Oversight Board Report May Lead to Surveillance Changes

JURIST Guest Columnist Tung Yin of the Lewis & Clark Law School argues that the Privacy and Civil Liberties Oversight Board's report on the NSA's telephone records program is likely best directed toward statutory changes in the Foreign Intelligence Surveillance Act rather than influencing decisions of the Foreign Intelligence Surveillance Court ...

Last month, the federal Privacy and Civil Liberties Oversight Board (PCLOB) issued a 234 page report, concluding that the National Security Agency's (NSA) Telephone Records Program not only had failed to achieve any significant counterterrorism impact, but also fell outside the claimed statutory authority of Section 215 of the USA PATRIOT Act [PDF] and violated the Fourth Amendment. It was far from a unanimous report, as two of the five members of the PCLOB disagreed with the legal analysis (here and here). Perhaps not coincidentally, both dissenters are Republicans. The PCLOB also disagreed with numerous decisions issued by the Foreign Intelligence Surveillance Court (FISC). Interested observers may be left wondering, who's right?

The NSA program

Much of what is believed to be known about the NSA's Telephone Records Program comes from the unauthorized disclosures by former Booz Allen Hamilton employee Edward Snowden, first reported by The Guardian's Glenn Greenwald. Snowden provided Greenwald with a copy of a secret order by the FISC requiring cellular phone company Verizon Inc. to provide the NSA, every day, with all telephone records in its possession.

To be clear, the phone records are not the contents of the call—i.e., the actual conversation. Rather, the records concerned the "metadata" of the calls: the number at the other end of the call, the location of the caller at the time of the call, the duration of the call, and so on. Greenwald's initial article also disclosed a second NSA program, code named PRISM, which collected the contents of emails; that program will be the subject of a subsequent PCLOB report.

The NSA stored the phone records it obtained from telecom providers in a database. Analysts could seek approval from a small list of supervisors to perform targeted inquiries in the database for a specific phone number based on "reasonable, articulable suspicion ... that the number is associated with terrorism," according to the PCLOB's description of the program. The result of the search would be a list of phone numbers in contact with the original number, as well as all phones numbers in contact with the first list of numbers.

Statutory analysis

Section 215 of the USA PATRIOT Act amended the Foreign Intelligence Surveillance Act (FISA) to allow the Federal Bureau of Investigation to apply for an order from the FISC "requiring the production of any tangible things (including books, records, papers, documents, and other things) for an investigation to protect against international terrorism ..." This is the same provision that, at the dawn of the USA PATRIOT Act, gave rise to concerns that the FBI would snoop around in public libraries, getting access to the lists of books checked out by people under suspicion.

The PCLOB concluded that Section 215 cannot justify the NSA's telephone records program because that statutory provision enables the FBI, not the NSA, to seek business records relevant to a specific investigation. Here, the NSA had vacuumed up a tremendous amount of information without any reasonable, articulable suspicion. The subsequent targeted inquiry—i.e., the inquiry into the database of a specific phone number—more closely resembled the type of business record search authorized under section 215 by its text, but only if the database were that of a third party entity.

Constitutional analysis

The PCLOB identified a second problem with the NSA's telephone records program—namely, that it appeared to violate the Fourth Amendment. Katz v. United States determined that a search occurs for Fourth Amendment purposes when law enforcement agents violate a person's reasonable expectation of privacy. In Smith v. Maryland, the Supreme Court held that there was no expectation of privacy in the phone number that a person dials to make a telephone call, and that the use of a pen register device to record those numbers was therefore not a search.

Recognizing that Smith could plausibly be read to conclude that there is no reasonable expectation of privacy in cellphone metadata—including the phone number on the other end of the call—the PCLOB nevertheless argued that modern technology has advanced well past what the Supreme Court had faced over 30 years ago, and that the NSA program poses a far greater threat to privacy and civil liberties than the primitive (by today's standards) pen registers at issue in Smith.

Interestingly, the PCLOB's analysis conflicts with a judicial opinion from the FISC, the so-called secret court made up of Article III judges that hears applications for FISA surveillance warrants. Last August, FISC Judge Claire Eagan concluded that section 215 provided sufficient legal authority for the NSA telephone records program, because the NSA searches were adequately related to FBI counterterrorism investigations, and because Smith established the absence of reasonable expectations of privacy in non-content metadata.

Based on its analysis of the mismatch between section 215's explicit text and the NSA program in operation, as well as the Fourth Amendment concerns, the PCLOB recommended that the NSA abandon the telephone records program in its current form; that Congress amend FISA to provide the FISC with independent views (presumably to approximate an adversarial process); and that Congress increase the transparency of FISC decisions.

