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In Mayfield v. United States, U.S. District Judge Ann Aiken (District of Oregon) held that parts of the Foreign Intelligence Surveillance Act (FISA) of 1978, which were altered by the USA Patriot Act in 2001, are unconstitutional. The case was brought by Brandon Mayfield, a who was put under extensive surveillance and then detained for two weeks because the FBI suspected him of involvement in the Madrid train bombing of 2004. The FBI thought Mayfield’s fingerprint was at the scene of the bombing, but it was gravely mistaken. According to the AP:

The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department’s internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.

In the court’s opinion, Judge Aiken describes Mayfield’s complaint as follows:

Plaintiffs’ Amended Complaint challenges the lawfulness of the physical searches, electronic eavesdropping and wiretapping performed pursuant to authorization from the FISC Court in Washington D.C., and the lawfulness of the government’s continued retention of materials derived from those searches, eavesdropping, and wiretapping. Plaintiffs allege that 50 U.S.C. § 1804 (electronic surveillance under FISA) and 50 U.S.C. § 1823 (physical searches under FISA) violate the Fourth Amendment ontheir face. Specifically, plaintiffs allege that pursuant to FISA and in violation of the Fourth Amendment, they were subjected to secret surveillance and searches of their home, law office, vehicles, and communications.

The judge agreed with the plaintiffs. In particular, Judge Aiken concluded, the USA Patriot Act’s changes to FISA made it run afoul of the Fourth Amendment.

To understand the judge’s ruling, a bit of background is necessary, and it is easiest to provide a brief excerpt from my article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004):

FISA creates a different regime for surveillance to obtain “foreign intelligence” information than the ECPA regime that governs regular government surveillance. The regime created by FISA is designed primarily for intelligence gathering agencies to regulate how they gain general intelligence about foreign powers within the borders of the United States. FISA is very permissive; it provides for expansive surveillance powers with little judicial supervision. FISA permits electronic surveillance and covert searches pursuant to court orders, which are reviewed by a special court of eleven federal district court judges known as the Foreign Intelligence Surveillance Court (“FISC”). The court meets in secret, with the government presenting applications for orders ex parte. If the government receives an adverse decision, it can appeal to a three-judge panel.

FISA’s protections against surveillance are much looser than those of the ECPA. Under the ECPA and the Fourth Amendment, surveillance is only authorized if there is a showing of probable cause that the surveillance will uncover evidence of criminal activity; under FISA, however, orders are granted if there is probable cause to believe that the monitored party is a “foreign power” or “an agent of a foreign power.” Unlike the ECPA, FISA surveillance is therefore not tied to any required showing of a connection to a criminal investigation. FISA does not have this safeguard since it is about gathering general intelligence about other countries and their activities within the United States. FISA orders can last for ninety days as opposed to thirty days for an ECPA order.

FISA was designed to address the issues left open by the Supreme Court in United States v. United States District Court (commonly known as the “Keith” case), 407 U.S. 297 (1972). In that case, the Court distinguished between three types of surveillance:

(1) electronic surveillance for domestic criminal investigations — the Court held a warrant with probable cause is required pursuant to the Fourth Amendment.

(2) “domestic security surveillance” — the Court held that “different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.”

(3) surveillance of “foreign powers or their agents” — the Court declined to indicate whether the Fourth Amendment would apply to this kind of surveillance but suggested that warrantless surveillance of foreign agents “may be constitutional.”

So, to sum up, there are three categories of surveillance — (1) domestic criminal surveillance gets strong Fourth Amendment protection (warrant and probable cause); (2) domestic security surveillance gets less stringent protection under the Fourth Amendment (reasonableness); and (3) foreign intelligence surveillance may or may not be covered by the Fourth Amendment, the issue remaining unresolved.

This set the stage for FISA, which operates in category (3) above. Congress sought to avoid Fourth Amendment problems by confining FISA to situations involving the gathering of foreign intelligence from foreign powers or agents. That’s why, in order to get a FISA order, the government had to establish that the purpose of the investigation was gathering foreign intelligence and that it had probable cause that those under surveillance were foreign agents.

Thus, FISA operates in a zone that is supposedly left open under Fourth Amendment law (which would require a warrant to engage in wiretapping and many other forms of surveillance). The Electronic Communications Privacy Act (ECPA) of 1986 (which incorporates Title III, commonly known as the “Wiretap Act”) regulates domestic wiretapping and surveillance and is designed to comport with the Fourth Amendment’s requirements (it is sometimes even more protective than the Fourth Amendment). If FISA doesn’t apply, government surveillance is governed by the stronger protections of ECPA.

