The New Transparency Guidelines

DOJ and the tech companies just came to a deal on new transparency reporting. (h/t Mike Scarcella) It is a big improvement over what the government offered last year which was:

Option One: Provide total number of requests (criminal NSL, FISA) and total number of accounts targeted, broken out by 1000s

Option Two: Provide exact number of criminal requests and accounts affected, and number of NSLs received and accounts affected, broken out by 1000s, without providing any numbers on FISC service

This approach basically permitted the government to hide the FISC surveillance, by ensuring it only ever appeared lumped into the larger universe of criminal requests, along with other bulk requests. In addition, it didn’t let providers say whether they were mostly handing over metadata (NSLs would be limited to metadata, though FISC requests might include both metadata and content) or content in a national security context.

The new solution is:

Option One: Biannual production, with a 6-month delay on FISC reporting

  1. Criminal process, subject to no restrictions
  2. NSLs and the number of customer accounts affected by NSLs, reported in bands of 1000, starting at 0-999
  3. FISA orders for content and the number of customer selectors targeted, both reported in bands of 1000, starting at 0-999
  4. FISA orders for non-content and the number of customer selectors targeted, both reported in bands of 1000, starting at 0-999*

This option subjects a two-year delay on new (internally developed or purchased) platforms, products, or services. So for example, if Google started to get Nest orders today, Google couldn’t include it in their reporting until 2 years from now.

Option Two:

  1. Criminal process, subject to no restrictions
  2. Total national security process, including NSLs and FISA lumped together, reported in bands of 250, starting at 0-250
  3. Total customer selectors targeted under all national security requests, reported in bands of 250, starting at 0-250

* The order has a footnote basically saying the government hasn’t ceded the issue of reporting on the phone dragnet yet (though only tech companies were parties to this, and their only telecom production would be VOIP).

So my thoughts:

First, you can sort of see what the government really wants to hide with these schemes. They don’t want you to know if they submit a single NSL or 215 order affecting 1000 customers, which it’s possible might appear without the bands.They don’t want you to see if there’s a provider getting almost no requests (which would be hidden by the initial bands).

And obviously, they don’t want you to know when they bring new capabilities online, in the way they didn’t want users to know they had broken Skype. Though at this point, what kind of half-assed terrorist wouldn’t just assume the NSA has everything?

I think the biggest shell game might arise from the distinction between account (say, my entire Google identity) and selector (my various GMail email addresses, Blogger ID, etc). By permitting reporting on selectors, not users, this could obscure whether a report affects 30 identities of one customer or the accounts of 30 customers. Further, there’s a lot we still don’t know about what FISC might consider a selector (they have, in the past, considered entire telecom switches to be).

But it will begin to give us an outline of how often they’re using NatSec process as opposed to criminal process, which providers are getting primarily NSL orders and which are getting potentially more exotic FISC orders. Further, it will tell us more about what the government gets through the PRISM program, particularly with regard to metadata versus content.

Update: Apple’s right out of the gate with their report of fewer than 250 orders affecting fewer than 250 “accounts,” which doesn’t seem how they’re supposed to report using that option.

Update: Remember, Verizon issued a transparency report itself, just 5 days ago. Reporting under these new guidelines wouldn’t help them much as the government has bracketed whether it could release phone dragnet information. Moreover, Verizon is almost certainly one of the telecoms that provide upstream content; that would likely show up as just one selector, but it’s not clear how it gets reported.

Obama’s Credibility Trap

President Obama just stood before the nation and said,

And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

Even as he was speaking, his Administration released a document that said, in part,

Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Court’s rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures.

While (as I will show in a future post), Obama’s Administration has worked hard to prevent details of these violations from becoming public and delayed even the Judiciary Committees from being briefed, some of them may come out as part of the DOJ Inspector General review that the Administration tried to thwart in 2009.

Also, even as he was speaking, EFF announced the government will turn over a redacted copy of the October 3, 2011 FISA Court ruling that found the minimization procedures for Section 702 violated the Fourth Amendment. A new Guardian report suggests that ruling may pertain to the use of a backdoor to conduct warrantless searches on US person content already collected under Section 702. (While many commentators have insisted the Guardian report provides no evidence of abuse, NSA and DNI’s Inspectors General refused to count how often Americans have been searched in such a way, effectively refusing to look if it has been abused.)