Observations

The PCLOB was established in 2007 upon the recommendation of the 9/11 Commission as essentially an advisor to/watchdog of the Executive Branch to ensure that its counterterrorism efforts will not unduly infringe privacy rights or civil liberties. By statute, the five members of the PCLOB must be divided by political affiliation 3-2 (or 2-2-1 in the event of a non-affiliated member).

The PCLOB was acutely aware of Eagan's FISC opinion and discussed it thoroughly in its report. It might be tempting to attribute the difference in conclusions about the validity of the NSA's telephone records program to politics, as the three PCLOB members in the majority were selected from Democrats while Eagan was appointed by a Republican President. That observation is at least consistent with the traditional ideologies of the two major parties, with Republicans generally more supportive of law enforcement activities and Democrats generally more concerned about invasions of privacy. On the other hand, when viewed through a partisan, as opposed to ideological lens, the two conclusions are perplexing, given that the current occupant of the White House—and hence beneficiary of a ruling that upholds the NSA's activities—is a Democrat.

One might note that there were three people behind the PCLOB opinion, compared to just a single FISC judge, and that more weight should be accorded the PCLOB opinion for the same reason that federal appellate court opinions are "better" than district court opinions. "Three minds are better than one" is one of the reasons that appellate courts review questions of law de novo. Of course, if we are just counting votes, the PCLOB dissenters should be added to Eagan's side, leaving it as a 3-3 tie. In addition, the FISC has apparently ruled in other cases on analogous bulk collection matters and reached the same conclusion about the link between NSA analysis as a precursor to FBI investigations, as is alluded to in Eagan's opinion and in the dissenting opinions of the PCLOB, where Rachel Brand wrote: "Moreover, [the bulk collection under Section 215] has been upheld by many Article III judges, including over a dozen FISC judges and Judge Pauley in a thorough opinion in a regular, public proceeding in US District Court.") To be sure, there are reasons to question the correctness of the FISC ruling(s) regarding Section 215, as Professor Orin Kerr notes: "[I]t seems strange that the government's previously secret claim that the entire database has to be turned over itself makes it legal to turn over the entire database first and then search it later."

Perhaps the best way to view the difference of opinion between the PCLOB and FISC judges is to recognize the political and structural forces acting on each. The former is an advisory board consisting of political appointees, whereas the latter is a federal court consisting of judges with Article III protections (life tenure, protection against salary diminution). Arguably, Eagan's opinion should be accorded more weight because the Article III protections are supposed to ensure independence on the part of the federal judge. But, it is important to keep in mind that proceedings before the FISC are ex parte. Thus, multiple FISC judges have indeed ruled in favor of the government—but based on arguments from only the government. As with traditional criminal search warrant applications, the target of the search is obviously not present to argue against issuance of the warrant. Traditional search warrants are far more likely to be litigated, however, which means that judges receive more feedback to calibrate their probable cause assessments. FISA warrants, not so much.

The PCLOB, on the other hand, has a dual role of serving as a privacy and civil liberties watchdog and as an advisory board to Congress. Its written analysis looks as much to the future as to the present, and many of the recommendations are policy-based. Indeed, the Fourth Amendment analysis admits as much, contending that technology has outstripped the legal content of Smith. Ironically, one part of the oft-reviled USA PATRIOT Act likewise recognized that mobile cellphones had rendered the previous statutory provisions governing telephone wiretapping warrants obsolete, because it was often too cumbersome to seek a separate search warrant every time the surveillance target crossed into a new federal judicial district. As a result, Section 220 of the USA PATRIOT Act authorized nationwide service for a search warrant for electronic evidence—that is, a roving wiretap. The PCLOB opinion is likely more usefully directed toward statutory changes in FISA to address the privacy and civil liberties concerns raised than as a legal opinion, given the consistency of the apparent FISC rulings in favor of the NSA.


Tung Yin is a Professor of Law at Lewis & Clark Law School, specializing in national security and terrorism law. Prior to joining the faculty at Lewis & Clark, Professor Yin was a law clerk on the US Court of Appeals for Ninth and Tenth Circuits as well as the US District Court for the Central District of California. Professor Yin also practiced law, specializing in white collar criminal defense and employment discrimination.

Suggested Citation: Tung Yin, Oversight Board Report May Lead to Surveillance Changes, JURIST - Forum, Feb. 12, 2014, http://jurist.org/forum/2014/02/tung-yin-nsa-pclob.php


This article was prepared for publication by Brent Nesbitt, assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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