iConstitution: How Apple is using the Constitution as a basis for its argument against the FBI

It’s quite difficult to imagine exactly what the Framers of the Constitution would think of the construal of their document to protect the locked-away iMessages and data of the San Bernardino terrorists. Yet, the principles of the Constitution that Apple is using to rebut the arguments of the FBI protect the rights of the individual to privacy and due process in a succinct and powerful manner.[i]

Primarily at play are the First and Fifth Amendments, but Apple also relies upon an argument against the All Writs Act of 1789.[ii] The FBI is using the All Writs Act as its source of authority for the court order compelling Apple to create a new version of its operating system that would make it easier to access the iPhone’s password-protected data.[iii] Apple fears that the creation of such software would not only threaten the privacy of all Apple users, but would also place an undue burden on the company to either destroy the program after the FBI uses it or keep and protect it against the certain multitude of attempts by “criminals, terrorists, and hackers” to steal the software. [iv]

Apple’s First Amendment argument relies upon the established classification of computer code as speech.[v] The First Amendment, as it pertains to this issue, prohibits the making of any law abridging free speech.[vi] In this instance Apple argues that its interests are protected because the Supreme Court has clearly decided that First Amendment protections apply when the government attempts to compel speech.[vii] Apple cites Riley v. Nat’l Fed. of the Blind of N.C., Inc., which upholds the idea that the court must scrutinize attempts by the government to compel speech, and it will be allowed only when the request is of a scope narrow enough to obtain a compelling state interest.[viii] The FBI, Apple argues, does not meet this standard because it has produced nothing more than mere speculation of potentially relevant information on the phone.[ix] Further, any relevant information may be encrypted using non-Apple software in secure communication applications.[x]

The Fifth Amendment’s Due Process Clause is applied in an attempt to protect Apple from governmental conscription.[xi] The Fifth Amendment’s Due Process Clause states, “[n]o person shall … be deprived of life, liberty, or property without due process of the law…”[xii]Apple argues that a court order compelling the company to create a backdoor that unlocks the San Bernardino terrorists’ phone violates its Due Process because the government would be depriving Apple of its liberty.[xiii] The government cannot force a private company to perform actions that are excessively burdensome and “contrary to the company’s core principles,” and Apple contends that the FBI’s request that Apple creates software that allows access to this iPhone cannot succeed due to this protection.[xiv]

With respect to the FBI’s use of the All Writs Act, Apple maintains that the FBI’s order violates the two requirements developed through common law that are pursuant to all orders.[xv] The Act requires that orders “must not adversely affect the basic interests of the third party or impose an undue burden.”[xvi] Apple alleges that the FBI’s order fails the first requirement because it has a powerful interest in protecting its security systems and all Apple customers depend on the company for their privacy.[xvii] The FBI’s order fails the second requirement too, argues Apple, because Apple would be forced to create a program that undermines the security features the company spent years developing.[xviii] Further, if Apple is compelled to create such software, it would open the floodgates to a large number of parties seeking similar software.[xix] Apple would be forced to either build and destroy software for each phone they are compelled to break open or safeguard the software against certain numerous attacks by parties with dubious intentions, both of which are alleged to be an undue burden on the company.[xx]

Apple presents itself as the hero of the rights of private companies to protect personal privacy against valid governmental concerns. The company does not seek to negate the FBI’s need to access the San Bernardino terrorists’ iPhone data, but rather hopes to preserve and protect the rights of individuals at the cost of burdening the government. Apple’s reliance on integral amendments to the Constitution serve to bolster its stance and prove that though dated, the Constitution’s elasticity allows its application to the technological intricacies of the current times. The argument is powerful, but the FBI’s reliance upon the All Writs Act and public safety concerns may outweigh Apple’s protection of privacy.

 

[i] Apple Inc.’s Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search, and Opposition to Govt.’s Mot. to Compel Assistance, 32:5.

[ii] Id.; Id. at 14:13,14.

