FULL REPORT ACCESSIBLE HERE (May 21, 2015)
by Edward C. Liu Legislative Attorney, Andrew Nolan Legislative Attorney and Richard M. Thompson II Legislative Attorney
Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each.
A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public’s awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in ACLU v. Clapper, the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. On appeal, the United States Court of Appeals for the Second Circuit refrained from reaching the merits of this Fourth Amendment challenge, but instead resolved the case on statutory grounds, holding that the metadata program exceeded statutory authorization under Section 215 of the PATRIOT Act. However, the panel did engage in a general discussion about the Fourth Amendment principles implicated by this program, including the effect of modern technology on American’s expectations of privacy. Both the district courts for the Southern District of California and the District of Idaho have found the bulk metadata program constitutional under existing Supreme Court precedent. In Klayman v. Obama, the federal District Court for the District of Columbia held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful.
Constitutional challenges to the NSA’s acquisition of Internet communications of overseas targets under FISA have arisen in a number of different contexts. First, such challenges have arisen in both the FISC and the Foreign Intelligence Surveillance Court of Review as part of those courts’ roles in approving the parameters of these collection activities. Secondly, constitutional challenges have been brought in traditional federal courts as civil actions by plaintiffs asserting an injury or in criminal proceedings by defendants who have been notified that evidence against them was obtained or derived from collection under Section 702. While the FISA courts have at times curbed the government’s ability to engage in surveillance activity to ensure compliance with the Fourth Amendment, the one federal court to address the issue has upheld the program against constitutional challenge.
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