March 1, 2013 4:24PM

Further Thoughts on Clapper v. Amnesty International

I posted a quick initial take Tuesday on the Supreme Court's ruling in Clapper v. Amnesty International, mostly just noticing the intuitive problem with declaring laws authorizing large-scale covert surveillance effectively immune from constitutional review. The folks at EFF and the ACLU have already put out more extended responses to the ruling, but a few additional points seem worth making.

In the very first sentence of the ruling, Justice Alito subtly but importantly mischaracterizes the scope and nature of the "702 authority" created by the FISA Amendments Act in a way that persists throughout the majority opinion and distorts its analysis. According to Alito, §702 of the Foreign Intelligence Surveillance Act empowers the attorney general and director of national intelligence to authorize the surveillance of "individuals" outside the United States---including their communications with Americans, which previously required a warrant from the FISA Court. In some sense, of course, all surveillance is ultimately surveillance of individuals, but "authorizations" for programmatic surveillance under §702 do not need to specify individuals or facilities, but rather groups and (as the administration has put it) "categories of foreign intelligence targets," where for FISA purposes, the "target" is the person or entity from or about whom the government seeks information.

The "targeting procedures" approved by the secret FISA Court must be designed to avoid intentionally collecting wholly domestic communications, but the statute doesn't require that they guarantee the international communications collected under §702 programs will be narrowly limited to those of the actual targets. The FISA Court doesn't have to review the particular phone lines or e-mail accounts or IP addresses that are collected from; those are selected after the procedures are approved, apparently with the aid of data mining and "link analysis" algorithms.

The public has no idea just how broad the initial collection is---the NSA has steadfastly refused to even estimate how many Americans' communications are in their system---but everything we know about the program suggests they err on the side of breadth and figure out which of the intercepts actually pertain to their targets after collection. For example, a New York Times report on "overcollection" of domestic communications under §702, based on high-level intelligence sources, suggests that a single authorization typically covers surveillance on hundreds or thousands of phone lines and e-mail accounts, often in large "blocks." As with all probabilistic reasoning, you need to know something about the background frequency or "prior probability" of an event---in this case, the scale of the National Security Agency interception program---before you can say anything intelligent about its likelihood in a specific instance.

That's important because the ruling turns on Alito's contention that the plaintiffs---academics, attorneys, journalists, and activists who have regular international communications with obvious candidates for interception---have a merely "speculative" fear that their communications will be intercepted. As the dissent observes, it seems like simple common sense to infer that at least some of the plaintiff correspondents, either individual or institutional, would be on the government's list of targets. But the crucial point here is that they wouldn't have to be. They might be using the facilities of a corporation or other entity that is a target, or flagged by "link analysis" branching out from an initial target's account.  If we do not entirely gloss over what is publicly known about the seeming scope of §702 surveillance---as Alito seems determined to do---then even if it is logically possible that none of the plaintiffs' communications have been intercepted, it becomes wildly implausible. It is a little strained to deny standing on the grounds that an imminent prospective harm might conceivably be avoided by some statistical miracle, since, after all, that will always be true. Again, as Breyer's dissent and a brief submitted by a group of law professors to the Second Circuit both note (and, indeed, as Alito concedes in a footnote), it is not at all hard to come up with a long list of cases where courts have granted standing on the basis of harms less absolutely and apodictically certain than in this case.

Even if that weren't so, however, there would be a plausible argument for applying a more permissive standard when it comes to constitutional challenges under the Fourth Amendent, at least where large-scale secret surveillance is concerned. The Fourth Amendment, after all, does not just protect our right against unreasonable searches, but (as Yale's Jed Rubenfeld has stressed) "the right of the people to be secure" against such searches. That right to be "secure" doesn't play much active role in current jurisprudence, but it is not some arbitrary rhetorical flourish: Founding-era pamphlets and speeches condeming "general warrants" and "writs of assistance" routinely stressed the way they undermined the "security" of every person in their home, and the original phrasing of the amendment more explicitly linked its two clauses, suggesting far more strongly that the "issuing" of too-loose warrants in itself was what violated the "right of the people to be secure." If we take the actual words of the Constitution seriously, rather than reading "security" out as a bit of excess veribiage, then the harm to "security" entailed by a broad authorization to search ought at least arguably to be sufficient in itself. This would, admittedly, be a somewhat novel move, but then, so is explicit statutory authorization of large-scale programmatic searches, conducted domestically, that are never disclosed to the intercepted parties. Nor would this approach be foreclosed by Laird v. Tatum, which rejected a challenge alleging a subjective First Amendment chilling effect---without any demonstrable concrete burden---resulting from a military information-gathering program that used "open source" intelligence methods, not Fourth Amendment searches such as wiretaps.

Finally, while it's surely true that there's no guarantee that someone must necessarily have standing to challenge every statute on the books, this case is not really analogous to the cases Alito cites involving suits based on a "generalized grievance common to all taxpayers." There are specific persons here whose communications are intercepted---and indeed, the government has already acknowledged that in at least one instance, specific interceptions were found to be unconstitutional by the FISA Court. So specific people have not only been directly and concretely affected, but have definitely had their constitutional rights violated; we just don't know who they are.

It is possible that the government will at some point choose to prosecute an American using intelligence from §702 intercepts, but it doesn't appear to have happened yet. The legislative history of FISA makes clear that this is not, in general, the goal of intelligence surveillance, in contrast to criminal wiretaps, whose whole point is to produce evidence to be introduced in court. In the case of criminal wiretaps, the Court has suggested that the necessary temporary secrecy involved---in contrast to conventional search warrants served on a homeowner---requires especially stringent safeguards. There are perfectly valid reasons that intelligence wiretaps will typically require effectively permanent secrecy, but insofar as this entails concealing an injury from the great majority of wiretapped people the government will never choose to prosecute—because they are innocent—ensuring that parties who are probably in that pool are able to bring a challenge sounds like an appropriate way to compensate for the greater "inherent dangers" of secret surveillance.