[iii] Id. at 14:13,14.

[iv] Id. at 25:6-9.

[v] Id. at 32:15,16 (citing sources that treat computer code as speech under the First Amendment).

[vi] U.S. Const. amend. I.

[vii] Mot. to Vacate, 32:21,22.

[viii] Id. at 32:22-6 (citing Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781,796 (1988)).

[ix] Id. at 33:3-6.

[x] Id. at 33:8-10.

[xi] Id. at 34:10,11.

[xii] U.S. Const. amend. V.

[xiii] Mot. to Vacate, 34:14-17 (citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010).

[xiv] Id.

[xv] Id. at 23:8,9 (citing United States v. Hall, 582 F. Supp. 717, 719 (E.D. Va. 1984).

[xvi] Id.

[xvii] Id. at 23:11-16.

[xviii] Id. at 23:20-22.

[xix] Id. at 24:6-8.

[xx] Id. at 24:17-19, 25:1,2.

 

 

 

How to Reform the Foreign Intelligence Surveillance Court Without Creating a Special Advocate

fisc pic

Many proposals have been introduced in Congress to reform the Foreign Intelligence Surveillance Court (FISC); several proposals would create an ombudsman-like entity that would appear before the FISC and the Foreign Intelligence Surveillance Court of Review (FISC-R) on behalf of the American people to argue against the government’s compulsion requests. [1]. As the Congressional Research Service (CRS) pointed out, this “concept…is a novel one…and, consequently the proposal raises several difficult questions of constitutional law.” [2]. One way around those difficult questions is to remove the government from the opposition-side of the proposal entirely.

CRS explained in its report how the appointment of an advocate to appear before the FISC and FISC-R faces complex constitutional issues regarding Article II’s Appointments Clause and Article III’s restrictions on the judicial branch. [3]. It explained that the special advocate proposals raise problems because they do not require Senatorial confirmation, could result in intra-branch litigation, and would lack standing to appear before the courts. [4].

Instead, why not expand the existing mechanisms through which the communications service providers are already fervently—but unsuccessfully—opposing FISA compulsion orders? Currently, service providers can oppose the government’s requests before the FISC by filing a petition. [5]. 50 U.S.C. §1830 authorizes a service provider to request a hearing, but the hearing is only granted if a majority of the judges determine it is necessary to maintain uniformity of the court’s decisions or if the proceeding involves a question of exceptional importance. [6].

First, expanding the existing mechanisms instead of creating a new entity tackles the three issues raised by CRS. Appointments and intra-branch litigation are solved because the service providers are not government entities. Standing is solved because FISC and FISC-R have repeatedly held service providers have standing when petitioning to vacate an order. [7]. Service providers are incentivized and motivated to oppose broad and vague compulsion orders. The companies just need a less-burdensome mechanism to mount the defense on behalf of their consumers: the American people.

Second, while existing mechanisms are a start, they clearly have not provided an effective adversarial opponent for the government. As mentioned, Section 1803 sets a broad—yet seemingly high—bar for a petitioner to even receive a hearing (a question of exceptional importance). The opportunity to present oral arguments does already exist, as demonstrated in Yahoo!’s (government-approved) release of documents summarizing a multi-year Section 702 opposition effort (which included mention of oral arguments before the FISC-R). [8]

But, other examples of a success—even as nominal as even receiving a hearing before FISC or FISC-R—are few and far between. Considering the magnitude and implications now known about the extent of the surveillance programs, an easy reform could be to mandate a hearing for any opposing-petition deemed non-frivolous (as opposed to creating a secondary hurdle with the higher bar of an exceptionally important question to receive a hearing).

