The government’s first application to the FISC for warrantless surveillance

On December 13, 2007, the government applied to the FISC for a warrant authorizing the indiscriminate interception of the contents of communications to and from people within the United States from [redacted] telephone and email access points within the United States. Memorandum of Law in Support of Application for Authority to Conduct Electronic Surveillance of [Redacted], In re [Redacted], Docket Number [Redacted] (“Memorandum”) at 24, 25, 32. During the duration of the warrant, communications to and from particular email addresses and telephone numbers, as well as communications referring to particular email addresses, were to be collected when an NSA agent found probable cause to believe that (i) an email address or telephone number was being used by a member or agent of a foreign power and (ii) one of the communicants was outside the United States.

In applying for a warrant, the government insisted that it did “not in any way suggest that the President lacks constitutional or statutory authority to conduct the electronic surveillance detailed herein without Court authorization.” Memorandum at 6 n. 5. According to the government, however, it was entitled to a FISA warrant because there was probable cause to believe that the “known terrorist organizations” [names redacted] at which surveillance would be targeted jointly comprised “a group engaged in international terrorism or in activities in preparation therefor, and thus is a foreign power under FISA.” Id. at 15, 16 & 18. In addition, and much more controversially, the government contended that its proposed indiscriminate interception of communications from [redacted] telephone and email access points satisfied FISA’s requirement that electronic surveillance be directed at a facility or place that there was probable cause to believe the foreign power was using or would use.

Although largely redacted, the government’s argument for a nexus between the [redacted] access points and the targeted terrorist group relied on a very broad interpretation of FISA’s term “facilities”: “Congress envisioned that the term ‘facilities’ was broad enough to encompass the entire Internet.” Id. at 25 n.15. In addition, the government asserted that “the foreign powers targeted in the Government’s application [redacted] make extensive use of modern telecommunications networks, including the Internet.” Declaration of [Redacted] NSA Project Manager for Counterterrorism Special Projects (filed January 2, 2007) at 8. On this basis, the government’s  reasoning seems to have been that since “a vast proportion of the world’s Internet traffic is carried at some point on the communications infrastructure in the United States,” there was probable cause to believe that the foreign powers’ communications would be among those passing through the [redacted] telephone and email access points. Memorandum at 35.

FISC Judge Malcolm J. Howard requested additional briefing on whether, contrary to the government’s position, FISA was properly interpreted to require a judge to find probable cause that a foreign power was using or about to use a particular email address or phone number. The principal precedent that the government invoked for claiming that a telecommunications access point, rather than a particular phone number or email address, might be the “facility” for which a FISA warrant was granted was the FISC’s Opinion and Order of 2004 authorizing the bulk collection of email metadata. See Opinion and Order, No. PR/IT (July 14, 2004), discussed at Section D(6)(a) above; Supplemental Memorandum of Law In Support of Application For Authority To Conduct Electronic Surveillance Of [Redacted], In Re [Redacted]. Docket Number [Redacted] (filed Jan. 2, 2007) at 12 (“Supplemental Memorandum”); Memorandum at 12-13. The government acknowledged that the FISC had warned that “the authorization of bulk collection of meta data from electronic communications should not be relied on as a precedent for similar collection of the substantive contents of communcations.” Memorandum at 27 (citation redacted). Paradoxically, however, the government claimed that it could follow the interpretation of the term “facilities” in the opinion authorizing bulk collection of email metadata because the warrant it sought was not for bulk collection. Although the judge would authorize indiscriminate interception of the contents of communications, under minimization procedures, NSA agents would target collection to communications that they found probable cause to believe were (i) international and (ii) to and from email addresses and phone numbers, or referring to email addresses, that agents or members of the foreign power were using or would use.

Judge Howard also asked whether FISA’s requirement that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power” meant that warrants could authorize only surveillance directed at specific email addresses or phone numbers. Invoking dictionary definitions of the word “directed,” the government dismissed this suggestion. “The ordinary understanding of the term ‘directed’ is that it refers to the places or facilities at which the Government intends to direct, or point, the surveillance device; that is, where the communications will be intercepted or the information acquired.” Supplemental Memorandum at 17-18 (citations omitted). It is strange, however, to think that the dictionary implies that the government’s choice of surveillance technology, rather than judicial findings, determines how narrowly surveillance must be tailored to intercept foreign powers’ communications.

At base, the government argued in a circle: its broad interpretation of FISA’s requirements must be correct because otherwise it would not be entitled to a FISA warrant. For example, FISA could not require the government to persuade a judge that there was probable cause to collect communications to and from particular email addresses or phone numbers because “the Government cannot identify at the time of the Application all of the telephone numbers and e-mail addresses that would be tasked for collection….The whole objective … is to establish an early warning system that would enable the Government to uncover currently unknown telephone numbers and e-mail addresses used by members and agents of the [redacted] foreign powers ….” Supplemental Memorandum at 21 (footnotes omitted). “An effective early warning system must conduct surveillance with speed and agility that cannot be obtained through the more traditional approach of filing individual applications directed at specific e-mail addresses and phone numbers.” Id. at 3.

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