The Rule of Lenity as a Tool to Regulate National Security Surveillance

By Orin Kerr
Tuesday, November 5, 2013, 3:20 PM

At yesterday's hearing of the Privacy and Civil Liberties Oversight Board, I argued that a "rule of lenity" for foreign intelligence surveillance law could be a helpful way to regulate national security surveillance. I thought I would say more about the idea in this post.

First, some context. The FISA statute is based largely on the regulatory method of using ex parte court orders, an approach borrowed from criminal investigations. When the government wants to conduct surveillance or obtain records, the government applies ex parte for a court order allowing it to act accordingly. The judges review the application to determine if the statute was satisfied, granting the order if it has been satisfied and denying it otherwise. When technology is stable, this approach to monitoring government conduct works reasonably well. The basic types of surveillance are known, and Congress can impose court order requirements tailored to the invasiveness of different kinds of collection techniques. Reviewing applications is a more or less ministerial function, one that requires judgment but not significant legal interpretation. So far, so good.

The tricky part is that surveillance technology is a moving target. When technology advances, the government may have new ways to collect information that were not considered by Congress. Perhaps the government can get information that didn't exist before, or perhaps the government can get information more easily than before. Either way, these new technological facts often raise difficult legal questions about how the old statute fits. The meaning of the statute becomes uncertain, and the executive branch can make arguments to the FISC that the statute intended for one set of facts should also be read to apply to something quite different. The FISC then has a new job, one that is pretty different from its earlier ministerial function: The court has to figure out how the new facts fit into the old statute.

The basic problem is that the ex parte court order process isn't designed to adjudicate such important legal questions. There is only one party, and the process occurs in secret; if the government wins, no one can appeal. That dynamic gives the government major advantages, and it's not conducive to accurate decisionmaking on important statutory or constitutional questions. Unsurprisingly, many of the structural proposals to reform FISA try to get out of this problem by making the ex parte court order process more like regular adversarial litigation. They add an advocate on the other side, for example, who may be able to seek appellate review.

Although I'm basically supportive of those proposals -- at least in some form -- I think a more promising approach is to create legislative mechanisms that balance out the power by pushing the executive branch to seek approval for new programs more from Congress than from the courts.

One way to do that is familiar: Sunsets. A sunset provision that requires Congress to renew an authority puts a burden on the Executive to make the case for the power over time. The problem with sunsets, though, is that they work only if the public knows how the law is being interpreted. If the FISC has adopted a counterintuitive interpretation of a surveillance law in the government's favor, and the interpretation remains secret, the sunset provision can't complete the feedback loop because the public doesn't know what the power actually means.

That brings me to the rule of lenity. In criminal law, the rule of lenity states that when interpreting an ambiguous criminal law, the court should resolve the ambiguity in favor of the defendant. In other words, the tie goes to the individual instead of the state. If the Executive wants a broader criminal law, it has to go to the legislature and get the legislature to expand the law rather than obtain an expansion of the law through judicial interpretations. The principle is rooted in fair notice. As Justice Holmes once wrote, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear."  McBoyle v. United States, 283 U.S. 25, 27 (1931).

Congress could dictate a similar principle for courts called on to interpret FISA. If the scope of FISA is ambiguous, the directive would state, courts should interpret the law narrowly in favor of the persons monitored instead of the state. When technology changes, potentially allowing new programs that were not contemplated by Congress and aren't a good fit for the statute, the Executive branch would have to go to Congress and seek approval for the new program.

Importantly, this wouldn't mean every new program would need to go to Congress first. The rule of lenity only applies when a issue of interpretation is a close or difficult question. If a technological change presents no tricky legal issues, then the FISC can handle it. Also, there would be ways of tailoring the rule of lenity to apply in some situations but not others. For example, the rule of lenity could apply when the surveillance authority related to monitoring of U.S. persons but not non-U.S. persons. But the basic idea would be to better balance security and privacy by having Congress, not the courts, be the front-line of decisionmaking about how the law should adapt to new technology.   Rather than only trying to improve the FISC by making it  more like a regular court, we should push the primary role of adaption to new technologies out of the FISC and give the big questions to Congress.  A rule of lenity for surveillance law could help achieve that goal.

That's the idea, at least.  I'd be very interested in reader feedback, as this is a tentative proposal rather than an idea I have settled on with confidence.  Also, for a somewhat similar suggestion in the context of the criminal law surveillance statutes, see this article at pages 940-41.