On November 19, 2015, Judge John L. Kane of the federal district court for Colorado issued the second judicial decision, after United States v. Mohamud, 2014 WL 2866749 (D.Or. 2014), upholding the constitutionality of warrantless surveillance under Section 702 of the FISA Amendments Act (“FAA”), 50 U.S.C. Sec. 1881a.
Article III of the Constitution
The defense argued that Section 702 contravenes the “case and controversy” requirement by requiring FISC judges to decide whether to authorize surveillance without being informed of any particulars about the targets or persons whose communications may be incidentally acquired. Judge Kane agreed that the abstract judicial inquiry under Section 702 is “qualitatively different” from the evaluation of “concrete facts about a specific person to be monitored and the facilities to be targeted” involved in issuing traditional FISA warrants. At 20, 23. Indeed, he criticized the Mohamud opinion for dismissing the Article III challenge without “addressing the fundamental differences between wiretap authorization reviews conducted in criminal cases and traditional FISA on the one hand, and the FAA on the other.” At 23 n. 21.
Nonetheless, Judge Kane rejected the Article III challenge to Section 702 on the primary, if not sole, ground of reluctance to issue a novel judicial ruling. “Whether [the judicial] role offends Article III sufficiently to invalidate Sec. 702 as a tool for gathering foreign intelligence information is one I leave to a higher court. For purposes of the case before me, my judgment is that it does not.” At 23.
The Fourth Amendment
The facial challenge
In upholding warrantless surveillance under Section 702, Judge Kane assumed that if the Fourth Amendment’s reasonableness requirement is satisfied, there is no need to consider whether an exception to the warrant requirement applies. “I find the special need/foreign intelligence argument [for an exception to the warrant requirement] somewhat academic and limiting, because the standard ultimately is one of reasonableness, and it is on that standard that the constitutionality of Sec. 702’s warrantless surveillance must be decided.” At 25. To say the least, it is controversial to assume that the Fourth Amendment’s reasonableness clause entirely swallows up its warrant clause.
Turning to the reasonableness inquiry, Judge Kane relied on an expansive interpretation of the third party doctrine to minimize the privacy interests of persons whose communications are incidentally acquired under Section 702. On the one hand, he criticized the government for cynically belittling Americans’ expectations of privacy on the sole ground that the US and other governments were capable of targeting for surveillance foreigners with whom they communicated overseas. On the other hand, Judge Kane suggested that extensive use of modern telecommunications technology is by itself sufficient to severely decrease Constitutional protections. “[E]xpectations of privacy are diminished the more information one puts out into the ether, especially the ether of the global telecommunications network. … While Mr. Muhtorov and others have a reasonable expectation of privacy in the content of their communications generally, those expectations are at least somewhat diminished when transmitted to a third party over the internet.” At 28.
Weighing the government interests, Judge Kane accorded substantial weight to the fact that incriminating evidence had been acquired against Mr. Muhtorov. Very arguably, this contravenes the basic prohibition of evaluating Fourth Amendment compliance from an ex ante perspective. Additionally elevating the government interest in the acquisition of Mr. Muhtorov’s communications, Judge Kane controversially suggested that the goals of acquiring foreign intelligence and prosecuting national security crimes are inextricably intertwined. ”The government’s interest in using intelligence information to detect and prevent criminal acts of terrorism, and ultimately to punish their perpetrators, is a legitimate government interest against which individual FAA privacy intrusions must be weighed.” At 30.
Further, Judge Kane denied that the Fourth Amendment was violated by the retention of communications acquired under Section 702 for “backdoor” queries with identifying information about Americans. “Accessing stored records in a database legitimately acquired is not a search in the context of the Fourth Amendment because there is no reasonable expectation of privacy in that information.” At 31. The assumption that subsequent use of information has nothing to do with whether reasonable expectations of privacy are contravened is inconsistent with the doctrine that scope as well as initial justification determines whether government intrusions are reasonable.
The Applied Challenge
On the ground that “Section 702’s authorization procedures are ‘riddled’ with loopholes and there is no judicial oversight of their execution over time,” Judge Kane reasoned that even though Section 702 does not violate the Fourth Amendment on its face, it was necessary to consider how Mr. Muhtorov’s particular communications were acquired. At 32. Nonetheless, in conclusorily upholding the particular search, Judge Kane said nothing about whether the government had conformed to the procedures it submitted to the FISC when it acquired Mr. Muhtorov’s communications. “[O]n the record before me a proper and supported application was filed, and … the targeting and minimization procedures forwarded were tailored to the government’s legitimate foreign intelligence purposes and took into account the privacy interests of individuals whose communications would be incidentally acquired.” At 34.