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Benjamin Wittes on Patrick Reynolds’ “Protecting Civil Liberties in a Cyber Age”

Wittes' post on Lawfare blog entitled "I'm from the NSA, and We Don't Get Out Much," offers summary and comment on Patrick Reynolds' speech at the DUke Conference entitled "Protecting Civil Liberties in a Cyber Age." Reynolds, a deputy general counsel at the NSA, provided a brief overview on the panel of the development of surveillance law.

Wittes' begins by relevantly noting that:

To consider the issue of civil liberties in a cyber age, Reynolds says, he wants to walk through the intelligence collection side of the NSA’s mission. Because, he notes, the NSA does collect communications of foreign intelligence interest. The civil liberties interest in question, he says, is the Fourth Amendment. And he wants to briefly talk about the development of the relevant Fourth Amendment law, the passage of the FISA in 1978, and the passage of the FISA Amendments Act (FAA) in 2008.

To that end:

He starts with two points he considers axiomatic: First, that is neccessary to the national security for some agency to have a mission like the one that NSA has. In some form, in some way, it is necessary to collect foreign intelligence by intercepting electronic communications. Second, that people tend to distrust large secretive bureaucratic organizations and the NSA is such an organization. So the question is how we vindicate the civli liberties we all insist upon by proxy. It is impossible for the public to watch and oversee the NSA directly, he says, but it can watch and oversee it through other institutions….

Reynolds starts in 1967 with the Katz decision–which created the “reasonable expectation of privacy” standard. Katz, he says, jettisoned 40 years of prior case law, which had said that if a wiretap involved no physical intrusion, it wasn’t a search. In Katz, the Supreme Court said that electronic surveillance was a search, and that it couldn’t imagine a case where law enforcement would engage in it without a warrant. But, he says, the court carefully carved out foreign intelligence surveillance and it said nothing about what went on overseas. He wasn’t at NSA at time, he says, but his impression is that the case had little impact on the agency. Ditto Title III, which passed Congress the following year. It largely left NSA activity undisturbed.

The landscape changes grew a bit closer to home he says, with the 1972 Keith case, which involved domestic security and ruled that the 4th Amendment covered such matters. It suggested that law enforcement had different rules from intelligence agencies, but even it didn’t implicate overseas activity, which is the NSA’s mission. In the 1970s, moreover, several circuit court cases suggested that the president had the authority to conduct electronic surveillance for foreign intelligence purposes without a warrant. The D.C. Circuit in dicta suggested otherwise. So while it was clear that such surveillance was a search and that it had to be reasonable, whether it required a warrant was far less clear. This fact tends to get lost, he says, because we have operated for so long under the rubric of FISA. But it has never been clear that a warrant is constitutionally necessary for foreign intelligence wiretapping conducted domestically.

The watershed, Reynolds says, was the abuses found in the Church Committee report. With respect to the NSA, the Church Committee found two things of particular importance to the long-term development of the law. First, it found that in addition to engaging in foreign communications collection totally outside of the U.S., the NSA was also doing things domestically. Specifically, it was putting U.S. citizens on watchlists for surveillance. Second, it was also doing reverse targeting–that is, targeting people overseas whom it believed would be in contact with U.S. persons domestically about whom the agency wanted to collect information. Congress, he says, did not appreciate this as it circumvented the warrant requirement of the 1968 law. So while in a series of cases, the courts had gotten close to saying, but didn’t say, that the government needed a warrant, Congress eventually did so.

In FISA in 1978, Congress created a secret court made up of district judges to hear applications for electronic surveillance for foreign intelligence purposes. The statute defined electronic surveillance narrowly to respond to abuses of the 1970s. It covered only four things: (1) the targeting of a person in the U.S., (2) the acquisition of a wire communication where one end of the communication is in the U.S. and acquisition takes place in the U.S., (3) the acquisition of radio communications where both ends of the communications are in the U.S., and (4) interceptions in circumstances in which the target has a reasonable expectation of privacy and that would require a warrant if conducted by law enforcement. Notably, it did not include international radio communication, which was the principal means of international telephone communications at the time. NSA could still vacuum that material up without going to the court for a warrant.

The result was that the statute gave the court an important role–creating attorney general involvement, court supervision, criminal penalties, reporting, and minimization procedures. But it also allowed the NSA to continue activities overseas unimpeded. And it worked pretty well–until technology began to change.

Reynolds, one of two lawyers who went to Capitol Hill in 2006 to petition for that which culminated in the passage of the FAA in 2008 essentially argues the following:

Congress, in essence, said let’s forget about the technology. Let’s look at the question of the target of the surveillance and ask instead what we owe that person. If it is a U.S. person anywhere in world, we owe one thing. If it’s not, we owe something else. So under the FAA, what kind protections do we owe in those circumstances? No individual probable cause showing is required, and that’s what makes people say it’s unconstitutional. But the court has never said that a warrant[] is required in those circumstances. And under the FAA, we still have a requirement of DNI and attorney general certification of compliance with relevant procedures. The court now approves the targeting procedures–the procedures that the NSA uses to figure out whether the target is outside of the U.S. The court approves the minimization procedures. There are still statutory restrictions on the use of surveillance data. There are still criminal penalties. And there is lots of new oversight: reports to Congress, audits, inspector general reviews, and reports to the court. There are a lot more people reviewing what the NSA is doing under the FAA than before. [Bloggers emphasis added].

For the full link to Wittes' post, click here

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