# FISA Court Opinion (2015)

Another declassified FISC opinion from the government’s 2015 certification shows an attempt at impartiality by the court, while simultaneously supporting a precedent for an exception to the Fourth Amendment. The document shows that the court appointed Amy Jeffress, former Counselor to the Attorney General for National Security, as amicus curiae, who assisted the court in an independent review of the case.

Ms. Jeffress, in analyzing the FBI’s minimization procedures, stated that the procedures “go far beyond the purpose for which the Section 702-acquired information is collected in permitting queries that are unrelated to national security” (FISC 2015, 30). The court “respectfully disagree[d]” with Ms. Jeffress’ opinion, starting that there is no “statutory requirement” that the data collected serve a “foreign intelligence national security purpose” (31). The court cited the government’s ability for the retention and dissemination of Section 702-acquired information that is evidence of crime for law enforcement purpose,” which refers to E.O. 12333 (31).

Ms. Jeffress further stated that “the minimization procedures do not place any restrictions on querying the data using U.S. person identifiers” and she stated that “each query by FBI personnel...is a ‘separate action subject to the Fourth Amendment reasonableness test.’” (39-40). The court once again sided with the government.

Having an amicus curiae review the court’s finding attempted to show impartiality by the court. Although the Court could not find legal statutes to support Ms. Jeffress’s suggestions, it was important to highlight the common expectation versus the laws that govern the data.

# United States v. Mohamud

The FISC certification ruling also furthered a precedent by the Ninth Circuit Court of Appeals in United States v. Mohamud, which created an exception to the Fourth Amendment.

United States v. Mohamud involved a complex “sting” operation by the government to convict Mohamed Osman Mohamud of planning to detonate a bomb in Portland. Although Mohamud’s intended acts were egregious, the statement that “no warrant was required to...intercept a U.S. person’s communications incidentally” draws a blurred line between preventing a terrorist attack and infringing upon the rights of U.S. citizens.

The Ninth Circuit also stated that “under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties” (United States v. Mohamud 2016, 3). This shows how courts have utilized the third-party doctrine against citizens in mass surveillance cases, and how Section 702 information acts as a catalyst for major domestic operations.

It is important to note that the government’s querying and data retention practices were not mentioned in Mohamud’s defense, and thus “an argument regarding reasonableness was outside the scope of this court’s review” (3). This was an unusual addition for the panel to add, and it seems to question the legality of the government’s practices.

# Exceptions to the Fourth Amendment

In the 2015 certification, the court wrote that Fourth Amendment “does not require the government to obtain a warrant to conduct surveillance ‘to obtain foreign intelligence,’” and the court expanded upon the exception to say that it “applies even when a United States person is the target of such a surveillance” (36-37).

The furthering of this exception to the Fourth Amendment was revealed in this document, and others like it, although at least a year passed before this opinion was declassified – and the declassification was at the discretion of the Director of National Intelligence. The power given to the court in this instance poses a significant threat to the United States; the FISC has the ability to create a set of laws hidden behind national security and both the general public and other courts are oblivious to these precedents. By changing the meaning of the Fourth Amendment, this document shows that the FISC has a real and dangerous power to influence Constitutional law.

# Sources

  1. Foreign Intelligence Surveillance Court (FISC). Office of the Director of National Intelligence. Section 702 2015 Certification Memorandum Opinion and Order. Washington, D.C., 2015. https://www.intelligence.gov/assets/documents/702%20Documents/oversight/20151106-702Mem_Opinion_Order_for_Public_Release.pdf (opens new window) (Archive).

  2. United States v. Mohamud, 14-30217, 3 (Ct.App., 9th Cir. 2016), https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/14-30217.pdf (opens new window).