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FISC OKs Section 215 Investigations of Americans, Despite First Amendment

The Foreign Intelligence Surveillance Court declassified an opinion today which, although highly redacted, illuminates the way at least one Judge is interpreting his mandate to protect the First Amendment activities of Americans who the FBI seeks to investigate under USA PATRIOT Act Section 215, codified at 50 USC 1861.

Essentially, the question the judge, John D. Bates, confronts is when are international terrorism investigations involving Americans based “solely upon activities protected by the first amendment to the Constitution.” Judge Bates concludes that so long as a international terrorism investigation is premised on some unprotected activity, the FBI can nevertheless investigate law-abiding US persons.

In this case, the FBI is conducting an investigation to protect against international terrorism. It appears that a US person is the target of the invesigation or section 215 order. Judge Bates finds that the target’s conduct and speech suggests sympathy toward— if not support of—internation terrorism. However, all of the target’s speech and conduct fall within the protections of the First Amendment. So target’s own words and conduct do not meet the statutory standard for an order.

Of course, we don’t know what happened to bring this law abiding American target under FBI scrutiny. Its easy to imagine that the American is in some way complicitious with the suspected terrorists illegal acts. However, federal criminal law prohibits certain activities in preparing for or seeking to commit another crimes, including aiding and abetting, conspiracy, and solicitation. The definition of these crimes is broad, but apparently the FBI could not identify facts suggesting the American might be committing one of these crimes. Nor does it appear that Judge Bates had any reason to believe the American was associated with illegal activity. Rather, all his conduct and speech fell within the First Amendment.

Despite the absence of illegal conduct, Judge Bates allows the FBI to investigate the American. Bates concludes that he may consider related conduct of other people that illuminates the “the character (protected by the first amendment or not) of the ‘activities’ that are the ‘basis’ of the investigation.”  The other party’s or parties’ actvities would not be protected by the First Amendment even if those people were US persons. Therefore, Judge Bates concludes that the investigation of the American is not based “solely” on First Amendment activities, but rather at least in part on the unprotected activities of others.

Under section 215, is the question whether the terrorism investigation is solely premised on First Amendment activities, or whether the investigation of the American during the course of a terrorism investigation is solely premised on First Amendment activities? The statute suggests the latter. It says an order for production of tangible things can issue in:

an investigation … to protect against international terrorism, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

The phrase “conducted solely upon the basis of activities protected by the first amendment to the Constitution” directly follows, and should relate to, the “investigation of a United States person” and not to the more general “investigation … to protect against international terrorism”. The statute prohibits the FBI from investigating law abiding Americans unless their own conduct fell outside of the First Amendment, regardless of the conduct of other people related to the investigation. I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do.

They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation.

The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.

For people who were reassured that section 215’s language would protect law abiding Americans from getting sucked into counterterrorism investigations, this is another tchotchke for your Curio Cabinet of Naïveté. But the FISC, to its credit, declassified this opinion and now Congress and the public have a chance to understand what “law” is actually being applied.

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About the Author

is the Director of Civil Liberties at the Stanford Center for Internet and Society. Follow her on Twitter (@granick).