The counter to this proposal of a streamlined hearing is about resources and timeliness. Compulsion orders can be time-sensitive and the statutes lay out specific time frames for petitions and appeals to be considered. [9]. Creating a mechanism for a timely in-person hearing could be difficult, but the difficulty would be the same for any proposal for an ombudsman-like advocate. But even more, considering the constitutional rights and national security implications at stake, U.S. taxpayers should be willing to provide whatever judicial resources are needed to create this expedited hearing. And regarding timeliness: if a hearing is impossible in a short time frame for an emergency order, the order can always be subject to review in a subsequent hearing once the service provider has had requisite time to mount its case.

Third, the need to provide a real and substantial “check” on the government’s claims in compulsion requests is clear. Currently, an opposing petitions can only succeed if it proves that the compulsion order does not meet the requirements of either sections 215 or 702 or is otherwise unlawful. [10]. While many petitions challenging the constitutionality of directives have thus far failed, the FISC has acted to minimize and modify directives. Most famously, the October 2011 FISC opinion in which Judge John D. Bates found “certain aspects of NSA’s collection under Section 702 to be ‘deficient on statutory and constitutional grounds.’” [11].

In that case, the FISC’s attention to NSA’s excesses only occurred after the government filed a clarification disclosure–which then led to five months of litigation between the government and the court over the disclosed violations. [12]. Unquestionably, this process could have been aided had the government been required to face adversarial counsel both in the initial order and during the review. Judge Bates’ frustration that the government’s initial error was a “substantial misrepresentation” is an observance that screams for an adversarial process. [13]. The service provider in that case (unknown from the redacted opinion and unclear whether it attempted to participate) was likely in a better position to explain the misrepresentations to the FISC than any other party—especially considering the FISC failed to catch the misrepresentation until the government admitted it after-the-fact.

Reforming Sections 1881(h)(4) and 1861(f)(2)(A)(ii) to provide stronger mechanisms for service providers to oppose FISC orders could be an easier way to create an effective adversarial opponent for the government in NSA surveillance orders. Service providers are motivated to protect their customers and have demonstrated over the past decade that they are willing to spend their own resources to defend the constitutional rights of their customers. Reforming the FISA statute to provide them a mandatory hearing on non-frivolous petitions, the ability to more effectively challenge government claims about the scope of surveillance needed, and the opportunity to inform the FISC with their technical expertise about their own systems—both before and after directives have been ordered—could improve the system for all involved without invoking the complications of creating a new and novel judicial entity.

 

Photo courtesy of Benjamin Cook

[1]  S. 1467, 113th Cong. (1st Sess. 2013); H.R. 2849, 113th Cong. (1st Sess. 2013); S.1551, 113th Cong. (1st Sess. 2013); H.R. 3159, 113th Cong. (1st Sess. 2013); H.R. 3228, 113th Cong. (1st. Sess. 2013).

[2] Andrew Nolan, et al., Cong. Research Serv., 443260, Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues (2013).

[3] Id.

[4] Id.

[5] 50 U.S.C. 1803(a)(2)(A)(authorizing hearings for petitions under §1861 or §1881); 50 U.S.C. §1861(f)(2)(A)(i)(opposing Section 215 orders); 50 U.S.C. §1881(h)(4)(opposing Section 702 orders).

[6] 50 U.S.C. §1803(2)(A).

[7] In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. BR 14-01, 2014 WL 5463097, at *1, *3 (FISA Ct. Mar. 20, 2014); In re Directives to Yahoo! Inc. Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, No. 08-01, (FISA Ct. Rev. August 22, 2008)(only released on Yahoo!’s website).

[9] §1861(f)(2)(A)(ii) (72 hours to do initial review of petition); 1881(h)(4)(B-D)(petition assigned within 24 hours, initial review within 5 days after assigned).

[10] §1861(f)(2)(B); §1881(h)(4)(C)

What happened to NSA reform and where does it go from here?

