When Congress reauthorized Section 702 of the Foreign Intelligence Surveillance Act (FISA) in January, it ratified the warrantless collection of potentially millions of Americans’ phone calls and e-mails – content as well as metadata — without suspicion of wrongdoing. It also blessed the FBI’s practice of searching these communications for evidence to use against Americans in domestic criminal proceedings. But the constitutionality of these practices is still very much in question, with only a handful of courts outside the Foreign Intelligence Surveillance Court (or “FISA Court”) having weighed in.
On Monday, the Second Circuit will hear arguments in one of those cases: United States v. Hasbajrami. The case provides an opportunity to push back on two dangerous constitutional myths — along with one outright factual falsehood — that have begun to take root in Section 702 jurisprudence. I’ve discussed each of these in other Just Security posts, but collect and elaborate on them here, as the case readies for argument.
The “incidental collection” myth. No one disputes that the Fourth Amendment applies in these cases. In other words, it’s clear that Americans have a reasonable expectation of privacy in their communications with foreigners overseas. The question is whether a warrant is required to collect them. The government contends, and a few courts have now held, that no warrant is necessary in cases where the foreigner is the “target.” Instead, the surveillance passes muster under the Fourth Amendment as long as it is “reasonable,” i.e., if the government has a legitimate interest in warrantless collection that outweighs the privacy interest at stake.
The word “target” should immediately raise alarm bells. As prominent Fourth Amendment scholar Orin Kerr has pointed out, the concept of targeting has not heretofore existed in Fourth Amendment jurisprudence. The obligation to obtain a warrant turns on the existence of a reasonable expectation of privacy, not on the government’s motive or the identity of the suspect. The police could not conduct a warrantless search of an American’s home, for instance, on the ground that it was hoping to find evidence to use against a foreigner overseas.
And yet, according to the government, the constitutional warrant requirement that would otherwise apply to a private phone call between an American and his overseas cousin evaporates when the government certifies that its interest lies in the cousin. To support this claim, the government cites a line of cases that establish the so-called “incidental overhear” doctrine, which the district court in Hasbajrami paraphrased as follows: “When surveillance is lawful in the first place . . . the incidental interception of [non-targets’] communications with the targeted persons is also lawful.” Because warrantless surveillance of foreigners overseas is lawful (the government argues), so, too, is the “incidental” surveillance of Americans in contact with them.
Three* district courts and the Ninth Circuit have accepted this argument without extensive discussion or scrutiny. But if the Second Circuit panel looks more closely at the “incidental overhear” cases, it will see that they provide no support for the government’s position. As I explained in a previous post and in a recent law review article (55 Am. Crim. L. Rev. 105 (2018)), these cases address what information a criminal wiretap warrant must contain to meet the Fourth Amendment’s “particularity” requirement. Pointing to the Fourth Amendment’s text, they hold that the warrant need specify only the places to be searched—i.e., the phone lines to be tapped—and the items to be seized—i.e., the conversations to be collected, such as “conversations about illegal gambling.” They need not specify every person whose communications will be intercepted.
Accordingly, a warrant to tap the phone of Suspect A in order to collect conversations about Crimes 1, 2, and 3 allows police officers to collect conversations of Non-Suspect B… but only if those conversations take place on Suspect A’s phone line and if they relate to Crimes 1, 2, and 3. Critically, the warrant must find probable cause to believe that Crimes 1, 2, and 3 have taken place. Moreover, it must require the government to stop recording any conversation — regardless of whether that conversation involves non-suspects — that does not relate to criminal activity.
Courts have acknowledged that the government’s efforts to avoid collecting irrelevant conversations will necessarily be imperfect, and have held that the accidental collection of a “slight” amount of irrelevant material does not invalidate the surveillance. But that narrow concession to practicality is a far cry from allowing the government to pick up any call between the subject of the warrant and those communicating with the subject. As the Supreme Court stated in one of the seminal “incidental overhear” cases, the ability to collect some conversations of some non-suspects “hardly [leaves] the executing agents free to seize at will every communication that [comes] over the wire.”
