Tag Archives: Section 702

The Obama Administration Has Embraced Legal Theories Even Broader Than John Yoo’s - Just Security 20160407

The Obama Administration Has Embraced Legal Theories Even Broader Than John Yoo’s - Just Security 20160407

The Justice Department recently released another of the now-notorious Office of Legal Counsel memos written by John Yoo — memos that authorized torture, warrantless wiretapping, and indefinite detention. The new memo, written as a “letter” to then-presiding FISC Judge Colleen Kollar-Kotelly in May 2002, addresses the legal basis for the NSA’s warrantless wiretapping of Americans’ communications under the “Stellar Wind” program.

Unsurprisingly, Yoo’s memo is extremely broad and poorly reasoned — but we knew that much already, thanks to Jack Goldsmith and Jim Comey. Still, it would be a mistake to think of Yoo’s memo as just an historical artifact, full of long-repudiated legal arguments. In fact, many of the arguments Yoo made behind closed doors in 2002 continue to appear in the Obama administration’s briefs defending warrantless surveillance under Section 702 of FISA today. And, in at least one key respect, the Obama administration’s arguments are even broader than the ones that Yoo felt he could justify.

Americans’ Expectation of Privacy in Their International Communications

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad.

On top of that, the government assumes that any communication entering or leaving the country has a foreigner on one end — and thus is eligible for warrantless searching. As the new Brennan Center report makes clear, the implications of this position are especially dire given the global structure of the Internet, where even Americans’ domestic communications may be routed or stored abroad without the parties to those communications even knowing. In short, it is the Obama administration’s view that Americans forfeit the core protection of the Fourth Amendment whenever their private communications cross an international border. And, in today’s globally connected world, that is happening more and more.

Foreign Intelligence Surveillance and the Warrant Requirement

The Obama administration has also followed Yoo in arguing that intelligence agencies may disregard the Fourth Amendment’s warrant requirement simply because they are conducting surveillance for a foreign intelligence purpose. But as Yoo ultimately acknowledged in his memo — and as the Privacy and Civil Liberties Oversight Board observed in its report on Section 702 — no court has ever endorsed such a sweeping exception to the warrant requirement. Instead, courts analyzing this question have limited the exception to surveillance of foreign powers and their agents (in addition to recognizing other requirements). That is a far cry from the warrantless surveillance the government is conducting under Section 702, which can be used to target almost any foreigner abroad, including individuals who are not suspected of any wrongdoing whatsoever — people like journalists, cryptography researchers, human rights advocates, and IT system administrators.

Upstream Surveillance: Too Far for Yoo?

Perhaps most remarkably, however, the Obama Justice Department has pressed legal theories even more expansive and extreme than Yoo himself was willing to embrace. Yoo rounded out his Stellar Wind memo with an effort to reassure Judge Kollar-Kotelly that the government’s legal interpretation had limits, saying: “Just to be clear in conclusion. We are not claiming that the government has an unrestricted right to examine the contents of all international letters and other forms of communication.” But that is essentially the power the NSA claims today when it conducts Upstream surveillance of Americans’ Internet communications. The NSA has installed surveillance equipment at numerous chokepoints on the Internet backbone, and it is using that equipment to search the contents of communications entering or leaving the country in bulk. As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

It is hard to explain how astonishing this is. Yoo was at the center of the Bush administration’s effort to radically expand executive power, opening the door to widespread electronic surveillance of Americans without any individualized judicial approval. His efforts are widely understood to have been extreme, analytically indefensible, and contrary to the basic values of our country. Yet many of the legal arguments that Yoo made nearly 15 years ago have now been endorsed by the Obama administration to continue and expand the warrantless surveillance of Americans — surveillance that is even more pervasive than the wiretapping Yoo felt comfortable defending in secret.

At the same time, the Obama administration has fought to keep the public courts from scrutinizing these legal arguments, relying on secrecy and standing doctrines to short circuit challenges to mass surveillance programs. Whether it is John Yoo’s OLC memos, expansive reinterpretations of the law in the FISC, or ex parte criminal proceedings, by now it should be clear that good law is not made in secret.

Questions Congress Should Ask About Section 702 - Just Security 20160204

Questions Congress Should Ask About Section 702 - Just Security 20160204

After passing a surveillance reform bill last year, Congress appears poised to turn to examine another controversial surveillance authority — Section 702 of FISA. Using Section 702, the government copies, searches, and retains vast quantities of Americans’ international communications, all without ever obtaining a warrant.

On Tuesday, the House Judiciary Committee held its first hearing, in what we hope is a series, on Section 702 this Congress. Unfortunately, because the hearing was closed to the public, we do not know what issues were raised. In the past, Congress has reauthorized Section 702 without key information. However, we hope that members of Congress made clear that they would not reauthorize Section 702 when it is set to expire in 2017 without,at a minimum, answering the following key questions:

1. How many Americans have had their private information collected?

The government’s Section 702 position is inherently contradictory: Officials insist that the surveillance does not violate Americans’ rights, yet claim they have no way of knowing how many Americans’ communications are even collected.