As Shane Harris astutely describes, all of this kabuki is designed solely to make people feel more comfortable about these dragnets.

And the President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.

“The question is, how do I make the American people more comfortable?” Obama said.

Not that Obama’s unwilling to make any changes to America’s surveillance driftnets — and he detailed a few of them — but his overriding concern was that people didn’t believe him when he said there was nothing to fear.

But the President just stood up and claimed the government hasn’t abused any of these programs.

It has, by its own admission, violated the rules for them.

Meanwhile, Ron Wyden has already released a statement applauding some of these changes while noting that Obama is still minimizing how bad the violations have been.

Notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act. I believe that this provision requires significant reforms as well and I will continue to fight to close that loophole. I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans’ privacy.

Ultimately, details of these violations will come out, and are on their way out in some form already.

If this press conference was designed solely to make us feel better, wouldn’t Obama have been better advised to come clean about these violations than to pretend they don’t exist?


Did NSA Interpret Adverse FISC Fourth Amendment Ruling as Permission to Search American Contacts?

Finally! The backdoor!

The Guardian today confirms what Ron Wyden and, before him, Russ Feingold have warned about for years. In a glossary updated in June 2012, the NSA claims that minimization rules “approved” on October 3, 2011 “now allow for use of certain United States person names and identifiers as query terms.”

A secret glossary document provided to operatives in the NSA’s Special Source Operations division – which runs the Prism program and large-scale cable intercepts through corporate partnerships with technology companies – details an update to the “minimization” procedures that govern how the agency must handle the communications of US persons. That group is defined as both American citizens and foreigners located in the US.

“While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data,” the glossary states, “analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence].”

The term “identifiers” is NSA jargon for information relating to an individual, such as telephone number, email address, IP address and username as well as their name.

The document – which is undated, though metadata suggests this version was last updated in June 2012 – does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place.

The Guardian goes on to quote Ron Wyden confirming that this is the back door he’s been warning about for years.

Once Americans’ communications are collected, a gap in the law that I call the ‘back-door searches loophole’ allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans.

But the Guardian is missing one critical part of this story.

The FISC Court didn’t just “approve” minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program — precisely pertaining to minimization procedures — violated the Fourth Amendment.

So where the glossary says minimization procedures approved on that date “now allow” for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate “an effective oversight process,” even while approving the idea in general.

And note that FISC didn’t, apparently, require that ODNI/DOJ come back to the FISC to approve that new “effective oversight process.”

Consider one more thing.

As I have repeatedly highlighted, the Senate Intelligence Committee (and the Senate Judiciary Committee, though there’s no equivalent report) considered whether to regulate precisely this issue last year when extending the FISA Amendments Act.

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession. The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.

But in spite of Ron Wyden and Mark Udall’s best efforts — and, it now appears, in spite of FISC concerns about precisely this issue — the Senate Intelligence Committee chose not to do so.

This strongly suggests that the concerns FISC had about the Fourth Amendment directly pertained to this backdoor search. But if that’s the case, it also suggests that none of NSA’s overseers — not the Intelligence Committees, not ODNI/DOJ, and not FISC — have bothered to actually close that back door.

The Torture That Underlies FISA Court’s “Special Needs” Decisions

At the core of the expanding dragnet approved in secret by the FISA Court, Eric Lichtblau explained, is the application of “special needs” to “track” terrorists.

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.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. [my emphasis]

That’s actually not entirely secret. We see the beginnings of the process in the 2002 In Re Sealed Case decision by the FISC Court of Review, which thwarted FISA Court Chief Judge Royce Lamberth’s attempt to limit how much FISA information got shared for criminal prosecutions. In approving the “significant purpose” language passed in the PATRIOT Act which made it far easier for the government to use FISA information to justify criminal investigations, the decision pointed to the post-9/11 threat of terrorism to justify FISA as a special needs program (though as I lay out in this post, they also pointed to the judicial review and specificity of FISA to deem it constitutional, which should have presented problems for the dragnet programs that followed).

