NSA, FBI, DOJ–Damned If You Do, And Damned if You Don’t

Mar 12th, 2014 EFF, FISA, NSA

Federal courts have issued conflicting orders to destroy and to preserve the very same data, as reported earlier.  It is not unusual for courts to conflict.  One district court found the metadata collection program to be constitutional and another found it to be unconstitutional.  Indeed, one of the primary reason that the Supreme Court accepts a case (grants certiorari) is to resolve conflicts (“splits”) between the circuit courts of appeals.  This conflict is more interesting for two reasons.


First, this conflict is not on some obscure matter known only to lawyers and the litigants.  This is on a issue receiving near-top billing in the mainstream media – right after Ukraine, Between Two Ferns, Justin refusing to talk about Selena, and allegations that CIA spied on a Senate Committee.

Second, federal court splits normally occur between “equal” courts – that is, Article III (of the U.S. Constitution) courts of an equal and known position in the appellate hierarchy – such as between the U.S. Court of Appeals for the Ninth Circuit and every other circuit.  But, this split is between a U.S. District Court (an Article III trial court) and the Foreign Intelligence Surveillance Court (FISC), which is a, well…, what, exactly?  I saw an article yesterday claiming that the Obama Administration has “admitted” that the FISC is an Article II (Presidential) Court.  I don’t see how that can be, since the Executive Branch did not create it and does not appoint judges to it.  Congress created it, making it an Article I court like the United States Bankruptcy Court.  Nor are its judges members of the Executive Branch, like Immigration Judges are.  But, unlike other Article I or Article II courts, the FISC is composed entirely of Article III judges appointed to it for terms by the Chief Justice of the Supreme Court.  In short, the FISC is novel and creative.  One thing is clear, though: the FISC is the expert on FISA.

The folks over at Lawfare have invested time in analyzing these two conflicting cases, the district court case Jewel v. NSA and the FISC case in re Application of the Fdeeral Bureau of Investigation for an Order Requiring the Production of Tangible ThingsPolitico reports that the government will comply with the order in the district court case, which so far is only a temporary order with a briefing schedule and a hearing set for March 19, 2014.

[Note that the Jewel case is a companion to First Unitarian Church of Los Angeles v. NSA.  The plaintiffs in both cases are represented by the Electronic Frontier Foundation.  The second, especially, emphasizes First Amendment (free speech and association) rights, not just Fourth Amendment (freedom from unreasonable search and seizure) rights.  Last summer, we analyzed the advantages of First Amendment claims for such litigants.]

The district court is trying to protect the rights of litigants in a civil case who are seeking — according to the Jewel complaint and the companion case complaint  — actual damages, punitive damages, attorneys’ fees, injunctive relief, “the destruction of all copies of those communications, records, or other information within the possession, custody, or control of Defendants” and “the destruction of their telephone communications information in the possession, custody, or control of Defendants, their agents, successors, and assigns, and all those in active concert and participation with them.”  In other words, both the plaintiffs and the government want to destroy certain records, but the plaintiffs and the district judge don’t want to destroy them yet.

The government went to the FISC and asked for an order allowing it to not follow the normal practice of destroying records older than five years, on the grounds that destruction of the records “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”  In short, the government asked the FISC for permission to break the normal rules in order to do what the plaintiffs and district judge in the Jewel case want it to do.  Those normal rules, known as “minimization procedures,” are rooted in the FISA statute.  The FISC denied the government’s motion to retain the records, so it’s standing order that “metadata shall be destroyed no later than five years (60 months) after its initial collection” applies.

What about the conflict between the district court and the FISC? The conflict may be resolved by the district court at the March 19th hearing.  Alternatively, the FISC limited its opinion to the record before it, which I suspect is exactly what the district court was trying to change with its March 10 temporary restraining order.  The FISC order was handed down without prejudice, so it may be refiled.

Still, the logic of the FISC order is much farther reaching.  It reasoned that: “The procedures proposed by the government [to preserve the records beyond five years, with restrictions] accordingly must stand or fall based on whether they comport with FISA.”  The statute requires procedures that “minimize the retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.”  It says nothing about minimizing retention and prohibiting dissemination consistent with the needs of private parties in a civil law suit.  In the Court’s words, “the countervailing interest asserted by the government is the purported litigation interests of the civil plaintiffs in having these records preserved.” The FISA statute doesn’t include that as a reason to keep surveillance records. The Court stated:

The government contends that its duty to preserve BR metadata “supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.” … The Court rejects this premise.

… The Court has not found any case law supporting the government’s broad assertion that its duty to preserve supersedes statutory or regulatory requirements.

Moreover, … the general obligation to preserve records that may be relevant to the civil matters cited by the government is a matter of federal common law.  As such, it may be displaced by statute whenever Congress speaks directly to the issue. … Here, with respect to the retention of records produced under Section 1861 [of FISA], Congress has sought to protect the privacy interests of United States persons by requiring the government to apply minimization procedures that restrict the retention of United States person information. … [T]he restrictions on retention of United States person information embodied in FISA minimization procedures are the means by which Congress has chosen to protect the privacy interests of United States persons when they are impacted by certain forms of intelligence gathering.

Extending the period of retention for these voluminous records increases the risk that information about United States persons may be improperly used or disseminated.”

If it comes to a showdown between the power of the district court and of the FISC, or between the power of a U.S. Court of Appeals and the FISC or the Foreign Intelligence Surveillance Court of Review, I think that only the Supreme Court could resolve the issue.  Further, I believe that the FISC is correct that the FISA statute trumps civil litigation discovery orders concerning foreign intelligence information.  Finally, I believe that the EFF is attempting to rewrite the FISA statute in the courts but that only the people’s elected representatives in Congress (with the help of the Executive) have the ability to balance the privacy and security interests of all U.S. persons.

In the meantime, for once, let’s have some sympathy for the public servants in the NSA, FBI, and Attorney General’s Office.  What would you do if one federal court told you to destroy and another federal court told you to retain the very same records?

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography


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