Nanny State

Surveillance Fourth Amendment Violations Admitted by Feds


Sen. Ron Wyden

This won't come as much of a shocker, but the federal government has, in a sideways fashion, admitted that electronic snooping conducted under the controversial Foreign Intelligence Surveillance Act Amendments Act of 2008 (federal motto: roll-off-the-tongue is not our style) has sometimes violated the Fourth Amendment. I say sideways, because the news comes courtesy of a leaked letter to Senator Ron Wyden, from the Office of the Director of National Intelligence, authorizing the privacy-championing legislator to make statements to that effect. And yes, you should find it creepy that an elected lawmaker needs a professional spook's permission to tell us that the government has screwed us over.

In the letter (PDF) dated July 20, 2012, Sen. Wyden is authorized to make the following statements:

  • A recently unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
  • It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
  • I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

"Minimization procedures" refer to efforts made to keep the intrusiveness of a wiretap to a minimum, so that only relevant information is gathered. But the FISC has admitted that "large amounts of information are collected by automatic recording to be minimized after the fact."

Note that, while the law in question refers to "foreign intelligence," it explicitly applies to communications where at least one party to the call is "reasonably believed" to be outside the United States. The other can be within the U.S. Senators Ron Wyden and Mark Udall noted some concerns in a minority view attached to the Senate Committee on Intelligence report regarding extending the government's surveillance power, which is due to sunset:

[S]ection 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens. We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number.

So, when the intelligence establishment admits that the Fourth Amendment was violated on "on at least one occasion," that doesn't mean one person — it could be a large number of Americans scooped up all at once in a wide-ranging operation.

Oh, but the Office of the Director of National Intelligence also wants you to know that "The government has remedied these concerns and the FISC has continued to approve the collection as consistent with the statute and reasonable under the Fourth Amendment."

Well … That's all right then.