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Analysis

Enhancing Civil Liberties Protections in Surveillance Law

At the secret Foreign Intelligence Surveillance Court, the recently added advocate for privacy rights should be expanded.

February 27, 2020

This was origin­ally published by Just Secur­ity.
 

Author­iz­a­tion for the National Secur­ity Agency’s (NSA) now-halted program of collect­ing records of phone call details is slated to expire on March 15, unless renewed by Congress, prompt­ing a flurry of legis­la­tion to revoke the author­ity for the program and prohibit other forms of surveil­lance. Along with the recent contro­versy over the surveil­lance of former Trump campaign offi­cial Carter Page, the upcom­ing reau­thor­iz­a­tion has promp­ted a re-exam­in­a­tion of the role of amicus curiae in the Foreign Intel­li­gence Surveil­lance Court (FISC) and the Foreign Intel­li­gence Surveil­lance Court of Review (FISCR) (collect­ively the FISA courts).

The intro­duc­tion of amici into the FISA courts’ process was a key improve­ment in the USA Free­dom Act of 2015, seek­ing to inject civil liber­ties and privacy perspect­ives into the other­wise secret, ex parte oper­a­tions of the courts. Several recent bills have proposed ways to strengthen and expand the 2015 law’s amicus provi­sion, as have vari­ous comment­at­ors, includ­ing former FBI General Coun­sel Andrew Weiss­mann. The Safe­guard­ing Amer­ic­ans’ Private Records Act (SAPRA), intro­duced by Sen. Ron Wyden (D-OR) and Rep. Zoe Lofgren (D-CA), is the most ambi­tious plan, both in terms of tight­en­ing surveil­lance stand­ards and its propos­als vis-à-vis amici. SAPRA would funda­ment­ally restruc­ture the amicus program by author­iz­ing amici to “raise any issue with the Court at any time,” whether or not the courts reques­ted such input, and ensur­ing amici access to every FISA court opin­ion, tran­script, plead­ing, and other court docu­ments. Given the extraordin­ary secrecy surround­ing FISA applic­a­tions and the poten­tial stand­ing issues raised by a roving amicus, these propos­als are likely to run into strong head­winds.

The follow­ing outlines a series of propos­als that would minim­ize these types of concerns, but still strengthen the role of amici. They are based on our analysis of the FISA court cases involving amici since the USA Free­dom Act was passed. The analysis will be published by the NYU Annual Survey of Amer­ican Law later this year.

Back­ground

The 2015 USA Free­dom Act author­izes the appoint­ment of two types of amici. First, it requires the FISA courts to appoint an amicus in any case involving “novel or signi­fic­ant inter­pret­a­tion of the law,” unless the court issues a find­ing that it was not appro­pri­ate to do so. These amici would be drawn from a pool appoin­ted by the courts, and have expert­ise in “privacy and civil liber­ties, intel­li­gence collec­tion, commu­nic­a­tions, tech­no­logy, or any other area that may lend legal or tech­nical expert­ise” to the courts. Second, the law makes expli­cit the inher­ent author­ity of the courts to appoint amici in any instance they deem appro­pri­ate. Since the law was enacted, the courts have named amici in at least 11 cases; decisions are publicly avail­able for eight of these.

We analyzed this body of case law to assess the impact of the amicus provi­sions, with a partic­u­lar focus on whether the amici were appoin­ted in all cases that seemed to present novel or signi­fic­ant inter­pret­a­tions of law and whether the parti­cip­a­tion of amici contrib­uted to protect­ing Amer­ic­ans’ privacy and civil liber­ties by constrain­ing surveil­lance programs.

