Laura Donohue’s Comments at Cato Institution’s NSA Law Panel

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Laura Donohue's Comments at Cato Institution's NSA Law Panel

The Cato Institute held a conference, “NSA Surveillance: What We Know; What to Do About It” on October 9, 2013. As part of the Law Panel, here are remarks from Laura Donohue, Professor of Law at Georgetown Law and the Director of Georgetown’s Center on National Security and the Law, gave these remarks.

Cato provides video and audio versions of the panel. We offer this transcription of Professor Donohue’s remarks as an additional resource:

Comments from Professor Laura Donohue from Georgetown Law:

Thank you very much and thank you for the invitation to be here today. It’s a delight to be here and to have an opportunity to engage in conversation. There are three things I would like to suggest, one might say argue, in today’s remarks. First is that the telephony, the bulk collection of America’s telephony metadata is contrary to the entire intent of Congress in enacting the Foreign Intelligence Surveillance Act, second, that it violates the statutory provisions of FISA, and third is that it is unconstitutional.

So on the first point, the Foreign Intelligence Surveillance Act was enacted in 1978 following the Church Committee hearings as a way to respond to broad surveillance programs. It was specifically intended to prevent the NSA and others, who had engaged in a wide number of broad surveillance programs, from actually conducting these types of activities. And the way it did so was by targeting on foreign intelligence, by ensuring that the targets be foreign powers or agents of foreign powers, or involved in international terrorism, by insuring that a probable cause standard be met, that somebody was a foreign power or an agent of a foreign power, and by heightening the protections afforded to U.S. persons, both in the collection and the minimization techniques that followed.

In contrast to this, what we have seen with the bulk collection program is the particularization that is otherwise required by FISA has been really swept away. The protections for U.S. citizens have been diminished. It is all telephony metadata that is now collected, and the Foreign Intelligence Surveillance Court, which was seen as a way of protecting against this kind of activity, their role has fundamentally shifted from what it was envisioned by Congress initially.

Initially FISC’s role was very narrow, and this is part of the justification for not having adversary counsel at the Foreign Intelligence Surveillance Court. Their role was narrowly to grant orders or not, the government having established in their application that the target was a foreign power or an agent of a foreign power or engaged in international terrorism. What we have seen with the orders that have recently been released is that FISC has actually kicked this decision to the NSA. So what we are finding is reasonable articulable suspicion is actually determined by the NSA and not by the court itself. Instead the court grants a general order.

At the same time the court is now issuing memorandum opinions, which was not a role envisioned by it, and we now have found out that those memorandum opinions include carve-outs for the Fourth Amendment, creating within the Special Needs Doctrine an exception that the Supreme Court itself has not recognized, and the Foreign Intelligence Surveillance Court has begun to refer to its own opinions as precedent for granting future orders. And all of this is being done without any adversarial counsel and this has really affected I think in many ways the depth of the constitutional analysis certainly now that the court has been able to do as far as we can tell from the opinions that have been released. So on the first point, the entire orientation of the bulk metadata collection is contrary to the design of FISA.

Now let’s move to the second point, which is the statutory provisions. I think there are three important ways in which the telephony metadata program under Section 215 actually violates the statutory language. First is with regard to this relevant to an authorized investigation, which was just touched upon. First, the word relevant is being interpreted right now to mean everything is relevant to counter terrorism.

So the idea is that all telephone calls are relevant to authorized investigations to find out if there are any terrorist threats. In the same way all email communications would be relevant, in the same way all financial records would be relevant, all banking records would be relevant. Indeed this word and the way that it has been interpreted by the legal authority, by the legal analysts within the intelligence community, if we look at the white paper, if we look at ACLU vs Clapper, and if we look at Judge Eagan’s opinion that recently came out, the way it is being interpreted is so broad as to be really absurd and really nonsensical. There are no limits on that relevant standard.

The connection to an authorized investigation, which was already mentioned, the thing about authorized investigations under the Attorney General guidelines, is that they have to be met prior to the collection of information. And yet they are collecting information that will be relevant to subsequent investigations, the investigations have not yet come into being. The Attorney General guidelines also require that the information to be collected be specific. They are very careful to say at a preliminary stage what is allowed, at a threat assessment stage, preliminary stage, and then at a full investigation what kinds of tools can be used based on the level of concern or suspicion, reasonable suspicion, to the extent of probable cause when warrants can be used that an individual has engaged in criminal activity. And in fact the telephony metadata program does not do this.

The second statutory provision that I want to bring to light is the statute requires that the information obtained from Section 215 be otherwise obtainable through subpoena duces tecum that is actually in the language of the statute itself. And what is remarkable here is that you could not obtain the bulk telephony metadata of all Americans by subpoena, even a Grand Jury subpoena. We could not convene a Grand Jury in Bethesda, Maryland, just to see what is going on in Bethesda, right? That is patently illegal. You cannot use Grand Jury subpoenas for fishing expeditions, which is precisely what this is. Subpoenas are specific. They deal with a particular target or individuals and they relate to past events or past crimes. This program is being used to anticipate potential future threats. That is not how subpoenas are used.

