Cybersecurity & Tech Executive Branch Intelligence Surveillance & Privacy

Fishing Expedition

Timothy Edgar
Friday, February 27, 2015, 4:00 PM
Do you worry that the NSA, perhaps in a joint program with the U.S.

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Do you worry that the NSA, perhaps in a joint program with the U.S. Fish and Wildlife Service, might be considering a “collect-it-all” program to seize and monitor fish, crocodiles, or antelopes for national security purposes?  If so – and I think I may have read something about this on The Intercept – you can rest easier.   This week, the Supreme Court’s decision in a case involving the prosecution of a Florida fisherman has made that particular nightmare far less likely.
It has also, surprisingly, undermined the government’s bulk collection theory, providing a strong basis for reading section 215 of the Patriot Act as the more limited “business records” provision Congress intended.  In Yates v. United States, the Supreme Court interpreted a law passed in the wake of the collapse of Enron as result of massive white collar fraud.  The law, 18 U.S.C. § 1519, subjects a person to up to 20 years in prison if he or she “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object” in order to obstruct an investigation.  The Supreme Court was confronted with the weighty question of whether this law applied to a fish.
By way of background: John Yates’s initial crime was catching undersized fish – specifically, red grouper smaller than the 20 inches required by federal regulations.  Yates was caught, red-handed, during a routine inspection at sea by Officer John Jones.  Jones told him to segregate the illegal fish into wooden crates until the boat reached shore where they would be impounded as evidence.  Yates decided instead to have one of his crew dump the small fry into the sea and replace them with bigger fish.  The crewman fessed up.  Hence, the charges under 18 U.S.C. § 1519 – for concealing tangible objects, i.e., red grouper under 20 inches, with intent to obstruct an investigation.
The Supreme Court let Yates off the hook.  Five justices agreed that a fish is not a tangible object.  At first blush, this seems a bit implausible.  Justice Kagan certainly thought so.  Her eloquent dissent cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish – for a time, my favorite book – as authority that fish are, indeed, tangible objects.  I expect it is the first use of any book by Dr. Seuss as legal authority in an opinion of the Supreme Court, and I must say that I found it squarely on point, if not ultimately persuasive.
Justice Ginsburg’s opinion for the plurality explains that fish are not tangible objects because “in law as in life . . . the same words, placed in different contexts, sometimes mean different things.”  After I quoted this passage from the notorious RBG at the dinner table, my 18-month-old daughter promptly agreed.  She proudly displayed her bowl and said “bowl.”  With a twinkle in her eye, she then placed the bowl on her head and said “hat.”  Context matters.  Justice Ginsburg explained that the Supreme Court reads the term “tangible object,” in the context of this statute, not to all objects but only to objects “used to record or preserve information.”  Justice Alito wrote separately – it is not clear why – to explain that it is impossible to make a false entry in a fish.
Surprisingly, Yates has real implications for national security surveillance.   The NSA’s bulk collection of telephone records is based on section 215 of the Patriot Act, which amended the business records provision of the Foreign Intelligence Surveillance Act (FISA).  That provision is titled “Access to certain business records for foreign intelligence and international terrorism investigations.”  It allows the government to obtain an order from the FISA court “requiring the production of any tangible things (including books, records, papers, documents, and other items)” in national security investigations.
Does this literally mean “any tangible things,” or is this just a catch-all ensuring that  all types of business records are covered?  While the provision is very broad even if limited to business records or data, until Yates it might have meant literally anything at all.  For example, it might be tempting for the government to use it to obtain, in national security investigations, the kind of physical items that would otherwise have required a physical search order.  As a FISA business records order requires only relevance, and not probable cause, that would be a dangerous loophole.  Yates closes it.
Perhaps more to the point, Yates also weakens the government’s bulk collection theory for telephone records.  While Yates is interpreting a different statute, the logic is clear: the words “any tangible things” should not be read literally.  Instead, they must be read in context, taking account of the words immediately surrounding it, the title of the section, the structure of the law, and its purpose.  Read in this way, it is clear that “tangible things” should not be read to encompass things far afield from the sorts of business records that Congress expected would be sought in national security investigations.
When what the government seeks is well outside those normal expectations, that should be a red flag.  As Justice Alito noted in Yates, “Who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a ‘record’ or ‘document,’ said ‘crocodile’?”  Of course, telephone records do spring to mind when one is asked to identify records or documents that would be sought in national security investigations.  Yet it would be fair to say that nationwide databases of major phone companies do not.  Bulk collection is as different from an ordinary business records request as a document is from a crocodile – and far more dangerous.
Bulk collection is qualitatively, not just quantitatively, different from the sorts of requests for records, documents, or other “tangible things” ordinarily made by government both in law enforcement and intelligence investigations.  It certainly raised everyone’s eyebrows when we learned the NSA was using the Patriot Act to amass records in bulk.  Section 215 of the Patriot Act expires June 1.  It may be tempting for lawmakers to avoid hard decisions by extending the provision unchanged and letting the courts resolve the issue.  After Yates, this is not the best outcome for the government.  With its bulk collection theory on shaky ground, there is some urgency for Congress to provide an effective but privacy-preserving alternative.

Timothy H. Edgar defended privacy as an ACLU lawyer before going inside America’s growing surveillance state as an intelligence official in both the Bush and Obama administrations – a story he tells in Beyond Snowden: Privacy, Mass Surveillance and the Struggle to Reform the NSA. In 2013, Edgar left government to become a Senior Fellow at Brown University’s Watson Institute and helped put together Brown’s Executive Master in Cybersecurity. Edgar also serves on the advisory board of Virtru, an encryption software company. Edgar’s work has also appeared in the Wall Street Journal, the Guardian, Foreign Affairs, and Wired. Edgar is a graduate of Harvard Law School and Dartmouth College.

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