FBI's PRISM slurping is 'unconstitutional' – and America's secret spy court is OK with that

How about an appeal? Nope

Hopes that reform to the US government's mass surveillance infrastructure would yield real results have been dealt a blow after the opinion of a public advocate to the Foreign Intelligence Surveillance Court (FISC) was rejected.

Amy Jeffress was asked to give her opinion on the FBI searching in the vast PRISM database for details on US citizens. She declared that it was unconstitutional since it broke the Fourth Amendment (unreasonable searches).

Her opinion was rejected [PDF], however, by FISC judge Thomas Hogan and the practice will be allowed to continue.

Under the terms of the public advocate, Jeffress is not allowed to appeal the decision so she will not have an opportunity to pick apart the court's counterarguments.

Light bent

The PRISM program was the first NSA mass surveillance practice revealed by Edward Snowden and it has resulted in a vast database of email, chats, text messages and video pulled from US companies including Google, Facebook, Microsoft and Apple.

The tech companies denied any knowledge of the program and its exposure led directly to most of them adding full encryption to their data centers.

Other agencies including the CIA and FBI have access to the database, but under the long-supposed law that the US government is not allowed to spy on its own citizens, it is only supposed to be used for foreign intelligence.

However, the FBI routinely searches for information on US citizens in that database – typing in their email address to see what exists, for example – and Jeffress said that was illegal because the FBI was restricted neither to serious crimes nor to issues of national security.

In other words, as soon as the FBI starts an investigation into anyone, it can do a full search for everything it has on them in the PRISM database.

Jeffress argued that approach does not comply with the Fourth Amendment and goes "far beyond the purpose" that the data was gathered for. She recommended that in future there be a "written justification" before the database is searched.

Nope

Hogan disagreed with that assessment however, saying that there was no statutory requirement that PRISM data only be used for foreign intelligence, and that the US government was required to retain any data that may be evidence of a crime.

He then argued that as a result, it didn't make sense for the US government to be required to retain information on a crime and then not be able to search that database.

It's not hard to imagine how that argument could be picked apart, but Jeffress won't be given the opportunity to do so due to the lack of an appeal.

It is also unlikely that she will be able to make counterarguments in future cases, since the court is in a position to decide whether to ask for her opinion or not, and it is unlikely to ask for an opinion on a matter that it considers resolved.

To make matters worse, we do not have the full text of Jeffress' argument – just Hogan's summary of it within his legal opinion. That opinion is also redacted. And the opinion itself is five months old. It was delivered in November 2015 but only published by the Office of the Director of National Intelligence (DNI) late Tuesday.

Publication of redacted, old opinions was also made on the DNI's Tumblr account rather than its own website at dni.gov, and the opinions of the FISC court have yet to appear on the FISC website either.

And if all that wasn't disheartening enough already, the other document published yesterday was an argument for why the FISC had decided not to ask the public advocate for her opinion on a different matter. ®


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