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In an earlier post, I discussed some of the constitutional issues involved in ACLU v. NSA, –F.3d — (6th Cir. 2007). In this case, a panel from the 6th Circuit concluded that the ACLU and other plaintiffs lacked standing to challenge the Bush Administration’s warrantless wiretapping program conducted by the National Security Agency (NSA). The program is known as the Terrorist Surveillance Program (TSP).

One of the plaintiffs’ claims was that the NSA surveillance violated the Foreign Intelligence Surveillance Act (FISA). In a post shortly after the revelation of the NSA surveillance program, I argued that the surveillance was a clear violation of FISA:

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.

The NSA surveillance program, however, was not carried out pursuant to these requirements. Furthermore:

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be “solely directed” at gathering intelligence from “foreign powers” and there must be “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens, thus making § 1802 unavailable.

FISA contains a provision, 50 U.S.C. § 1810, that enables plaintiffs to bring a civil suit:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in [50 U.S.C. § 1801(a) or (b)(1)(A) ], respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of [50 U.S.C. § 1809] shall have a cause of action against any person who committed such violation and shall be entitled to recover-

(a) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater;

(b) punitive damages; and

(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.

According to Judge Batchelder, however:

There are at least three reasons why the plaintiffs cannot maintain their claims under FISA’s statutory authorization. First, the plaintiffs have not alleged, and the record does not contain sufficient facts from which to conclude, that they are “aggrieved persons.” FISA defines an “aggrieved person” as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k). “[T]he term [aggrieved person] is intended to be coextensive [with], but no broader than, those persons who have standing to raise claims under the Fourth Amendment with respect to electronic surveillance.” H.R.Rep. No. 95-1283, at 66 (1978). The plaintiffs have not shown that they were actually the target of, or subject to, the NSA’s surveillance; thus-for the same reason they could not maintain their Fourth Amendment claim-they cannot establish that they are “aggrieved persons” under FISA’s statutory scheme. Second, as previously discussed, the plaintiffs have not demonstrated that the NSA’s wiretapping satisfies the statutory definition of “electronic surveillance,” which is also required by FISA’s liability provision. Third, FISA does not authorize the declaratory or injunctive relief sought by the plaintiffs, but allows only for the recovery of money damages. No matter how these claims are characterized, the plaintiffs have not asserted a viable FISA cause of action.

Judge Batchelder also argues that the plaintiffs failed to prove that the NSA surveillance constituted “electronic surveillance” under the FISA. This is the most tortured and dubious part of the opinion. Judge Batchelder declares that somehow the NSA wiretapping activities fall outside the domain of both FISA and the Wiretap Act (Title III, now incorporated into the structure of the Electronic Communications Privacy Act (ECPA)), which generally governs all wiretapping unless FISA applies. She states:

More importantly, this inability to prove that the interceptions are “electronic surveillance” does not, as the plaintiffs theorize, lead to an inescapable conclusion that Title III applies. It simply means that FISA does not apply. On the other hand, it is irrefutable under the first clause of § 2511(2)(f) that Title III does not apply to this case because the NSA’s wiretapping activities are focused on international, rather than domestic, communications. To read this entire statute in the way that the plaintiffs suggest is to create an internal contradiction, which courts are loath to do. Rather, the unavailability of the evidence necessary to prove (or disprove) that the NSA is engaging in “electronic surveillance” compels a conclusion that the plaintiffs cannot demonstrate that either statute applies.

It is not “irrefutable” that under §2511(2)(f) the Wiretap Act does not apply. Exactly to the contrary, that provision states:

Nothing contained in this chapter . . . shall be deemed to affect the acquisition by the United States government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and the procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic, wire, oral, and electronic communications may be conducted.

In other words, the part of this provision I placed in bold states that wiretapping is either covered by FISA or by the Wiretap Act. The fact that one party to the calls was overseas is no exception. The Wiretap Act applies broadly to intentional interceptions of any wire, oral, or electronic communications. The wiretapping of calls by US citizens clearly fits the bill. Section 2511(2)(f) creates an exception for electronic surveillance under FISA. The term “foreign intelligence information” is defined in FISA, §1801(e). Section 2511(2)(f) thus seeks to distinguish between domestic wiretapping and foreign intelligence wiretapping because otherwise the Wiretap Act would overlap with FISA.

Judge Batchelder argues that the “NSA monitors international communications for the purpose of acquiring foreign intelligence about terrorist organizations.” This sounds to me that it falls directly in the domain of FISA.

