Why The DOJ's Legal Defense That 'All' Info May Be 'Relevant' For The NSA Is Legally Hogwash

from the just-not-true dept

Last week, we noted the ridiculousness of the DOJ's attempted defense of the government's use of Section 215 of the Patriot Act to scoop up all phone records on every call, claiming a very twisted definition of "relevant" among other things. A variety of folks have been picking apart some of the claims in that analysis, and Orin Kerr has detailed some specific problems with the case law that the DOJ uses to back up its definition of "relevance." If this were an actual court document, it would be easy to counter, since it seems clear that the DOJ didn't use the most appropriate citations, twisted the citations it did use to mean more than they really do, and (most importantly) ignored much more relevant (and I mean that in the English sense, rather than the DOJ sense) citations and precedents. Kerr points out that the DOJ played down that the main precedents they use have specific conditions concerning necessity and context, but further notes how other cases appear to be much more germane to the topic:

A case that comes to mind is In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F.Supp. 11 (S.D.N.Y. 1994) (Mukasey, J.). In that case, then-Judge (later Attorney General) Michael Mukasey quashed a grand jury subpoena that sought all computers and all electronic storage devices possessed by the target corporation. The subpoena failed Rule 17′s “relevance” standard because the computers contained so much irrelevant material intermingled with the data that was relevant to the investigation:

Government counsel have conceded on behalf of the grand jury that the subpoena demands irrelevant documents. Moreover, the government has acknowledged that a “key word” search of the information stored on the devices would reveal “which of the documents are likely to be relevant to the grand jury’s investigation.” Id. at 3. It follows that a subpoena demanding documents containing specified key words would identify relevant documents without requiring the production of irrelevant documents. To the extent the grand jury has reason to suspect that subpoenaed documents are being withheld, a court-appointed expert could search the hard drives and floppy disks.

“[B]ecause the subpoena at issue unnecessarily demands documents that are irrelevant to the grand jury inquiry,” Mukasey concluded, “it is unreasonably broad under Federal Rule of Criminal Procedure 17(c).”

Mukasey’s decision seems to cut against the Administration’s position. It blocks a subpoena for all the electronically-stored information because lots of the information to be obtained is not relevant even thought some of it is. Plus, the opinion is written by a recent Attorney General of the United States, which should give it extra prominence. And it’s a lot more significant a precedent than are Fourth Amendment cases involving warrants to search computers: Warrants do not apply the relevance doctrine while subpoenas do, so it seems odd to discuss the cases about computer warrants but not the cases on computer subpoenas. But the “white paper” doesn’t mention this case, so we don’t know if the Administration has a response to it– or if the FISC was ever alerted to it.

I'd suggest reading the entire thing, because it also delves deeply into why the cases that the government does cite don't really support its claims.

But, the real issue here is that this is the kind of thing you get when you have a secret process with a secret court and secret rulings -- with no adversarial hearings at all. It allows one side -- in this case the DOJ -- to make incredibly weak arguments based on distorting existing case law and completely ignoring much more relevant case law, and then getting away with it because no one's there to point out how misleading the defense is. No wonder the DOJ has fought for so many years to avoid having to reveal the legal interpretation of Section 215 that explains the secret interpretation for why 215 allows the scooping up of all phone records. Someone must realize that it would immediately be shown to be lacking. But, when you know that no one is seriously reviewing these things, and those who have the most interest in actually protecting our civil liberties are kept in the dark, you can get away with incredibly sloppy legal defenses. And it appears that's exactly what the DOJ did here.

And it's just all of our privacy that was trampled on in the process.

Filed Under: metadata, nsa, nsa surveillance, orin kerr, patriot act, privacy, relevance, relevant, section 215

Author Of The Patriot Act: Congress Will Not Renew If Intelligence Agencies Don't Change Their Ways

from the time-to-fix-things dept

We've already pointed out that the key author of the Patriot Act, Rep. Jim Sensenbrenner, has spoken out against the NSA's surveillance activities, saying that the law was actually written specifically to prevent that kind of activity. Sensenbrenner, as the author of the Patriot Act, certainly isn't known for having a particularly strong focus on protecting civil liberties. However, he does seem quite perturbed at what's being done with the law associated with his name, which he insists is being abused. During today's Congressional hearings, Sensenbrenner made it clear that Congress will not renew the controversial Section 215 if the NSA doesn't correct its broad surveillance efforts:

Section 215 expires at the end of 2015. Unless you realize you've got a problem, that is not going to be renewed. There are not the votes in the House of Representatives to renew Section 215, and then you're gonna lose the business records access.... You have to change how you operate Section 215, otherwise in two and a half years you're not going to have it any more.”

The full video of Sensenbrenner questioning Deputy Attorney General James Cole is worth watching: Sensenbrenner clearly gets angry with Cole, as Cole tries to tap dance around the question, by pointing out that he's not at all happy with the idea that the intelligence community gets to determine what's "relevant" rather than the court. He notes that relevance was supposed to be a limitation not something that the intelligence community gets to decide for itself. As the revelations have shown, under Section 215, the feds get to scoop up everything, as approved by the court, and then the intelligence agencies get to determine what's "relevant" within that collection to take a closer look. Sensenbrenner is clearly outraged that it's not the court that determines relevance. Having the intelligence community get to decide for itself makes a mockery of the law.

Sensenbrenner: It appears to me that, according to this letter and the testimony of FBI Director Mueller, that "relevant" [is being interpreted as] an expansion of what could happen rather than a limitation... when relevant was not included in that statute. Doesn't that make a mockery of the legal standard, because you're trying to have it both ways?

Cole: I don't think we're trying to have it both ways...

Sensenbrenner: You sure are! Because you're saying have the court authorized to get the records of all the phone calls that are made to and from phones in the United States including people who have nothing to do with any kind of terrorist investigation. And then what you're saying is that "we'll decide" what to pick out of that mass of maybe a billion phone calls a day, rather than saying that 'this person is a target' why don't you get an authorization for only that person's telephone records?

Cole: Again, going to the analogy of the criminal context, we would never in a grand jury situation or a traditional criminal investigation even go to the court for the framework, or the setting of rules, or have sunsetting every 90 days of the authority, or...

Sensenbrenner: But, Mr. Cole, with all due respect, the letter that I got from the Department that you're the number two person in, says that you get the FISA Court order because there are "reasonable grounds to believe that the data is relevant to an authorized investigation to protect against international terrorism" as Section 215 requires. Even though most of the records in the dataset are not associated with terrorist activity. You gobble up all of those records and then you turn around and say well we'll pick out maybe 300 phone numbers out of the billions of records that you have every day and you store for five years there. All the rest of this stuff is sitting in a warehouse and we found out from the IRS who knows who wants to have any kind of legal or illegal access to it. You are having it both ways.

Once again, when will the administration realize that they've clearly taken all of this way too far?

Filed Under: business records, doj, james cole, jim sensenbrenner, nsa surveillange, patriot act, relevant, section 215