Fear of FBI ‘Back Door Searches’ May Spur FISA Reform

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Patrick L. Gregory

Congressmen are eager to reform a law that might allow evidence gathered through warrantless surveillance abroad to be used to prosecute Americans for ordinary crimes, a witness who testified at a House of Representatives hearing told Bloomberg BNA.

Heightened interest in the Foreign Intelligence Surveillance Act comes on the heels of President Donald Trump’s accusation in a tweet March 4 that former President Barack Obama wiretapped Trump Tower during the presidential election. Rep. Ted Lieu (D-Calif.), who spoke at the hearing, tweeted, “Mr. President: If there was a wiretap at Trump Tower, that means a fed judge found probable cause of crime which means you are in deep shit.”

Congress is considering whether to renew or reform FISA Section 702, which authorizes warrantless surveillance of non-U.S. persons outside of the U.S. for foreign intelligence purposes, before it expires at the end of this year.

Both Republican and Democratic representatives at the March 1 hearing seemed troubled by claims that the federal government conducts “back door searches” of Section 702 databases to find Americans’ data for use in criminal proceedings unrelated to foreign intelligence. The Ninth Circuit recently declined an opportunity to evaluate the constitutionality of such searches, but has been asked to reconsider that decision.

“I think that the House is motivated to undertake significant reform efforts,” Elizabeth Goitein, co-director of the Liberty & National Security Program at New York University School of Law’s Brennan Center for Justice, Washington, told Bloomberg BNA by telephone March 6.

But in “the Senate, I think there is still a sense in some quarters that the intelligence community should be given” the authority it requests “without a whole lot of probing questions,” Goitein, who testified at the hearing, said. Further, the Trump administration reportedly wants to reauthorize Section 702 without reforms.

Section 702 “has been a critically important authority for the intelligence community in producing intelligence reporting, especially on counterterrorism,” April F. Doss, a partner at Saul Ewing LLP, Baltimore, and former associate general counsel at the National Security Agency, told Bloomberg BNA by telephone March 3. Doss testified at the hearing in support of Section 702.

Ninth Circuit Potential?

The Ninth Circuit is being asked to rehear a case in which it declined to consider whether backdoor searches violate the Fourth Amendment, in United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) (85 U.S.L.W. 746, 12/8/16).

In Mohamud, the Ninth Circuit found that the use of email surveillance collected under Section 702 to convict Mohamed Osman Mohamud for a bomb plot didn’t violate the Fourth Amendment.

“Through the monitoring of a foreign national’s email account,” the federal “government learned that Mohamud was in contact with that foreign national, who was located overseas,” the court said.

That “contact—a limited number of emails between Mohamud and the foreign national—was used to obtain a FISA warrant to surveil Mohamud and his activities,” the court said.

The court said that the Federal Bureau of Investigation’s acquisition of Mohamud’s emails “did not involve the retention and querying of incidentally collected communications,” and that it therefore didn’t need to consider whether backdoor searches were constitutional.

But the “public record provides multiple reasons to believe the government conducted such a search,” amici including the American Civil Liberties Union and Electronic Frontier Foundation said in an amicus brief in support of rehearing.

By declining to consider the issue of backdoor searches, the Ninth Circuit “disregarded one of the most intrusive ways in which the government exploits its warrantless collection of Americans’ communications,” the amici said.

Fourth Amendment, Bipartisan Concerns

Warrantless surveillance under Section 702 is targeted at foreigners but collects millions of communications that inevitably include large amounts of Americans’ emails, Goitein testified at the hearing.

Representatives from both parties said they were concerned that the use of such data in ordinary law enforcement cases may violate Fourth Amendment protections against unreasonable searches and seizures.

There “really was a strong sense in that room that the FISA foreign intelligence surveillance regime should not be bootstrapped into serving as a domestic law enforcement tool,” Goitein told Bloomberg BNA.

Under “Section 702, if you’re an American citizen and you’re caught up in this surveillance, that information can be passed to the FBI to then do a criminal proceeding and do a criminal case against you,” Lieu said.

“To me that’s just a flat out violation of the Fourth Amendment,” Lieu said.

Similarly, Rep. Ted Poe (R-Texas) said that the retention and subsequent use of Section 702 data against Americans without a warrant would constitute “a violation of the Constitution, and an abuse of power by our government on Americans.”

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) agreed that Fourth Amendment concerns “are a legitimate issue that we need to consider.”

“I also think it’s very important that we reauthorize this program, however,” Goodlatte said.

Big Problem?

The FBI’s warrantless use of Section 702 data to prosecute criminal cases unrelated to national security is “a very big problem,” Goitein told Bloomberg BNA.

The agency refuses to provide “statistics that would tell us exactly how big,” she said.

“We do know” that “the FBI routinely searches databases that include” such data, based on a 2014 report by the Privacy and Civil Liberties Oversight Board, Goitein said.

But both that report and a November 2015 opinion by the Foreign Intelligence Surveillance Court “seemed to indicate that it was seldom if ever that FBI queries of 702 information were leading directly to” ordinary law enforcement investigations, Doss said.

Goitein said that opinion by Judge Thomas F. Hogan “had some rather suspicious reasoning in a number of respects.”

Moreover, there was no way to appeal the decision “because the only actual party to the litigation was the government,” Goitein said.

In FISC proceedings, the government is the only party that appears in court.

“There was an attorney who was appointed as an amicus, as a friend of the court to essentially argue the other side,” but that person isn’t “actually a party to the proceedings and doesn’t have any right to appeal,” she said.

The “amicus provision was created by the USA Freedom Act of 2015, and it was a great improvement over the then-status quo” allowing only the government to argue before the FISA court, Goitein said. But that provision is limited because amici have no right to appeal, she said.

Section 702 Defended

Doss said that “we should always be concerned about the risks of overreach by government,” but she stressed the importance of Section 702 data.

“A quarter of all NSA counterterrorism reporting is based on 702, either in whole or in part,” according to the 2014 Oversight Board report, she said. The report said that number had been going up each year, she said.

“So it’s been incredibly valuable as an intelligence source,” the former NSA attorney said.

Further, “the law has been really carefully structured,” Doss said.

The statute provides for “really robust oversight from all three branches of government,” she said.

Further, the “independent” PCLOB has provided “very robust oversight,” Doss said.

Doss said there are two major misconceptions about Section 702.

The “greatest misconception” is that Section 702 is “bulk collection authority,” she said. “Although 702 has been used to target a large number of individuals, each one of those individuals is only targeted” on a “particularized, individual basis.”

The second misconception is that it “allows free-for-all collection against foreigners,” Doss said.

Section 702 “always requires there to be a specific, articulated nexus to foreign intelligence and to the really, really important and foundational idea that intelligence services ought not be collecting information just because they can, or targeting people for no reason,” she said.

Doss said it’s important to consider “not just all of the ways that hypothetically the statute could be misused, but much more importantly, all the very tangible controls that have been put in place both by statute and judges of the FISC to ensure that it won’t be misused.”

Brave New World

Courts are “kind of limping along with some very outdated case law to try to answer” constitutional questions concerning new technology, Goitein told Bloomberg BNA.

“We are in a brave new world when it comes to surveillance of international communications,” and there are questions that courts have “never had to address before.”

Those questions include the “extent of Fourth Amendment protections that Americans can expect in their conversations with people overseas who are targeted without a warrant,” she said.

“And thus far, as often happens, the law is really lagging behind the technology, and the courts are sanctioning the warrantless surveillance that’s happening, even though the fruits of that surveillance are being used against Americans,” Goitein said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

A recording of the hearing is at http://src.bna.com/mL4.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law