We found that in at least four cases, the FISC did not appoint amici, although it seemed to be required by the stat­ute, includ­ing one case in which the govern­ment obtained permis­sion to expand its author­ity to query commu­nic­a­tions collec­ted warrant­lessly under Section 702 of the FISA Amend­ments Act of 2008 for the calls and e-mails of partic­u­lar Amer­ic­ans. These quer­ies are commonly referred to as “back­door searches,” which privacy and civil liber­ties advoc­ates have long argued circum­vent the Fourth Amend­ment’s warrant require­ment. No amicus was appoin­ted in any case involving an indi­vidual surveil­lance applic­a­tion, such as the Carter Page orders.

We also found that the abil­ity of amici to convince the FISA courts to impose seri­ous constraints on the NSA’s surveil­lance programs has so far been limited, and that the amicus pool itself is weighted towards former national secur­ity offi­cials, creat­ing the percep­tion that the court is not recept­ive to civil liber­ties voices.

Nonethe­less, the amicus provi­sions of the USA Free­dom Act provide a start­ing point for Congress and the public to hold these insti­tu­tions account­able. Moreover, the amicus exper­i­ment is still in its infancy, having oper­ated for just under five years. Over time, the FISA courts may become more recept­ive to their parti­cip­a­tion and argu­ments.

A Need to Increase Amicus Parti­cip­a­tion 

Congress should expand the amicus provi­sion to include three addi­tional circum­stances that merit amicus appoint­ment:

  • When the NSA asks for FISA courts approval for the use of new tech­no­lo­gies and new applic­a­tions of exist­ing tech­no­lo­gies, as well as author­iz­a­tion of new programs. The NSA is almost certainly devel­op­ing new surveil­lance programs and tech­no­lo­gies that will impact Amer­ic­ans’ privacy and civil liber­ties. Under current law, the FISA courts might be temp­ted to treat these as applic­a­tions of exist­ing preced­ent, and there­fore not subject to the amicus require­ment.
  • When the govern­ment requests reau­thor­iz­a­tion of its program­matic surveil­lance. FISC reviews of mass surveil­lance programs, such as the programs author­ized under Section 702 and the recently discon­tin­ued Section 215 call records program, reveal repeated viol­a­tions of rules craf­ted by the courts to ensure the consti­tu­tion­al­ity of the programs. Amici have contrib­uted to assist­ing the FISC in address­ing these issues. For example, in 2015, amicus Amy Jeffress argued that the FBI should be required to justify its searches of data collec­ted without warrants under Section 702. While the FISC did not accept the recom­mend­a­tion, it required the FBI to report on its searches of this data. When the Bureau repor­ted that its agents had searched the data for unau­thor­ized purposes on several occa­sions, the FISC in 2018 (when Jeffress was again amicus, along­side two others) accep­ted her proposal. But no amicus was appoin­ted for Section 702 reau­thor­iz­a­tion in the inter­ven­ing years, despite a clear need. In 2016, no amicus parti­cip­ated in the reau­thor­iz­a­tion process in which the FISC found that NSA had for years flouted court-imposed rules designed to protect Amer­ic­ans’ privacy. Nor was an amicus appoin­ted when the FISC once again reviewed the 2016 reau­thor­iz­a­tion applic­a­tion in April 2017 and allowed the govern­ment’s request to expand its back­door search author­ity. Simil­arly, the reviews of the Section 215 call-detail records program are marked by repeated instances of the NSA’s fail­ure to comply with court-imposed safe­guards.
  • When indi­vidual elec­tronic surveil­lance applic­a­tions under Title I of FISA involve polit­ical or reli­gious activ­it­ies. When the FISC was estab­lished in 1978 to review indi­vidual surveil­lance applic­a­tions, many in Congress were concerned that the cover of foreign intel­li­gence would be used to target polit­ical activ­it­ies. While alleg­a­tions that the surveil­lance of Carter Page was polit­ic­ally motiv­ated have gener­ated the most public atten­tion, civil liber­ties groups have long been concerned that FISA was being used to target Amer­ican Muslims for their polit­ical activ­it­ies and reli­gious beliefs. For example, in 2014, The Inter­cept repor­ted that the FISC author­ized the surveil­lance of five prom­in­ent Amer­ican Muslim men – includ­ing a former senior policy advisor in the Depart­ment of Home­land Secur­ity under George W. Bush who had held a top-secret secur­ity clear­ance and the head of the largest Amer­ican Muslim civil rights organ­iz­a­tion. The public record shows that the courts have not appoin­ted amici in any case involving a FISA Title I order author­iz­ing surveil­lance (David Kris, the former assist­ant attor­ney general for the National Secur­ity Divi­sion of the Depart­ment of Justice, was appoin­ted as amicus to assist the court in eval­u­at­ing the proced­ural changes proposed by the FBI to ensure that future surveil­lance requests will not have the same factual short­com­ings as the Page applic­a­tions). The USA Free­dom Reau­thor­iz­a­tion Act of 2020 proposed by the House Judi­ciary Commit­tee would mostly capture these crit­ical Title I surveil­lance orders by requir­ing that an amicus be appoin­ted in any case that presents “signi­fic­ant concerns with respect to the activ­it­ies of a United States person that are protec­ted by the first amend­ment to the Consti­tu­tion,” unless the court finds such an appoint­ment inap­pro­pri­ate. 

