Page 43 - pclob usa freedom

TOP SECRET//SI//NOFORN

intelligence searches must satisfy the Fourth Amendment requirement of “reasonableness,”
rather than the usual requirement that the government obtain probable cause and a warrant.

(U) The Foreign Intelligence Surveillance Court of Review has explained current
doctrine in the following manner:

(U) When law enforcement officials undertake a search to uncover evidence of
criminal wrongdoing, the familiar requirement of a probable-cause warrant
generally achieves an acceptable balance between the investigative needs of the
government and the privacy interests of the people. But it has long been
recognized that some searches occur in the service of “special needs, beyond the
normal need for law enforcement,” and that, when it comes to intrusions of this
kind, the warrant requirement is sometimes a poor proxy for the textual command
of reasonableness.

. . .

(U) [I]n this context, the warrant requirement is ill-suited to gauge what is
reasonable. The textual command of reasonableness—“the ultimate touchstone of
the Fourth Amendment,”—still governs. Indeed, it retains its whole force. 212

(U) Reasonableness analysis “examine[s] the totality of the circumstances and weigh[s]
the promotion of legitimate governmental interests against the degree to which the search
intrudes upon an individual’s privacy.” 213 Various factors would be relevant to assessing the
Fourth Amendment reasonableness of the CDR program. The presence of “privacy protecting
measures,” including “FISC-approved targeting and minimization” procedures, forms one

distinguishable from the general interest in crime control.” (citations, brackets, and internal quotation marks
omitted)) (per Sotomayor, J.), and provides the constitutional basis for the passenger screening carried out by the
Transportation Security Administration at airport checkpoints. See Ruskai v. Pistole, 775 F.3d 61, 68 (1st Cir. 2014)
(“The courts of appeals treat transit security screenings as ‘administrative’ or ‘special needs’ searches, which may be
conducted, at least initially, without individualized suspicion, a warrant, or probable cause.” (collecting cases)).
212 (U) In re Certified Question of Law, 858 F.3d 591, 605, 607 (FISA Ct. Rev. 2016) (citations omitted). The
court’s holding is instructive on the question we address here. The court held: “when the government, acting
pursuant to a program of surveillance involving a legitimate objective that goes beyond everyday crime control,
seeks to use a pen register directed at a person located in the United States who is reasonably believed to be engaged
in clandestine intelligence activities on behalf of a foreign government, it may do so without obtaining a probable-
cause warrant even if its monitoring of post-cut-through digits constitutes a search under the Fourth Amendment.”
In re Certified Question of Law, 858 F.3d at 605. In other words, the court held that, even if the particular collection
at issue in the case would constitute a “search” and therefore require a warrant in the criminal context, a “probable-
cause warrant” was not required in the context of a foreign-intelligence search. The court went on to hold that “[t]he
search, assuming it is one, is reasonable.” In re Certified Question of Law, 858 F.3d at 607.
213 (U) United States v. Mohamud, 843 F.3d 420, 441 (9th Cir. 2016) (quoting Maryland v. King, 569 U.S. 435, 448
(2013) (brackets and internal quotation marks omitted)).

40

TOP SECRET//SI//NOFORN