PPSA's Gene Schaerr and Bob Goodlatte's latest opinion piece featured on the Washington Examiner:
When U.S. Attorney John Durham recently secured a guilty plea from former FBI lawyer Kevin Clinesmith, it was only the latest in a string of mishaps and scandals for the FBI. Soon after, Attorney General William Barr proposed a series of laudable, far-reaching administrative reforms designed to reduce opportunities for mischief at the FBI. But is internal reform enough? Or will new laws be needed to restore the trustworthiness of America’s premier law enforcement agency?
That the FBI has had a very bad run is undeniable.
Yesterday morning, we reviewed Judge Amy Coney Barrett’s Seventh Circuit decisions for hints as to how she might vote as a Justice of the U.S. Supreme Court in cases related to surveillance law and privacy. A subsequent exchange with Sen. Ben Sasse, R-NE, gave us a greater insight into her thinking on the Fourth Amendment – which appears to be similar to that of her mentor, the late Justice Antonin Scalia, as well as the justice she has been nominated to replace, the late Justice Ruth Bader Ginsburg.
Sen. Sasse, in exploring Judge Barrett’s thinking on the judicial philosophy of originalism, delved into the question of how 18th century language – such as the text of the Fourth Amendment – can resolve questions involving modern technology. He asked: “Does the Fourth Amendment have nothing to say about cell phones and reasonable search and seizure? [It] was obviously not written at a time when they had imagined mobile technological devices that addicted our kids. Does the Fourth Amendment have nothing to say about cellphones?”
Judge Barrett answered:
The Constitution, one reason why it’s the longest lasting written constitution in the world, is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting. So that … when you’re talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it as the court did in Carpenter v. United States to cellphones.
So the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalogue the instances in which an unreasonable search or seizure could take place. So you take that principle, and then you apply it to modern technology, like cell phones … Or what if technological advances enable someone with Superman X-ray vision to simply see in your house, so there’s no need to knock on your door to go in? Well I think that could still be analyzed under the Fourth Amendment.”
She later said:
[A]s I said with the Fourth Amendment, many of [the Constitution’s] principles are more general: unreasonable searches and seizures, free speech. These are things that have to be identified or fleshed out, applied over time. So the fact that there wasn’t the internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s Free Speech Clause wouldn’t apply to those things now. It enshrines a principle … that is capable of being applied to new circumstances.”
Under questioning from Sen. Marsha Blackburn, R-TN, about the applications of the Fourth Amendment, Judge Barrett favorably cited Justice Scalia’s reasoning in Kyllo v. United States (2001). In this case, a man accused of growing marijuana was targeted for prosecution after the police used infrared, thermal imaging technology to identify increased power use in his home. A 5-4 majority in that case – including Scalia’s friend, Justice Ginsburg – held that thermal imaging constituted a search and should have required a warrant.
“The late Justice Ruth Bader Ginsburg had similarly sided with the majority in restricting the ability of the government to track Americans’ cellphone location history without a warrant,” said Gene Schaerr, PPSA general counsel. “Judge Amy Coney Barrett’s answers today indicate that she would likely follow in the footsteps of Justices Ginsburg and Scalia as another champion of the Fourth Amendment.”
If your local police department wants to know your search history, it must obtain a warrant, as required by the Fourth Amendment. But if it wants to know everyone who searched for a keyword, Google will provide it, even if the keyword is something very specific and personal to you – like an address or a person’s name.
In August, police arrested a man for setting fire to the car of a purported witness. Police caught him by sending a request to Google for everyone who searched the address of the residence close to the time of the arson. They made their arrest.
“This ‘keyword warrant’ evades the Fourth Amendment checks on police surveillance,” Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, told Alfred Ng of CNET, “When a court authorizes a data dump on every person who searched for a specific term or address, it’s likely unconstitutional.”
Ng notes that keyword warrants are similar to geofence warrants, in which police ask Google for data on all devices logged in at a specific time and area. Google received 15 times more geofence warrant requests in 2018 compared with 2017, and five times more in 2019 than in 2018.
One wonders when courts will crack down on these too-clever-by-half tactics to get around the Fourth Amendment.