And perhaps most remarkably in the March, 2009 opinion, the Foreign Intelligence Surveillance Court itself recognized that this information could not be obtained via subpoena. So it wrote in its opinion, this is Judge Reggie Walton, wrote in his opinion that this information could not be obtained by any other legal instrument, the only way you could do it was Section 215. And what is remarkable is that is actually acknowledging it is illegal because the statute requires that it be obtainable by other means. And then he goes on to say, but the government swore under oath that it was vital for U.S. national security and that it would police the system.

Now this was a way of addressing that for almost three years the NSA had been submitting identifiers to the database without first ensuring that there was reasonable articulable suspicion to the point where of 18,000 identifiers submitted per day, only 1,800 had reasonable articulable suspicion. So the court was very upset that because they were using authorities that they could not otherwise use, and they had promised that it was very important for U.S. national security by swearing under oath, and they promised to police themselves, but they did not, the court was very upset. This opinion I think is disturbing at many different levels, not least of which is its open acknowledgement that this program violates the statutory language.

The third and final statutory point I would like to bring is that FISA already accounts for pen register and trap and trace. There is an entire subchapter focused on pen registers and trap and trace and what steps have to be met by the government in order to obtain an order to get a pen register and trap and trace. And what this program amounts to is really an end run around the other requirements in the statute that already provide for these authorities.

Okay, so moving to the third area that I would like to address, and that is the constitutional considerations. And here I would like to suggest that this program is unconstitutional. Smith vs Maryland is the case that is most relied on in this instance, and the government relies on it, Judge Eagan relies on it in her August, 2013 opinion. In fact, it is the only Fourth Amendment case that she directly cites aside from FISC’s own precedent, which is redacted in the opinion itself.

Now in Smith vs Maryland, this is a case in which there is a woman up in Baltimore, Patricia McDonough, who was robbed and she described afterwards to the police a description of the man and a 1975 Monte Carlo car that she had seen at the scene. She subsequently got phone calls in her own home from a man who identified himself as the robber. He told her to go out on her front porch, where a 1975 Monte Carlo drove very slowly by the front of the house. Then he said to her very obscene remarks, he made intimidating remarks, threatening remarks. She called the police.

The police saw a 1975 Monte Carlo in the neighborhood, took the license plate, found out who it belonged to, and went to the phone company and said may we place a pen register on the line to find out if he is calling Patricia McDonough. They did. That same day he called Patricia McDonough. They used that to get a warrant. They went to his house and there was the phone book, open to Patricia McDonough’s name, with the tab folded down to her name. Okay, now on the basis of those facts the Supreme Court said you do not have an interest in third party data, in this case that the phone company was able to find out the numbers that you were calling from your phone when this pen register was placed.

The problem with relying on this case is manifold. First of all, this case basically relied on a situation where the police already had reasonable suspicion that an individual was engaged in illegal, threatening and abusive behavior. Second of all, the kind of information that you could obtain at that time was simply the number you were calling. We now have a changed technological circumstance, that from telephony metadata you can find out not just who you are calling and who is calling you, but where you are located from the trunk identifier information.

Forget GPS chips, this is just from the trunk identifier information in these calls. This was before cell phones, so this follows you around wherever you go. They can find out if you are calling a rape crisis line, a suicide hotline, a political party headquarters. They can find out social network analysis, who those important notes are. The technologies and the level of intrusiveness on privacy for what is now possible is dramatically different from what was possible in 1979. And the government would have us all treated as though we were Michael Lee Smith in this case, as though we had engaged in all of these activities and been brought to a level of reasonable suspicion.

The final point I would like to mention with regard to the constitutional considerations is that this is a general warrant. General warrants are prohibited by the constitution. That is why the Fourth Amendment was introduced in the first place. It was because writs of assistance were being used by Prime Minister Pitt in the United Kingdom. He actually wanted to use these to crack down on illegal behavior in the colonies.

And the increasing use of general warrants was sharply contested by Americans, by James Otis in one of the most famous orations. John Adams, who was there, later wrote, “then and there the child Independence was born”. We later had Madison and the construction of the Fourth Amendment to prevent general warrants, which is the ability to collect information at any time on an ongoing basis without any prior suspicion of wrongful activity. This amounts to a general warrant and as such it is odious to the Fourth Amendment.

And so I would conclude by saying that both in terms of the trespass that is involved in this case, the general warrant considerations, and then of course the reasonable expectation of privacy, so regardless of whether you adopt Justice Scalia’s approach in terms of looking at trespass and general warrants, or other justices’ approach in terms of applying reasonable expectation of privacy, as Justice Sotomayor does in Jones in the GPS case, these programs, and particularly the bulk collection of Americans’ metadata, is unconstitutional.

Thank you.

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David John Marotta is the Founder and President of Marotta Wealth Management. He played for the State Department chess team at age 11, graduated from Stanford, taught Computer and Information Science, and still loves math and strategy games. Favorite number: e (2.7182818...)