Of Constitutional Concern

Through a vote yesterday, President Trump has been formally impeached by the U.S. House of Representatives.  The matter now moves to the U.S. Senate.

I’ll leave the impeachment proceedings to the talking heads — for now at least.  Today I’d like to focus, instead, on another area of constitutional concern that has been lost in the constant drumbeat of news on impeachment.  I’m speaking of an extraordinary order issued by the FISA Court earlier this week, in the wake of the recent Inspector General’s report on the conduct of the FBI and the Department of Justice in receiving authorization to conduct surveillance.  I’ve linked to the text of the Order above.

fb-seal-headquartersThe FISA court gets its name from the Foreign Intelligence Surveillance Act, the statute which created the Court.  FISA requires the government to apply for, and receive authorization from, the FISA Court before it can engage in electronic surveillance.  The applications are to be made in writing, upon oath or affirmation, by a federal officer from the agency, such as the FBI, that seeks to conduct the surveillance.  The FISA Court — consisting of judges appointed by both Democratic and Republican administrations — is then supposed to review the applications to decide whether they establish probable cause that the proposed surveillance target is a “foreign power” or an “agent of a foreign power” within the meaning of FISA.

This process is critical because — as the FISA Court’s Order issued this week notes — it was designed to allow the FISA Court to provide a check on executive branch power to conduct surveillance and thereby protect the Fourth Amendment rights of American citizens against unlawful search and seizure.  To allow the Court to do that job, FISA imposes a heightened duty of candor upon the federal agents and agencies in their applications to the Court.  The FISA Court considers candor to be “fundamental” to its effective operations.

The Order issued this week makes it clear that the FBI, in seeking the FISA Court’s approval of the surveillance order that was discussed in the Inspector General’s report, did not meet its duty of candor — not by a long shot.  To the contrary, the Court notes that the Inspector General’s report “documents troubling instances” in which FBI personnel provided information that was “unsupported or contradicted by information in their possession” and “withheld . . . information in their possession which was detrimental to their case for believing that [Carter] Page was acting as an agent of a foreign power.”

In addition, the Order notes that an attorney for the FBI engaged in conduct that “apparently was intended to deceive the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency.”  The Court believes that the conduct of the attorney gives rise to “serious concerns about the accuracy and completeness of the information provided to the [FISA Court] in any matter (emphasis added)” in which the attorney was involved.

The Order adds:  “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”

The FISA Court’s Order concludes by ordering the FBI to provide a sworn written submission identifying what it has done, and what it will do, to ensure that the statements of facts in each FBI application accurately and completely set forth the material information in the possession of the FBI.  It will be interesting to see how the FBI responds.

In today’s world, there’s often argument about whether the news that is reported, and the characterization of events that is conveyed, is slanted or biased or accurate.  The FISA Court’s Order — which is only four pages long, and can be read and understood by any educated American — allows us to go to the source and see how a Court that is composed of judges with lifetime tenure who were appointed by both Republicans and Democrats is reacting to a detailed report on serious misconduct by the FBI.

The Fourth Amendment is there to protect all of us — Democrat, Republican, or Independent, liberal or conservative.  If the FBI is willing to distort, deceive, and misrepresent to pursue an agenda, that’s a concern for everyone.  We should all be grateful to the FISA Court for putting aside politics, recognizing that the ends don’t justify the means, and holding the FBI to account.

Living In Spytown

An interesting lawsuit is proceeding in Coral Gables, Florida.  Coral Gables has installed “license plate readers” at traffic intersections, and one of its citizens, Raul Mas Canosa is suing about the amount of data that the city has accumulated about him — and every other car owner in town.

Coral Gables has more than 30 license plate readers positioned at major intersections in the city.  The readers take a photo of the back of each vehicle and record the license plate number and the associated time, date and location.  Thanks to the license plate readers, the Coral Gables Police Department has captured tens of millions of data points representing individual vehicle movements around the city — more than any of the other 26 South Florida cities that use a similar system.  Privacy advocates say that the license plate readers are intrusive and the accumulated data effectively allows the city to track the daily movements of ordinary citizens who are not suspected of any crime.  The city argues that the system can be used to quickly find vehicles that may be involved in criminal activity and could be used to help solve cold cases, too.

The pending lawsuit argues that the license plate readers violate the Fourth Amendment and rights to privacy under Florida law.  Recently the judge presiding over the case denied Coral Gables’ motion to dismiss the lawsuit, which means the case will proceed into the discovery phase.  The discovery will likely focus on how the city uses the system, its usefulness in helping to solve crimes and apprehend criminals. and whether there is reasonable justification for keeping the data for years.

Should cities routinely track the movements of people going about their daily affairs through the use of cameras at traffic intersections?  After all, traffic intersections are public places where anyone can see who is driving by, and in most major cities there are likely to be security cameras that record movements past particular buildings.  For many of us, being on camera has become a part of our daily lives.  But the problem here is that the city keeps the data for years and presumably can combine it with other information it maintains — like whose car bears the license plate, and where they live — to get a pretty good picture of what people are doing and where they are going from day to day.  That seems pretty intrusive to me.

