NSA Received Help from FISA for Surveillance Authorization

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

“Your Drones! They’ll Have to Wait Outside!”

Much hubbub has been made recently over whether police use of drones would be an unacceptable infringement of privacy. In fact, lawmakers in some minor jurisdictions have gone so far as to ban all drones.

Caring little for fourth amendment questions, myself, especially in the domestic law enforcement context, I’ll only offer one observation: the police have been oggling you from above for decades.

There is a precedent well known to every law student that allows the police to use aircraft for observation of the areas of your property that they may not be able to see from the street. In California v. Ciraolo, 476 U.S. 207, the Supreme Court decided that police use of airplanes to “search” your backyard was not a breach of your fourth amendment right to be free from unreasonable searches. According to the Court,

“The Fourth Amendment simply does not require the police traveling in the public airways at [a legal] altitude to obtain a warrant in order to observe what is visible to the naked eye.”

Now, back to drones: the only technical difference between drones and ordinary aircraft is the location of the pilot. It is not at all clear why this difference would matter to your sense of privacy. Maybe electronic eyes burn that much more on the back of your head? It’s doubtful the Supreme Court would make that kind of distinction.

However, there is another effective difference: the ease and low cost of drones will greatly increase the amount of surveillance that the police can conduct. And being watched only when the police determine it’s worth the exorbitant cost may seem like less of a burden on your backyard activities. So then that must be what people are worried about.

But if it is not the technical differences between drones and police helicopters that raise the specter of a police state, then the efforts to limit aerial surveillance should not be limited to unmanned overflight. If it decides to craft a new policy for aerial surveillance, the legislature should ensure that it be platform-neutral: aerial surveillance is either intrusive or mundane. It can’t be both, depending on where the pilot sits.

Paul Taylor, Senior Research Fellow
Center for Policy & Research