Margulies, Peter

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Madison at Fort Meade: Checks, Balances, and the NSA

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship5-10-2016Madison at Fort Meade: Checks, Balances, and theNSAPeter MarguliesRoger Williams University School of LawFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Fourth Amendment Commons, and the National Security Law CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, Madison at Fort Meade: Checks, Balances, and the NSA, Lawfare (May 10, 2016, 12:45 PM),https://www.lawfareblog.com/madison-fort-meade-checks-balances-and-nsaSURVEILLANCEMadison at Fort Meade: Checks, Balances, and the NSABy Peter Margulies  Tuesday, May 10, 2016, 12:45 PMWhen a group of civil society representatives and academics gathered at the NSA this past Thursday, it became clear—to me at least—thatthe NSA has taken the teachings of James Madison very much to heart. Of course, I’d be surprised if code-breakers and computer mavens areactually spending their days parsing Federalist No. 51. But the thoughtful and engaged discourse of NSA of½cials exempli½ed a renewedcommitment to Madison’s wisdom that the best security against concentration of powers in one branch of government resides in giving eachbranch the “necessary constitutional means … to resist encroachments of the others.” Ironically, a more insular approach to queries of datacollected under national security authorities persists at the FBI, which has far more daily interaction with U.S. courts.Exhibit A of the NSA’s commitment to Madisonian principles was the clear respect agency of½cials had for the advocacy of ForeignIntelligence Surveillance Court (FISC) amicus curiae Amy Jeffress. Jeffress participated in the proceeding that yielded the recently releasedNovember 2015 FISC opinion upholding the constitutionality of § 702 of the FISA Amendments Act (FAA). My own extrapolation from thenod to Jeffress’s efforts is that Congress, as it considers reauthorization of the FAA in 2017, should provide an even more robust role for apublic advocate (see Steve’s article here and Marty and Steve’s post here).The widespread view emerging from Thursday’s civil society meeting was that the presentation of opposing viewpoints in court leads tobetter-reasoned judicial opinions. This is hardly a revolutionary view—indeed, it is fundamental to the virtue of deliberation that Hamiltonattributed to judicial review in Federalist No. 78. But historically, the FISC has proceeded almost exclusively in ex parte proceedings, with thegovernment making its case and the FISC sometimes asking the government for more information and sometimes agreeing with thegovernment’s initial application. As a result, FISC opinions from the pre-Snowden era addressing the legality of surveillance programs wereoften conclusory, with relatively little in-depth analysis or consideration of opposing positions.Critics of surveillance practice have long argued that the thin analysis in FISC opinions paved the way for broad readings of legal authorities,such as the Court’s approval of the Section 215 domestic metadata program. This is not to reopen the question of Section 215’s legality,which I have previously defended here. As Lawfare readers are aware, the USA Freedom Act (see Bart Forsyth’s analysis here) transferredmetadata collection to private telecommunications carriers, addressing many—but not all—of the critics’ concerns. The critics’ proceduralpoint, however, is that the FISC’s dependence on ex parte proceedings makes such broad readings more likely.Judge Hogan’s November 2015 FISC opinion upholding Section 702 is more comprehensive in its analysis. Judge Hogan started with thebasics: In enacting 702, Congress barred the targeting under the statute of U.S. citizens, lawful residents (LPRs), and other personsphysically located in the United States, all of whom are protected by the Fourth Amendment. Congress only permitted the collection ofcommunications in which the target was a non-U.S. citizen or non-LPR reasonably believed to be located outside the United States.In ½nding that Section 702 complies with the Fourth Amendment, Judge Hogan cited several limits that the NSA has imposed on how it usesU.S. person data that is incidentally collected under this provision. For example, the NSA does not query U.S. person data collectedupstream, directly from Internet hubs, since that dataset is more likely to contain U.S. person information than is downstream collection(which is done by private carriers or Internet Service Providers pursuant to speci½c requests from the NSA). Moreover, government agenciesonly query the downstream Section 702 dataset for foreign intelligence information or evidence of a crime.As the recent 2015 transparency report from NSA demonstrates, the authority is used sparingly: in 2015, the NSA used fewer than 5,000 U.S.person search terms to query the content of unminimized Section 702 communications (although pursuant to statute we don’t know thenumber of FBI queries). In addition, the government will only introduce Section 702 evidence in a prosecution for an offense involvingnational security or a limited number of serious crimes. Moreover, as Judge Hogan noted, FBI queries unrelated to crimes involving foreignintelligence “rarely, if ever” yielded positive results. The requirement that virtually all FBI  queries that result in access to Section 702 databe recorded as such curbs the risk that FBI analysts would pose queries for reasons unrelated to statutory criteria (such as ethnicity, religion,or political opinion).That said, Judge Hogan’s analysis of FBI querying procedure was insuf½ciently rigorous on three points. In each area, the FBI has fewersafeguards than the NSA. First, unlike the NSA, the FBI does not maintain a separate database for Section 702 data. According to the 2014Section 702 report by the Privacy and Civil Liberties Oversight Board (PCLOB), the FBI tags Section 702 data electronically, but includes thisdata in a broader database that also includes purely domestic data collected by the FBI pursuant to court orders or other legal authorities.Aggregating databases in this way makes it far more dif½cult to monitor who has access to the 702 data.The FBI’s practice of aggregating databases sets up two further problems not suf½ciently addressed in Judge Hogan’s opinion. Because theFBI aggregates Section 702 data and data collected under other authorities, it is currently not practicable to require FBI personnel to providea written justi½cation for Section 702 queries. (Hogan opinion, p. 28) This is problematic if one wishes to curb undiscerning orindiscriminate queries of the Section 702 database. (The PCLOB urged in its Section 702 report that the NSA (but not the FBI) provide suchjusti½cations, and Judge Hogan’s opinion con½rms that both the NSA and the CIA have adopted the PBLOB’s recommendation.)  