Police officials are always going to want more data and information that they can sift through in trying to solve crimes.  The question is one of line-drawing, and balancing effective crime fighting with the privacy rights of normal people.  The Coral Gables case is one that will help to start sketching out the boundaries and setting the balance.

Protecting Cell Phone Privacy

The Supreme Court issued an important ruling yesterday.  In a 9-0 decision, the Court ruled that police must obtain a warrant before they search the cellphones of people they have arrested.  The ruling won’t directly affect most of us — unless you’re planning on being arrested in the near future, that is — but it represents a significant recognition of the central role of cellphones in our lives and an important bit of line-drawing in the ongoing battle between personal privacy and law enforcement.

IMG_6186In the ruling, Chief Justice John Roberts addressed both the pervasiveness of cellphones in modern America and the sweeping extent of information that people store on them.  From photos and video to address books, emails to calendars, financial information to maps, and other records of where we have been and who we have communicated with, cellphones are a handheld repository of huge amounts of very personal information about our private lives.  The Chief Justice thus reasoned that allowing warrantless searches of cellphones would be akin to the hated “general warrants” executed by the British authorities during colonial times that allowed them to rummage freely through homes in an effort to find some evidence of some kind of otherwise uncharged criminal activity — which is what drove the creation of the warrant clause of the Bill of Rights in the first place.

The Court also rejected arguments that a search of cellphones is needed to protect police officers or prevent the destruction of evidence.  When an arrest is made police can examine the cellphone to ensure that it can’t be used as a weapon and secure it, and if there is concern that evidence on the phone might be destroyed the officer can turn off the phone, or remove the battery, or place it in a foil bag to prevent any exchange of signals.  But before the police can access the cellphone and begin reviewing recent emails, the logs of recent calls, and other information, they must make the probable cause showing required by the Fourth Amendment and convince a judge to issue a warrant.

Two other points about the opinion seem worth emphasizing.  First, it was a unanimous decision.  For all of the fretting about political fracturing and the liberal and conservative wings of the Court, all of the Justices were able to agree on how to resolve a very central issue of how the Constitution works in modern life.  There’s nothing wrong with members of the Supreme Court disagreeing about legal issues — that’s why there are nine of them and the majority wins — but it’s nice to see the different perspectives coalesce around a simple, common approach to protecting individual liberty and privacy rights.

Second, many people have criticized jurists who return to the intent of the Framers of the Constitution and seek the meaning of its provisions in the historical context in which they were adopted, arguing that the Constitution should be a living document with meaning that changes in response to the realities of modern life.  Others contend that such an approach strips America’s core founding document of any objective significance and leaves it to mean whatever five Justices of the Supreme Court say it means.

The Court’s cellphone opinion, with its reference to the history of general warrants, shows how it is possible to draw upon historical context to identify the basic motivating principles underlying the Constitution and then apply those principles to the modern world.  Those observers who poke fun at purportedly hidebound efforts to discern “original intent” likely are happy with the opinion yesterday, but not about how the Court got to that result.

Reasonable Expectations Of Privacy In A Digital Age

Earlier this week the Supreme Court decided an interesting case that begins what will be a long process of determining how the criminal justice protections of the Constitution apply to knotty issues raised by our increasingly linked-in, networked, mobile device-oriented age.

The case raised the question of whether prosecutors could attach a GPS device to a suspect’s car and track its movements for 28 days without getting a warrant.  The Court ruled, unanimously, that such conduct constituted an unreasonable search and seizure.  However, the Court split on the question of the nature and extent of the constitutional violation.  The majority opinion focused on the fact that prosecutors had physically attached the device to the suspect’s vehicle without consent.  The concurring opinions, however, raised broader questions of how the government may apply electronic surveillance to suspects in an age where people carry cell phones and send unencrypted text messages and cars broadcast their locations.  Do we have as much of a reasonable expectation of privacy in such information as we do in, for example, documents kept in a file folder in a locked desk drawer in our homes?

The Supreme Court’s latest decision is an example of how the law often has to follow, and respond to, technology.  The Fourth Amendment language on searches and seizures and warrants was written in the days of travel on horseback, flintlock pistols, and communication limited to face to face conversations and written letters.  The Supreme Court has had to revisit how the Fourth Amendment applies with the development of the telegraph, the telephone, and the automobile, and now it will need to do so again in our mobile information age.

I’m glad the Court came down, unanimously, against a warrantless attachment of a GPS device on a car — but that seems like a pretty extreme case.  The closer cases will tell the tale.  And one of the fundamental questions is likely to be:  does the prevalence of mobile devices, and the abundance of personal information we routinely carry and communicate to just about everybody, make it more or less reasonable for us to view that information as private?