Prior­it­ize Privacy and Civil Liber­ties Interests

The original intent of the USA Free­dom Act’s amicus reform was to provide the FISA courts with civil liber­ties and privacy perspect­ives to balance against the govern­ment’s national secur­ity argu­ments. However, the current amicus pool is weighted towards former high-level govern­ment lawyers and prosec­utors, some of whom, like Kris, have been involved in defend­ing and devel­op­ing surveil­lance programs. A tech­nical expert recently appoin­ted to the pool previ­ously served as a govern­ment witness in Wiki­me­dia v. NSA, a case chal­len­ging the consti­tu­tion­al­ity of Section 702 collec­tion. While amici with back­grounds work­ing in the govern­ment on national secur­ity issues are certainly more than capable of making civil liber­ties argu­ments, their exper­i­ence and rela­tion­ships may predis­pose them to believe that all or most of FISA surveil­lance is consti­tu­tional. Their over-repres­ent­a­tion in the amicus pool and appoint­ment in crit­ical cases, such as the Section 702 reviews, height­ens the percep­tion that the FISA courts are unin­ter­ested or unwill­ing to hear privacy and civil liber­ties argu­ments.

Congress should ensure that these voices are heard by the FISA courts by requir­ing them to appoint at least one amicus with expert­ise in civil liber­ties in every case that meets the expan­ded stand­ards outlined above. But the courts don’t need to wait for Congress to act – they can start expand­ing the amicus pool to include a greater diversity of exper­i­ences.

Expand the Amicus Role 

Even when amici are tapped, their mandate can be limited by the scope of the ques­tions posed by the appoint­ing court. For example, when the FISC reviewed the govern­ment’s annual request for reau­thor­iz­a­tion for the Section 702 program in 2018, amici were specific­ally appoin­ted to address two ques­tions relat­ing to “abouts” collec­tion (the collec­tion of commu­nic­a­tions that are not just to or from but “about” a target). The court did not soli­cit or eval­u­ate amicus perspect­ives with regard to the multi­tude of other signi­fic­ant issues revealed in the course of the review, includ­ing the previ­ously unknown FBI prac­tice of conduct­ing “batch quer­ies,” which are searches of Section 702 data using multiple query terms at once, some of which may not meet the require­ment of being reas­on­ably likely to return foreign intel­li­gence inform­a­tion.

Congress should clarify that, as already reflec­ted in the USA Free­dom Act stat­ute, when amici are appoin­ted, they may weigh in on any issue relev­ant to the case, not just on the issues iden­ti­fied by the court as requir­ing amicus involve­ment.

