The Potentiality for Privacy Rights, Once and For All

By: Julia Filimowicz

Edited By: Anna Westfall and Luke Vredenburg

Imagine that amid a national security investigation, national intelligence agencies in conjunction with the government unilaterally take your private information to catch a suspect. This information is then shown to the government behind the closed doors of the Foreign Intelligence Surveillance Court (FISC) and never disclosed to you. Due to Section 702 of the Foreign Intelligence Surveillance Act of 2008 (FISA), warrantless seizure of Americans’ private information has become the norm in the era of the Internet and digitalization. This key provision, which amended the initial FISA passed in 1978, restricts intelligence agencies’ ability to collect foreign intelligence on non-Americans located outside of the United States, as Americans are protected by the 4th Amendment’s prohibition on unreasonable search and seizure.[1] Nonetheless, the law still enables agencies to sweep Americans’ communications while searching through foreign intelligence. The section gives the intelligence community the authority to target anybody who possesses “foreign intelligence information,” including journalists reporting on foreign governments, entrepreneurs expanding their businesses overseas, or even Americans calling loved ones abroad.[2] Since 2013, this “backdoor search loophole” and the unobtrusive secrecy of FISC has been contested by the American Civil Liberties Union (ACLU) in conjunction with other famous privacy advocates such as the Knight Amendment Foundation and Yale Law School’s Media Freedom and Information Access Clinic in the case ACLU v. the United States. 

Established in 1978, the FISC originally sought to review applications by the FBI to eavesdrop on targets suspected of being agents of a foreign power.[3] After September 1, 2001, Congress broadened the court’s power to consider broad surveillance programs, enabling FISC to issue secret search warrants for national security purposes.[4] Since then, only the ACLU has been remotely successful in determining what occurs behind closed doors of the FISC.

It is justifiable for the FISC to keep pushing away the ACLU’s investigation, as the plethora of issues that arise concerning the court’s procedures all pertain to the distortion in checks and balances between government branches. 

First, a significant proportion of judges currently on the FISA court were both previously employed in the executive branch and appointed by Republican presidents.[5] Since presidents appoint judges based on who they believe are willing to aid in pursuing their agenda, they have significant control over the ideology of the court. This is what law professors dub as the “loyalty effect”, where factors including ideology and personal relationship with the appointing president are taken into account [6]. A study carried by Supreme Court experts proved that members of the court make decisions favorable to the president who appointed them than subsequent presidents, even if they are from the same political party.[7] Therefore, skewing such an influential court that rules over national security interests is problematic, as debates concerning the safety of Americans are one-sided, leaving  space for bias. 

Second, the judges only hear the government’s requests and most targets will never know they were targeted or discussed in the courtroom. The formation of an exclusive executive branch-FISC conglomerate is corrosive to democracy, as American citizens have no say in the selection of agents that impact national security. This criticism is not to devalue the trust and responsibility entitled to the government to protect the American people. However, if it entails the warrantless search of private information of its citizens, the people have the right to know. 

Third, the passage of the USA Freedom Act in 2015 required that the government review any significant opinions for public release. This means that only executive branch officials, not the courts, determine what gets released to the public. This is a clear breach in the constitutional guarantee of a separation of powers between the branches of government. Furthermore, what is the purpose of praising the constitutional principles of American democracy of life, liberty, equality, and justice if the legal system contradicts them? A system that enables the obtainment of the private information of all Americans without their knowledge self-evidently violates such values.

Beginning in June 2013, the ACLU’s first motion requested that FISC publish its opinion on the meaning, scope, and constitutionality of Section 215 of the Patriot Act, which authorized the bulk collection of Americans’ call records to the National Security Agency (NSA).[8] The motion was a result of whistleblower Edward Snowden disclosing a secret FISC order issued under Section 215 to compel Verizon to provide the NSA call records for every phone call placed on its network for three months.[9] It turned out that the order for the Verizon calls belonged to a much larger surveillance program that secretly existed for a decade and covered all major telephone companies.[10] Essentially, the phone records of all Americans were in the possession of the NSA for their convenience rather than out of national security interests. Consequently, the ACLU broadened its scope in its second motion in November 2013. The motion sought  opinions to dissect the legal basis for the record collection of the internet usage history, location information, and other data records collected from Americans under FISA.[11] The final motion issued in October 2016 —which is, controversially, being contested—petitioned for the disclosure of all FISC opinions containing “novel or significant interpretations” of law issued between 9/11 and the passage of the USA Freedom Act in June 2015.[12] In 2020, both the Foreign Intelligence Surveillance Court of Review (FISCR) and FISC held that they lack the jurisdiction to even consider the First Amendment public access motions which the ACLU filed. This brings attention to the most recent string of events in April 2021, during which the ACLU filed a petition for writ of certiorari in the Supreme Court, asking the court to recognize the First Amendment right of public access to the FISC’s opinions with the redactions necessary to prevent genuine harm to national security.[13]  

When the case gained public attention once again in early November, the Biden administration pressured the Supreme Court into rejecting the appeal to hear post 9/11 FISC hearings. The administration claimed that not even the Supreme Court has the authority to review the case under federal law and that most of the material sought in the case had already been made public through requests under the Freedom of Information Act (FOIA).[14] However, this is a paradoxical claim, as the very first of the nine exemption categories in FOIA justifying the government withholding information is “classified information for national defense or foreign policy,” which grants the government the same loophole as in Section 702.[15] Furthermore, the administration claimed that there are other ways the ACLU could try to make information available.[16] The administration failed to realize, however, that no governing entity has the power to release such information from the FISC court besides the President, under executive privilege. 