The demand for information about the number of Americans whose information is collected under Section 702 is not new. Sen. Wyden has repeatedly asked Director of National Intelligence James Clapper for this information. Indeed, the Privacy and Civil Liberties Oversight Board explicitly noted that it requested but was not able to get this information as part of its review of Section 702.

Despite these requests, the government has staunchly refused to provide an account of the number of Americans whose information is collected and searched under Section 702. The primary justifications for this refusal have been that calculating this information would not be possible and, ironically, would require the government to commit additional privacy intrusions (presumably because it would require review of communications that otherwise would not be searched).

These justifications simply don’t stand up to scrutiny. First, the government has yet to provide concrete, detailed information on the resources that would be needed to obtain this information. Second, in response to a Foreign Intelligence Surveillance Court inquiry regarding the number of wholly domestic communications collected under Section 702, the NSA conducted a sampling of thousands of communications to provide a rough estimate of this information. With appropriate privacy protections, the intelligence community could use a similar methodology to estimate the number of Americans whose information is collected.

2. What is the legal justification for using Section 702 to scan virtually all Americans’ international communications over the Internet?

Over the past three years, it has become clear that the government often performs legal acrobatics in order to justify surveillance that was never authorized by Congress in the first place. Such acrobatics appear to extend to the NSA’s “Upstream surveillance,” which it operates under Section 702.

Upstream surveillance involves the mass copying and searching of virtually all Internet communications flowing into and out of the United States. With the help of companies like Verizon and AT&T, the NSA conducts this surveillance by tapping directly into the Internet backbone inside the United States — the physical infrastructure that carries the communications of hundreds of millions of Americans and others around the world. After copying nearly all of this traffic, the NSA searches the metadata and content for key terms, called “selectors,” that are associated with its thousands of foreign targets. Communications that contain these selectors can be retained and analyzed by the NSA with few restrictions.

The ACLU and other groups have challenged the mass searches and seizures of Americans’ internet communications under Upstream surveillance as both a violation of the Fourth Amendment and a violation of the restrictions that Congress wrote into Section 702 itself. Thus, it is critical that Congress press the intelligence community to disclose its legal analysis — and that Congress take steps to ensure that Section 702 is not used to justify illegal and unconstitutional mass surveillance of Americans’ international communications.

3. How many “backdoor searches” does the FBI conduct each year?

Members of Congress are rightfully concerned that the government performs “backdoor searches” — where analysts and investigators search Section 702 databases for information using US person identifiers (for example, a US person’s name or phone number). These searches are not authorized by the text of Section 702, and are contrary to the intent of the law, which explicitly prohibits the use of Section 702 to target US persons.

The surveillance reform bill passed last year, the USA Freedom Act, requires some reporting on the number of backdoor searches — but conspicuously excludes the FBI from this requirement. This is despite the fact that the Privacy and Civil Liberties Oversight Board reported that the FBI conducts backdoor searches in virtually every national security investigation and many other criminal investigations.

The FBI is clearly capable of tracking its use of backdoor searches. Other federal agencies, such as the CIA, account for the number of backdoor searches they perform. Given this, members of Congress should aggressively push the FBI to provide an accurate account of the number of backdoor searches it performs. Such information is essential to assess the impact that warrantless surveillance under Section 702 has on Americans.

4. What are the rules for using Section 702 information in criminal prosecutions and investigations?

Are there cases where information obtained or derived from Section 702 is used to assist in low-level drug investigations, tax-fraud investigations, or other investigations that have nothing to do with national security? These basic questions about how Section 702 is used in domestic criminal investigations remain unanswered.

Section 702 was not intended to be used to investigate and prosecute domestic crimes — yet internal procedures appear to permit just that. Intelligence officials have publicly confirmed that internal regulations permit Section 702 information to be used as evidence at trial in a variety of domestic criminal contexts, including transnational drug crimes, certain forms of battery, and crimes involving damage to critical infrastructure. Moreover, it appears that government regulations permit the use of Section 702 information during the investigation stage of any crime.

Concerns over the widespread use of this information are compounded by the fact that the government has historically failed to fulfill its obligations to notify individuals when it intends to use information “obtained or derived” from Section 702 in legal proceedings against them. Although the Justice Department began notifying criminal defendants of the use of Section 702-derived information in October 2013, it has done so in only five cases, and there has not been a single notification in 22 months. In addition, other federal agencies, such as the Treasury Department, have never provided Section 702 notifications, despite their reliance on this information.

These practices are at odds with the intent of the law and represent an end run around the Fourth Amendment’s warrant requirement. Given this, it is critical that the intelligence community be required to disclose more information about the use of Section 702 information in criminal investigations and prosecutions.

Many of these questions should have been answered before Section 702 was ever passed. Now, Congress should demand these answers as it considers how to reform Section 702 to protect the privacy rights of Americans and others.