Whether you lean left or right, the Senate majority will likely confirm Judge Amy Coney Barrett to the U.S. Supreme Court. What will this mean for surveillance and Fourth Amendment issues by that Court?
First, consider the good record of her predecessor. In 2018, the late Justice Ruth Bader Ginsburg had joined the majority in restricting the government’s ability to get ready access to Americans’ location history through cell phone/mobile tracking technology. How might a Justice Barrett rule on similar issues?
Sitting on the U.S. Court of Appeals for the Seventh Circuit, covering the Upper Midwest, Judge Barrett has had fewer opportunities to hear cases of constitutional import than a judge sitting on the D.C. Circuit, much less a Justice of the Supreme Court. But PPSA found three rulings issued by Judge Barrett that at least hint at her alignment with the core principles of privacy and strict limits on surveillance.
In Rainsberger v. Benner, Judge Barrett declined to grant qualified immunity to a detective who “submitted a probable cause affidavit that was riddled with lies and undercut by the omission of exculpatory evidence.” To those familiar with the faulty surveillance warrants issued against Trump campaign associate Carter Page, that description sounds familiar. A justice willing to acknowledge that the process used to obtain warrants is flawed and subject to abuse would be progress. Confirming a justice willing to hold individual government officials accountable for misconduct related to these flawed warrants is a good sign for surveillance and privacy reformers.
Judge Barrett’s ruling in United States v. Terry asked the racy question: “Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence?” Judge Barrett correctly decided that was not a reasonable assumption.
This strong interpretation of Fourth Amendment rights shows promise if applied in the same way to electronic surveillance. Too many government searches are based on flimsy and incomplete evidence. Insisting on strict adherence to the text of the Fourth Amendment and not rewarding the “inferential pileup” that the government so often resorts to could be an important step in reestablishing accountability.
Lastly, in United States v. Watson, Barrett wrote that a district court should have suppressed evidence of a firearm in a felon-in-possession case when the gun itself was discovered based on an unreliable call in a state where having a firearm is legal. This ruling should please privacy advocates on two fronts. First, it gives further evidence that Judge Barrett adheres to a strong interpretation of Fourth Amendment rights for individual citizens. Second, it shows she is willing to give protected activities the weight they deserve. Applied to surveillance cases, such thinking might signal a willingness to give similar weight to activities protected by the First Amendment.
It remains to be seen exactly how a Justice Barrett would apply constitutional principles to surveillance issues, especially electronic surveillance. Privacy advocates must also remember that if she is confirmed, Barrett will still have no direct oversight over the Foreign Intelligence Surveillance Court. Chief Justice John Roberts chooses those judges. There are reasons to hope, however, that a Justice Barrett would rule favorably on the core issues surrounding government surveillance should a relevant case come before the Supreme Court.
On Wednesday, the Senate Judiciary Committee held the latest in a series of hearings on the Crossfire Hurricane investigation, questioning former FBI director Jim Comey. At multiple times in the hearing, Comey testified that the investigation was done “by the book.” Chairman Lindsay Graham responded, “God help us all if this was done by the book. If this is by the book, we need to rewrite the book.”
If we were writing such a book, our first chapter would implement strong presumptions that the FBI wouldn’t be able to ask for expansive surveillance authority from the Foreign Intelligence Surveillance Court (FISC)—where all these mishaps occurred—without the potential for an independent critical review of claims being made before the secret court. The best proposal to correct the imbalance in this process is the bipartisan Lee-Leahy Amendment, which passed the Senate with 77 votes earlier this year. An even broader bipartisan reform effort passed the House with 278 votes, but the two bodies were unable to reconcile their differences.
“Checks and Balances” in the FISA Process
How does the “book” read now? When the FBI wants to surveil a U.S. person for national-security purposes, it prepares an application. Before that application is ever filed with the FISC, the FBI is supposed to go through a rigorous process known as the Woods Procedures to determine its accuracy. As each factual allegation is verified, the process is to be documented in a “Woods” file and then certified by high-level FBI officials. Comey himself signed off on the Carter Page applications that were so central to the early stages of the Crossfire Hurricane investigation. Tellingly, Comey now says that without more thorough vetting, he wouldn’t sign them today knowing what he knows now. The DOJ Inspector General and others have examined the Crossfire Hurricane investigation under a microscope the last year, and through that lens we now see a near-careless indifference to these important verification steps. Worse still, former FBI lawyer Kevin Clinesmith recently had to plead guilty to intentionally altering material facts submitted in sworn submissions to the court to support a FISA application against Trump campaign associate Carter Page.