Amici also should be given the abil­ity to bring issues to the atten­tion of the FISCR. Such an avenue would have been import­ant in the Section 702 author­iz­a­tions in which amici were involved. In 2015, the FISC rejec­ted Jeffress’ sugges­tion that the FBI be required to docu­ment its justi­fic­a­tions for back­door searches of Section 702 inform­a­tion. If she had been able to bring the issue to the FISCR, it might not have taken until 2018 to impose this sens­ible and relat­ively modest safe­guard; by that time, the bureau had clearly abused this author­ity.

Amici’s inab­il­ity to bring issues to the atten­tion of the FISCR further disad­vant­ages them vis-à-vis the govern­ment. In the wake of the 2018 Section 702 author­iz­a­tion in which the FISC required the FBI to follow stat­utory require­ments for collect­ing inform­a­tion on its searches for Amer­ic­ans’ inform­a­tion and imposed the docu­ment­a­tion require­ment, the govern­ment appealed to the FISCR. But Jeffress and the other two amici had no obvi­ous proced­ural mech­an­ism for bring­ing crit­ical issues – such as whether query­ing of Section 702 data requires its own Fourth Amend­ment analysis – to the atten­tion of the FISCR.

Prede­cessor bills to the USA Free­dom Act gave amici the abil­ity to appeal adverse decisions from the FISC to the FISCR. These were stripped out of the final legis­la­tion, in part because of concerns that giving amici stand­ing to appeal could viol­ate Article III of the Consti­tu­tion and separ­a­tion-of-powers prin­ciples. But stand­ing concerns should not preclude allow­ing amici to bring to the atten­tion of the FISCR issues that they believe were wrongly decided. In cases where amici are appoin­ted, the SAPRA legis­la­tion, for example, would enable them to refer matters for en banc review or to the FISCR as the court “considers appro­pri­ate,” and to refer FISCR decisions to the Supreme Court as the court “considers appro­pri­ate.” Allow­ing the courts to make the ulti­mate decision on “appro­pri­ate­ness” avoids the concern that amici are not parties to the case with stand­ing to bring appeals.

Amici also need better access to inform­a­tion. For an amicus to make the best argu­ment, she must have access to relev­ant inform­a­tion and docu­ments. However, the USA Free­dom Act left it to the FISA courts to determ­ine what mater­i­als should be provided to an amicus. In at least one case, the 2015 Section 702 reau­thor­iz­a­tion, amicus Jeffress was not provided access to a set of FBI proced­ures from 2011, which limited her analysis.

Congress should ensure that amici have access to all mater­i­als that could impact their analyses by adopt­ing a provi­sion included in an earlier version of the USA Free­dom Act – intro­duced by Senator Patrick Leahy (D-CT) and suppor­ted by 58 senat­ors – mandat­ing that amici “shall have access to all relev­ant legal preced­ent, and any applic­a­tion, certi­fic­a­tion, peti­tion, motion, or such other mater­i­als as are relev­ant” to their duties.

Enhance Trans­par­ency

Since Snowden revealed details of the NSA’s massive surveil­lance oper­a­tions in 2013 and the FISC’s approval of a program focused on Amer­ic­ans, the agency and the FISA courts have made signi­fic­ant progress on trans­par­ency. This is in part due to the USA Free­dom Act’s require­ment that the Director of National Intel­li­gence (DNI), in consulta­tion with the Attor­ney General, conduct declas­si­fic­a­tion reviews of all FISA court rulings that include signi­fic­ant construc­tions or inter­pret­a­tions of law, unless the DNI deems the with­hold­ing of docu­ments “neces­sary to protect the national secur­ity of the United States or prop­erly clas­si­fied intel­li­gence sources or meth­ods.”