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [my emphasis]

Even in one of the only two FISA opinions (this from the Court of Review) that we’ve seen, then, the courts used the urgent threat of terrorism post-9/11 to justify searches that they found to be very close constitutional questions.

Terrorism was “the most serious threat” our country faces, the argument went, so this seeming violation of the Fourth Amendment was nevertheless reasonable.

Or at least close, a per curium panel including longtime FISA foe Laurence Silberman argued.

And in fact, this argument has always been built into the larger dragnet programs. Jack Goldsmith’s 2004 memo on the illegal program describes how it is premised on intelligence — gathered largely from interrogations of al Qaeda operatives — showing al Qaeda wants to attack in the United States.

As explained in more detail below, since the inception of [the program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks within the United States. Read more

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 3

[Part 1 & Part 2 have been the conventional parts of the Keith case analysis. Now we are going to get into areas that involve less what has happened, and more what is happening and opinion as to how what has happened might have an impact, depending upon the arguments raised to the court. So keeping in mind that on the opinion front, you get what you paid for, let’s see where this takes us. To evaluate the impact of the Keith case in a states secrets context, we have to back up and look at the Reynolds case.]

Parameters of the State Secrets Privilege Recognized in the Reynolds’ Case

The Reynolds’ case, United States v. Reynolds took place during World War II. The Government was sued for negligence resulting in the crash of a B-29, killing three civilians. When the families brought a lawsuit for damages, the DOJ sought to block any access to information relating to the crash. After a failed claim that Air Force regulations made the information privileged from disclosure, the Secretary of the Air Force tried a different argument.  He filed a document called a “Claim of Privilege” and, while he made the regulations argument again, this time he added another argument and a few carrots to the widows to try to win the court over:

[The Secretary] then stated that the Government further objected to production of the documents “for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.” An affidavit of the Judge Advocate General, United States Air Force, was also filed with the court, which asserted that the demanded material could not be furnished “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a “classified nature.”

(emph. added)

The District Court ruled that the Government would have to show the court in camera why national security was at risk if the witnesses were given information on how their husbands died. The DOJ countered that it would make witnesses available to the widows to examine, but it was not going to produce documents. The District Court then ruled that the appropriate response to the obstruction of discovery was to treat the issue of negligence as being decided against the Executive. On appeal, the Circuit Court agreed.

Cut now to the Supreme Court.

The Supreme Court created a privilege (or if you believe in international law ;-) it recognized an exception used in other countries) for the Executive to protect military secrets even in cases where this meant that a litigant would lose their opportunity to pursue a claim against the government. The Court believed that the military testing nature of the information and the fact that we were currently in a state of war counterbalanced the rights of the litigants, especially since they were being provided with the alternative opportunity of interviewing witnesses.

In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests.

The Court then described the procedures the Executive would need to follow to successfully raise the privilege.

It is not to be lightly invoked.[18] There must be a formal claim of privilege, lodged by the head of the department which has control over the matter,[19] after actual personal consideration by that officer.[20] The court itself must determine whether the circumstances are appropriate for the claim of privilege,[21] and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.[22]

If such a formal claim of privilege (here, a “Reynolds’ Affidavit”) was filed by the government in a civil setting and there was a chance that military secrets would be revealed, the Reynolds Affidavit procedure could be used to not only bar a court from demanding that the government turn over information, but to prevent the court from ruling that allegations against the government be deemed admitted in light of the failure to provide discovery. Emphasis on the “could” because the court went on to provide a preliminary standard for review for a Reynolds’ Affidavit that involved weighing various interests:

In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail.

While the court on the one hand said that “even the most compelling necessity” is outweighed if military secrets are at stake, it still attempted to carve out as an exception cases where the use of the privilege would be “unconscionable,” as in a criminal setting:

Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free.[27] The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented.

So the judicial review analysis from Reynolds (some of which was dicta, as it did not involve a case before the court)was that:

a) there is no privilege unless the Executive properly invokes it;

b) if the privilege is properly invoked, the court weighs necessity to the litigant (or, as I might argue later, to the judicial system) versus need for the privilege;

c) if military secrets in a time of war are involved, no amount of necessity can overcome the privilege (with a possible exception for [unconscionable activity – edited]);

d) if necessity is “dubious” (as in Reynolds, since the widows were being given access to the witnesses) then a mere formal claim of privilege will prevail without further weighing the interests;

e) if the privilege is properly invoked, the court will not determine the non-disclosed facts against the government in civil litigation against it; but

e) if the privilege is properly invoked in a criminal case, then the government is required to release the defendant and drop the prosecution.