In a fast-flung string of questions, Senator Mike Lee (R-UT) got to the heart of the matter with these revelations: "How should [the American people] have any confidence in the FISA process when certifications were provided but the full information wasn’t? When the duty of candor to the court wasn’t met? When no one seems to take accountability for anything, and this entire process is handled in secret, with a malleable standard leaving it almost without accountability? Should the American people have any confidence in the [FISC] or in those government lawyers appearing before it?"
The question answers itself. Make no mistake – the investigation into Crossfire Hurricane revealed something rotten, not just in this particular case, but in the entire Star-Chamber-like process, regardless who might be manipulating it at any given moment. The FBI, the sole body before the FISC in the overwhelming majority of FISA proceedings, has acted with no concern for its duty to uphold the rights of an American citizen. It is time to hold this agency accountable. We need, as Senator Graham emphasized, a series of “checks and balances” to hold the FBI to its word and ensure accuracy in its applications.
The Lee-Leahy Amendment offers significant checks for such applications.
First, it codifies the Woods process, making it an affirmative, statutory duty to verify each fact and present the FISC with a complete account of the verification process itself.
Second, in particularly sensitive investigations, it requires the FISC to appoint a privacy-oriented advocate to independently verify the FISA application’s material assertions unless the FISC issues a finding that it an appointment would not be appropriate. This is the key point of the amendment. The one-sided nature of the FISA proceedings are a grave risk to privacy and Fourth Amendment rights, yet in the vast majority of FISA proceedings, the government is alone with the FISC. This fact caused Senator Graham to lament that—during Crossfire Hurricane—no one was advocating for Carter Page, a U.S. citizen who was entirely innocent. As Senator Lee mentioned, this one-sided process is an invitation for abuse—if you “install a wasps’ nest in your child’s bedroom,” you can’t express surprise if the child gets stung. A privacy advocate could find errors in the FISA application and prevent any stings. In cases as riddled with error as Page’s, such an advocate could throw the nest out altogether.
Congress should act now. Comey himself expressed the need for more accountability in the FISA application process while simultaneously saying that the FBI follows the book. If that book allows for the wanton incompetence, dishonesty, and disregard for privacy that so plagued the Crossfire Hurricane investigation, it’s time to make serious changes or throw the book out altogether.
You can watch a full recording of the hearing here.
New information about the Steele dossier highlights the need to create a strong presumption for appointing a privacy-protecting amicus when the FBI seeks permission to surveil U.S. persons in sensitive cases before the Foreign Intelligence Surveillance Court (FISC).
When the Inspector General released his heavily redacted report on the Crossfire Hurricane investigation last year, it revealed that Steele “was not the originating source of any of the factual information” in the Steele dossier and “relied on a primary sub-source” for information. Last week, Attorney General William Barr revealed, for the first time, that “[t]he Primary Sub-source was the subject of an FBI counterintelligence investigation from 2009 to 2011 that assessed his/her documented contacts with suspected Russian intelligence officers.”
That a multi-year investigation into U.S. political actors could be triggered by information from a suspected Russian contact that was not revealed as such to the FISC reveals serious flaws with the procedures before that court. Although the earlier counterintelligence investigation into this suspected contact was dropped when the source “left the United States,” certainly the FISC should have been informed before being asked to take the serious step of allowing the FBI to surveil the political campaign of a candidate opposing the party in power. The antidote to such serious procedural mistakes has already been introduced in Congress and passed the Senate by a wide margin.
Congress should amend the Foreign Intelligence Surveillance Act and implement important changes first suggested by the bipartisan team of Senators Mike Lee and Patrick Leahy. When the government seeks to surveil United States persons, particularly those who are members of a political campaign, as Carter Page was, FISC should appoint someone to factcheck and push back against the government’s surveillance applications.
