supreme Court has not explicitly recognized such an exception^[12], the court proceeded to address the issue directly and determined that “this type of foreign intelligence surveillance possesses characteristics that qualify it for such an exception” given the “particularly intense” governmental interest in protecting national security.^[13]

This makes perfect sense and, in the context of Section 702 surveillance, the warrant requirement is particularly inapposite. As an initial matter, since the targets of the surveillance are foreigners located abroad who have no Fourth Amendment rights, there is no one as to whom a warrant is required with respect to the acquisition of the communications. But, critics contend, U.S. person communications are inevitably collected, given the broad acquisition parameters of the Program, and, once those communications are identified, particularly through the querying of the data base, the warrant requirement should apply.

However, the Supreme Court has long excused compliance with the Warrant Clause in so-called “special needs” cases where the purpose behind the government action goes beyond traditional law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose.^[14] The Section 702 Program is a paradigm for such treatment given that “there is 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 at stake.”^[15]

It bears repeating that Section 702 is programmatic surveillance, and any analysis must treat the program holistically without isolation of discrete events in a complex collection undertaking where detailed rules govern the acquisition, retention, use, and dissemination of communications.^[16] Where, as here, the initial acquisition is lawfully collected from a target who is a non-U.S. person located abroad with no Fourth Amendment rights, the additional acquisition of U.S. person communications, no matter how predictable or on what scale, is “incidental” collection that does not require a separate warrant.^[17]

But, as the PCLOB noted, the absence of a warrant requirement does not end the inquiry since the ultimate measure of the constitutionality of any search is “reasonableness.”^[18] “Reasonableness” balances the nature and extent of the intrusion upon an individual’s privacy against the intrusion needed to promote legitimate governmental interests.^[19] It is a fluid, untethered, standard and, ultimately, is resolved by examining the totality of the circumstances regarding these competing interests.^[20]

The Section 702 Program advances some of the government’s most compelling interests: the protection of national security and the combating of terrorism.^[21] Terrorism directed at the homeland, if not ranking as the nation’s foremost national security concern, is certainly among its most critical security threats. And the danger of terrorism has not abated since September 11; post-9/11, there have been 19 successful terrorist plots in the United States that killed or wounded individuals included among a total of 333 terrorist plots involving 649 individuals, as of January 31, 2017.^[22] Since September 12, 2001, there have been 200 plots in the U.S. linked to Sunni radical Islamic doctrine, and another 133 plots such plots located outside the U.S.^[23] Reporting based upon Section 702 Program collection serves as the predominant intelligence source used to detect, monitor, and disrupt this continuing terrorist threat. All of this data serves to empirically confirm the observation of the President’s Review Group on Intelligence and Communications Technologies which, with respect to Section 702, observed: “we are persuaded that section 702 does in fact play an important role in the nation’s effort to prevent terrorist attacks across the globe.”^[24] As numerous courts have observed, the Section 702 Program fulfills this role by furnishing critical information used by the government in performing its most important national function.^[25]

It bears noting that the executive branch conducts the Section 702 Program under statutory guidance enacted by Congress, after extended review and debate, that incorporates a role for the judiciary in ensuring compliance with statutory and constitutional limits. Assembled as it is, Section 702 embodies the full federal authority.^[26] It does so by targeting non-U.S. persons abroad (who have no Fourth Amendment rights) to acquire foreign intelligence information. U.S. person communications are only acquired incident to the underlying surveillance of the foreign target.

Admittedly, the intrusion represented by this “incidental” acquisition of these U.S. person communications is neither minimal nor unanticipated. Literally millions of telephone and internet communications are acquired by NSA’s PRISM and Upstream collection, and this intrusion represents the countervailing consideration weighed against the national security interest in assessing the reasonableness of the Program. However, while every person has a privacy interest in his or her telephone and email communications, the “third party” doctrine recognizes that this privacy interest decreases when such person reveals information to a third party, even in confidence.^[27] The “third party” doctrine applies here: each U.S. person communicant’s expectation of privacy diminished upon the sending of the email or upon speaking to the non-U.S. person target telephonically. This is not to suggest that the expectation of privacy evaporates, but it diminishes, and that diminution is material when balanced against the compelling governmental interest in acquiring foreign intelligence through Section 702 acquisitions.^[28]

