The Disclosed Use of Section 215 to Obtain a U.S. Person’s Records

On September 13, 2013, Judge Saylor ordered the government to identify and conduct a declassification review of any FISC opinions that were not responsive to the lawsuit that the ACLU had brought in the Southern District of New York, but contained analysis by the FISC “of the meaning, scope, and/or Constitutionality” of Section 215. Despite acknowledging that the FISC’s Opinion of February 19, 2013 in Docket No. BR 13-25 fit this description, the government asserted that the opinion was classified in full and a public version, even in redacted form, could not be provided. After Judge Saylor ordered the government to provide him with “a detailed explanation” of its reasons, on December 20, 2013, the government responded that it had determined to withhold the Opinion in full because in addition to being classified, the Opinion pertained to an ongoing investigation of a particular individual and therefore fell within the law enforcement investigatory privilege. “[A]s a discretionary matter,” however, the government submitted a redacted opinion, stripped of classified matters and matters pertaining to the ongoing investigation, to the Court for publication.

On August 7, 2014, Judge Saylor issued an opinion ordering the government to submit a formally declassified version of the February 19, 2013 opinion, no later than August 29, for purposes of publication on the FISC’s website. The government was to redact the opinion in accord with its Second Redacted Proposal submitted in February 2014 in response to the Court’s ex parte questioning of the breadth of the redactions that it first proposed. The redacted version of the February 19, 2013 opinion was posted on the FISC’s website on August 27, 2014.

In the opinion, Judge John D. Bates indicated that the FBI had sought the production of records pertaining to a U.S. person, under Sec. 215 of the Patriot Act, 50 U.S.C. Sec. 1861. According to Judge Bates, the “difficult question” was whether the FBI’s request met Sec. 1861’s requirement that an investigation “not be conducted of a United States person solely upon the basis of activities protected by the first amendment….” At 4. The judge found it “doubtful” that the “words and conduct [of the United States person that the government had cited in its application] alone establish reasonable grounds to believe that the investigation is not being conducted solely on the basis of [sic] first amendment.” At 5. According to Judge Bates, however, “[t]he text of Section 1861 does not restrict the Court to considering only the activities of the subject of the investigation” in determining whether the First Amendment constraint is met. Id. On this basis, the judge concluded that the First Amendment limitation was satisfied because the United States person was being investigated, in part, on the basis of activities of others that “would not be protected by the first amendment even if they were carried out by a United States person.” Id.

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