[In 2000, information relating to the Reynolds case was declassified, revealing that the crash resulted from a fire that started in the engine. Attempts were made to have the Supreme Court reopen the case by filing a writ of coram nobis (fraud on the court) but this was denied with no opinion. Plaintiffs then refiled in the lower courts, seeking to set aside the 50 year old settlement, but the Third Circuit decided that it did not believe that there had been a fraud on the court and that it might have been necessary to keep information about the workings of the B-29 secret or to keep details of the craft’s mission secret]

Reynolds at Work in the Keith Case.

In the Keith case, Attorney General Mitchell filed an affidavit that met the Reynolds’ requirements. As the head of the Department of Justice, who had control over the warrantless surveillance program and who had given personal consideration to and authorized the surveillance, Mitchell filed a formal claim that the information from the surveillance could not be released to a criminal defendant because of national security interests, despite Alderman (which had not involved a formal invocation of the privilege) and despite the Reynolds dicta that criminal cases involving a claim of national security privilege would be required to be dismissed.

Mitchell’s claims went well beyond what the Reynolds dicta had contemplated and asked that the court look beyond “legality” of surveillance in a criminal setting and instead elevate national security above the Fourth Amendment in the area of “intelligence” surveillance.  This is where the Keith case and how the Supreme Court handled that case offers insight into the states secrets privilege. Mitchell and the DOJ were claiming that the Executive’s “national security” function was so separate and severable from its law enforcement function that when it said it was acting for national security purposes, its actions were not reviewable by the judiciary and law enforcement cases could not be impeded based upon the acts of the Executive in pursuing its “national security” function.

Justice White and the “on the statute” Argument.

I think here the most interesting place to start is the separate concurrence of Justice White. Justice White wanted to handle the Keith case, not on Fourth Amendment grounds, but rather as a case of conflict between the Reynolds’ Affidavit Mitchell had given, and the requirements of the Congressional statute. Trevor Morrison, in an article found at the Columbia Public Law and Legal Theory Working Papers siteThe Story of (United States v. United States District Court (Keith): The Surveillance Power expands on the context of the Keith case. In this draft (beginning on page 22), Morrison describes Supreme Court bargaining involving  the Keith case opinions. In part, he discloses that Justice White’s position originally had support from Justices Burger and Blackmun as well.

Justice White’s “on the statute” argument was that, because of the fairly recent Congressional statute governing wiretaps, which spelled out what was required to be exempt from the statute, an affidavit invoking “national security” was not enough to sustain privilege. Rather, the Attorney General was required, because of the statute, to affirm within his affidavit the specific exemption provided by Congress and that the Executive’s actions fell within that exemption.

Morrison notes in his discussions that the Justice White approach could have reduced the Keith case to being about drafting rather than about the underlying issue of warrantless surveillance, and would have been followed quickly by a new affidavit from the Attorney General.

A statutory holding would simply tell future Attorneys General that their affidavits must more closely track the language in Title III’s disclaimer provision. It would amount to little more than a lesson in affidavit drafting.

p. 23.

I believe, though, that Morrison sells the drafting requirements a bit short with that analysis. In Reynolds, neither Congress nor the Constitution had spoken as to the government actions (military test flights) at issue. By contrast, in the Keith case, both Congress and the Constitution had spoken, at least in some fashion, to the government actions (seizing and searching private communications) at issue. In the Keith case, the Court was looking at a comprehensive statutory scheme that provided some exemptions for Executive “security” actions, but only limited exemptions.

White argued was that the first analysis should be whether the Attorney General affirme compliance with the statute.

Congress had established two branches of Executive action that it said was exempt from the statutory wiretap requirements. The first branch involved possible or potential hostile acts by foreign powers, collecting foreign intelligence essential to the national security or protecting national security information against foreign intelligence. The second branch involved overthrow of government and dangers to the structure and existence of government. The affidavit provided in the Keith case failed to specifically claim that the Executive’s warrantless surveillance of Plamdon, and hence its national security claim, fell under either branch of exemption.

