Wikimedia and The Empty Promise of the Fourth Amendment Lawsuit

-- By MatthewHurt - 20 Mar 2020

Introduction

The Fourth Amendment is often categorized as a "criminal procedure" provision within the Bill of Rights. However, the text of the Fourth Amendment merely proscribes certain conduct on the part of the government; it does not limit that proscription strictly to criminal investigations. More importantly, plain reading demonstrates the government violates an individual's rights upon its intrusive act, not through the introduction derivative evidence at a criminal trial. If one reads the amendment in context of the remaining nine, the Bill of Rights emerges as a coherent single document, created as the "fetters against doing evil which no honest government should decline."(1). In this context, the Fourth Amendment applies as more than a reactive criminal procedure protection: it should provide an effective tool to proactively challenge in court any act of government surveillance. Unfortunately, both courts and Congress have declined to give any real teeth to what otherwise could be meaningful protection.

Lawsuit as a Remedy

The threshold problem with challenging any government search or seizure lies in the initial discovery of a violative act. Commonly, the revelation takes place in the context of a criminal prosecution when government introduces evidence of questionable provenance. For such violations, the exclusionary rule provides an apt remedy. But when the intelligence apparatus conducts a search, it does so intending to remain undetected indefinitely. Where there is no denouement, what are the appropriate remedies? Given the preventative language of the Fourth Amendment itself, and the nature of government bulk collection programs, a private citizen should be able to find effective remedy in a lawsuit against the government. Yet this has proven so, largely due to the issue of standing.

Standing

To establish standing under Article III of the Constitution, a plaintiff must establish: (1) an injury-in-fact; (2) a causal connection between the injury and the alleged conduct; and (3) the redressability of the injury by a court."(2). This first prong of establishing injury requires a plaintiff show that the government has, in fact, surveilled their communications in a manner violating the Fourth Amendment. This burden proves problematic as any evidence of the government surreptitiously monitoring its citizens would naturally be in the exclusive possession of the government and only available to the plaintiff through discovery. Yet when served with a discovery request, the government has, unsurprisingly, proven loathe to turn over classified evidence either confirm or refute any alleged surveillance. One of its most effective methods in frustrating those discovery attempts is the state secrets doctrine.

State Secrets Doctrine

The state secrets doctrine, originally rooted in federal common law, held that courts cannot require production of evidence (even for in camera review) when "there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged." (3) While the Reynolds Court in dicta admonished that the claim of privilege on the part of the government, should not be lightly accepted,"(4) in practice courts do not appear to be particularly demanding.(5) Thus the Court created a paradox in which an executive agency could potentially surveil American citizens in violation of the Fourth Amendment, but deny production the evidence of that surveillance by asserting a judicially created privilege. Congress attempted to address this paradox with the Foreign Intelligence Surveillance Act, which provided for in camera, ex parte review of classified evidence obtained or derived from electronic surveillance. (6) This provision would strike an ideal of maintaining the secrecy of an intelligence agencies practices, while still enabling the judiciary to provide judicial oversight of those practices. However, the recent Wikimedia ruling denied the applicability of this provision of the FISA prior to the plaintiff clearing the first prong of standing by making a clear showing that it was the subject of electronic surveillance. (7). Congress, for its part, declined to create more robust (or clearer) in camera review provisions of the FISA in its most recent attempted renewal, choosing only to make grammatical edits to the § 1806(f).(8)

States Secrets in Application

The logic of the Wikimedia ruling, while consistent with other appellate court rulings, creates a perverse incentive for the government intelligence services to cast a wide net through bulk collection programs, just not so wide they capture all communications:(9) the less discriminately one surveils, the more difficult it becomes for any particular plaintiff to make a _prima facie case that their specific communications were intercepted. It seems lost on the judiciary that of the very existence of the data collection programs under § 702 of FISA (the PRISM and Upstream programs) became known to these plaintiffs due to actions of Edward Snowden.(10) Under this regime whereby any evidence of a Fourth Amendment can be withheld from even the courts' eyes, there exists no lawful mechanism of oversight. Thus the only conceivable way any party could obtain evidence to show standing would require an individual to illegally leak that evidence. Thus, these rulings also create the perverse incentive for any potential whistleblowers to emulate Mr. Snowden's actions.

Conclusion: Paradoxes and Self-Licking Ice Cream Cones

The bizarre conclusion from this jurisprudence is that the state secrets doctrine trumps the American citizens' Fourth Amendment rights. The paramount concern throughout this line of cases is the preservation of secrecy.(11) Absent anywhere in this line of cases a question as to whether or not any of this is reasonable. That a judicially created privilege could deny a judge examination of evidence of a potential constitutional violation defies common sense. A system inoculating the surveillance apparatus from judicial oversight, would be primed for abuse. It begs the question, why would any given intelligence service not take everything they could when the very raison d'etra of any intelligence organization is to gather information? Yet, absent a Supreme Court ruling contra the state secrets doctrine appears to have created that exact system.

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Notes

1 : Bernard Schwartz, The Great Rights of Mankind 117 (Madison 1992) quoting The Papers of Thomas Jefferson 571 (Boyd ed. 1951). It is worth noting that aside from being written, debated, and passed simultaneously, the First Congress consciously decided against incorporating the first ten amendments into the preexisting articles of the Constitution, and instead appended them as an additional text. Schwartz supra at 172.

2 : Wikimedia Found. v. NSA/Central Sec. Serv., 2019 U.S. Dist. LEXIS 218578 citing Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013).

3 : United States v. Reynolds, 345 U.S. 1, 10 (1953). Additionally, state secrets doctrine encompasses a complete bar to any litigation requiring disclosure of classified information. Totten v. United States, 92 U.S. 105 (1876). As this paper deals primarily with implications state secrets doctrine on the Fourth Amendment jurisprudence, it will confine its discussion to the Reynolds "privilege and set aside the issue of the Totten bar.

4 : Id. at 11.

5 : One analysis found that after September 11, 2001 federal courts denied the government's assertion of state secrets privilege, in their entirety, in only about 10% of cases. See NOTE: Keep It Secret, Keep It Safe: An Empirical Analysis of the State Secrets Doctrine, 67 Stan. L. Rev. 1173.

6 : 50 U.S.C. § 1806(f)

7 : Wikimedia supra note 2 at 60.

8 : H.R. 6157, 116th Cong. § 408(c)(5) (2020) available at https://www.congress.gov/bill/116th-congress/house-bill/6172/text

9 : Obama v. Klayman, 809 F.3d 559, 566 (D.C. Cir. 2015) in his concurring opinion Senior Circuit Judge Williams stated that "in the face of the government's representations that it has never collected "all, or even virtually all" call records, I find plaintiffs' claimed inference inadequate to demonstrate a 'substantial likelihood' of injury." Id.

10 : See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 7 (2014) available at https://www.pclob.gov/library/702-Report-2.pdf. While the PCLOB was established prior to the Snowden revelations, it is unclear from their report that either of these programs would have been made known to it absent his actions. Id. at 1.

11 : See Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005) holding that "where the dangers asserted by the government are substantial and real, [the judge] need not -indeed, should not- probe further."

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