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The Opinion Accompanying the Latest Dragnet Order

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As I noted on Friday, the Administration got a new phone dragnet order on the same day that Senators Wyden, Udall, and Heinrich pointed out that — so long as the Administration only wants to do what it claims to want to do — it could stop holding phone records right away, just as it implemented Obama’s 2-hop mandate and court review in February right away.

From ODNI’s announcement they got a new dragnet order Friday (which they congratulate themselves as a great show of transparency), it’s clear they have no intention of doing so. On the contrary, they’re going to hold out HR 3361 — and their unconvincing claim it ends bulk collection as normal people understand the term — with each new dragnet order.

After carefully considering the available options, the President announced in March that the best path forward is that the government should not collect or hold this data in bulk, and that it remain at the telephone companies with a legal mechanism in place which would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries.  The President also noted that legislation would be required to implement this option and called on Congress to enact this important change to the Foreign Intelligence Surveillance Act (FISA).

Consistent with the President’s March proposal, in May, the House of Representatives passed H.R. 3361, the USA FREEDOM Act, which would, if enacted, create a new mechanism for the government to obtain this telephony metadata pursuant to individual orders from the FISC, rather than in bulk.  The bill also prohibits bulk collection through the use of Section 215, FISA pen registers and trap and trace devices, and National Security Letters.

Overall, the bill’s significant reforms would provide the public greater confidence in our programs and the checks and balances in the system, while ensuring our intelligence and law enforcement professionals have the authorities they need to protect the Nation.  The Administration strongly supports the USA FREEDOM Act.  We urge the Senate to swiftly consider it, and remain ready to work with Congress to clarify that the bill prohibits bulk collection as noted above, as necessary.

Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year.

But here’s the bit I’m most struck by, particularly given that the government has not yet released the March 28, 2014 dragnet order which should be a slam dunk declassification process, given that its content has presumably all been released in the past.

In addition to a new primary order last Friday, FISC also wrote a memorandum opinion.

The Administration is undertaking a declassification review of this most recent court order and an accompanying memorandum opinion for publication.

I can think of two things that would explain a memorandum opinion: the program has changed in some way (perhaps they’ve changed how they interpret “selection term” or implement the automated process which they had previously never gotten running?), or the FISC considered some new legal issue before approving the dragnet.

As I noted last week, both US v. Quartavious Davis, in which the 11th Circuit ruled stored cell location data required a warrant), and US v Stavros Ganias, in which the 2nd Circuit ruled the government can’t use data it seized under an old warrant years later, might affect both the current and future dragnets, as well as other programs the NSA engages in.

Thing is, whatever the subject of the opinion, then it’d sure be nice to know what it says before we pass this legislation, as the legislation may have to correct the wacky secret decisions of the FISC (most members of Congress are still not getting unredacted dragnet orders). But if the last order is any indication, we won’t get this new order until months from now, long after the bill is expected to be rushed through the Senate.

Which is probably all by design.

Important Victories for the Fourth Amendment May Pose Big Threat to Dragnet

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Sorry for the absence of late. I’ve been traveling and working on outside deadlines. But I should be back in the saddle for the next little while.

During the period I’ve been traveling, there have been two significant victories for the Fourth Amendment at the Circuit level. On June 11, the 11th Circuit (covering Florida, Georgia, and Alabama) ruled you need a warrant for stored cell location data. Relying on a close analysis of the various opinions in US v. Jones (the SCOTUS GPS tracking case), it ruled cell transmissions should be even more private than GPS device collection of your car’s movement, as your cell phone accompanies you to private places, which makes it more like communications content than observable location.

One’s car, when it is not garaged in a private place, is visible to the public, and it is only the aggregation of many instances of the public seeing it that make it particularly invasive of privacy to secure GPS evidence of its location. As the circuit and some justices reasoned, the car owner can reasonably expect that although his individual movements may be observed, there will not be a “tiny constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at 958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One’s cell phone, unlike an  automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may
be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information.

It then relied on a Third Circuit decision finding cell phone users did not voluntarily provide their location to their cell providers, and therefore cell location cannot be governed by the Third Party doctrine, in which the government may obtain anything you’ve given willingly to a third party without a warrant.

The ruling, then, is the broadest possible support for requiring a warrant for cell location data.

The second ruling, issued yesterday by the 2nd Circuit (covering New York, Connecticut, and Vermont), found that the government cannot just retain all the data seized from your computer indefinitely, only to use it years later under a new warrant. Of particular interest are two counterarguments the court made to the government’s claim that such a practice was reasonable.

First, it rejected the government’s claim that obtaining a warrant for information obtained years earlier would be legal.

Second, the Government asserts that by obtaining the 2006 search warrant, it cured any defect in its search of the wrongfully retained files. But this argument “reduces the Fourth Amendment to a form of words.”

[snip]

If the Government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant.

And it rejected the government’s complaints that destroying the information it seized would be impractical, therefore making the later use of that data permissible.

Fourth, the Government contends that returning or destroying the non-responsive files is “entirely impractical” because doing so would compromise the remaining data that was responsive to the warrant, making it impossible to authenticate or use it in a criminal prosecution.

[snip]

But even if we assumed it were necessary to maintain a complete copy of the hard drive solely to authenticate evidence responsive to the original warrant, that does not provide a basis for using the mirror image for any other purpose.

These opinions are both momentous ones on their own, within the criminal context. But they also seriously threaten the NSA’s dragnets — and perhaps even the proposed dragnet under USA Freedumber Act. Jennifer Granick explains why the 11th Circuit decision threatens the program.

The appellate judges in Davis, by refusing to apply Smith and Miller to a case involving stored records, have taken a giant step toward undermining the legal justification propping up many of the government’s targeted and bulk metadata collection practices. The call detail records that the NSA gets under its Section 215 collection program — which provide information about phone numbers called and received and the duration of calls — include far more detailed data than the simple information at issue in Smith and are far more revealing of private conduct, social networks, and thought processes. This is especially true because the records are collected in bulk.

Under the new program, the NSA will almost certain rely on stored cell location data in its chaining process. Unless the government can claim the analysis the telecoms do for the government somehow doesn’t amount to a search, this location-chaining would seem to be illegal under this decision, for the states covered by the circuit.

And the 2nd Circuit decision undermines the argument the government uses to distinguish “collection” (as we would understand it) from the “collection” they claim to undertake when they later access information. More importantly, the government maintains (relying on a pre-computer Ted Olson opinion) that once it obtains information, it can do anything with it, up to conducting searches without even establishing Reasonable Suspicion. This opinion holds that such an argument amounts to a general warrant.

This ruling is particularly important for the government’s back door searches, which it justifies based on that logic.

It’s too early yet to see how this will affect the dragnet. The government could appeal both of these. The government could try to find a way around these jurisdictions — though New York and Florida are both so central to their claimed primary counterterrorism purpose, I don’t see how they could do it. They could try to argue a national security exception to this rule, based on special needs.

But for the moment, the principles laid out in these decisions cut to the core of the NSA’s dragnet.