Does the Fourth Amendment regulate the NSA’s analysis of call records? The FISC might have ruled it does.
posted by Babak Siavoshy
A striking (and underreported) feature of the NSA’s recently-revealed surveillance programs is the government’s claim that there is judicial oversight of the analysis and querying of telephony metadata acquired under the program. As Orin Kerr pointed out last week, the DNI’s statement about the NSA programs states that a court-imposed reasonable suspicion standard governs government “queries” into call records collected from Verizon and other providers:
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. [My emphasis.]
This judicially enforced standard—which some commentators appear to have overlooked—could, in theory, impose practical limitations on the government’s access to private information from call records collected by the NSA. The DNI’s description suggests that before government agents can query those records, they must comply with a court-imposed standard that requires specific facts reasonably tying the query to data associated with a foreign terrorist organizations. I’m speculating on the specifics of the standard here; the language is ambiguous, including [as discussed in the comments to this post] as to whether the FISC approves queries ex ante or reviews them ex post, if at all.
Details aside, the statement suggests that while the collection of telephony metadata is indiscriminate, its analysis is circumscribed and is overseen by the FISC. Indeed, the reasonable suspicion standard described by the DNI is the same legal standard used to limit law enforcement discretion in other contexts.
That is not to say that a “downstream” reasonable suspicion standard is, by itself, sufficient to protect legitimate privacy interests. It may not be; and whether it is may depend on a variety of facts we don’t know, including how “queries” are constructed, the specific application of the reasonable suspicion standard in this context, and the FISC’s process in overseeing queries. Still, commentators writing about the NSA programs should not leave out this crucial feature, which suggests the NSA’s surveillance of telephony metadata is something less than indiscriminate.
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Assuming the DNI’s statement is correct, what is the basis for the FISC regulating downstream queries into telephony metadata? One possibility is that the downstream restrictions were imposed as an application of the ‘reasonable grounds’ and ‘minimization’ requirements of 50 USC 1861. But those provisions, on their face, do not seem to require a court to impose a separate reasonable suspicion standard for processing evidence after it is collected and stored by the government.
Another possibility, based on the little information we have, is that the FISC imposed additional downstream restrictions as an application of the Fourth Amendment–perhaps in conjunction with FISA’s minimization requirements. Such an application of the Fourth Amendment would be novel, and would have broad-ranging implications for the regulation of government investigations, which increasingly consists in the analysis and “mining” of large stores of data. It would not, however, be implausible.
To be sure, applying the Fourth Amendment to the downstream analysis of telephony metadata would be a departure from the Supreme Court’s third party doctrine cases–particularly Smith v. Maryland, which held that call records receive no Fourth Amendment protection. Under prevailing understandings, once a person’s telephone records are “exposed” (here, to the third party telephone providers) and collected (here, by the NSA) the subsequent manipulation or analysis of those records would not be subject to the Fourth Amendment.
But the unique circumstances in this case might well have led the FISC to apply a different balance than in traditional law enforcement contexts. These unique circumstances include the massive, ongoing scale of the government’s information collection, the revealing nature of today’s telephony metadata as compared to the call records at issue in the Supreme Court’s previous decisions, and the heightened national security concerns in terrorism investigations. Put together, these circumstances may plausibly lead a court to reach the type of compromise position the FISC appears to have reached here: allowing the government to collect telephony metadata, but restricting the way that data is subsequently analyzed and accessed.
Indeed, legal scholars (starting with Harold Krent’s 1995 piece on the subject) have long argued that Fourth Amendment protections should, where necessary, extend to post-collection manipulation or analysis of evidence; i.e., that the Fourth Amendment can impose “use restrictions.” Arguments along these and similar lines have gained additional traction of late, likely due to the increasing practice of government agencies aggregating and storing evidence in massive databanks for later analysis. (See, for instance, this paper from CoOp’s Danielle Citron, co-authored with David Gray, and this working paper from Peter Swire and Erin Murphy. I also workshopped a short paper on this issue at this year’s PLSC, which I am happy to share with interested CoOp readers. Feel free to add additional relevant references in the comments).
These arguments are novel, but they are not purely academic. The Supreme Court’s seminal Fourth Amendment cases—from Katz, Kyllo and Jones, to Walter v. United States, United States v. Jacobsen, and the Court’s special needs cases—provide a plausible foundation for extending Fourth Amendment protections past the point of collection, to the downstream analysis and processing of evidence, where necessary to protect Fourth Amendment interests. There is even support for this expansion of Fourth Amendment principles in two of the Court’s recent less-than-privacy-friendly decisions: Aclu v. Clapper and Maryland v. King. I hope to discuss these cases, along with other Supreme Court authority that might support the FISC’s application of a reasonable suspicion standard to the analysis of telephony metadata, in more detail in a later post.
[UPDATE: Added a reference to the applicability of 50 USC 1861.]
[UPDATE: Based on comments below, modified discussion of standard to account for ambiguity in Director Clapper's statement].