Last month, the Foreign Intelligence Surveillance Court (FISC) issued an order granting a Federal Bureau of Investigation (FBI) application requesting permission to continue the National Security Agency’s (NSA) controversial telephone call detail records bulk collection program.
The court referenced The Honorable Claire V. Eagan’s primary order and amended memorandum opinion from July 19 and August 29, respectively. Specifically, FISC stated that, under the most recent FBI application, the information sought and the terms upon which call orders were to be produced would be identical in scope and nature, and obtained for the same purpose as the records obtained under Judge Eagan’s earlier order.
The Foreign Intelligence Surveillance Act (FISA) Court wholly agreed with and adopted Judge Eagan’s analysis granting the earlier application. However, FISC wrote separately in its October 11 opinion to address the key issues of “relevance” under Section 215 of the USA PATRIOT Act and the applicability of the Fourth Amendment.
For the purposes of this post, I am going to restrict the discussion to the Court’s Section 215 analysis. But, tomorrow I plan on taking a look at the Fourth Amendment portion of the opinion.
“RELEVANCE” UNDER SECTION 215
As Judge Eagan articulated in the earlier opinion, Section 215 of the PATRIOT Act, which is codified as a part of the Foreign Intelligence Surveillance Act (FISA), enforces certain restrictions on the government’s ability to collect United States citizens’ (USC) information. Those restrictions include:
- Investigations must be conducted in order to obtain foreign intelligence information to [in this case] protect against international terrorism,
- Any investigation of USCs may not be ‘conducted solely upon the basis of activities protected by the First Amendment to the Constitution’ (freedom of speech),
- The investigation must be ‘conducted under guidelines approved by the attorney general under Executive Order 12333[,]’
- There must be ‘a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant’ (emphasis added) to the investigation,
- There must be adequate minimization procedures ‘applicable to the retention and dissemination’ of the information requested, and
- Only the production of such information that could be ‘obtained with a subpoena duces tecum’ (one calling for the production of evidence,) or ‘any other order issued by a court of the United States directing the production of records’ may be ordered.
Judge Eagan’s opinion focused in large part on the proper construction of the term “relevance,” as it was left undefined by Congress. To properly define the term, Judge Eagan’s opinion draws a comparison between Section 215 and 18 U.S.C. §2703, which is part of the Stored Communications Act.
For the government to obtain a court order permitting the collection of non-content records, Section 2703(d) requires that the government offer “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records or other information sought are relevant and material to an ongoing criminal investigation.”
On the other hand, Section 215, which is the comparable provision for intelligence purposes, does not require “specific and articulable facts,” nor does it require the information to be “material.” Rather, Judge Eagan noted, the provision only requires reasonable grounds to believe the records sought are relevant to the investigation.
Reasoning that the two statutory provisions apply to the production of the same types of records and are from the same type of providers, Judge Eagan ruled that a lower standard should be applied to Section 215 requests than to Section 2703(d) requests.
Continuing in her analysis, Judge Eagan found that an undefined term in a statue requires the application of the ordinary meaning of the term. Therefore, “relevant” should be defined broadly to mean the information sought must have some bearing on the government’s investigations of identified international terrorist organizations.
In last month’s opinion, FISC concluded that a broad definition is proper and, specifically, that Judge Eagan’s definition was “supported by the statutory analysis” she conducted. Furthermore, “[t]hat analysis [was] reinforced by Congress’s re-enactment of Section 215 after receiving information about the government’s and the FISA Court’s interpretation of the statute.”
Tune in tomorrow for a discussion of FISC’s handling of the Fourth Amendment in such situations.
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