Thaw America is an effort to overturn a ruling by the secret FISA Court of Review which could negatively impact American civil rights. This website covers news and legal filings related to overturning FISA Court of Review ruling 16-01, which we believe is based on a misunderstanding of technology and law.
The potential effects of FISA Court of Review ruling 16-01 (abbreviated FISCR 16-01) are widespread. The largest effect is the removal to the right of privacy in phone calls. Under this ruling, the government can, without a warrant or any significant judicial oversight, record the content of telephone calls.
Background
In the phone system, dialing is done via a signaling mechanism called DTMF – Dual Tone Multi-Frequency dialing. When you press a button on the phone and hear a tone, thats a DTMF tone – and exactly what this case is about. The case centers on pen registers, which allow the government to collect telephone metadata. In a telephonic context, this mean the numbers the caller dials, the caller's phone number and the length of the call. Pen registers may not collect the content of telephone calls. Judges cannot reject pen register applications.
What is Content?
"[A]ny information concerning the substance, purport, or meaning of that communication". This unequivocally includes any voice transmission on the call. The courts universally agree that when a caller dials anything other than a phone number (credit card number, bank pin, etc) it is content. The courts are less clear on whether or not any phone numbers dialed after a call connects are content or not.
Content is protected by the Fourth Amendment. Law enforcement should need a warrant in order to listen to calls.
Historically, courts have been extremely protective of the content of telephone calls. In fact, in every federal circuit court, the standard is the same. Pen registers cannot be used in any context in which they could accidentally gather content. In practice, this means pen registers can only be used to collect the initial phone number dialed, not any digits dialed after the call connects.
What is Telephone Metadata?
Telephone metadata – more formally known as Dialing, Routing, Addressing and Signaling information (DRAS) – describes a type of information which is not protected by the Fourth Amendment. It is the information a person voluntarily shares with a service provider. In the context of phone calls, this means the numbers dialed for the initial telephone connection. The government holds that telephone metadata also includes any additional telephone numbers dialed after the call connects, though this is matter of some debate. At the most broad, the legal definition of metadata could include everything from internet traffic to faxes to (for the deaf) TTY signals.
Pen registers also are used in monitoring internet usage and the definition of what constitutes metadata in that context is unexplored.
Why is the FISCR 16-01 Ruling Wrong?
In FISCR 16-01, the FISA Court of Review disagreed with every other federal court. Every previous court to consider the question found a pen register cannot be used to record the body of calls because it might accidentally collect content. Instead, the FISA Court of Review decided law enforcement could record everything, as long as they don't use the content.
From a civil liberties perspective, this is exceedingly worrying. It allows a pen register to be used as a "backdoor warrant" which collects Fourth Amendment protected content without any of the required protection. Under FISCR 16-01, a pen register (which cannot be refused by a judge) can be used to record the entire contents of calls. While the contents are not admissible in court, they could be used in parallel construction or other questionably legal methods of acting on inadmissible evidence.
FISCR 16-01 effectively sidesteps the Fourth Amendment by allowing law enforcement to investigate anyone they wish at any time. This could be used for everything from harassing dissidents to unmasking whistleblowers to harassing personal enemies. The use of searches as an extra-judicial punishment is fundamentally the reason the Fourth Amendment exists. Before the American Revolution, British officials would attempt to silence speech by ordering searches of the homes of dissidents. The searches were not intended to find anything, but to be extra-judicial punishment. Our founding fathers, in writing our Bill of Rights, remembered how search could be used as a tool of oppression. Thus they included a requirement that the government, before intruding into the lives of private citizens, justify any intrusion.
Further, the Supreme Court has previously held that knowing the government may be listening can have a "chilling effect" on free speech. For example, if citizens know the government may be listening, they will restrict the opinions they express because they fear retaliation for having the “wrong” views.
FISCR 16-01 Misunderstands Law
FISCR's ruling is based upon a presumption that the government is entitled to any metadata, no matter where it appears. FISCR used this entitlement to justify allowing the government to collect and store content. No such entitlement exists. There is an argument that the government is entitled to the metadata embedded in a call. However, this argument certainly does not allow the collection of call contents.
Additionally, FISCR based its ruling on an invalid interpretation of a savings clause. A savings clause is a portion of a law which says "if you accidentally gather something you shouldn't have, you can't use it in court". The key word there is accidentally (though the law uses incidentally). Savings clauses are designed to protect the rights of citizens. Savings clauses do not convey permission for the government to do anything; in fact they require additional restrictions. The Supreme Court has previously examined the idea that a savings clause implicitly grants permission and throughly rejected it.
Both the question of metadata entitlement and the question of savings clauses are legal questions. Law moves slowly, especially when adapting to new technology. Under normal circumstances, FISCR being confused by an area in which the law is unclear would be understandable. However, in this case the ruling is directly in contradiction with every other federal court – and even the ruling admits as much.
FISCR 16-01 Misunderstands Technology
The technological underpinnings of the ruling are stunningly wrong. The court found that there is no "reasonably available" technology to collect DTMF-as-metadata while discarding DTMF-as-content. This finding is clearly in error. CCAD, the Call Contents Automatic Differentiator, was written explicitly for this case, using only technology and algorithms that have been available since the 1980s. While it is true there is no commercially available technology, this is because there is quite literally no market. Every other federal court has found – for years – that looking at the body of the call for metadata carries too much risk of collecting content and is illegal.
The court further found that there is no technical difference between dialing a digit that is content and a digit that is metadata. This is an extremely narrow view, focusing on single digits, rather than groups of digits. In the court's view, recording the entire call is okay because the context is needed later to determine what is content and what is not. Leaving aside the blatantly unconstitutional nature of recording protected content without a warrant, this is still an unnecessary intrusion into the private lives of citizens. CCAD demonstrates that software is capable of processing the context and determining if digits are content or metadata in better than real time. Therefore any storage of call contents is unnecessary.
How You Can Help
While most of this fight is going to occur in the Supreme Court, there are ways you can help. One of the core tenets of the Fourth Amendment is a "societal willingness" to defend privacy. The more citizens speak up and make their opinions known, the better the chances the court will take notice of such a societal willingness. To that end, the best thing you can do is talk about this publicly. Use social media – follow us on Facebook, Twitter or any social network found in the menu bar.
Additionally, this case exposes how utterly dysfunctional the FISA Courts are. They don't even rise to the level of kangaroo courts – the defendant doesn't have a chance to put up the most perfunctory of defenses. These are not the courts of a free nation, but of an oppressive one.
Contact your Senators and Representatives. Let them know you think further reform of FISA is needed. Tell them FISA needs transparency; that the law must work in the open to work at all.
Thaw America is not a nonprofit. We're not incorporated in any way. Our time is given pro bono and expenses of this case are being paid out of pocket. We do not ask for donations. In lieu of donating to us, please donate to those organizations dedicated to defending civil liberties. For example, donate to the ACLU, EFF, EPIC or FIRE.
Parting Words
Our rights to privacy and speech are inalienable. They are fundamental to being American. They cannot and should not be compromised. Please, stand with us and defend the core values of our nation.