Just as many predicted from the beginning, it looks like the NSA surveillance scandal has reached beyond the NSA to other branches of government. On Saturday the New York Times reported that over the past few years, the Foreign Intelligence Surveillance Court, or FISA, has basically created an entire new category of law pertaining to surveillance for the NSA and CIA. FISA has reportedly handed down over a dozen classified rulings on everything from espionage to nuclear proliferation to cyber attacks. It appears that FISA has quietly taken over the Supreme Court’s role in all matters pertaining to surveillance.
Most notably, the court used a particular case to expand a little-known doctrine called the “special needs” doctrine that allows authorities to sidestep the Fourth Amendment by performing search and seizure operations without the need for a warrant. The government claims that this expansion of the special needs doctrine is only applicable in terrorism-related cases. The exception is typically used only for things like airport screenings and DUI checkpoints. Professor William C. Banks of Syracuse University stated that the use of this doctrine is just “another way of tipping the scales toward the government in its access to all this data.”
So how can FISA justify the expansion of this doctrine, essentially abandoning the use of the Fourth Amendment’s protection from arbitrary searches and seizures? It looks like it came down to the interpretation of one word: Relevant. Instead of interpreting the word in the narrow sense used in most criminal cases, the court elected to broaden its scope, allowing the NSA to collect any records that could possibly be relevant to national security concerns. This interpretation has drawn sharp criticism in the past few days. A senior partner at Perkins Cole LLP, the Justice Department’s go-to firm on federal surveillance law, claims that FISA has destroyed the meaning of “relevant” altogether, essentially changing it to mean “everything.” He also mentioned that a typical federal or state court would laugh the prosecution out of the courtroom if it tried to argue for this new interpretation.
But what does this mean for the average American? Probably not much. As I’ve said before, I don’t think the NSA has the time or resources to rifle though billions of pages of records that they know are not “relevant” to national security. I have a hard time believing that our government is reading all our “LOL’s” and “IDK’s” when there is so much at stake. In fact, it’s come out that even though the NSA has the power to collect the records, they still needed a warrant to actually access them. Sure, the government still has plenty of egg on its face and has sufficiently embarrassed itself on a global scale. But now, roughly a month after Edward Snowden first released information on this scandal, we still have yet to hear of any connection between the NSA’s programs and any non-terrorism-related arrests.
With that said, it’s hard not to be concerned when courts hand down secret rulings that essentially throw away our Constitutional protections. At least for now the traditional law requiring warrants for searches and seizures still applies to normal cases, but that won’t make to many people feel better about the fact that we have a highly secretive court handing down classified decisions that have the potential wipe out our most basic freedoms. I’m usually willing to give the government a pass when it comes to protecting our national security, but this has to stop somewhere. I think it’s safe to say that the American government has officially pole-vaulted over that fine line between protecting our freedom and trampling on it.
Chris Whitten, Research Fellow
Center for Policy and Research