We’ve written before about how it appears that the DOJ/FBI and NSA have conducted surveillance on Americans almost entirely based on First Amendment-protected activities. Whenever that issue comes up, the Intelligence Community and its defenders insist no way, that they take the prohibition on surveillance over First Amendment protected activities seriously. Section 215 of the Patriot Act is rather explicit:
the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
Seems clear, right? But, of course, what seems clear in the statute and how the intelligence community and the rubber-stamping FISA Court will view things often seem to differ by a wide margin. The FISA court has now released yet another heavily redacted opinion, given by Judge John Bates, concerning just such a request. You may recall Judge John Bates from his recent letters in which he pretends to represent the entire judiciary, in fighting back against any attempt to limit the NSA and the FISA Court’s ability to spy on American people. Bates seems absolutely sure that doing so will let the terrorists win, which gives you a glimpse into his mindset. Thus, while depressing, it shouldn’t be too surprising to find out that when a Section 215 request came to him concerning activity of a US person that was entirely protected by the First Amendment, Bates figured out a way to give the FBI the go ahead to spy on the person anyway. Because terrorism. While heavily redacted, it seems clear that Judge Bates admits that the nameless person the FBI wishes to spy on didn’t do anything that went outside of First Amendment protected speech: Okay then, so all of the activities of this US person are clearly protected under the First Amendment. The law is pretty clear that the FISA Court then cannot grant the power to collect that individual’s records. But… Judge Bates is deathly afraid of terrorism, so surely there must be a way to massage things to come up with a reason why it’s okay, despite what the law clearly says. So Bates comes up with a neat little trick. He says, sure, the person of interest may only be engaged in protected speech, but some other guy (a non-American, and thus not protected by the First Amendment) is engaged in non-protected speech, and because of the actions of that other guy, the FISA Court will grant the ability for the FBI to slurp up the American’s records and data. Because of the redactions, this part is a little more difficult to parse, but it’s pretty clearly saying that even though the US person who is the subject of this surveillance request did nothing other than Constitutionally protected speech, because some other person who is not in the US and not directly associated with the party in question, has some evidence of terrorist activity, that makes it okay to spy on the US person. As law professor Jennifer Granick notes in the link above, this is an extremely troubling interpretation of Section 215, basically allowing the FISA Court to ignore the prohibition on spying on people because of their Constitutionally protected speech, so long as it’s somehow a part of a larger terrorism investigation.
The statute prohibits the FBI from investigating law abiding Americans unless their own conduct fell outside of the First Amendment, regardless of the conduct of other people related to the investigation. I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do. They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation. The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.
That is an immensely troubling interpretation of the law, one that appears to run counter to the plain wording of the law, as well as the basic concept of both the First and Fourth Amendments of the Constitution. No freaking wonder Judge Bates has been so adamant against having any sort of civil liberties advocate reviewing and challenging his decisions within the FISC.