To be precise, then, the Fourth Amendment intrusion here takes the form of incidental acquisition of those communications of U.S. persons to or from foreigners located abroad who use communication selectors that, because of the reasonable likelihood that those communication selectors are used to transmit foreign intelligence information satisfying one or more criteria contained within a Section 702 certification approved by the FISC, have been properly targeted for collection pursuant to targeting procedures that also have been reviewed and approved by the FISC. Subsequent retention, use, and dissemination of any information derived from these incidentally collected communications is governed by minimization procedures also reviewed and approved by the FISC. Thus, the universe of communications triggering the balancing of interests required by the Fourth Amendment’s reasonableness analysis consists of those to or from that subset of U.S. persons communicating with foreigners located abroad whose activities have satisfied the targeting requirements of the Section 702 Program. Section 702 collection is NOT blanket surveillance devoid of any discriminants; the collection is the product of authorized acquisitions pursuant to specifically tailored collection criteria.

Apart from these considerations that properly define the scope of collection implicating Fourth Amendment considerations, any reasonableness inquiry must also consider the multitude of safeguards and procedures employed by the government in conducting the Section 702 Program. As noted earlier, the targeting procedures mandated by the FAA ensure that Section 702 collection is properly undertaken to acquire foreign intelligence and is directed at non-U.S. persons located abroad. Correspondingly, the required minimization procedures protect against the disclosure of non-public information contained in any incidentally acquired U.S. person communications consistent with the government’s need to obtain, produce, and disseminate foreign intelligence. These procedures are rigorously enforced and extensive oversight, both internal and external, is undertaken at every level of the Program by multiple elements of the executive branch which, in turn, report to Congress at mandated intervals.^[29] Multiple courts, and the PCLOB, have concluded that these procedures factor into the totality of the circumstances and contribute to the conclusion that the Section 702 Program, as applied, is reasonable under the Fourth Amendment.^[30]

The PCLOB concluded that “the core of this [P]rogram—acquiring the communications of specifically targeted foreign persons who are located outside the United States, upon a belief that those persons are likely to communicate foreign intelligence, using specific communications identifiers, subject to FISA court-approved targeting rules that have proven to be accurate in targeting persons outside the United States, and subject to multiple layers of rigorous oversight — fits within the totality of the circumstances test for reasonableness as it has been defined by the courts to date.”^[31]

Echoing the PCLOB, the FISC observed in its most recent review of Section 702 certifications that “the controlling norms are ones of reasonableness, not perfection” and those norms are applied “to the program as a whole, not of individual actions in isolation.”^[32] It follows that, viewed prudently and objectively in the context of balancing the Program in its entirety against the specific Fourth Amendment intrusion its activities precipitate, the incidental acquisition of U.S. person communications collected as part of lawful surveillance conducted pursuant to the requirements and standards of Section 702 is reasonable under the Fourth Amendment.

About the author:
*George W. Croner previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source:
This article was published by FPRI.

Notes:
^[1] Letter from the Attorney General and the Director of National Intelligence to the Speaker of the House of Representatives, the Majority Leader of the Senate, the Democratic Leader of the House of Representatives, and the Republican Leader of the Senate, dated February 8, 2012.

^[2] “Jeff Sessions urges Congress to reauthorize FISA ‘promptly’,” Washington Examiner, Sept. 12, 2017

^[3] See, e.g., Wikimedia Foundation v. National Security Agency, 857 F.3d 193, 211 (4th Cir. 2017) (reversing dismissal by district court and concluding that Wikimedia has standing to sue for First and Fourth Amendment violations).

^[4] See, e.g., U.S. v. Mohamud, 843 F.3d 420, 437-444 (9th Cir. 2016) (9th Circuit rejects constitutional challenge to Section 702 collection finding “search” of emails conducted under Section 702 was reasonable and did not violate the Fourth Amendment); U.S. v. Hasbajrami, 2016 WL 1029500 (E.D.N.Y. March 8, 2016) (Gleeson, J.) (district court rejects constitutional challenge to Section 702 collection of email communications finding Section 702 is supported by a compelling government interest in combating terrorism and that the procedures and safeguards in the Section 702 Program sufficiently protect non-targeted U.S. persons’ privacy interests).

^[5] See Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442, 449 (2008) (a facial challenge to the constitutionality of a statute can only succeed by “‘establish[ing] that no set of circumstances exists under which the Act would be valid,’ i.e., that the law is unconstitutional in all of its applications”).

^[6] PCLOB Report at 86.