But Judge Batchelder appears to imagine a valley between FISA and the Wiretap Act, although she never explains what precisely fits in this valley. She fails to provide even one example of wiretapping that would fall in the valley. This is because under the better reading of the statutes, there is no valley. It is a figment of the court’s imagination. Section 2511(2)(f) of the Wiretap Act clearly states that the Wiretap Act and FISA are the “exclusive means” by which electronic surveillance will be conducted.

Judge Gilman’s dissent persuasively addresses the FISA issues:

The lead opinion asserts that the attorney-plaintiffs cannot establish that they have a right to sue because they are not “aggrieved persons” under FISA. An “aggrieved person” is defined as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k). According to the lead opinion, because the plaintiffs “have not shown that they were actually the target of, or subject to, the NSA’s surveillance,” they cannot establish a cause of action under FISA.

The attorney-plaintiffs’ challenge, however, is precisely that the TSP has operated outside of FISA despite the fact that Congress has declared FISA to be the “exclusive means” for the government to engage in electronic surveillance for foreign intelligence purposes in this country. 18 U.S.C. § 2511(2)(f). . . .

The Attorney General has publicly acknowledged that FISA “requires a court order before engaging in this kind of surveillance … unless otherwise authorized by Congress.” Other Administration officials have similarly characterized the TSP as being used “in lieu of” FISA. These statements indicate that the TSP in fact captures electronic surveillance as defined by FISA, despite the belated effort of Executive Branch officials to disavow this acknowledgment. . . .

Congress has thus unequivocally declared that FISA and Title III are the exclusive means by which electronic surveillance is permitted. No other authorization can comply with the law. Congress further emphasized this point by criminalizing the undertaking of electronic surveillance not authorized by statute in two separate places in the U.S.Code. See 50 U.S.C. § 1809; 18 U .S.C. § 2511(1) & (2)(e). The government, however, contends that Congress authorized the TSP in the aftermath of the September 11, 2001 attacks by enacting the Authorization for Use of Military Force (AUMF), Pub.L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). . . .

But FISA itself expressly and specifically restricts the President’s authority even in times of war. . . . FISA . . . limits warrantless electronic surveillance to the first 15 days following a declaration of war, a more formal action than even the enactment of an authorization for the use of force.

Judge Gilman’s dissent notes that the government has admitted to electronic surveillance that does not meet FISA’s requirements. Hence, the NSA program is a clear violation of FISA. Thus, nearly every US citizen whose calls were wiretapped pursuant to the program could potentially have a right to sue for a FISA violation. The tricky part, however, is whether the particular plaintiffs are among those whose communications were intercepted. Because the government will not disclose information about precisely whose calls were wiretapped, it can effectively preclude people from obtaining judicial redress under FISA.

Ultimately, although the analysis of Judge Batchelder’s opinion is based on standing, the opinion strikes me as suggesting a broader message: Courts should avoid getting entangled with the issue of the legality of the NSA surveillance program. Judge Batchelder uses nearly every tool in the shed to avoid engaging in judicial review. Some might say that this is the wise course of action — the judicial branch should be very cautious about becoming involved in this complex political issue and let the other two branches duke it out. As a normative matter, is the legality of the NSA surveillance program an issue that the courts should address?

I believe that in this case it is imperative that the courts become involved. FISA is a statute designed to require judicial review of government surveillance. Its purpose is to mandate that the judiciary engage in oversight of the executive branch for foreign intelligence gathering. Congress granted the judiciary oversight powers in FISA, the Bush Administration has declared that it will cut the judiciary out of the loop in violation of FISA, and the judiciary in ACLU v. NSA is basically saying that it cannot do anything about it. The legislature has spoken on the issue and has passed the FISA. The executive has ignored FISA. That leaves the judiciary to address the issue — but instead of weighing in, it punted the ball . . . exactly to whom one doesn’t know.

It is one thing for the courts to avoid getting involved in an issue when another branch can adequately address it. But in this case, the executive branch is improperly ignoring the requirements of the legislative branch. This strikes me as precisely the kind of situation where the judicial branch should weigh in on one side or the other. Punting the ball doesn’t provide the legislature with the power to resolve the issue — it has already spoken by passing the FISA. The executive isn’t listening. It thus seems quite appropriate that the judicial branch break the impasse and reaffirm the rule of law.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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