Over eighteen months have passed since Edward Snowden first disclosed the extent of the National Security Agency’s (NSA) surveillance programs. [1] Snowden revealed two main programs: the business records program that includes phone history collections, and the PRISM program that collects information about electronic communications. The business records program operates under Section 215 of the PATRIOT Act. [] PRISM operates under Section 702 of the Foreign Intelligence Surveillance Act (FISA). [3] In the aftermath of the disclosures, over a dozen bills were introduced in the Congress to reign in the NSA. [4] In May of 2014, the House passed a limited version of the USA Freedom Act, which shifted the burden for preserving phone records to telecommunication companies; notably, by the time the House voted on a final version, the bill had lost the support of privacy advocates and the technology community. [5] The Senate has not voted on the bill. [6]

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The reform proposals vary in detail but mainly focus on 1) narrowing requirements for Section 215 collection orders; 2) increasing disclosure from the Foreign Intelligence Surveillance Court (FISC), the government, and companies compelled to produce records; and 3) reforming the FISC’s makeup and procedures. [7] The complexity of the competing interests makes reforming the entire process very difficult. For example, just one specific reform proposal—making hearings before the FISC an adversarial process—is littered with complicated constitutional and policy implications. []

In the upcoming Congress with majorities in both chambers, Republicans may choose to focus on the economy, national security, health care, and immigration and the border before deciding to tackle NSA reform. At the very least, cohesion is needed between the various positions espoused by party leaders. Key Republicans have staked positions ranging from complete overhaul, to minor reforms, to maintaining the status quo. [9] [10] [11] [12]

Additionally, recent turmoil in the Middle-East and the increased focus on terrorism may have dampened the swell of public anger with the surveillance programs. A common argument of program supporters is that the only demonstrable harm of the surveillance is the fact that collections occurred. [13] Whether that is true may be debatable; but a divided Congressional leadership and an uptick in anti-terrorism sentiment do not likely bode well for significant NSA reform in the Congress.

So it appears for now the issue is left to the courts. Two notable cases are currently before U.S. circuit courts. In the D.C. Circuit, a three-judge panel just heard oral arguments in Klayman v. Obama on November 4th. [14] In the 2nd Circuit, a three-judge panel heard oral arguments in ACLU v. Clapper on September 2nd. [15]. The D.C. Circuit is considering a district court decision finding Section 215 likely unconstitutional, while the 2nd Circuit is considering a district court decision upholding the surveillance programs.

Both cases highlight the principles arguments of each side. The government argues that the plaintiffs in each case do not have standing because they cannot point to specific harm. The government next argues that the call history is voluntarily submitted to third party companies and is thus unprotected by legal interest. [16] For this argument the government relies on the 1979 Supreme Court case Smith v. Maryland, where the Court held that dialed phone numbers could be obtained by police without a warrant. [17] Finally, the government stresses in both cases that the collections are of metadata and not of content. [18]

The advocates argue that the pervasive and indiscriminate collection of data, approved by a court (the FISC) that only hears the government’s side of the argument, is in itself a violation of the Constitution. [19] They define the analysis of metadata as the equivalent of searching content. [20] The advocates also point to previous violations of FISC orders by the NSA as a key reason for stronger minimization procedures. [21]

Two proximate and likely distinguishable circuit court rulings could very well provoke consideration by the Supreme Court. In addition to those two cases, telecommunication companies have, while taking some criticism for complying with the records orders, also opposed the NSA programs in several instances. Facebook, Microsoft, Google, Yahoo, and Twitter have all challenged compulsion orders or fought for more disclosure. [22] [] [] [25] [26]

With comprehensive reform looking more complicated in Congress than last year after the Snowden disclosures, Americans will be anxious to see the pending opinions by the D.C. Circuit and 2nd Circuit Courts of Appeals.

[] ANDREW NOLAN ET AL., CONG. RESEARCH SERV., R43260, INTRODUCING A PUBLIC ADVOCATE INTO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT’S COURTS: SELECT LEGAL ISSUES (2013).

