6 November 2015, FISC: (redacted) (Memorandum Opinion and Order, Order) (PDF)
21 June 2014, NYT: House Votes to Curb N.S.A. Scrutiny of Americans' Communications
Apr 19, 2016
Judge Rejects Challenge to Searches of Emails Gathered Without Warrant
By Charlie Savage
WASHINGTON -- A federal judge has rejected a legal challenge to rules permitting F.B.I. agents, when working on domestic criminal cases, to search emails written by Americans that the government has intercepted without a warrant in the name of gathering foreign intelligence.
In an 80-page opinion [1] that was issued in November and remained classified until being made public [2] on Tuesday, Judge Thomas F. Hogan, the chief judge of the Foreign Intelligence Surveillance Court, ruled that what critics call "backdoor searches" of messages by the F.B.I. comply with both the Constitution and the FISA Amendments Act. That 2008 statute legalized a form of the government's once-secret warrantless surveillance program.
Under the program, which the Bush administration started in 2001 to hunt for terrorists, the government may collect, on domestic soil and without a warrant, international emails and phone calls of noncitizens abroad, even when they communicate with Americans.
Judge Hogan's ruling is notable because some lawmakers want to require government agencies to get a warrant before searching the raw repository of emails for an American's name or email address. Bipartisan majorities in the House have twice [3] passed [4] such a proposal in the last two years, and it is expected to be a central feature of a fight over legislation to renew the FISA Amendments Act, which is set to expire at the end of 2017.
The ruling was also the first time that the intelligence court has reviewed the surveillance program with contributions from an outside "friend of the court," rather than hearing arguments from the government alone. The U.S.A. Freedom Act, enacted by Congress in June, encouraged the appointment of such a person to raise civil liberties concerns in novel or significant cases.
To perform that role, Judge Hogan appointed Amy Jeffress, who was a national security aide to former Attorney General Eric H. Holder Jr. and is now a lawyer at the firm Arnold & Porter. She raised both statutory and constitutional concerns about F.B.I. searches for ordinary criminal cases.
She wrote that this practice went "far beyond the purpose" for which the emails had been gathered under the FISA Amendments Act, which Congress justified as meeting the government's need to acquire "foreign intelligence information."
Judge Hogan disagreed. He noted that Congress also included a provision in the main part of the FISA Amendments Act -- sometimes called Section 702 -- that permits the government to retain information from the warrantless surveillance program if it is "evidence of a crime."
"It would be a strained reading" of the statute, he wrote, "to permit F.B.I. personnel to retain and disseminate Section 702 information constituting evidence of a crime implicating a United States person for law enforcement purposes, but to prohibit them from querying Section 702 data in a matter designed to identify such evidence."
Ms. Jeffress also argued that F.B.I. queries intended to pull up private emails of Americans for ordinary criminal purposes "do not comply" with the Fourth Amendment, which bars unreasonable searches. She noted that agents are permitted to routinely look for emails by Americans that were incidentally collected without a warrant, even when the agents have only vague suspicions about someone and lack sufficient evidence to get a wiretap warrant.
Judge Hogan disagreed with that argument as well. He cited several rationales for permitting such queries, including the idea that a search for criminal evidence might bring up information that also proved useful for national security purposes.
The judge wrote that the Justice Department had told him that F.B.I. queries intended to bring up messages that might be evidence of ordinary crimes "rarely, if ever" return useful information, so "the court is not prepared to find a constitutional deficiency based upon a hypothetical problem."
However, he ordered the government to begin reporting to the court every time an F.B.I. agent working on an ordinary criminal matter searched the database for an American suspect's private messages and ended up reading some of them.
Judge Hogan also approved several modifications to the rules for the program that the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, had suggested after reviewing the program. [5]
They include requiring officials who search for Americans' emails for a national security purpose -- including analysts at the National Security Agency and the Central Intelligence Agency -- to document in writing why they believed they were likely to find information related to foreign intelligence. (Ms. Jeffress did not quarrel with permitting searches of Americans' emails for that purpose.)
A separate part of the judge's opinion, which was heavily redacted in places, scolded the N.S.A. and the F.B.I. for instances in which they violated court-imposed rules for the program. The violations appeared to involve a failure to purge cellphone calls collected without a warrant after a foreign target had "roamed" onto domestic soil, as well as a failure to set up special teams to review the communications of foreign targets who had been indicted, in order to screen out any information protected by attorney-client privilege.
But while Judge Hogan wrote that he was "surprised" and "extremely concerned" about the problems -- which the government said it was fixing -- he said they were not a reason for him to withhold approval of the program for another year.
In another previously classified opinion made public Tuesday, Judge Hogan, in a ruling issued late last year, approved the first querying of a newly created system for analyzing links between callers in search of hidden associates of a suspect in a national security case.
That new system, which was also established by the U.S.A. Freedom Act, searches bulk data held by the telephone companies. It replaced a once-secret program in which the N.S.A. had systematically collected Americans' domestic calling records in bulk.
[1] https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf
[2] http://icontherecord.tumblr.com/post/143070924983/release-of-three-opinions-issued-by-the-foreign