^[7] See U.S. v. Verdugo-Urquidez, 494 U.S. 259, 267 (1990) (Fourth Amendment protections do not “apply to activities of the United States directed against aliens in foreign territory.”).

^[8] Acquisition can occur as a result of: (1) a U.S. person communicating by telephone or Internet wth a foreigner located abroad who has been targeted (i.e., “incidental” collection); (2) a U.S. person sends or receives an Internet communication that is embedded within the same transaction as a different communication that meets the criteria for collection (i.e., an MCT); or (3) a U.S. person’s communication is acquired by mistake due to an implementation error or technological malfunction (i.e., “inadvertent” collection). PCLPB Report at 87. The PCLOB’s Report also identifies a fourth category of acquisitions; i.e., the acquisition of “about” communications as part of Upstream collection. Id. As noted earlier, NSA has ceased collection of “about” communications. See n. 50, supra.

^[9] 551 F.3d 1004 (FISCR 2008) (“In re Directives”).

^[10] The case involved a directive to an electronic communication service provider to assist in surveillance under the provisions of the Protect America Act, predecessor to Section 702. In re Directives, 551 F.3d at 1007-1009. Thus, the type of electronic surveillance at issue substantially mirrored that subsequently enacted by Congress in 50 U.S.C. § 1881a.

^[11] Id. at 1010.

^[12] This is repetitive dogma for those challenging the constitutionality of Section 702. It is true that the Supreme Court has not explicitly recognized a foreign intelligence exception to the warrant requirement but, as the PCLOB observed, “every court to decide the question recognized such an exception.” PCLOB Report at 90. Accord, e.g., In re Directives, 551 F.3d at 1011; U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980); U.S. v. Buck, 548 F.2d 871, 875 (9th Cir. 1977); U.S. v. Butenko, 494 F.2d 593, 605 (3rd Cir. 1974); U.S. v. Brown, 484 F.2d 418, 426 (5th Cir. 1973); U.S. v. Mohamud, 2014 WL 2866746, *15-*18 (D. Or. June 24, 2014); Bates October 2011 Op., 2011 WL 10945618, at *24.

Moreover, a careful reading of Clapper v. Amnesty Int’l, USA, 568 U.S. 398 (2013) offers some insightful reading in the tea leaves. As the Court’s majority opinion noted, FISA was legislated “against the backdrop of our [Keith] decision” which “implicitly suggested that a special framework for foreign intelligence might be constitutionally permissible.” Id. at 402-403. Then, even though the case is ultimately decided on standing grounds, Justice Alito, writing for the Court majority, goes through a meticulous discussion of the structure provided by FISA for the conduct of the Section 702 Program, noting that “[s]urveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.” Id. at 404. Unless one intuits that Justice Gorsuch will view the issues differently than Justice Scalia, who was a member of the Clapper majority, the language and tenor of the Clapper decision is fairly indicative of which way the wind is blowing in terms of how the Supreme Court would rule on the constitutionality of FISA and the Section 702 Program.

^[13] In re Directives, 551 F.3d at 1011.

^[14] See In re Directives, 551 F.3d at 1010-1011 (citing several “special needs” cases where no warrant was required). Accord U.S. v. Mohamud, 2014 WL 2866749, at *16-*18.

^[15] In re Directives, 551. F.3d at 1011.

^[16] See Memorandum Op. and Order, Caption [Redacted], Docket No. [Redacted], at 66 (FISC April 26, 2017) (Collyer, J.) available at icontherecord.tumblr.com (FISC writes: “the controlling norms are ones of reasonableness, not perfection” [and those norms are applied] “to the program as a whole, not of individual actions in isolation.”).

It bears distinguishing between Section 702’s programmatic collection and the controversial bulk collection used in acquiring telephone metadata under Section 215 of the Patriot Act. P.L. 107-56, 115 Stat. 272 (2001). Section 702 requires the use of discrete individualized selectors distinguishing its operation from the indiscriminate acquisition that is the hallmark of “bulk” collection.

^[17] In re Directives, 551 F.3d at 1015. Accord U.S. v. Mohamud, 843 F.3d at 440-441; U.S. v. Hasbajrami, 2016 WL 1029500, at *9. See, also, U.S. v. Muhtorov, 187 F.Supp.3d 1240, 1256 (D. Colo. 2015) (“Muhtorov”)(rejecting “backdoor search” argument while finding “[a]ccessing stored records in a database legitimately acquired [pursuant to Section 702 surveillance of a foreigner located abroad] is not a search in the context of the Fourth Amendment”).

