Citing week-old Supreme Court precedent, the President Barack Obama administration told a federal judge Wednesday that it should quash a federal lawsuit accusing the government of secretly siphoning Americans’ electronic communications to the National Security Agency without warrants.
The San Francisco federal court legal filing was in response to U.S. District Judge Jeffrey White’s written question (.pdf) to the government asking what to make of the high court’s Feb. 26 decision halting a legal challenge to a once-secret warrantless surveillance project that gobbles up Americans’ electronic communications — a program that Congress eventually legalized in 2008 and again in 2012.
In that case, known as Clapper, the justices ruled 5-4 that the American Civil Liberties Union, journalists and human-rights groups that sued to nullify the FISA Amendments Act had no legal standing to sue. The justices ruled (.pdf) the plaintiffs submitted no evidence they were being targeted by that law.
The FISA Amendments Act authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”
- Feds Demand Dismissal of Dragnet-Surveillance Challenge (wired.com)
- It’s Official, the Fourth Amendment is Dead (usahitman.com)
- In ‘Disturbing Decision’ Supreme Court Rejects Challenge of Dragnet Surveillance of Americans (commondreams.org)
- Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains (secretsofthefed.com)
The unfolding scandal that led to the resignation of Gen. David Petraeus, the Director of the Central Intelligence Agency, started with some purportedly harassing emails sent from pseudonymous email accounts to Jill Kelley. After the FBI kicked its investigation into high gear, it identified the sender as Paula Broadwell and, ultimately, read massive amounts of private email messages that uncovered an affair between Broadwell and Petraeus (and now, the investigation has expanded to include Gen. John Allen‘s emails with Kelley). We’ve received a lot of questions about how this works—what legal process the FBI needs to conduct its email investigation. The short answer? It’s complicated.
The Electronic Communications Privacy Act (ECPA) is a 1986 law that Congress enacted to protect your privacy in electronic communications, like email and instant messages. ECPA provides scant protection for your identifying information, such as the IP address used to access an account. While Paula Broadwell reportedly created a new, pseudonymous account for the allegedly harassing emails to Jill Kelley, she apparently did not take steps to disguise the IP number her messages were coming from. The FBI could have obtained this information with just a subpoena to the service provider. But obtaining the account’s IP address alone does not establish the identity of the emails’ sender.
Broadwell apparently accessed the emails from hotels and other locations, not her home. So the FBI cross-referenced the IP addresses of these Wi-Fi hotspots “against guest lists from other cities and hotels, looking for common names.” If Broadwell wanted to stay anonymous, a new email account combined with open Wi-Fi was not enough. The ACLU has an in-depth write-up of the surveillance and security lessons to be learned from this.
After the FBI identified Broadwell, they searched her email. According to news reports, the affair between Petraeus and Broadwell lasted from November 2011 to July 2012. The harassing emails sent by Broadwell to Jill Kelley started in May 2012, and Kelley notified the FBI shortly thereafter. Thus, in the summer of 2012, when the FBI was investigating, the bulk of the emails would be less than 180 days old. This 180 day old dividing line is important for determining how ECPA applies to email.
Compared to identifying information, ECPA provides more legal protection for the contents of your email, but with gaping exceptions. While a small but increasing number of federal courts have found that the Fourth Amendment requires a warrant for all email, the government claims ECPA only requires a warrant for email that is stored for 180 days or less.
But as the Department of Justice Manual for searching and seizing email makes clear, the government believes this only applies to unopened email.
MORE . . .
- When Will our Email Betray Us? An Email Privacy Primer in Light of the Petraeus Saga (eff.org)
- Should E-mail Privacy be the Real Issue in the Petraeus Affair? (activistpost.com)
- How metadata brought down CIA boss David Petraeus (newscientist.com)
- 5 Gmail lessons from Petraeus affair (politico.com)
How the FISA Amendments Act Allows for Warrantless Wiretapping, As Described By Supreme Court Justices
On [October 29, 2012] … the Supreme Court heard oral arguments in Clapper v. Amnesty, an important case that will decide if the ACLU’s challenge to the FISA Amendments Act—the law passed in the wake of the NSA warrantless wiretapping scandal—can go forward. The Court will essentially determine whether any court, short of a government admission, can rule on whether the NSA’s targeted warrantless surveillance of Americans’ international communications violates the Constitution.1
In Clapper, the plaintiffs — journalists, human rights workers, and lawyers — filed the lawsuit because the statute prevents them from doing their job without taking substantial measures when communicating to overseas witnesses, sources and clients. EFF has previously explained how the FISA Amendments Act gives the government an unconstitutional license to read any emails or other electronic communications coming into and out of the United States. So let’s hear the Supreme Court Justices, in their own words, explain how invasive the law really is.
Here is how Justice Ginsburg, with an assist from ACLU deputy director Jameel Jaffer, explained how the FISA Amendments Act (FAA) gutted the traditional warrant requirements in FISA, along with the Fourth Amendment:
JUSTICE GINSBURG: Mr. Jaffer, could you be clear on the expanded authority under the FAA? As I understood it, it’s not like in [FISA], where a target was identified and…the court decided whether there was probable cause. Under this new statute, the Government doesn’t say who is the particular person or the particular location. So, there isn’t that check. There isn’t that check.
MR. JAFFER: That’s absolutely right, Justice Ginsburg…The whole point of the statute was to remove those tests, to remove the probable cause requirement, and to remove the facilities requirement, the requirement that the Government identify to the court the facilities to be monitored. So those are gone.
That’s why we use the phrase “dragnet surveillance.” I know the Government doesn’t accept that label, but it concedes that the statute allows what it calls categorical surveillance, which…is essentially the surveillance that the plaintiffs here are concerned about.
As Justice Kagan stated succinctly, “this statute greatly expands the government’s surveillance power. Nobody denies that.”
MORE . . .
- How the FISA Amendments Act Allows for Warrantless Wiretapping, As Described By Supreme Court Justices (activistpost.com)
- Fight over FISA Amendments Act Moves to the Senate, as the House Passes the Broad, Warrantless Spying Bill (rubinoworld.com)
- How the FISA Amendments Act Allows for Warrantless Wiretapping, As Described By Supreme Court Justices (eff.org)
- Fact Checking Obama’s Misleading Answer About Warrantless Wiretapping on The Daily Show (eff.org)
- House approves another five years of warrantless wiretapping (rubinoworld.com)