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Nsa Domestic Surveillance from the Patriot Act to the Freedom Act: the Underlying History, Constitutional Basis, and the Efforts at Reform

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Nsa Domestic Surveillance from the Patriot Act to the Freedom Act: the Underlying History, Constitutional Basis, and the Efforts at Reform View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Seton Hall University eRepository OMBRES.DOCX (DO NOT DELETE) 1/22/2015 10:30 AM NSA DOMESTIC SURVEILLANCE FROM THE PATRIOT ACT TO THE FREEDOM ACT: THE UNDERLYING HISTORY, CONSTITUTIONAL BASIS, AND THE EFFORTS AT REFORM Devon Ombres∗ I. INTRODUCTION ............................................................... 28 II. 9/11 TO TODAY—THE DEVELOPMENT OF THE NSA’S SURVEILLANCE PROGRAMS ........................... 29 III. THE FOURTH AMENDMENT THIRD PARTY DOCTRINE AND MASS DATA COLLECTION ............. 33 IV. LEGAL CHALLENGES TO DOMESTIC SURVEILLANCE AND JUDICIAL PUSHBACK ON THE THIRD PARTY DOCTRINE ............................................ 35 V. PROPOSED LEGISLATIVE REMEDIES TO MASS DOMESTIC SURVEILLANCE ......................................... 40 A. House Bills and Actions ............................................... 41 i. The Amash-Conyers Amendment .......................... 41 ii. The USA FREEDOM Act—Introduced Version ... 42 iii. Other House Bills ................................................... 44 B. Comprehensive Senate Bills and Actions ....................... 45 i. USA FREEDOM Act ............................................. 46 ii. Other Senate Bills ................................................... 49 VI. STRENGTHS AND WEAKNESSES OF THE BILLS AND POTENTIAL RESOLUTIONS ........................................... 50 VII. PREEMPTIVE PRESIDENTIAL ACTION ....................... 54 VIII. CONCLUSION ................................................................... 55 ∗ J.D. 2006 from Stetson University College of Law; L.L.M. 2013 from American University Washington College of Law; admitted in Florida, District of Columbia, United States Court of Appeals for the 11th Circuit, and United States District Court for the Middle District of Florida. 27 OMBRES.DOCX (DO NOT DELETE) 1/22/2015 10:30 AM 28 SETON HALL LEGISLATIVE JOURNAL [Vol. 39:1 I. INTRODUCTION Following the September 11, 2001 attacks, America’s signals intelligence community began growing exponentially in scope and power. In the forefront of this community was the National Security Agency (“NSA”), acting with the aid of the USA PATRIOT Act.1 Between 2001 and 2013, the scope of the NSA’s surveillance programs grew to include not only foreign communications, but also the mass collection of domestic metadata, including information on routing, senders, and recipients of phone calls, texts, and emails.2 The extent of domestic surveillance has come to light primarily through leaks of classified documents and specifically, those occurring in May 2013, by former NSA contractor, Edward Snowden.3 The NSA is now facing unprecedented challenges to the legality of these programs from private citizens bringing Fourth Amendment actions, technology companies demanding more transparency about the demands being placed on them by Foreign Intelligence Service Court (“FISC”) orders, and now Congress introducing bipartisan legislation to counteract the PATRIOT Act’s provisions and the domestic surveillance that the NSA conducts.4 This Article will discuss the historical post-9/11 timeline relative to the domestic surveillance program. It addresses the underlying historical and constitutional concept of the Fourth Amendment, Third Party Doctrine, which the federal government is relying upon to justify the legality of mass domestic surveillance, as well as to defend legal challenges to the programs. This Article will provide an analysis of legislative proposals addressing NSA surveillance overreach, including the USA FREEDOM Act and its subsequent manager’s amendment, 1 United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107–56, 115 Stat. 272 (codified as amended in scattered sections of 5, 8, 10, 12, 15, 18, 20–22, 28, 31, 42, 47, 49–50 U.S.C.). 2 The NSA utilized contact chaining as a process of “building a network graph that models the communication . patte[rn]s of targeted entities . and their associates from the communication sent or received by the targets.” OFFICE OF THE INSPECTOR GENERAL, ST- 09-0002, 13 (Mar. 24, 2009), available at http://www.theguardian.com/world/interactive/2013/jun/27/nsa-inspector-general-report- document-data-collection [hereinafter OIG Report]. 