FISC Already Invented that Database-and-Mining Precedent in Secret

Almost 18 months ago, I suggested that the Amnesty v. Clapper suit challenging the government’s Section 702 collection might invent what I called a “database-and-mining” precedent.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.

Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment’s Warrant Clause includes a “foreign intelligence surveillance exception,” as the FISA Court of Review held in the In re Directives decision in 2008. That’s because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government’s authority under this provision going forward (especially if In re Directives is not followed…).

I would go further and say that this case will determine whether there is what I’ll call a database-and-mining exception allowing the government to collect domestic data to which no reasonable suspicion attaches, store it, data mine it, and based on the results of that data mining use the data itself to establish cause for further surveillance. Thus, it will have an impact not just for this warrantless wiretapping application, but also for things like Secret PATRIOT, in which the government is collecting US person geolocation data in an effort to be able to pinpoint the locations of alleged terrorists, not to mention the more general databases collecting things like who buys hydrogen peroxide.

Unsurprisingly, the FISA Court already invented that precedent. In secret.

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.


In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.


The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Here’s the thing though: it’s not just that the government has done all this in a court with no antagonist. It’s that the government has gone to great lengths to make sure regular courts wouldn’t review these decisions, doing things like:

Effectively, the government has been refusing to let issues that affect a great number of Americans be reviewed in courts with real judicial process.

And then calling the result “law” and “legal” in spite of the fact that almost no Americans know about it.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. Ben Franklin says:

    “Special needs” as I think you’ve interpreted, is the gill-net (cuz the term data-mining is a political landmine in itself)
    which means the FISA court is like a Grand Jury with ham sandwiches. Anything (excuse me, not anything; how many requests have they refused, 2% ?) will be hand-stamped and delivered even with insufficient postage.

  2. greengiant says:

    “but you have to establish a reason to stick your pole in the water and start fishing”

    Yep, bad analogy, they actually get to put their nets in the water, catch the fish, haul em on deck, inspect them, and then they “have to establish a reason” to actually gut the “fish”.

  3. john francis lee says:

    ” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment … ”

    These ‘lawyers’ and ‘judges’ must be smoking dope …

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    What part of that do they not understand ? Stooges in robes cannot unwrite the constitution of the United States. The FISA judges should be in prison, along with the NSA honchos, the senate and house committee members who exercised zero oversight over them, and the two goons in the White House talking trash while all this egregious criminality continues even as you write and we read.

    “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure we’re abiding by the Constitution, then we’re going to have some problems here,” Obama said.

    That’s the problem all right : We can no longer trust the executive branch, congress, or federal judges to abide by our constitution.

    And it is not Edward Snowden but all of themselves who must stand and answer before us, the people of the United States in a court of constitutional law.

  4. thatvisionthing says:

    “it’s not just that the government has done all this in a court with no antagonist”

    and no jury

    and an immune protagonist

    and nothing like the truth, the whole truth and nothing but the truth

  5. john francis lee says:

    Racketeer Influenced and Corrupt Organizations Act

    “Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focuses specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them, closing a perceived loophole that allowed someone who told a man to, for example” … spying, … secretly conspiring to violate and violating “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”.

    Under RICO, a person who is a member of an enterprise that has committed any two of … 27 federal crimes … fraud, obstruction of justice, terrorism … within a 10-year period can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and sentenced to 20 years in prison per racketeering count.

  6. scribe says:

    Two things left unmentioned need be remembered:
    1. “weapons of mass destruction”, the search for which was cited in the NYT article as another justification for trolling the databases, are defined in statute as basically anything from an M-80 firecracker on up.

    2. Wasn’t it just au courant a month or two ago to hand off to the FISA court the job of deciding when the government has made a good enough case to get the Good Judge Rubber Stamp of Approval on an order to kill Americans without trial?

  7. Fractal says:

    This is making me physically ill. This is terrifying. When did we elect Reggie Fucking Walton to be our Grand Inquisitor?

  8. Fractal says:

    at the end of the Times story:

    “Reggie B. Walton, the FISA court’s presiding judge, wrote in March that he recognized the “potential benefit of better informing the public” about the court’s decisions. But, he said, there are “serious obstacles” to doing so because of the potential for misunderstanding caused by omitting classified details.”

  9. phred says:

    @greengiant: Interesting analogy. There are studies that have shown catch and release increases the mortality of the fish released after having been caught (due to stress, I think, sorry no link, been ages since I read about it). Suggests that perhaps it is unwise to inflict such a process more generally.

    [Edited to add link about catch and release, not what I read originally, but it’s something, I’ll keep looking…

  10. beowulf says:


    “it’s not just that the government has done all this in a court with no antagonist”

    You know, this really is the most inexcusable part. The FISA Court could appoint amicus counsel to challenge govt actions, perhaps retired military or DOJ lawyers already with security clearances (so there’s no excuse to keep amicus counsel from viewing and questioning anything govt presents to Court). I somehow doubt NSA would keep its Six Sigma-like warrant approval rate if the FISA Court was like every other courtroom in the western world and actually heard from opposing counsel once in a while.

  11. Fractao says:


    this is the most sickening thing for me, as a lawyer and former con law litigator: that the NSA court never “actually heard from opposing counsel once in a while.” The FISC literally never hears anyone defending the constitution, only from apparatchiks defending the surveillance robot.

  12. earlofhuntingdon says:

    Silly me. I thought “special needs” referred to treatment for Mr. Obama’s inability to understand the Constitution as a source of law and the limits of legitimate state conduct. Instead, he regards it as a football, the people as Charley Brown, and he as Lucy.

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