However, there is no require­ment for the declas­si­fic­a­tion of amicus briefs, and briefs from only six of the eleven cases involving amici since 2015 have been declas­si­fied. Without these briefs, the public has to rely on the courts’ released rulings to get a glimpse of an amicus’ argu­ments, if they are refer­enced by the court at all. Congress should mandate declas­si­fic­a­tion reviews of amicus briefs modeled on the exist­ing declas­si­fic­a­tion provi­sion for decisions, includ­ing the require­ment that if the DNI decides not to release a brief for national secur­ity reas­ons, an unclas­si­fied state­ment summar­iz­ing the amicus’ argu­ments must be published instead.

Moreover, the time between the issu­ance of a FISA court decision and its declas­si­fic­a­tion can range from a day to more than 12 years, which hampers the public’s abil­ity to under­stand and assess the court’s case­load and func­tion­ing. Congress should set dead­lines for the declas­si­fic­a­tion of decisions, opin­ions, and orders that include novel or signi­fic­ant inter­pret­a­tions or that meet any of the expan­ded categor­ies of crit­ical cases outlined above. For example, the USA Free­dom Reau­thor­iz­a­tion Act of 2020 would require that declas­si­fic­a­tion reviews be completed and court docu­ments released – includ­ing from all proceed­ings involving an amicus appoint­ment – no later than 180 days after issu­ance.

Inform­a­tion about the FISA courts’ activ­it­ies is scattered in redac­ted court filings, FOIA releases, govern­ment trans­par­ency reports, and Privacy and Civil Liber­ties Over­sight Board reviews. There is no offi­cial one-stop shop where the public can go to under­stand the full scope of the courts’ activ­it­ies. Indeed, the best resource for access­ing the FISA courts’ decisions, orders, and other mater­i­als is not the court’s own website or any govern­ment site, but a website organ­ized by FISA amicus and Geor­getown Law Professor Laura K. Dono­hue. The FISA courts, either on their own initi­at­ive or at the direc­tion of Congress, should publish a complete docket (includ­ing any neces­sary redac­tions) list­ing their annual case­load and indic­at­ing when amici have been appoin­ted.

Lastly, Congress should require trans­par­ency about the inter­ac­tions between the FISA courts’ staff and the Depart­ment of Justice. Well before Snowden, there were concerns that the FISA courts acted as a rubber stamp for the govern­ment’s surveil­lance initi­at­ives, with crit­ics point­ing to the fact that the courts rejec­ted just 11 out of almost 34,000 govern­ment surveil­lance requests from 1979 to 2012. The courts’ defend­ers explained that these numbers do not reflect the revi­sions or with­draw­als of applic­a­tions urged by court staff upon review of DOJ’s draft versions of applic­a­tions.

But this informal, undoc­u­mented revi­sion and review system raises concerns that the FISA courts work with the DOJ to craft accept­able surveil­lance requests. The courts may view this process as a way to ensure greater civil liber­ties protec­tions, but it also shields the govern­ment from preced­ent unfa­vor­able to its posi­tion: we know what surveil­lance is permit­ted, but not what surveil­lance is not permit­ted. The modi­fic­a­tion rate has increased signi­fic­antly since the passage of the USA Free­dom Act in 2015, which may reflect greater vigil­ance by court staff, but also high­lights the need for greater trans­par­ency about the back-and-forth between the court staff and the DOJ. Accord­ingly, as recom­men­ded by recent FISA legis­la­tion intro­duced by Rep. Chris Stew­art (R-UT), Congress should mandate trans­par­ency by requir­ing the Attor­ney General to main­tain records of all writ­ten or oral commu­nic­a­tions between the DOJ and the FISA courts. In addi­tion, amici should be given access to the commu­nic­a­tions relev­ant to their assigned cases.

With the impend­ing sunset of Section 215, it is past time to enact broad surveil­lance reforms (such as those set out in SAPRA) and expand the role of amici in FISA proceed­ings. Adopt­ing these recom­mend­a­tions will posi­tion amici to make force­ful civil liber­ties and privacy argu­ments in front of the courts, effect­ing change from within the FISA court system.