3 Mirren Gidda, Edward Snowden and the NSA Files—Timeline, THE GUARDIAN (Aug. 21, 2013, 5:54PM), http://www.theguardian.com/world/2013/jun/23/edward-snowden-nsa- files-timeline. 4 Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act, H.R. 3361, S. 1599, 113th Cong. § 1 (2013) [hereinafter FREEDOM Act]. OMBRES.DOCX (DO NOT DELETE) 1/22/2015 10:30 AM 2015] NSA DOMESTIC SURVEILLANCE 29 address their strengths and weaknesses, and discuss potential courses of legislative and judicial action to address these issues.5 Part II of this Article addresses the timeline by which the NSA’s surveillance programs were developed; Part III addresses the Third Party Doctrine under the Fourth Amendment; Part IV discusses legal challenges to the NSA surveillance programs before and after the Snowden leaks; Part V analyzes legislation proposed during the 113th Congress that addresses domestic NSA surveillance; Part VI looks at the strengths and weakness of the proposed legislation; Part VII reviews presidential action on the surveillance reforms; and Part VIII concludes this Article by discussing further judicial and legislative actions to address domestic surveillance concerns and the need to maintain a balance between privacy and security as technology advances. II. 9/11 TO TODAY—THE DEVELOPMENT OF THE NSA’S SURVEILLANCE PROGRAMS Immediately after the 9/11 attacks, the NSA took the first steps toward developing mass surveillance infrastructure as we know it today. First, on September 14, 2001, NSA Director General Michael Hayden approved targeted surveillance of specific, preapproved telephone numbers generating communications between the United States and foreign countries with known terrorist activities.6 The congressional intelligence committees were made aware of these targeted collections shortly thereafter, and by October 4, 2001, authority had been granted to collect content data for such calls and emails.7 The NSA initially pushed back at Vice President Dick Cheney’s Office’s suggestion that Executive Order (“EO”) 12333 permitted the data collection program to apply toward intercepting domestic communications.8 Regardless, the program began expanding when 5 Id. 6 See OIG Report, supra note 2, at 3 (asserting that by September 26, 2001, the NSA anticipated collecting all telephonic metadata between the U.S. and Afghanistan). 7 OIG Report, supra note 2, at 7. 8 Exec. Order No. 12,333, Part 2.3, 3 C.F.R. 1981 (1981) (stating “Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order . of the following types of information; (c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation; (d) Information needed to protect the safety of any persons or organizations, including those who OMBRES.DOCX (DO NOT DELETE) 1/22/2015 10:30 AM 30 SETON HALL LEGISLATIVE JOURNAL [Vol. 39:1 Attorney General John Ashcroft signed off on its implementation per EO 12333 and the NSA General Counsel declared the program legal on October 5, 2001.9 By late 2002, the NSA was reaching out to telecommunication companies (“telecoms”) to gain assistance with the surveillance program and in early 2003, installed a system at one of AT&T’s San Francisco locations to collect and analyze communications data.10 The NSA also reached voluntary agreements with three unidentified companies to share information under the program’s authority, allowing it to gain access to eighty-one percent of all international telephone calls.11 Formal letters requested information regarding communications traffic that may terminate in the United States, aggregated call record information, and computer-to-computer data.12 By 2004, the Federal Bureau of Investigation (“FBI”) and Central Intelligence Agency (“CIA”) became involved to improve collaborative analytics.13 Despite some pushback from the telecoms, the data collection continued.14 In 2004, Attorney General Ashcroft forwarded letters necessitating continued cooperation, stating that the law for data collection required no warrant or court order.15 In July 2004, the FISC began issuing orders permitting the collection of metadata under the program pursuant to pen register (“PR”) and trap and trace (“TT”) are targets, victims or hostages of international terrorist organizations; . (i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws . .”). 9 Electronic Frontier Foundation, Timeline of NSA Domestic Spying, https://www.eff.org/nsa-spying/timeline (last visited Nov. 21, 2014) (citing ERIC LICHTBLAU, BUSH’S LAW: THE REMAKING OF AMERICAN JUSTICE (First Anchor Books 2009) (stating White House associates “shoved” the order in front of Ashcroft and “told him to sign it.”)); see OIG Report, supra note 2, at 9, 11 (conveying
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