^[18] Vernonia School District v. Acton, 515 U.S. 646, 652 (1995).

^[19] Samson v. California, 547 U.S. 843, 848 (2006).

^[20] U.S. v. Mohamud, 843 F.3d at 441; In re Directives, 551 F.3d at 1012.

^[21] U.S. v. Mohamud, 843 F.3d at 441; In re Directives, 551 F.3d at 1011.

^[22] David G. Major, “The Truth About Terrorist Plots in the U.S. Since 9/11,” The Intelligencer, Journal of U.S. Intelligence Studies, Vol. 23, No. 1, at 39-40 (Summer 2017).

^[23] Id. See also, President’s Review Group on Intelligence and Communications Technologies, “Liberty and Security in a Changing World,” Report, pp. 144-145, December 12, 2013 (available at: https://obamawhitehouse.archives.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf) (Review Group is briefed on 53 counterterrorism investigations since 2007 that utilized Section 702 information in the prevention of terrorist attacks in diverse nations and the United States.)

^[24] President’s Review Group on Intelligence and Communications Technologies, “Liberty and Security in a Changing World,” Report at 145.

^[25] See, e.g., In re Directives, 551 F.3d at 1012 (‘the relevant governmental interest – the interest in national security – is of the highest order of magnitude” citing the U.S. Supreme Court’s decision in Haig v. Agee, 453 U.S. 280, 307 (1981)).

^[26] With this structure, the operation of the Section 702 Program falls within the first level of authority in the construct of executive and legislative authorities posited by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-636 (1952).

^[27] U.S. v. Mohamud, 843 F.3d at 442; U.S. v. Hasbajrami, 2016 WL 1029500, at *10-*11.

^[28] Critics, including the FISC at an earlier time, have considered the privacy intrusion significantly more problematic in the context of acquiring MCTs that might include wholly domestic communications and, more particularly, MCTs that were “about,” but neither “to” nor “from,” a target in NSA’s Upstream collection program. See, e.g., Bates October 2011 Op., 2011 WL 10945618, at *25-*27 (finding collection of MCTs, including those “about” a target, sufficiently likely to result in the acquisition of purely domestic U.S. person communications to conclude that Upstream collection in this manner was unreasonable under the Fourth Amendment); PCLOB Report at 96-97 (expressing concern that collection of MCTs and “about” communications “push the entire program close to the line of constitutional reasonableness”).

Significantly, with respect to this particular issue, NSA, the only intelligence agency conducting Upstream Internet collection in which “about” MCTs are involved, announced in April 2017 that it would no longer acquire “about” communications in connection with its Upstream Internet collection but is now only acquiring Internet communications that are sent directly to or from a foreign target. NSA/CSS Press Statement, NSA Stops Certain Section 702 “Upstream” Activities, April 28, 2017.

^[29] See President’s Review Group on Intelligence and Communications Technologies, “Liberty and Security in a Changing World,” Report at136-141 (recounting multiple levels of oversight, review, and reporting applicable to the Section 702 Program).

^[30] See, e.g., Memorandum Op. and Order, Caption [Redacted], Docket No. {Redacted], at 6, 26 n. 23 (FISC November 6, 2015 (Hogan J.)) (FISC court approves NSA minimization procedures after amicus curiae counsel, appointed by the FISC specifically to “address whether the minimization procedures … are consistent with the Fourth Amendment,” concludes that “the NSA and CIA minimization procedures are sufficient to ensure that the use of U.S. person identifiers for th[e] purpose of [querying Section 702 acquired information] complies with the statutory requirements of Section 702 and with the Fourth Amendment .”). See also U.S. v. Mohamud, 843 F.3d at 443; In re Directives, 551 F.3d at 1012-1013; U.S. v. Hasbajrami, 2016 WL 1029500, at *11-*13 (all courts considering targeting and minimization procedures used in conjunction with Section 702 surveillance as adequate to protect the privacy interests of U.S. persons with respect to incidentally acquired communications); PCLOB Report at 94 (same).

^[31] PCLOB Report at 88.

^[32] Memorandum Op. and Order, Caption [Redacted], Docket No. [Redacted], at 66 (FISC April 26, 2017) (Collyer, J.) available at icontherecord.tumblr.com.