One Perspective: Is it constitutional for the NSA to eavesdrop on international communications?

Scott Forsyth, The Daily Record Newswire

Go back to December 2005. The New York Times revealed the NSA was collecting the contents of electronic communications between persons inside the United States and persons abroad, allegedly for foreign intelligence purposes.

The NSA did not obtain a warrant to do so. No part of the Foreign Intelligence Surveillance Act, enacted in 1978, permitted this type of open-ended surveillance. President George W. Bush just decreed it.

The political fall-out from the revelation and an adverse district court opinion forced the administration to discontinue the program. Congress stepped in and changed the rules, amending FISA in 2008. NSA could and did return to its old ways, now on a grander scale.

Before the amendments the government could not eavesdrop on “any wire communication to and from a person in the United States” for foreign intelligence purposes without first obtaining an individualized and particularized order from the Foreign Intelligence Surveillance Court.

The court had to find probable cause that the target of the surveillance was a foreign power or an agent of foreign power, and the foreign power or the agent was using or about to use “the facilities or places at which the electronic surveillance is directed.” The application for the order had to describe each of the facilities and places, the nature of the information sought, and the type of communications subject to surveillance, 50 U.S.C. §§ 1804-1805.

The amendments vitiated the order requirement. No longer does the FISC approve the selection of the target. The government only certifies it reasonably believes the target is located outside the United States.

The government does not have to show probable cause or individualized suspicion. And it does not have to describe with particularity the facilities and places being searched, the information sought and the type of communications. The communications may be to or from the target or simply contain information about the target.

The government still must obtain an order from the FISC, but the court only reviews the general procedures the government proposes to use in carrying out the surveillance. If the procedures meet certain minimal criteria, the court must issue an appropriately-named “mass-acquisition order,” 50 U.S.C. § 1881.

The amendments created a regime that exposes the contents of every communication between an individual in the United States and a non-American abroad to potential surveillance. The NSA is mindful of this power. In 2011 alone it relied on the new law to collect more than 250 million Internet communications.

The ACLU challenged the constitutionality of the amendments. A year ago, the Supreme Court dismissed the lawsuit, because the plaintiffs could not show a sufficient likelihood their international communications would be monitored, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).

At oral argument, the government stated dismissal would not insulate the amendments from judicial review. It would be notifying criminal defendants it had obtained evidence from a foreign intelligence surveillance. The defendants could then move to suppress the evidence as the fruit of an unconstitutional search.

Last October the government notified its first defendant, Jamshid Muhtorov, of its intent to use against him “information obtained or derived from the acquisition of foreign intelligence information.” He is charged with providing with material support to a terrorist group. The notice said nothing about the content of the information or the manner of its acquisition.

Muhtorov moved to suppress the information and the ACLU joined him. They argue the amendments violate the Fourth Amendment, because the law authorizes surveillance without a warrant and, independently, because it authorizes surveillance that is unreasonable, United States v. Muhtorov, No. 12-CR-00033 (D. Colo. 2014).

Long ago the Supreme Court established persons have a constitutionally protected privacy interest in the content of their electronic communications, United States v. Katz, 389 U.S. 347 (1967) (telephone calls). International communications are protected as much as domestic.

On the first point, Muhtorov and the ACLU point out government may capture content if it obtains a warrant, issued by a neutral magistrate, based on probable cause that the evidence sought will aid in a particular apprehension, and particularly describing the place to be searched.

The amendments authorize a search that does not meet any of the warrant components.

First, the executive makes all decisions about the specific targets and need not tell the FISC anything about them, other than they are outside the United States. Second, the government does not need to show any connection between the targets and possible illegal activity and the communications and the targets. For example, if a target resided in England, the government could collect all communications between New York and London. Third, the places being tapped need not be described with particularity and the duration of the surveillance, one year, is excessive.

Even if the warrant clause does not apply, the movants assert the amendments fail because they authorize an unreasonable search.

Reasonableness is determined by examining the totality of the circumstances. In the context of electronic surveillance, reasonableness requires the eavesdropping to be “precise and discriminate” and “carefully circumscribed so as to prevent unauthorized invasions of privacy,” Berger v. New York, 388 U.S. 41 (1967).

By doing away with individualized suspicion, prior judicial review, and particularity, the amendments invite indiscriminate surveillance. The government may target any foreigner abroad, not simply those who are agents of foreign powers. It then may monitor all communication with or about the foreigner from countless innocent persons inside the United States.

If the communication contains information relating to terrorism or “the conduct of the foreign affairs of the United States,” the government may retain the communication indefinitely, regardless of its source. If it does not contain such information, the government may still retain it for up to five years.

Not getting the Supreme Court to address the merits of its case in Clapper disappointed the ACLU. In Muhtorov it has a vehicle for renewing the challenge.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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