Electronic Communications Privacy in the United States

Acquisition of the Communications of U.S. Persons Authorized and the Fourth Amendment

According to a Brief from the Government:

Where the warrant requirement is inapplicable, a search will comply with the Fourth Amendment so long as it is reasonable. See United States v. Knights, 534 U.S. 112, 118 (200 1).

The acquisition at issue here easily satisfies this constitutional requirement, even though it will
entail the collection of communications in which U.S. persons have a reasonable expectation of privacy. Reasonableness under the Fourth Amendment must be evaluated under “the totality of
the circumstances,” considering “on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” See Knights, 534 U.S. at 118~19. Applying this test, the acquisition authorized by the directives mut be upheld.

As the Supreme Court has recognized, “It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” See Haig; v. Agee, 453 U.S. 280, 307 (1981). With respect to U.S. persons whose communications are targeted or incidentally acquired, Congress and the Executive Branch have acted in concert to develop a framework with specific procedures and safeguards to ensure that acquisitions under the directives implicate the privacy of such U.S. persons only in a manner that is both targeted and minimal. See 50 U.S.C. § 1805B(a). When these extensive safeguards are considered in light of the overriding importance of the Government’s interest, the acquisitions are manifestly reasonable under the Constitution.

First, before a directive may be issued, the Protect America Act requires the Government
to adopt reasonable procedures for determining that the target of an acquisition under the Act is reasonably believed to be located outside the United States. See 50 U.S. C. § 1805B(a)(l ). This
Court recently reviewed and upheld certain targeting procedures the Government uses under the Protect America Act. These targeting procedures, moreover, contain specific provisions designed to ensure that the privacy interests of U.S. persons are properly safeguarded. for example, the procedures require the prompt reporting of any incident of non-compliance to the Department of Justice.

The Protect America Act also mandates that the Attorney General and Director of National Intelligence certify that a significant purpose of the acquisition is to acquire foreign intelligence information and that the acquisition involves obtaining such information with the assistance of a service provider.  All of these requirements significantly constrain the scope of the collection
under the directives and help ensure that the collection is carefully targeted to obtain foreign
intelligence information in a reasonable manner.
Second, the Government must comply with section 2.5 of Executive Order 12333 before
U.S. persons abroad may become targets of an acquisition. This provision requires the Attorney
General to aetermine that “there is probable cause to believe that the [surveillance] technique is directed against a foreign power or an agent of a foreign power.” See Executive Order 12333
§ 2.5; In approving foreign intelligence surveillance, courts have repeatedly looked to the Attorney General’s determination under section 2. 5 as an important factor in assessing the reasonableness of the surveillance. See In reSealed Case, 310 F.3d at 746; Bin Laden, 126 F. Supp. 2d at 279 & .18.
The incidental collection of communications of U.S. persons who are communicating
with foreign intelligence targets abroad pursuant to the directives is also consistent with the
Fourth Amendment. The lawful authority to conduct surveillance of one individual obviously
includes the authority to collect that individual’s communications with others. Accordingly,
courts have routinely held that the incidental collection of third-party communications in the
course of an othetwise lawful search does not render the search unreasonable. See. e.g., United States v. Figueroa. 757 F.2d 466, 472-73 (2d Cir. 1985) (“the mere fact that Title Ill
allows interception of conversations of’ others as yet unknown’ does not render the statute unconstitutional”); United States v. Tortorello, 480 F.2d 764, 77 5 (2d Cir. 1973) (holding that once the relevant authority for the search has been established as to one participant, the statements of other, incidental “participants may be intercepted if pertinent to the investigation”); see also United States v. Kahn, 415 U.S. 143, 157 (1974) (interception of wife’s
communications incident to lawful wiretap of home phone targeting husband’s communications did not violate the Fourth Amendment); Bin Laden, 126 F. Supp. 2d at 280 (“The Government properly asserts that in the Title III context, incidental interception of a person’s conversations during an otherwise lawful surveillance is not violative
of the Fourth Amendment.”).

This principle applies equally in the foreign intelligence context. See United States v. Butenko, 494 F.2d 593, 608 (3d Cir. 1974) (“To be sure, in the course of such wiretapping[,] conversations of alien officials and agents, and perhaps of American citizens, will be overheard and, to that extent, their privacy infringed. But the Fourth Amendment proscribes only ‘unreasonable’ searches and seizures.”); United States v. Brown, 484 F .2d 41 8, 425 (5th Cir. 1973) (recording by
“happenstance” of a U.S. person’s communications pursuant to a lawful, Wl).rrantless wiretap
authorized by the Attorney General for foreign intelligence purposes does not violate the Fourth Amendment); United States v. Clay, 430 F.2d 165, 170-72 (5th Cir. 1970), rev’d on other
grounds, 403 U.S. 698 (1971) (same); Bin Laden, 126 F. Supp. 2d at 281 (“acknowledg[ing] that
the combination ofVerdugo-Urquidez and the incidental interception cases [cited above] would
permit the surveillance if the Government had not been aware of [the U.S. person’s] identity or
of his complicity in the enterprise”).

For both categories of U.S. person communications, the minimization procedures the
Government employs pursuant to the Protect America Act further supports the reasonableness of the acquisition. See 50 U.S.C. § 1805B(a)(5). These procedures must meet the statutory
definition in FISA. Thus, they must be reasonably designed in light of the purpose and technique
of the particular surveillance to minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning unconsenting U.S. persons
consistent with the need of the United States to obtain, produce, and disseminate foreign ·
intelligence information. See id.; 50 U.S.C. § 1801(h). These minimization procedures, which contain (…) generally require, among other things, the deletion of U.S. person identities from intelligence reports based on foreign communications prior to dissemination except when the information constitutes foreign intelligence information, is necessary to understand foreign intelligence information, or is evidence of a crime. Courts have relied on sucb procedures in evaluating the reasonableness of surveillance. See 1n reSealed Case, 310 F.3d at 740. lndeed, this Court, in its opinion upholding the targeting procedures used by the Government under the Protect America Act, emphasized that when the Government incidentally acquires U.S. person information pursuant to the Protect America Act, such information “will be afforded the protection of FlSA minimization procedures.”  In combination with the numerous other steps the Government must follow before it acquires the communications of U.S. persons (incidentally or otherwise), these minimization procedures ensure that the Government’s acquisition of such persons’ communications is reasonable under the Fourth Amendment.

The· Government has used procedures to protect the privacy interests of U.S. persons in communications acquired in foreign intelligence surveillance programs for decades. As noted, foreign intelligence surveillance necessarily captures a significant amount of communications of U.S. persons, and the Executive Branch-with the knowledge and acquiescence of Congress-has relied on minimization procedures to help establish the constitutional reasonableness of the surveillance. This long-standing governmental practice further indicates that the minimization procedures the Government uses here ensure that the acquisition under the directives is reasonable. Cf. Camara v. Municipal Ct. of City and City of San Francisco, 387 U.S. 523, 537 (1967) (explaining that among the “persuasive factors” supporting the reasonableness of administrative inspections is a “long history of judicial and public acceptance”).

If the Foreign Intelligence Surveillance Court were to determine that these procedures are insufficient to render reasonable the collection of communications of U.S. persons under the PAC legislation, its decision could thus also raise serious questions about the Government’s decades-long collection of communications for foreign intelligence purposes that does not fall within the ambit of the Foreign Intelligence Surveillance Act (FISA).

Resources

See Also

• Foreign Intelligence Surveillance
• Intelligence Components Activities
• Electronic Communications
• Warshak v. United States
• FISA Amendments Act
• Foreign Intelligence Surveillance Court of Review