Finally, the FBI uses a counterintuitive de½nition of the term, “query,” that excludes requests for unminimized Section 702 data made by FBIpersonnel not cleared for access to this data (probably because the restricted FBI employee, who may be a ½eld agent outside of Washington,lacks the requisite training). In such cases, the FBI employee receives notice that the search has triggered a positive “hit” in Section 702data, but a search ½lter bars access to the data itself. The restricted FBI employee can only gain access under the following conditions: 1)authorization of another FBI employee cleared for access, based on either, 2a) a reasonable probability that the data concerns foreignintelligence information or is evidence of a crime, or, 2b) the restricted employee’s help in determining the data’s compliance with 2a’scriteria.This counterintuitive de½nition gives the FBI too much latitude in declining to document searches of Section 702 data. My concern here isnot with FBI access to Section 702 data, per se—I agree that to ef½ciently “connect the dots” on terrorist plots, the FBI should have access tothis information without prior judicial authorization. Requiring a court order as a condition for such access would unduly burden lawenforcement. My principal concern is with properly documenting such access, since diligent documentation will in itself limit indiscriminatesearches. That’s where the FBI’s current practice falls short.It may overstate the case to assert, as Liza Goitein does here, that the FBI’s counterintuitive de½nition of Section 702 queries masks asubstantial loophole in querying procedure. Judge Hogan credited the government’s assurance that such situations are “very rare.”Nevertheless, the failure to clearly label a search by a restricted FBI employee as a query undermines transparency under Section 702. Whilesecrecy is both inevitable and necessary in gathering foreign intelligence, a hard-won lesson learned in the wake of the Snowden disclosuresis that lack of transparency reduces the perceived legitimacy of intelligence collection programs. To minimize this negative perception, theFISC should require more transparency in the FBI’s documenting of queries (and Congress should mandate it in the 2017 reauthorization).These concerns, while they should have prompted further analysis by Judge Hogan, are too minor and ministerial to call into question thecourt’s holding that Section 702 is consistent with the Fourth Amendment. (District judges in the Second and Ninth Circuits have reachedsimilar conclusions—see here and here.) Tellingly, these points also do not address the NSA. The NSA’s querying protocol is more preciseand exacting than the FBI’s. While both the FISC and Congress should ensure that the FBI is subject to comparable procedures, that issuedoes not diminish Judge Hogan’s diligence in addressing the NSA’s safeguards.Even in the absence of an amicus making opposing arguments, Judge Hogan may well have engaged in the comprehensive analysis of NSAsafeguards that distinguishes his opinion. However, it seems logical to infer that the cogency and diligence of Jeffress’s advocacy encouragedcareful analysis from the court. That careful analysis, as well as the prospect of future amicus input, in turn may restrain future governmentrequests for unduly broad readings of statutory collection authority. Hamilton, in Federalist No. 78, posited that judicial review would havethis salutary ex ante effect. Of course, review should also not be unduly intrusive; for an insightful analysis of how oversight can strike thisbalance, see Privacy and Civil Liberties Oversight Board PCLOB member Rachel Brand’s post here.When Congress takes up reauthorization of the FAA in 2017, expansion of the amicus authority in the USA Freedom Act into a full-¾edgedpublic advocate should be a cardinal topic of legislative deliberations. Notably, no one at Thursday’s civil society conclave even remotelysuggested that the involvement of a distinguished lawyer like Jeffress would risk disclosure of sensitive national security data. Similarly, afull-time public advocate, chosen from lawyers of a comparable pedigree, would pose no threat on this score. Moreover, the establishment ofa full-time public advocate would promote public con½dence in the resiliency of the NSA’s internal constraints; any slippage in thosesafeguards would soon become known to the advocate, and then to the FISC and Congress. A public advocate might also exert a healthyin¾uence on the FBI’s query procedures, which require tweaking.While the intelligence community might have to make minor adjustments, a diligent public advocate would not sti¾e the enterprise andingenuity that we expect these agencies to show in “the common defence.” A public advocate could assist Congress, the courts, and civilsociety in fashioning a conception of privacy that minimizes gratuitous or invidious intrusions while promoting both individual and generalwelfare. (See Susan Hennessey’s post here.) Thursday’s gathering suggested that working within a framework of rules to accomplish this goalis integral to the NSA’s mission. A public advocate would make these rules function more effectively.Madison and Hamilton would not be surprised.Topics: SurveillanceTags: Section 702Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

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Madison at Fort Meade: Checks, Balances, and the NSA

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