The Legal Fight Against Warrantless Surveillance Is Gaining Steam

At the urging of members of Congress, Director of National Intelligence James Clapper has agreed to reveal, within 30 days, whether or not US intelligence agencies have targeted American citizens. Meanwhile, a Colorado man facing terrorism charges has directly challenged the constitutionality of the NSA's surveillance activities. Combined, both moves are inviting even more scrutiny to the US intelligence community's controversial interpretations of surveillance laws that made programs like PRISM legal in the first place.

In a Senate hearing yesterday, Sen. Ron Wyden (D-Ore.), who has criticized the NSA's activities from the very beginning of the PRISM scandal, pressed Clapper, CIA Director John Brennan, and FBI chief James Comey for more transparency regarding their legal basis for their domestic surveillance activities. According to the Verge, Brennan agreed to answer whether or not the Computer Fraud and Abuse Act, which has generally been used to prosecute hackers, applies to his agency. Comey agreed to explain what burden of proof FBI agents require before using cell tower location data to track suspects.

Reining in surveillance activities will require a legal fight, and credit to Wyden and the other critical members of Congress at the hearing,for those three commitments all promise to shed important light on what rationale critics need to push back against.

Comey laying out the FBI's legal basis for location tracking will be particularly interesting. Since at least the mid-1990s, the FBI has been able to pull cell location data using so-called 'Stingray' technology, which the bureau has argued does not require a warrant. While individual states have banned such warrantless tracking, the FBI has dragged its heels in revealing details about its program, all while continually eroding privacy protections.

But the biggest thing to come from the hearing is Clapper's agreement to discuss whether individual Americans have been targeted by intelligence agencies. Remember, such activities are governed by the Foreign Intelligence Surveillance Act, a counter-espionage law that was updated by the Patriot Act to allow for bulk data collection. At the heart of that ruling is the assertion that data collection be both minimized and focused on international targets.

While we know that the NSA has already been less than truthful about sticking to those rules, an admission that the agency targeted US individuals would be a big legal blow. Warrantlessly targeting US citizens is illegal, and by focusing on individuals, the NSA can't argue that they were accidentally swept up in its massive dragnet, minimization procedures or not.

That's a crucial distinction to make, as the the NSA has already admitted it accidentally sweeps up wholly domestic communications during its collection of millions of records, as explained by a pair of footnotes from a 2011 letter from the intelligence court that rules on FISA matters:

Depending on what he says, Clapper could provide fodder for legal challenges to bulk data collection. According to the ODNI twitter account, which was tweeting his comments live, Clapper feels that more transparency puts the country at risk to attack, but the intelligence community will deal with that reality:

The stark consequences of this perfect storm are plainly evident: the Intel Community is going to have less capacity to protect our nation…

— Office of the DNI (@ODNIgov) January 29, 2014

We are thus faced with the inescapable imperative to accept more risk.

— Office of the DNI (@ODNIgov) January 29, 2014

But, if dealing with reduced capabilities is what is needed to ensure the faith and confidence of the American people…

— Office of the DNI (@ODNIgov) January 29, 2014

…then we in the Intelligence Community will work as hard as we can to meet the expectations before us.

— Office of the DNI (@ODNIgov) January 29, 2014

Therefore, groundbreaking releases from Clapper aren't to be expected. However, a motion filed yesterday by Jamshid Muhtorov, a refugee from Uzbekistan, in federal court may provide the strongest legal assessment of domestic surveillance yet. In the motion, Muhotorov's legal team directly challenges the constitutionality of a key section of FISA in a bid to suppress any evidence obtained from warrantless surveillance.

As the Washington Post explains, Muhtorov was the first person to be notified by the government that evidence gleaned from warrantless surveillance was being used against him at trial. Such surveillance was ruled legal by Section 702 of the 2008 FISA Amendments Act, which legalized domestic snooping on "non-US persons." Muhtorov's team is challenging the constitutionality of Section 702 under the Fourth Amendment.

Considering that federal judges have so far ruled one for and one against the NSA's broad surveillance powers, Muhtorov's challenge could finally force the Supreme Court to reassess its previous ruling in favor of FISA. It's important to note that, considering the NSA and FBI share information regular, a ruling on the FISA Amendments Act would have big ramifications for the intelligence community as a whole.

All told, what does the increased legal scrutiny mean? For one, we're getting closer to direct scrutiny of the NSA's defense of its activities. Previously, the NSA Director Keith Alexander has said that the agency has had "no willful violations" of Section 702, a point that could be proven wrong should Clapper reveal that the intelligence community has targeted domestic citizens.

At the same time, if Muhotorov's motion passes muster, Section 702 could be ruled unconstitutional. And if the standard for spying on "non-US persons" is ruled unconstitutional, the standards for warrantless surveillance of US citizens will similarly become more stringent.

While it's far from direct action, it's a sign that the massive blowback to the US intelligence community's huge surveillance infrastructure is having an effect. During his NSA speech a couple weeks ago, President Obama promised to increase privacy protections governing FISA-guided surveillance activities. Now, it appears the legal landscape is shaping up to force such change.

@derektmead