An unusual allyship between the conservative Justice Neil Gorsuch and liberal Justice Sonia Sotomayor countered the administration’s arguments, claiming that they would have heard the case, as it “presents questions about the right of public access to ... judicial proceedings of grave national importance.”[17] Although it is self-evident that the ACLU will pursue this case until the victory of a baseline-privacy ruling is achieved, a key player is being kept dormant by higher powers. The first judge on the Supreme Court with a history of precedent-setting rulings on cyber law issues, Justice Sotomayor is notorious for her monumental concurring opinion in Jones v. the United States, in which she reconstructs privacy in the sense of intimacy rather than secrecy. Nevertheless, if the ACLU manages to work around the Biden administration and Supreme Court, Justice Sotomayor’s cyber-legal expertise will force lawmakers to finally establish baseline privacy legislation that various civil rights and media groups have advocated for over the past twenty years.

Therefore, the FISC and Biden administration should expect the ACLU to persevere in their fight for the privacy rights of Americans, especially if it reaches the case docket of Justice Sotomayor. Given that there is not much precedent regarding the intersection of privacy and cybersecurity, Sotomayor’s pivotal concurring opinion in United States v. Jones may serve as the foundation for future policy and Supreme Court decisions.[18] In Jones, Sotomayor reconstructs privacy through her proposed privacy-as-intimacy test. She concurs that the invasion of privacy is unacceptable when it grants the government your intimate information-political, religious, sexual habits, and so on- without your consent. It should not be assumed that when one fails to conduct their affairs in secret, it enables the government to access all of their information.

The test outlines how a court should carry out an enforcement activity’s Fourth Amendment status. First, the court considers the comprehensiveness of the government activity in question. Then, it goes on to consider its precision and/or the extent to which it threatens to gather intimate information about the target’s life. Finally, the court considers whether the activity has been performed surreptitiously in addition to its corresponding lack of oversight by coordinate branches and consequent risk for abuse.[19] This test proves far more significant than the privacy-as-secrecy conception in Katz v. United States, which grants Fourth Amendment protection to all areas where a person has a “reasonable expectation of privacy”.[20] Privacy as intimacy better pertains to the Fourth Amendment jurisprudence in Oliver v. United States, which upholds the protection that is afforded to the curtilage of a home as most electronic interactions occur within the home.[21] 

Sotomayor’s privacy-as-intimacy test would serve as an extremely vital tool for the current case, as the abuses the government committed to gathering our private information concerns the issue of intimacy rather than secrecy. Given that the ACLU specifically requests for the redacted versions of significant FISC court opinions, it is imperative that Americans understand why their information is needed for national security investigations. Hence, if the ACLU manages to reach the Supreme Court, reintroducing this phenomenon may pave the way for baseline privacy laws that, for once, eliminate the numerous loopholes that grant the government leeway in accessing personal information. However, a significant obstacle is posed for the near future, as a Justice’s concurring opinion can not be used as a binding precedent. The ACLU will have to diligently lobby influential lawmakers and privacy experts to persuade the standstill Court and executive administration to finally grant the American people the right to privacy.

NOTES:

1. Rainey Reitman, Andrew Crocker, and David Ruiz, “Decoding 702: What Is Section 702?,” Electronic Frontier Foundation, accessed November 5, 2021, https://www.eff.org/702-spying.

2. Rainey Reitman et al., “Upstream vs. PRISM,” Electronic Frontier Foundation, October 19, 2017, https://www.eff.org/pages/upstream-prism. 

3. “Supreme Court Rejects Appeal over Secretive Court's Work,” AP NEWS (Associated Press, November 1, 2021), https://apnews.com/article/us-supreme-court-technology-government-surveillance-executive-branch-sonia-sotomayor-21333b8e6dd17072678b72ed2654d7da.

4. “The Foreign Intelligence Surveillance Court and Its Judges ,” Judge Information Center (Transactional Records Access Clearinghouse (TRAC) , August 9, 2013), https://trac.syr.edu/tracreports/judge/327/. 

5. Charlie Savage, “Roberts's Picks Reshaping Secret Surveillance Court” (The New York Times, July 26, 2013), https://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html.

6. Robert Barnes, “Justices Tend to Agree with Presidents That Pick Them - but Stray Later,” The Washington Post (WP Company, December 20, 2015), https://www.washingtonpost.com/politics/courts_law/supreme-court-justices-are-loyal-to-their-presidents--they-stray-later/2015/12/20/0016886a-a5a1-11e5-9c4e-be37f66848bb_story.html.

