Will Verizon Challenge the Government’s Fishy Dragnet?

Tim Edgar has a fascinating post on how the SCOTUS decision in Yates v US — in which a guy busted for throwing away undersized fish was let off because those fish do not constitute a tangible object under the law — might have repercussions for the phone dragnet.

The Supreme Court let Yates off the hook.  Five justices agreed that a fish is not a tangible object.  At first blush, this seems a bit implausible.  Justice Kagan certainly thought so.  Her eloquent dissent cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish – for a time, my favorite book – as authority that fish are, indeed, tangible objects.  I expect it is the first use of any book by Dr. Seuss as legal authority in an opinion of the Supreme Court, and I must say that I found it squarely on point, if not ultimately persuasive.

Justice Ginsburg’s opinion for the plurality explains that fish are not tangible objects because “in law as in life . . . the same words, placed in different contexts, sometimes mean different things.”


Surprisingly, Yates has real implications for national security surveillance.   The NSA’s bulk collection of telephone records is based on section 215 of the Patriot Act, which amended the business records provision of the Foreign Intelligence Surveillance Act (FISA).  That provision is titled “Access to certain business records for foreign intelligence and international terrorism investigations.”  It allows the government to obtain an order from the FISA court “requiring the production of any tangible things(including books, records, papers, documents, and other items)” in national security investigations.

Does this literally mean “any tangible things,” or is this just a catch-all ensuring that  all types of business records are covered?  While the provision is very broad even if limited to business records or data, until Yates it might have meant literally anything at all.  For example, it might be tempting for the government to use it to obtain, in national security investigations, the kind of physical items that would otherwise have required a physical search order.  As a FISA business records order requires only relevance, and not probable cause, that would be a dangerous loophole.  Yates closes it.

Perhaps more to the point, Yates also weakens the government’s bulk collection theory for telephone records.  While Yates is interpreting a different statute, the logic is clear: the words “any tangible things” should not be read literally.  Instead, they must be read in context, taking account of the words immediately surrounding it, the title of the section, the structure of the law, and its purpose.  Read in this way, it is clear that “tangible things” should not be read to encompass things far afield from the sorts of business records that Congress expected would be sought in national security investigations.


Bulk collection is qualitatively, not just quantitatively, different from the sorts of requests for records, documents, or other “tangible things” ordinarily made by government both in law enforcement and intelligence investigations. 

Steve Vladeck made a similar observation on Twitter earlier today, so Edgar is not the only one raising this question.

As it happens, today is dragnet renewal day. Which not only means that some FISC judge will reapprove the dragnet, but that providers will get new Secondary Orders. And — as happened in January 2014, when Verizon challenged an order based on Richard Leon’s decision in Klayman v. Obama — that presents the providers with an opportunity to challenge the order based on new legal developments.

And it’s not just Verizon that has a new opportunity to challenge the government’s fishy dragnets.

I’ve long suspected that the government has, in limited fashion, used Section 215 to obtain DNA material (they have databases of DNA from Gitmo detainees, for example, and I can imagine that they’d love to obtain DNA samples where they exist).

More interestingly, we’ve been talking about the government’s use of Section 215 to obtain Internet data, probably in hacking investigations. If, as a number of people suspect, they’re using it to get data flow records, that may be deemed even further away from common definitions of “tangible things.” And the Internet companies are riled up.

So let’s have it, providers! Some challenges to the fishy dragnet!

Update: In the post announcing the reauthorization (yesterday, actually) of the dragnet, I Con the Record noted that this one expires on June 1. I suppose that’s designed to add pressure on the reauthorization fight.  I think that works out to be a 95 day dragnet.

9 replies
  1. bloopie2 says:

    “The fishy dragnet”? “The fishy dragnet”? Oh, you cad. Or is that cod, you grouper of words, you. You’re not trolling us, are you? But really, Edgar made a good catch there. And at least the government is being aboveboard with its notifications, so we can tell if it is spinning the truth.
    Another famous dragnet, of course, is even scarier than the NSA’s: Christ said, “The kingdom of heaven is like unto a net, that was cast into the sea, and gathered every kind (of fish): which, when it was full, they drew to shore, and sat down, and gathered the good into vessels, but cast the bad away. So shall it be at the end of the world: the angels shall come forth, and sever the wicked from among the just, and cast them into the furnace of fire. There shall be wailing and gnashing of teeth.” Yikes.
    But I won’t mention television’s great Dragnet, with Joe Friday and his copper clappers. Wait. Did I just mention Joe Friday and his copper clappers? Hellooo, YouTube, I need a good laugh on a Friday night to get over Spock.

  2. Giles Byles says:

    File cabinets are tangible.  Manila folders are tangible.  Paper documents with ink characters typed or sprayed on them are tangible things.  As are magnetic tapes, disks, thumb drives & the like.
    Are bits (ones & zeros) “tangible things”?
    Are vast, endless haystacks consisting of bitstreams pilfered from punctured photonic fatpipes & stored in Utah “tangible things”?
    Just wondering.

    • emptywheel says:

      Which is why challenging data flow collection, if that is what the majority of Section 215 orders have become, would be particularly interesting.

  3. Giles Byles says:

    Perched in Moscow’s airport for days on end, Ed Snowden started to feel like the world’s biggest dumb-bass.  Time to fish or cut bait.  Sink or swim.  But try not to get lured in.  NSA sharks would surely have his head on a pike.

    Sorry.  Started punning & got hooked.


  4. Giles Byles says:

    More references in an “aquatic” vein.  Maybe y’all knew about these already:
    “YACHTSHOP is for collecting worldwide internet metadata, which are stored in the MARINA database.  Probably the program operates under EO 12333 authority and the corporate partner, codenamed BLUEANCHOR, is outside the U.S.”
    Found at a site with a trove of leaked NSA “slides” (2014):
    Anchors aweigh indeed.  Our perfidious NSA pals have a proclivity for tapping undersea backbone pipes & siphoning (like happy little clams) the plethora of photons therefrom.  They’ve been riveted by the subject of offshore Brazilian oil drilling ops––not so much TERR’RISM OMG.
    & see the excellent Wiki entry under the heading “upstream collection.”  That’s where the real “dragnet” is cast.  From the MSM we get diversion & misdirection.  & all those stored zetabytes won’t accomplish anything for anybody.  A waste of billions & nothing but grief there.
    But maybe I’m just pissing in the ocean.

    • jerryy says:

      “But maybe I’m just pissing in the ocean.”
      Every little bit counts… :^)
      Verizon’s attorneys must be having giggle-crying fits. With the Internet coming under Title 2 protection via the recent FCC declarations, they have more room to argue for privacy, but they are (it is reported) readying an all-out assault to oppose Title 2 protection.

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