The USA Patriot Act upset this delicate balance. Here’s a bit more background from my article:

The USA PATRIOT Act . . . expanded FISA’s applicability. Previously, FISA applied only when “the purpose” of the investigation was to gather foreign intelligence; the USA PATRIOT Act enlarged FISA’s scope to apply when foreign intelligence gathering was “a significant purpose” of the investigation. This seemingly subtle change has potentially dramatic ramifications. By changing the language from “the purpose” to “a significant purpose,” foreign intelligence gathering no longer needs to be the primary purpose of the surveillance. The government can now rely on loose FISA protections even when foreign intelligence gathering is only one of many goals.

In light of this change, Ashcroft altered the minimization procedures of FISA. FISA requires that when conducting foreign intelligence gathering, the government must implement procedures to minimize the gathering of information about United States citizens. These procedures prevent the broad powers of FISA from being used for ordinary domestic criminal investigations. In one type of minimization procedure, investigators establish an “information screening wall,” in which officials not involved in the criminal investigation review FISA surveillance and pass along only information that will be relevant to the criminal investigation. In 2002, Ashcroft revised the minimization procedures, virtually eliminating the screening walls. The FISC reviewed these procedures and rejected them. According to the court, the “2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillance.” But the three-judge FISA review court [FISCR] reversed. In the first case ever appealed from the FISC [In re Sealed Case], the review court declared that by changing FISA by using the words “a significant purpose,” the USA PATRIOT Act “eliminated any justification for the FISC to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses.” Therefore, if the government “articulates a broader objective than criminal prosecution—such as stopping an ongoing conspiracy—and includes other potential non-prosecutorial responses, the government meets the statutory test.” Only if the “government’s sole objective [is] merely to gain evidence of past criminal conduct . . . the application should be denied.”

This ruling underscores the problematic nature of the USA PATRIOT Act’s amendments to FISA. Government investigations can have a large scope and multiple purposes. Especially in cases involving terrorism, the line between foreign intelligence gathering and domestic law enforcement is often blurred. Since FISA surveillance information can be used in domestic criminal trials, FISA increasingly can become a tool for domestic law enforcement and an end run around the protections of ECPA. Expanding the scope of FISA makes it more likely that government will use the FISA regime to conduct widespread surveillance with very scant legal protections.

So on to Judge Aiken’s holding. She concluded that FISA expanded scope under the USA Patriot Act spread beyond the limited realm set out for foreign intelligence gathering in the Keith case — and into Fourth Amendment territory. Because FISA’s protections are quite loose, they were not sufficient to satisfy the demands of the Fourth Amendment:

In this case, the court declines to adopt the analysis and conclusion reached by the FISCR in In re Sealed Case. . . . Prior to the Patriot Act, FISA may have had as its “general programmatic purpose . . . to protect the nation against terrorism and espionage threats directed by foreign powers.” In re Sealed Case, 310 F.3d at 46. After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its “programmatic purpose” the generation of evidence for law enforcement purposes – which is forbidden without criminal probable cause and a warrant.

The court further declared:

Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the

Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. Title III, like the Supreme Court’s pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment.

Is the court’s decision correct? I cannot say for certain, as Keith left quite a mess. Terrorism further muddies the waters since it involves a combination of intelligence gathering, national security, and criminal investigation. Terrorism can thus involve aspects of all three categories established in Keith. The USA Patriot Act’s changes to FISA make FISA surveillance much more likely to fall beyond the borders of category (3). Once surveillance is outside category (3), it comes under Fourth Amendment protection. Some FISA surveillance might fall into category (2) — domestic security surveillance — which is protected by the Fourth Amendment, but under less stringent rules than category (1). The issue would turn on whether the procedures of FISA are reasonable under the Fourth Amendment. Are FISA’s post-Patriot Act procedures reasonable? I’m not so sure. The FISA surveillance regime is radically different in scope and purpose of the Fourth Amendment. It is hard to say that the Fourth Amendment applies yet allows for a surveillance regime that is so alien to its basic principles.

I am pleased that Judge Aiken has declined to follow the FISCR’s opinion in In re Sealed Case, as the FISCR’s opinion struck me as rather glib and not very convincing. Judge Aiken’s decision will surely be appealed, and it will be interesting to see what the 9th Circuit holds. And that will almost certainly depend upon which judges are selected for the panel, as the 9th Circuit is a very polarized court.


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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