7. Ibid.

8. “ACLU v. United States – First Amendment Right of Access to Secret Surveillance Court Decisions,” American Civil Liberties Union, June 3, 2021, https://www.aclu.org/cases/aclu-v-united-states-first-amendment-right-access-secret-surveillance-court-decisions.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. Ibid.

14. “Supreme Court Rejects Appeal over Secretive Court's Work,” AP NEWS (Associated Press, November 1, 2021), https://apnews.com/article/us-supreme-court-technology-government-surveillance-executive-branch-sonia-sotomayor-21333b8e6dd17072678b72ed2654d7da.

15. “The Freedom of Information Act,” U.S. Department of State, accessed November 5, 2021, https://foia.state.gov/learn/foia.aspx. 

16. Lawrence Hurley, “U.S. Supreme Court Declines to Weigh Public Access to Surveillance Court Rulings,” Reuters (Thomson Reuters, November 1, 2021), https://www.reuters.com/world/us/us-supreme-court-declines-weigh-public-access-surveillance-court-rulings-2021-11-01/.

17. “Supreme Court Rejects Appeal over Secretive Court's Work,” AP NEWS (Associated Press, November 1, 2021), https://apnews.com/article/us-supreme-court-technology-government-surveillance-executive-branch-sonia-sotomayor-21333b8e6dd17072678b72ed2654d7da.

18. Orin Kerr, “Justice Sotomayor on Her Privacy Opinion: ‘Remember, I Was Only One of Nine.",” The Washington Post (WP Company, October 24, 2021), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/01/27/justice-sotomayor-on-her-privacy-opinion-remember-i-was-only-one-of-nine/.

19. “10-1259 United States v. Jones” (Supreme Court, January 23, 2012), https://www.supremecourt.gov/opinions/11pdf/10-1259.pdf.

20. Michael B Kelley, “The Best Hope Left for Americans' Privacy Is This 2012 Supreme Court Opinion” (Business Insider, August 10, 2013), https://www.businessinsider.com/the-best-hope-left-for-american-privacy-2013-8. 

21. “Oliver v. United States,” Oyez, November 9, 1983, https://www.oyez.org/cases/1983/82-15. 

Bibliography:

Reitman, Rainey, Andrew Crocker, and David Ruiz. “Decoding 702: What Is Section 702?” Electronic Frontier Foundation. Accessed November 5, 2021. https://www.eff.org/702-spying. 

Reitman, Rainey, Andrew Crocker, David Ruiz, and India McKinney. “Upstream vs. PRISM.” Electronic Frontier Foundation, October 19, 2017. https://www.eff.org/pages/upstream-prism. 

“Supreme Court Rejects Appeal over Secretive Court's Work.” AP NEWS. Associated Press, November 1, 2021. https://apnews.com/article/us-supreme-court-technology-government-surveillance-executive-branch-sonia-sotomayor-21333b8e6dd17072678b72ed2654d7da.  

“The Foreign Intelligence Surveillance Court and Its Judges .” Judge Information Center. Transactional Records Access Clearinghouse (TRAC) , August 9, 2013. https://trac.syr.edu/tracreports/judge/327/.

Savage, Charlie. “Roberts's Picks Reshaping Secret Surveillance Court.” The New York Times, July 26, 2013. https://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html.

Barnes, Robert. “Justices Tend to Agree with Presidents That Pick Them - but Stray Later.” The Washington Post. WP Company, December 20, 2015. https://www.washingtonpost.com/politics/courts_law/supreme-court-justices-are-loyal-to-their-presidents--they-stray-later/2015/12/20/0016886a-a5a1-11e5-9c4e-be37f66848bb_story.html. 

“ACLU v. United States – First Amendment Right of Access to Secret Surveillance Court Decisions.” American Civil Liberties Union, June 3, 2021. https://www.aclu.org/cases/aclu-v-united-states-first-amendment-right-access-secret-surveillance-court-decisions.

“The Freedom of Information Act.” U.S. Department of State. Accessed November 5, 2021. https://foia.state.gov/learn/foia.aspx. 

Hurley, Lawrence. “U.S. Supreme Court Declines to Weigh Public Access to Surveillance Court Rulings.” Reuters. Thomson Reuters, November 1, 2021. https://www.reuters.com/world/us/us-supreme-court-declines-weigh-public-access-surveillance-court-rulings-2021-11-01/. 

Kerr, Orin. “Justice Sotomayor on Her Privacy Opinion: ‘Remember, I Was Only One of Nine.".” The Washington Post. WP Company, October 24, 2021. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/01/27/justice-sotomayor-on-her-privacy-opinion-remember-i-was-only-one-of-nine/. 

“10-1259 United States v. Jones.” Supreme Court, January 23, 2012. https://www.supremecourt.gov/opinions/11pdf/10-1259.pdf. 

Kelley, Michael B. “The Best Hope Left for Americans' Privacy Is This 2012 Supreme Court Opinion.” Business Insider, August 10, 2013. https://www.businessinsider.com/the-best-hope-left-for-american-privacy-2013-8. 

“Oliver v. United States.” Oyez, November 9, 1983. https://www.oyez.org/cases/1983/82-15.