Justice White’s opinion layered a second level of requirements on the national security privilege when there was a Congressional statute on point.  The first level was Reynolds and applied for military secrets and in the absence of Congressional input.  The second test, per Justice White’s approach, involves requiring the Executive to affirm compliance with applicable statutes including recitations as to the exemptions that applied if exmptions were relied upon.  Under Justice White’s approach, where Congressional statutes sspeak to activities the Executive is using to “collect intelligence,” then the Executive would be required to comply with both tests.

However, since Justice White’s opinion was only a separate concurrence, though, let’s look at the impact of the majority opinion on the invocation of states secrets.

The Powell Decision Impact on State Secrets.

Powell and the majority of the court met the Executive branch’s warrantless surveillance of Americans with a constitutional, rather than statutory, argument.  The focus of the opinion was that (unlike Reynolds) the Keith case involved a set of government conduct that was specifically covered by the Constitution. The Powell majority argued that even if Congress had authorized the Executive’s warrantless surveillance by statute, it would not matter because the Constitution and Fourth Amendment controlled over both Congressional statute and Executive national security claims.

In the case before it, the Court’s only remedy for the unconstitutional behavior was to affirm Judge Keith’s right to retain the illegal surveillance records and require that they be turned over to the defense, even over a national security interest claim by Mitchell. This aspect of Keith gets lost, but its clear holding was that when a procedurally proper  Reynolds invocation attempts to apply a state secrets privilege to actions barred by the Constitution, it fails.

But Powell was obviously troubled by the need for the government to at times engage in domestic surveillance for a domestic security need separate from law enforcement. The Powell majority collectively engaged in dicta to speculate as to how Congress (not the Executive internally) migh address the warrant requirement in a domestic security situation. That dicta is worth examining for its impact on states secrets invocations as well.

While the Powell majority dismissed the impact of Congressional acts if they attempted to overcome the requirements of the Fourth Amendment, it did want to encourage Congress to act to authorize domestic surveillance in a way that would be consistent with the Fourth Amendment and the Court’s judicial review holding in Keith.  The warrantless Plamondon surveillance was held clearly unconstitutional, but Powell speculated that wide latitude might be shown for surveillance involving only “foreign powers” or their agents: “We have not addressed and express no opinion as to the issues which may be involved with respect to activities of foreign powers or their agents.” Powell signaled, as had lower courts, that where there was no Congressional effort to address surveillance involving only foreign powers, that kind of surveillance would likely fall within Executive power and outside of the Fourth Amendment.

Powell then went on to discuss more generically domestic security intelligence surveillance v. criminal surveillance and provided a speculative list of actions that Congress might attempt to create a situation whereby the Executive could engage in domestic security intelligence surveillance in a manner that would allow that intelligence surveillance to be in compliance with the Fourth Amendment and exempt from Alderman production during a criminal trial.

Congress may wish to consider protective standards for the [domestic security surveillance] which differ from those already prescribed for specified crimes

It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of [criminal surveillance warrant applications] but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in [criminal surveillance warrant applications.]

. . . We do not attempt to detail the precise standards for domestic security warrants … We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. (emph. added)

The takeaway from the Powell decision is that, even under a claim of national security privilege, the Fourth Amendment required prior judicial approval for the Court to hold that such surveillance for domestic security purposes was constitutional. The Court felt Congress might be able to come up with a statutory scheme which could provide for prior judicial approval of domestic security surveillance and that the Court might deem such a judicially authorized seizure and search of communications based on less than criminal probable cause to comply with the Fourth Amendment.

The combined takeaway from the White and Powell opinions is that every member of the Court who considered the case believed the Reynolds invocation of national security interests failed – Justice Powell and the majority because it did not comply with Constitutionally required prior judicial approval; Justice White because the Reynolds affidavit did not clearly state, on its face, compliance with Congressional statutes or exemptions (which he wanted to resolve before looking at the Constitutional argument).

Next up – Congressional efforts with FISA to first rein in, and now reel out, Executive power while avoiding judicial review and options that may still be open .