In short, these cases carefully limit the communications that the government may “incidentally” obtain even with a warrant, to ensure that the material acquired will relate to a crime supported by a probable cause showing. The notion that they support unlimited “incidental” collection in cases where no warrant exists—indeed, where no crime has even been specified—is specious. The three courts that adopted the “incidental overhear” argument in the Section 702 context appeared to simply accept the government’s characterizations of the case law. Fortunately, the Second Circuit has a chance to correct this basic mistake.
The minimization misrepresentation. Even if warrantless collection under Section 702 were deemed constitutional under the “incidental overhear” theory, there is a separate question of whether it is constitutional for the FBI to conduct warrantless queries of the collected communications to find the phone calls or e-mails of particular Americans, the practice known as “backdoor searches.”
The government asserts that backdoor searches are not at issue in this case. But it conspicuously avoids stating that no backdoor search occurred. Instead, it relies on the fact that the government, based on its review of Section 702 communications, developed probable cause that Hasbajrami was an agent of a foreign power and obtained court orders to surveil him.
If the initial review of Section 702 resulted from a warrantless query, however, the subsequent obtaining of court orders wouldn’t cure the constitutional defect. The information obtained under those would be “fruit of the poisonous tree” and subject to suppression. As a threshold matter, therefore, the Second Circuit must resolve the question of whether a backdoor search occurred.
Once that factual issue is settled, the court should quickly dispense with the government’s other argument: that no warrant is required for the government to “review communications it has lawfully obtained under Section 702 when they include incidentally-collected communications of U.S. persons.” This is a straw man. A backdoor search is not merely a review of foreigners’ communications that happen to contain some Americans’ conversations within them. (And even in that context, the government would be constitutionally required to minimize any American’s conversations it stumbled across.) It is a deliberate search for an American’s phone calls and e-mails. There can be no argument, in this context, that the American is not the “target” of the search, or that the contents of the Americans’ communications are being accessed “incidentally.”
In district court, the government argued—and the district court accepted—that searching for an American’s communications is no more invasive of privacy than reviewing those same communications to determine whether they must be minimized. This is an astonishing claim. It equates the constitutional obligation to delete certain data with a constitutional permission to search for and use it. These are not analogous actions from a privacy perspective; they are opposites.
In any event, the Department of Justice in its Section 702 litigation appears to have misrepresented the minimization process to the courts. In United States v. Mohamud, the government, according to the court, “noted that the minimization procedures compel it to review information lawfully collected under § 702, which includes information about U.S. persons, to determine if the information should be retained or disseminated.” The court excerpted the following language from the government’s brief:
It would be perverse to authorize the unrestricted review of lawfully collected information but then to restrict the targeted review of the same information in response to tailored queries. Querying lawfully collected information using U.S.-person identifiers does not involve a significant additional intrusion on a person’s privacy, beyond the level of intrusion already occasioned by the government as it reviews and uses information it lawfully collects under Section 702 pursuant to its need to analyze whether the information should be retained or disseminated.
This is flatly false. None of the agencies’ minimization procedures require them to review communications to determine whether they must be minimized. Such a review would be literally impossible, given that the government collects upwards of 250 million communications per year under Section 702.
Instead, as the Privacy and Civil Liberties Board has reported, minimization generally occurs in two contexts: when an agency disseminates a report that includes U.S. person information, and when data reaches the age-off period. The former involves a vanishingly small proportion of Section 702 data, while the later requires no human review. The odds are thus overwhelming that communications accessed through backdoor searches would otherwise never have been reviewed.
Nonetheless, the Mohamud court relied on the government’s misrepresentation in holding that backdoor searches did not create any significant additional privacy intrusions beyond those occasioned by minimization. The government tried to massage the issue in its Hasbajrami briefs, stating that Americans’ communications were already “subject” to review for minimization purposes, rather than being reviewed for minimization as a matter of course. But the district court’s brief treatment of the issue suggests that it was under the same misimpression as the court in Mohamud.
On Monday, the Second Circuit should ask the government’s attorneys to correct this error on the record, and to affirm that backdoor searches entail the review of otherwise unreviewed communications. The panel also should reject any argument based on the false premise that the reviews entailed by backdoor searches are co-extensive with, or less extensive than, those occasioned by minimization.
