Surveillance: NSA Warrantless Wiretapping

Updated Version of In Re Directives: A Quick Summary

By Alex Ely
Tuesday, September 16, 2014, 4:30 PM

Readers likely recall that last week, documents from the In Re Directives litigation, regarding foreign intelligence surveillance directives issued to Yahoo!, were declassified.

Chief among them: a new version of the Foreign Intelligence Surveillance Court of Review’s (“FISCR” or the “Court”) 2008 ruling, one less redacted than previous versions released to the public. Then-Chief Judge Bruce Selya’s opinion still contains some key redactions. Some key details---for example, the number of Yahoo! accounts thought to have been swept up in the Government’s surveillance---remain classified.

The decision affirms the Foreign Intelligence Surveillance Court’s (“FISC”) denial of Yahoo!’s challenge to directives issued pursuant to the Protect America Act of 2007 (“PAA”)---which itself temporarily had amended provisions of the Foreign Intelligence Surveillance Act. Yahoo! was thus compelled, as the FISCR put it, to assist the government “in acquiring foreign intelligence when those acquisitions targeted third persons (such as [Yahoo!’s] customers) reasonably believed to be located outside the United States.”

Below, I overview key features of the appeals court’s opinion.

Standing: The FISCR affirmed the right of service providers to challenge provisions of the PAA on behalf of their customers, finding that Congress, in enacting the PAA, had affirmatively provided that a party in Yahoo!’s position could bring a suit in order to enforce the rights of others (p. 10).

Foreign Intelligence Exception to the Fourth Amendment’s Warrant Clause: In the portion of the opinion which has generated the greatest amount of attention, the FISCR held that “a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” However, in such a case, “governmental action intruding on individual privacy interests must comport with the Fourth Amendment’s reasonableness requirement.”

While Yahoo! challenged the very existence of a foreign intelligence exception, the FISC had held to the contrary, and the FISCR agreed. The latter relied on precedent: FISCR’s opinion in In Re Sealed Case. Accordingly the FISCR concluded, based on the facts before it, that the surveillance directives to Yahoo! qualified for the intelligence exception and were reasonable within the meaning of the Fourth Amendment.

Special Needs Exceptions: In ruling that the relevant provisions of the PAA were not a violation of the Fourth Amendment’s Warrant Clause, the Court analogized the case to the recognized “special needs” exceptions, where law enforcement has a particularly acute interest and where the warrant and probable cause requirements are impracticable. Surveillance ordered pursuant to the Yahoo! directives, the Court reasoned, “go[es] well beyond any garden-variety law enforcement objectives” and the “government’s interest is particularly intense” in such a situation. (p. 16). The Court added that an additional reason why the warrant requirement was impracticable was 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 that are at stake.”

Reasonableness Test: Yahoo! argued that the Court’s holding in In Re Sealed Case had established a six-factor test for courts to determine whether the reasonableness requirement of the Fourth Amendment is met---prior judicial review, presence or absence of probable cause, particularity, necessity, duration, and minimization. The In Re Directives Court rejected this, concluding instead that precedent dictated a “totality of the circumstances” test---in which the government’s particular national security interests are weighed against the scope of the surveillance and the alleged harm done to the petitioner. The Court explained that the six factors cited by Yahoo! had been relevant under the circumstances of In Re Sealed Case, in determining reasonableness---but that the latter ruling had not established the six-factor analysis as a rigid rule for application in all subsequent cases. (p. 21).  To the contrary, according to he In Re Directives Court, the test was then, and remained, totality of the circumstances.

Potential For Executive Branch Abuse? Yahoo! cited the fact that the Government allegedly had identified some accounts for surveillance that had already been closed, or were nonexistent, to argue that the entire process was plagued with error. (The exact percentage of accounts that met this description is still redacted.) The Court rejected this argument, concluding that once the Fourth Amendment’s reasonableness requirement is met, there is no justification for assuming that the government acted in bad faith absent an express showing or some other type of evidence, and “the fact that there is some potential for error is not a sufficient reason to invalidate the surveillances.” (p. 28) The Court added that the “inclusion of nonexistent accounts could not have caused any harm, and there is no solid evidence that any of the closed accounts were misidentified.”

Incidental Collections: The Court rejected Yahoo!’s argument that, because the government had collected information from persons not targeted by the directives, the directives themselves violated the Fourth Amendment. The Court said this “concern with incidental collections is overblown.” As there was no evidence that the government kept a database of this sort of information, “on these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.” (p. 30)