Image courtesy of DonkeyHotey via Flickr (license)

Kellogg Brown & Root Services, Inc. v. United States: PMC Whistleblower Case Potentially Restricting Civil Suits

Benjamin Carter is a Reverse Osmosis Water Purification Unit operator who traveled to Iraq to assist in reconstruction efforts under the employment of Kellogg Brown & Root Services, Incorporated. (“KBR”) It was during his time working for KBR that he discovered the clean drinking water, which KBR was contracted to deliver to the U.S. military troops, was not properly treated. When addressed about the issue, KBR allegedly . It was then that he resigned from KBR and in February 2006 he filed suit against KBR for fraudulently billing the federal government under the False Claims Act. (“FCA”) The final decision of this case is still undetermined, but the impacts that it poses for whistleblowers and civil suits in general could be far outreaching.

The FCA affords individuals the opportunity to bring forward claims against persons who knowingly present a false or fraudulent claim to the government for payment; however, in the case of Carter, there have been significant difficulties in his claim being heard by a court.

The claim has been dismissed multiple times with the court relying on the first-to-file provision of the FCA, which states that any claim that is “sufficiently related” to another claim that has already been filed should be dismissed. The previous claims referenced are Thorpe v. Halliburton Co. and Duprey v. Halliburton, Inc. These two cases had been appealed by KBR and were in a “pending” classification within the court system for several years. According to the FCA, only the government “may intervene or bring a related action based on the facts underlying the pending action.” This resulted in the dismissal of Carter’s claim without prejudice, affording him the option to bring the claim forward once the pending claims are decided or dismissed.

14662335892_e3546802ab_zHowever, when the case was brought forward after the other cases were dismissed, due to the appeals being dropped, the courts dismissed under multiple pretexts. The district court had determined that the previous cases, even though dismissed, still constituted barring further claims from being brought forward by civilians. This would later be overruled by the Appellate court and restated in multiple circuits. However, the D.C. circuit ruled in a separate case that regardless of whether the previous cases were dismissed, the claimant in the present case would be barred from bringing a civil suit for fraud.

A second reason was also given for wanting to dismiss the claim, whether the Wartime Suspension Act (WSLA) should be interpreted to include civil fraud cases. The WSLA allows for the Statute of Limitations to be suspended during times of war, under the assumption that it is difficult to accurately collect evidence during war. It also serves the benefit of removing the possibility of a defendant using the Statute of Limitations as protection.

The Supreme Court however has spoken out about the statement that the WSLA and said that it is limited to only criminal cases by rejecting that interpretation based on the 1944 amendment to the WSLA language. The amendment removed the phrase “now indictable,” allowing it to be expanded to civil cases as well.

An additional concern of Carter’s claim and the WSLA is that the Act restricts any claims from being brought forward until five years after the hostility or war has ceased. This was previously three years but was expanded in the 1944 amendment. War in this case is interpreted as any authorization for the use of Armed Forces.

Presently, Carter’s case is awaiting the Supreme Court’s decision as to whether it will be barred under the WSLA; additionally, the case is awaiting a definitive interpretation about the FCA. While the decision in regards to the WSLA may not be highly significant, given the United State’s present involvement with the Middle East, a decision from the court about what constitutes a pending claim could reach out far beyond private militarization suits.

If the Supreme Court were to take up the D.C. Court of Appeals interpretation of the FCA it could result in several viable lawsuits being barred simply on the basis of a similar case having been dismissed. This could detract from the methods for which PMCs can be held accountable by limiting civilian initiated suits for their failure to meet government contract terms, assuming of course that the violation goes unnoticed by the U.S. government. However, extending even beyond this scenario, any civil suit brought forward to defend federal government dealings, whether international or domestic, could be negatively impacted.

The motivation for these whistleblowers to file suits on behalf of the government is likely directly tied to the monetary benefit of a successful FCA claim for the government; however, this is in addition to improving contract efficiencies and reducing federal frivolous expenditures. Any reduction in a civilian’s ability to bring forward these claims could likely reduce U.S. efficiencies and permeate the areas affected by these contracts, notably national security, in a negative way.

Photo Courtesy of The U.S. Army (License)