Section 702 and the collection of international telephone and Internet content.

• Author: Donohue, Laura K.
• Position: Foreign Intelligence Surveillance Act Amendments Act of 2008 - III. Foreign Intelligence and the Fourth Amendment C. Foreign Intelligence, Criminal Prosecution through IV. Conclusion, with footnotes, p. 237-265

3. Foreign Intelligence, Criminal Prosecution

   If one accepts that the contours of the warrant requirement in foreign intelligence gathering are subject to countervailing pressure from separation of powers doctrine, it does not necessarily follow that the use of the same information for criminal law purposes, without insertion of a warrant procedure at any point, is constitutionally sufficient. Courts have repeatedly emphasized the importance of drawing a line between the two spheres. FISCR pushed the line furthest, saying that even where the primary purpose was criminal in nature, the information could be obtained as long as there was a foreign intelligence aspect.

   Whatever one may say about the constitutionality of different aspects of the program underway, (490) there is at least one point where the current practice of the Administration runs well over acceptable limits: query of Section 702 data using U.S. persons' information for purposes of criminal prosecution.

   As mentioned, the FBI comingles traditional FISA and Section 702 data and routinely queries it, using U.S. person identifiers, as part of criminal investigations. Yet none of the justifications offered for exempting collection from the warrant requirement apply when ordinary criminal investigations are on the line. FISCR embraced three reasons to carve out a foreign intelligence exception: when (a) the purpose of surveillance went beyond "garden-variety" law enforcement; (b) the government's interest was "particularly intense"; and (c) there was a "high degree of probability that requiring a warrant would hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake." (491) None of these rationales are present in the subsequent query of databases constructed of Section 702 data.

   Nor are the practical concerns that limit the warrant clause's applicability in overseas foreign intelligence collection present. In Bin Laden, S.D.N.Y. highlighted the intricacies of foreign intelligence acquisition, the difficulty of predicting the international impact of seeking a warrant, the problem of foreign intelligence officials being seen as complicit, and the danger of notifying enemies by alerting foreign officials to U.S. actions. (492) But in the query of data already in U.S. government hands, none of the foreign affairs consequences the court contemplated still hold.

   It does not necessarily follow that, just because the information has been lawfully obtained, the government has the authority to search the data. Two contexts are relevant to Section 702 analysis: (a) situations in which information has been lawfully seized, but where limits may apply on searches, and (b) situations in which information may be fed into a database and retained, with subsequent use of the database limited in some way. Nearly two decades ago, scholars argued that a use restriction could be found in the Fourth Amendment. Critiques of this position fail to take account of the Court's more recent jurisprudence, which recognizes a privacy interest in digital information and creates the potential for constitutional restrictions on use.

   1. Lawful Seizure and Subsequent Search of Data

      The Fourth Amendment allows for line drawing between obtaining and searching information and further query of the data. One of the most recent cases illustrating this point is United States v. Ganias, a Second Circuit case involving search of information copied from a hard drive, two years after it was obtained, for purposes other than that for which it was initially seized. (493) The court held unconstitutional the retention and further search of the data, despite the fact that law enforcement had returned to a judge to obtain a warrant for the later search. (494) In Riley v. California, the Supreme Court addressed a similar situation in the context of a search incident to arrest, finding that even where a cell phone has been legally seized, subsequent query of the device requires judicial intervention. (495) While other cases further support the point, brief discussion of Ganias and Riley helps to illustrate the Fourth Amendment principle as relevant to the digital realm. (496)

      In the first case, an accountant, Steve Ganias, provided services to a company that the Army hired to maintain a vacant Army facility in Stratford, Connecticut. (497) A confidential informant advised the Army that evidence of illegal activity was located on Ganias' hard drive. Investigators obtained a warrant to search and seize "[a]ll books, records, documents, materials, computer hardware and software and computer associated data relating to the business" in question. (498) Although Ganias was not a suspect, Army computer specialists copied all of the information located on his hard drives. (499) Just over a year later, the Army and the IRS isolated the relevant files but decided to retain the (irrelevant) information as well. The government argued that the data had become their property. As the government expanded its investigation, it began to consider the possibility that Ganias was also involved in illegal activity. Three years after having copied the hard drive, the IRS, suspecting Ganias of lying on his taxes, obtained another warrant to search the data. Convicted of tax evasion, Ganias unsuccessfully moved to suppress this evidence. (500)

      On appeal, the Second Circuit vacated Ganias's conviction on Fourth Amendment grounds. The Court noted that "[l]ike 18th Century 'papers,' computer files may contain intimate details regarding an individual's thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion." (501) Off-site review, while necessary, must still be subject to the rule of reasonableness. But the same reasons that make offsite review necessary (for example, storage capacity of media, difficulties created by encryption, and computer lab workload), do not "provide an 'independent basis' for retaining any electronic data" beyond that specified in the initial warrant. (502)

      In June 2014, the Supreme Court issued an opinion in another case that similarly supports a Fourth Amendment use restriction on lawfully obtained information. In Riley v. California, (503) the Court held that law enforcement may not, without a warrant, search information on a cell phone that had been seized from an individual at the time of arrest. Police officers, scrolling through the suspect's address book, had found letters indicating gang membership next to a number of names. Further examination of the mobile device revealed photographs and videos tying the suspect to gang activity. The government subsequently introduced this information as evidence in connection with a shooting.

      In a unanimous decision, the Supreme Court held that the search of digital data in the course of arrest fell outside the warrant exception. (504) While the police could seize the telephone, they could not simply scroll through the information without first obtaining a warrant. (505)

      While the case derives from criminal law and not foreign intelligence law, it is significant for analysis of Section 702 because it recognized a privacy interest in the digital data (a privacy interest protected by the Fourth Amendment), and a distinction between search of such information and the seizure of the data in the first place. A critical question, of course, is whether the activity in question, undertaken consistent with Section 702, amounts to a search in the first place. In Riley, the Court reserved whether "the collection or inspection of aggregated digital information amounts to a search under other circumstances." 506 Setting aside for the moment arguments about whether the collection of certain types of information qualifies as a search, it is difficult to deny that the query of a database comprised of nonpublicly-available information (obtained without the targets' consent), to try to find evidence of criminal activity, constitutes a search in the most basic sense of the term. Even though the government might have legally obtained the information at the front end, it could not search the information for evidence of criminal activity absent a warrant, supported by probable cause.

   2. Database Construction

      There are a number of cases related to identification of individuals arrested for felonies, in which Fourth Amendment challenges to the search and seizure, and retention of information in databases that can subsequently be searched without a warrant, have failed. (507) In Maryland v. King, for instance, the Supreme Court ascertained that when law enforcement performs a felony arrest, supported by probable cause, obtaining DNA material is reasonable for Fourth Amendment purposes. (508) For the Court, detainees have "a reduced expectation of privacy." (509)

      There are two problems with drawing parallels between the DNA database cases and NSA use of Section 702 to cache and subsequently search communications.

      First, it is to the individual whose information is being collected--not to the purpose of the collection--that the Court gives priority. Suspects in felony cases and convicted criminals obtain a lower level of protection than others. This is the same rationale under which, in part, the Court found the exception for search incident to arrest to be acceptable: it is not just the context of a volatile arrest, but also "an arrestee's reduced privacy interests upon being taken into police custody." (510) The Supreme Court has repeatedly embraced Judge Cardozo's account of the historical underpinnings for the exception: "Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion." (511)

      Allowing for a similar search of U.S. persons' international communications treats them as though they have a reduced...