The “any lawful purpose” myth. Correcting the minimization misrepresentation will leave the government with one remaining argument in support of backdoor searches: that a search of lawfully collected information, even if that information would not otherwise be reviewed, does not constitute a separate Fourth Amendment event. Put differently: once information is lawfully collected, the Constitution places no further limits on how the government may access or use that information.
Of course, if that were true, there would be no need for minimization procedures. The obligation to limit the retention and dissemination of U.S. person information collected under Section 702 is the very opposite of a permission to use those communications for any purpose. And, as the FISA Court has made clear, minimization is a not just a statutory obligation but a constitutional one.
More generally, the notion that the Constitution allows the government to use lawfully collected information for any lawful purpose — a favorite refrain of government officials in the Section 702 debate — is a myth. As I wrote in response to a question posed by Senator Sheldon Whitehouse following my testimony at a Senate Judiciary Committee hearing:
[R]estrictions on searches of lawfully obtained data are the constitutional norm, not the exception. In executing warrants to search computers, the government routinely seizes and/or copies entire hard drives. However, agents may only conduct searches reasonably designed to retrieve those documents or files containing the evidence specified in the warrant. The fact that the government lawfully obtained and is in possession of the computer’s contents does not give it license to conduct any search it wishes; that would violate the terms on which the government obtained the computer’s contents in the first place.
The same principle holds true in the analog world. When the police obtain a warrant to search a house for a murder weapon, they may enter the house and, in appropriate cases, search every room. But after they find (or fail to find) the murder weapon, they are not allowed to continue searching for other items they may have some interest in, simply because they are now in the house. Their entrance into the house was legal, but that does not entitle them to search for anything inside it. That would be exceeding the terms accompanying their initial access to the house.
Under Section 702, the terms on which the government is authorized to collect data without a warrant include a limitation on whom the government may target, i.e., the government may only target foreigners overseas. To obtain access to the data on those terms and then search for Americans’ data is the equivalent of seizing a computer to search for child pornography and then searching for evidence of tax fraud, or obtaining access to a house to search for a murder weapon and then conducting a search for drugs.
Case law supports the conclusion that the government is not always free to use lawfully collected data for any purpose, and that a warrant may be required to conduct certain searches of lawfully-collected data. In United States v. Ganias (reversed on other grounds), the Second Circuit held that the government could not conduct a second search of lawfully collected data because it had retained the data after the original purpose for collecting it no longer existed. In United States v. Hulscher, the court held that a law enforcement agency must obtain a warrant to search data that was lawfully collected by a different law enforcement agency for a different purpose.
Orin Kerr has explained why queries may be treated as separate Fourth Amendment events. As he points out, the text of the Fourth Amendment envisions searches and seizures as different concepts, and courts have elaborated on the distinction. The collection of communications under Section 702 is a seizure. Querying those communications, by contrast, is a search. Ordinarily, a warrant would cover both the search and seizure within its terms, so there would be no need for separate warrants. In this case, however, the events may be separated by years, and the first event — the seizure — occurs without a warrant based on the government’s claim that it is “targeting” the foreigner. That is no excuse for dispensing with a warrant for the second event, a search that clearly “targets” an American.
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The bottom line is that the stakes in this case are high. If the Second Circuit were to reinforce these constitutional myths, it could critically weaken the Fourth Amendment, at a time when most courts are recognizing the need to shore it up to withstand advances in technology.
The government’s sprawling interpretation of “incidental collection,” combined with the notion that the Constitution has nothing to say about the use of vast amounts of digital data obtained without a warrant, threatens the privacy of millions of Americans who are not suspected of any wrongdoing. Courts are on a dangerous constitutional path, and it’s high time for a course correction. The Second Circuit can start the process on Monday.
*Editor’s note: An earlier version of this article said, “Two district courts and the Ninth Circuit have accepted this argument without extensive discussion or scrutiny.” That sentence has been changed to three district courts and the Ninth Circuit. The third district court decision was entered in the docket earlier this month.