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Secret Law

  • July 2, 2017
  • Clayton Rice, Q.C.

On December 31, 2017, section 702 of the US Foreign Intelligence Surveillance Amendments Act (2008) will expire. It is the section that governs the domestic interception of foreigners’ communications when targets are believed to be outside the United States but is being used by agencies to monitor and collect the communications of American citizens for foreign intelligence and criminal activity. It is controversial.

In an article titled The Case for Reforming Section 702 of U.S. Foreign Intelligence Surveillance Law published by the Council on Foreign Relations on June 26, 2017, Professor Laura K. Donohue of the Georgetown University Law Center in Washington, DC described the controversy this way:

“The Director of National Intelligence (DNI) states that the interception powers are vital to the intelligence community’s ability to protect the United States from foreign threats. About one quarter of the counterterrorism reports from the National Security Agency (NSA) include information derived from section 702 intercepts. Renewal is the intelligence community’s top legislative priority for 2017. In contrast, civil liberties organizations consider the current use of section 702 to be unconstitutional. These groups, along with legal analysts and members of Congress, criticize the sheer number of Americans whose communications the NSA collects – a figure that privacy advocates estimate to be in the tens of millions.”

Professor Donohue went on to argue that s. 702 should be amended to bring it within constitutional bounds: “Section 702 violates citizens’ rights, creates a situation ripe for abuse, and undermines the balance of power between the branches of government. Congress should use the renewal of section 702 to restrict the NSA’s ability to obtain certain kinds of information and to retain citizens’ communications. Congress should also reinstate the ‘primary purpose’ test (which mandates that an intercept be for foreign intelligence purposes), prevent section 702 intercepts from being used to find evidence of ordinary criminal activity, and prohibit collection of communications about (not just to or from) targets.”

On June 14, 2017, in a post to the Electronic Frontier Foundation’s blog titled In response to EFF lawsuit, DOJ releases 18 new opinions of the FISC concerning Section 702 Mark Rumold reported that eighteen opinions of the Foreign Intelligence Surveillance Court (FISC) were disclosed as a result of a Freedom of Information Act (FOIA) lawsuit filed by EFF in 2016. One of the opinions related to the government’s refusal to give an unknown provider access to other FISC opinions cited in the government’s briefs.

On June 15, 2017, in a follow-up post to the EFF blog titled As a Provider Fought a Secret Surveillance Order, Court Denied It Access to Relevant Law Aaron Mackey summarized the background as follows: “The provider’s request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time – one from 2014 and another from 2008 – the provider asked the court for access to those rulings. The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court’s earlier decisions, much less effectively respond to DOJ’s argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.”

The court disagreed finding that s. 702 and the court’s rules barred the documents from release. The court also rejected the provider’s claim that the Due Process Clause of the Fifth Amendment to the United States Constitution entitled it to disclosure. In the redacted Opinion on Motion for Disclosure of Prior Decisions (2014) FISC Judge Rosemary M. Collyer concluded, at pp. 5-6 and 9:

“The Court has carefully reviewed the Requested Opinions in the context of the issues presented by the Petition and the parties’ respective arguments on those issues and compared the citations to and quotations from the Requested Opinions that appear in the Government’s Reply to the underlying texts. In no instance does the Reply quote or reference the Requested Opinions in a manner that is incomplete, wrenched from necessary context or otherwise misleading with regard to the point being addressed. Based on that review, the Court finds that the Requested Opinions would be of little, if any, assistance to…arguments it makes on the merits.

Beyond what is compelled by the Due Process Clause, the Court is satisfied that withholding the Requested Opinions does not violate common-sense fairness. As stated above, each quotation or reference to the Requested Opinions in the Government’s Reply fairly represents what those opinions say on the discrete point addressed. And the Government properly adduced each of those points in reply to…Response. In these circumstances, the Court would decline to compel disclosure of the Requested Opinions as a matter of discretion, assuming for the sake of argument that indeed the Court would have discretion to compel disclosure in a proper case.”

Mr. Mackey argued that there is nothing fair about withholding important legal cases from one side in a legal dispute, “The court’s decision,” he wrote, “is akin to allowing one party to read and cite a Supreme Court case while prohibiting the other side from doing the same. It fundamentally disadvantages one side in a legal fight, on top of denying it access to the case to ensure that the party in the know is accurately representing the ruling. In the case of the provider, the trump card was that the DOJ’s lawyers got to read and rely on cases that the provider never got to see.”

On June 21, 2017, in a post to his blog Schneier on Security titled The Dangers of Secret Law, Bruce Schneier of the Berkman Center for Internet & Security at Harvard Law School, concluded: “This kind of government secrecy is toxic to democracy. National Security is important. But we will not survive if we become a country of secret court orders based on secret interpretations of secret law.”

Secret proceedings have also been approved in Canadian law where, for example, ex parte hearings are conducted when the government certifies a specified public interest, or disclosure of information respecting national security arises, under ss. 37 and 38 of the Canada Evidence Act. In some circumstances defendants and their lawyers may be excluded from the court which has discretion to appoint an amicus curiae in their absence. In R v Basi, [2009] 3 SCR 389, where an issue of informant privilege arose, Fish J. held for a unanimous court, at para. 53, that where a hearing is required to resolve a Crown claim of privilege, “the accused and defence counsel should…be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected” and “only to the necessary extent”. (See also: Named Person v Vancouver Sun, [2007] 3 SCR 253)

There are two aspects, then, to the issue (a) how s. 702 works and (b) how secret law works. Professor Donohue has argued, and there is no reasonable dispute about this, that the most trenchant criticism of s. 702 is that it violates the Fourth Amendment and functions like a general warrant:

“Although section 702 theoretically prohibits the collection of Americans’ communications, in practice it acts as a general warrant. Using section 702, the intelligence community monitors and collects Americans’ international communications, as well as entirely domestic conversations, without oath or affirmation of wrongdoing. It does not apply to a particular person or place, nor does it specify the records to be obtained. A target may be in another country, but when the person on the other side is a U.S. person, then Americans’ rights are affected. Agencies are not required to delete their records of U.S. persons’ communications. To the contrary, they can be kept and queried to look for unrelated criminal activity – even though they are being collected without the ordinary protections that accompany Fourth Amendment searches.”

If this all sounds Kafkaesque, well: “Is is not necessary to accept everything as true, one must only accept it as necessary.” (Franz Kafka. The Trial (1937), at p. 220)

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