The secretive Foreign Intelligence Surveillance Court (FISC) had its first opportunity to review a government request for telephone call records since the enactment in June 2015 of the USA FREEDOM Act, which placed some restrictions and oversight on the NSA’s surveillance powers. Unfortunately the results of this first post-USA FREEDOM FISC review are not pretty, and remind us all that there is still much work to be done.
In approving a request for “call detail records” by the FBI, Judge Thomas Hogan allowed the FBI to get people’s call records even in the absence of any belief that those records will be relevant to an investigation, and let the bureau keep records with no foreign intelligence value for 6 months or longer even though USA FREEDOM requires “prompt” destruction of such records. He also declined to take advantage of the new provisions that allow him to appoint an amicus to help sort through the new statute. The opinion, issued on December 31, 2015, was made public April 19, 2016.
We know that USA FREEDOM made small changes to reform and rein in NSA’s power to spy on Americans, and didn’t go as far as we would have liked. Yet we view the reforms as important changes in the law that ended some bulk surveillance, and brought more transparency to the FISC, an entity that operates mostly in secret and grants nearly every government surveillance request it receives. This opinion shows how limited these reforms are, which is not especially surprising but nevertheless disappointing and troubling.
Government Can Collect Phone Records Even if They Are Not Relevant
In its request, the FBI was expressly limited under USA FREEDOM to receiving only call detail records of a particular individual, account, or device that the government has a “reasonably articulable suspicion” is relevant to an international terrorism investigation. The narrow “individual, account or personal device” phrase is known in the law as a “specific selection term. ” The records of calls made to and from this selector are referred to as “first hop” call records. The government misinterpreted Section 215 of the Patriot Act as allowing it to collect in bulk all call records from numerous phone companies for renewable 90-day periods, an interpretation we challenged in our First Unitarian v. NSA case as well as in Jewel v. NSA and Smith v. Obama. Replacing this bulk collection with a “specific selection term” requirement was one of the major reforms we fought for and won in USA FREEDOM.
Judge Hogan approved the FBI’s request for first hop records, acknowledging that “reasonable articulable suspicion” was a less demanding standard than the “probable cause” standard required by the Fourth Amendment. This is consistent with the FISC’s long and regrettable history of finding that we all have no Fourth Amendment privacy interests in our phone records.
But Judge Hogan went even farther. He permitted the bureau to cast a wider net and get records of calls made to and from numbers that called or were called by numbers in the first hop (these additional records are known as “second hop” records). This second hop sweeps into government possession the associated records of thousands of people, the vast and overwhelming majority of whom, if not all, are known to be completely innocent. And it can be a big number. As this handy Guardian slider demonstrates, for a person who has 190 contacts, which Facebook says is its users’ average number of friends, the second hop gathers over 31,000 other people. For a person with just 50 contacts, the second hop still gathers in over 8,000 other people.
Although this "bulky" collection of second hop records is provided for in USA FREEDOM, here the government’s attempted justification for casting this wide net is generic and weak. The most the government could muster about the usefulness of these records was that they “enhance” the government’s ability to uncover “previously unknown Foreign power-associated identifiers” and “reasonably could lead” to the identification of persons that could assist in preventing terrorism. The government didn't try to prove these particular selectors would yield useful second hop records.
This is a far cry from “probable cause” but it’s even less than “relevant” or even “reasonable articulable suspicion.”
Yet Judge Hogan went even further than the government. He found that it was fine for the government to do that even if the second hop call records were not relevant at all to an international terrorism investigation. He explained that although USA FREEDOM requires that the first hop records be relevant, it doesn’t specifically require relevance for the second hop records:
The Court concludes, however, that no such relevance showing is required for the call detail records produced during the “second hop.”
As a result, given the likely large number of initial selectors, the FBI now gets phone records of, at least, hundreds of thousands people not suspected of doing anything illegal. And it gets them without having to prove that those records will be relevant to an investigation. While this is less than the collection of all the phone records from a carrier, it is still massively overbroad. Congress was wrong to allow it to continue. But ultimately, this a consequence of not applying the Fourth Amendment to phone records.
Keeping Backdoor Records for 6+ Months Is “Prompt Destruction”
In one of its significant reforms, USA FREEDOM added a requirement for the “prompt destruction of all call detail records produced under the order that the Government determines are not foreign intelligence information.”
But belying this requirement for “prompt destruction,” Judge Hogan approved the FBI’s request to keep certain records for 6 months and possibly longer. Judge Hogan found that the USA FREEDOM “prompt destruction” provision had to be reconciled with a pre-USA FREEDOM provision that allowed for the retention of “information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.” Judge Hogan uncritically found that the government’s proposed 6-month retention period for call records that “are reasonably believed to contain” evidence of a crime satisfied both parts of the law.
Regardless of what one thinks of this perceived need to reconcile the provision allowing for retention and the one requiring prompt destruction—and it is debatable whether Judge Hogan’s perceived need to reconcile them is valid—it is difficult under any circumstance to read the word “prompt” as meaning “at least six months and maybe more.”
Judge Hogan’s opinion, like the Section 702 opinion made public the same day, also confirms that these privacy-eroding surveillance programs aren’t just for combating terrorism or even foreign intelligence investigations. Rather, the government uses these records for general, domestic criminal investigations, what’s been called a “backdoor” use of information purportedly gathered for foreign intelligence purposes only. The government likes to refer to the collection of non-foreign intelligence information as “incidental.” But this collection of records is “incidental” only in the sense that domestic crime is not the initial target. The collection of records for domestic law enforcement uses is purposeful—not accidental, surprising, or unintended.
No Amicus Appointed Despite This Being the First Interpretation of USA FREEDOM
Another crucial innovation of USA FREEDOM was meant to fix the one-sidedness of the FISC by creating of a panel of amici curiae—friends of the court—to provide a counterpoint to the government’s otherwise unchallenged arguments. USA FREEDOM requires the FISC to appoint a friend of the court when the case involves a “novel or significant interpretation of law, unless the court issues a finding that such appointment is not appropriate.”
But here Judge Hogan declined to appoint an amicus even though this request required him to interpret the newly effective provisions of USA FREEDOM for the very first time, including the law’s “prompt destruction” requirement.
It is hard to imagine a more novel interpretation of law than a court’s initial interpretation of a statute. The apparent conflict between the “prompt destruction” and the retention provisions, for example, seems like a ripe area for amicus assistance. But, tautologically, Judge Hogan ruled that he did not need the amicus because he figured it out himself:
As demonstrated, however, in the final analysis the supposed conflict between Sections 501(c)(2)(F)(vii)(I) and 501(g)(2)(C) never actualized. As a result, no statutory conflict emerged that required the Court to engage in interpretation of the law – versus the straightforward application of the statute such that FISA Section 103(i) was implicated.
Under that standard, an amicus will only be appointed when the FISC judge doesn’t think she can figure out how to interpret the law on her own. This standard defeats the purpose of the amicus to provide an opposing view to the government, and shows that the amicus provision can and will be too easily avoided.
But Two Bits of Good News
Like the FISC opinion on Section 702 surveillance made public the same day, we know about this opinion. Prior to USA FREEDOM, there was no requirement that a FISC opinion be considered for publication.
And second, nowhere in the opinion does the FISC use the ungrammatical, obfuscating NSA jargon “telephony metadata.”
Small steps. Big disappointment.