What else do we know about the Primary Sub-source? His/her ties were extensive enough that the FBI “initiated a request” for a FISA application to surveil him/her in July 2010. The FBI knew, in 2016, about both the prior FISA application and the individual’s Russian ties. In normal times, this knowledge would have given the investigators pause. At the very least, this fact should have caused the FBI to question the Primary Sub-source’s credibility. Instead, the team “interviewed the Primary Sub-source over the course of three sequential days in January 2017,” months after they had already relied on his/her claimed intel in the Steele Dossier to obtain and renew surveillance against Carter page. Perhaps those interviews allayed any concerns they might have had, perhaps not. Either way, the FISC should have been informed of the circumstances and the concerns.
This timeline highlights the need to ensure that the FISC has authority and incentive to appoint an amicus to participate in all such sensitive investigations. As we have urged before, an amicus should be able to review the FBI’s application for accuracy, thereby holding the FBI accountable and ensuring that the privacy rights of any U.S. persons are protected. Nowhere is that point more conspicuous than in the Crossfire Hurricane investigation. If the FISC had appointed an amicus, that amicus could have highlighted the problem with relying on the Steele Dossier whose Primary Sub-source had suspected Russian ties, and the court could have demanded more information or at least earlier FBI follow-up on the Primary Sub-source and his/her claimed information. As the Attorney General recognizes, this information “bears upon the FBI’s knowledge concerning the reliability of the dossier.”
An amicus, presumably, would recognize this concern as well. It is because of issues like this that PPSA has so consistently argued that the Foreign Intelligence Surveillance Act should be amended to more regularly allow—or sometimes even require—amicus participation in the FISA application process.
In a Senate Judiciary Committee hearing on Wednesday, Sen. Mike Lee said that “there is no planet on which … things were okay within the FBI in connection to this investigation.” When the government is allowed to be the only body before the FISC, it faces no accountability when it fails to fully enumerate information weighing against its applications. As a result, American privacy rights suffer. Congress should act swiftly to correct this imbalance and limit the government’s one-sided communications with the FISC.
You can read the Attorney General’s letter to Lindsey Graham, and the summary of the Primary Sub-source investigation it included, here.
In his long career, Daniel Patrick Moynihan both investigated the federal government’s over-reliance on secrecy as a U.S. senator and analyzed its effects on the political health of our nation as a scholar. He came to the memorable conclusion that “secrecy is a form of government regulation.”
It is regulation, however, you will find nowhere in the Federal Register. By hiding government documents from the public, the government can use classification to hide federal rules, programs and outcomes. Derivative classification – the propagation of secrecy from document to document – expands and reinforces this culture of secrecy. Thankfully, an Obama-era rule gives us a tool, Executive Order 13526, to open a window and get a glimpse into this culture. On Dec. 29, 2009, President Obama signed this order to stem government’s mindless tendency toward secrecy.
PPSA is relying on the strength of that executive order today by filing a Freedom of Information Act (FOIA) request to the CIA, FBI, NSA, ODNI, Department of Justice, State Department, and National Archives and Records Administration. We are asking them to simply reveal any references to EO 13526 in their records since its adoption in 2009.
Months before issuing 13526, President Barack Obama wrote:
[M]y administration is committed to operating with an unprecedented level of openness. While the Government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment.
The culture of secrecy is with us despite the clear intent of President Obama’s executive order. In 2009, the U.S. government had almost 55 million classified documents. Five years later, despite EO 13526, there were 77.5 million decisions to classify information. Plus ça change.
But EO 13526 remains in effect. It prohibits classification to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.” It also obligates each agency to create internal procedures to challenge improper classification decisions, with an explicit expectation that such procedures will be used. Since sections of EO 13526 impose affirmative checks on classification decisions, it is reasonable to expect citation of those sections to show up at least occasionally in intelligence community records.
So PPSA is relying on this executive order to ask alphabet intelligence agencies to produce records that mention EO 13526 and its subsections. PPSA notified the agencies we are prepared to pay for the costs of these materials. We’ve also helpfully steered the agencies to the National Declassification Center and other federal offices to expedite their search.
As a result of our FOIA request, we predict one of two things will happen:
There is a third possibility, of course – the agencies have never used secrecy to hide violations of the law, inefficiency, administrative error or embarrassment to a person, organization or agency … if you consider that a real possibility.
In April, the Foreign Intelligence Surveillance Court of Review (FISCR) published an opinion that set the civil liberties community on edge. It addressed whether it had jurisdiction to resolve several First Amendment claims seeking access to opinions of the Foreign Intelligence Surveillance Court (FISC).
FISCR acknowledged that civil liberties groups that brought suit had satisfied two of the three jurisdictional requirements. First, a lack of access to these opinions was unquestionably an injury that could be redressed by a court, making the case actionable and live. Second, the FISC withheld those opinions based on federal law. But FISCR found that the third needed category—that the issue must be authorized by a “jurisdictional statute”—was not satisfied.
Last week, FISC acted on this standard, rejecting requests for opinions regarding bulk data collection. In three cases brought by civil liberties organizations seeking access to unreleased opinions, FISC dismissed each motion for a lack of jurisdiction, notwithstanding the strength of the First Amendment claims of access.
“Orwellian” is a word that gets a lot of use these days, but when a court needs special permission to decide questions about its own internal procedures, that adjective certainly comes to mind. What’s next, a requirement for a specific grant of permission to decide what to order for lunch?
While some other court perhaps could rule on the issue, or not, the public should not have to scurry from court to court begging for basic information on what its government is up to. What can be done? Congress should step in to correct the situation and provide the express authority regarding FISC has held it lacks.
Congress can provide the American people with the means to hold the courts accountable by slightly but explicitly expanding FISC’s—and FISCR’s—jurisdiction to allow it to hear First Amendment right-of-access claims.
Of course, granting FISC jurisdiction to consider these questions would not resolve their merits. But FISC, like every federal court, would be free to determine—in each case—if maintaining the secrecy of its opinions would be the necessary, least-restrictive way of furthering the government’s national security interests.
Unless Congress amends the jurisdictional statutes, FISC and FISCR will be free to continue to dismiss even the most meritorious claims.
So Congress should fix this defect—after, all a right without remedy is no right at all.
PPSA Joins 23 Other Civil Liberties Groups Calling on Congressional Leaders to NOT Slip In Expired FISA Authorities in Intelligence Authorization
PPSA is proud to join 23 other civil liberties organizations including Demand Progress, ACLU, FreedomWorks and NAACP in calling on Congressional leaders to not include controversial, expired FISA authorities (like Section 215) in an Intelligence Authorization, Continuing Resolution of the federal budget or other must-pass legislation.
Despite repeated questioning by Members of Congress and the civil liberties community, the government won’t answer the most basic questions about the legal basis for surveillance and the current scope of its activities. For that reason, PPSA and its peer organizations object to renewing expired surveillance authorities in a backroom deal without debate.
PPSA reported earlier that the bipartisan team of Sens. Mike Lee and Patrick Leahy asked Attorney General Barr and Director of National Intelligence John Ratcliffe if the Executive Branch is relying on secret claims of “inherent executive power” to continue surveillance.
Both senators based this reasonable question on a larger reasonable question: What is the legal foundation for surveillance after the expiration in March of three statutory provisions, including Section 215, the “business records” provision?
These reasonable questions have yet to be answered.
Glimpses of the government’s secret activities flash by every now and then. Several weeks ago, the 9th Circuit Court of Appeals concluded that the National Security Agency’s earlier bulk telephone metadata program was unlawful and likely unconstitutional. The court also determined that government representatives had made untruthful assertions before Congress.
If intelligence and law enforcement agencies refuse to be forthright about the scope and legal predicate of their surveillance, we can only assume the worst about the potential for dragnet surveillance that would trash the Fourth Amendment.
In recent weeks, PPSA has joined other civil liberties organizations in asking the Department of Justice and intelligence agencies about the legal foundation for their surveillance now that Section 215 of the Patriot Act has expired.
In particular, we are concerned about claims from Sen. Richard Burr that the executive branch can take any surveillance action it deems necessary without Congressional approval under Executive Order 12333. This follows a long line of reasoning coming from the agencies going back to the George W. Bush administration that the government has an “inherent” surveillance authority.
With this in mind, PPSA today filed a Freedom of Information Act request with the Privacy and Civil Liberties Oversight Board (PCLOB) asking to reveal guidance materials and communications regarding 12333.