Is the United States Circumventing Constitutional Law Through Intelligence Sharing?

Edward Snowden not only revealed the existence of both American and British mass surveillance programs, but also exposed the close cooperation between the two countries’ intelligence agencies.* In particular, the Guardian reported that GCHQ has had access to PRISM since at least June 2010, and that a joint NSA-GCHQ team examines material intercepted by GCHQ through its Tempora program. The United States may either seek to take advantage of another country’s more lax surveillance laws, or simply benefit from the fact that domestic laws place fewer or no restrictions on the gathering of foreign intelligence. GCHQ lawyers, for example, told the Americans in legal briefings on Tempora that they have a “light oversight regime compared with the US,” and that it was “[their] call” when it came to judging the necessity and proportionality of what they were allowed to look for. While NSA spokeswoman Judith Emmel has denied that the NSA relies on its foreign partners to circumvent U.S. constitutional law, it is unclear whether U.S. law—specifically the Fourth Amendment—applies in the same way, if at all, to surveillance of U.S. persons undertaken in cooperation with a foreign country as it does to surveillance carried out by U.S. agencies alone.** Courts rarely find the Fourth Amendment to apply in cases involving searches and seizures carried out in cooperation with foreign governments, and the sharing of intelligence collected through mass surveillance presents a new question. Even in the cases where U.S. participation is held sufficient to trigger the Fourth Amendment, courts have rarely excluded evidence, ultimately finding that the Fourth Amendment was not actually violated—but this essay will not consider the separate question of what the Fourth Amendment requires once triggered.

Constitutional Limitations on Intelligence Sharing

While the Fourth Amendment protects U.S. citizens against unreasonable searches or seizures conducted by U.S. officials both at home and abroad, it does not apply to searches or seizures conducted exclusively by foreign governments. Under the “international silver platter doctrine,” evidence seized by foreign governments may be turned over to U.S. law enforcement and admitted in domestic criminal prosecutions, except in the extraordinary circumstance that their conduct “shocks the judicial conscience.”*** Courts have justified this doctrine on the basis that American courts can do little, if anything, to deter unreasonable searches by foreign governments. If U.S. officials cooperate with foreign law enforcement, however, they must comply with the Fourth Amendment. The legal issue then becomes precisely how much American involvement in a search is permissible before the conduct constitutes a “joint venture” triggering the Fourth Amendment. Most courts have generally required a substantial degree of participation: there are only a handful of cases in which U.S. participation in foreign investigations has been found sufficient to trigger the Fourth Amendment. In almost all of these cases, U.S. officials both initiated and actively participated in the search (see, e.g., United States v. Stokes). United States v. Juda is a notable outlier, where the court held that the Fourth Amendment was triggered by the fact that Australian authorities installed a tracking device on a narcotics smuggling vessel at the request of United States officials.

Most courts agree that merely providing tips or information or conveying suspicions to foreign police, resulting in a search or seizure, will not trigger the protections of the Fourth Amendment. For example, the Second Circuit in United States v. Maturo upheld a judgment that Turkish law enforcement officers were not acting as U.S. agents when they wiretapped the phones of a suspect under investigation by the DEA, finding no evidence that the DEA was specifically involved in the decision to seek a wiretap. Many courts have also held that U.S. agents may request, be present during, or even participate in a search so long as they did not initiate and control it. The court in United States v. Behety declined to find a joint venture where American agents provided information for a search, were present while it was conducted, and videotaped part of it. The same principles generally apply where the United States makes a request to a foreign government pursuant to a mutual legal assistance treaty (MLAT). For example, although an American MLAT request detailed specific evidence to be seized by Spanish authorities in United States v. Adler, “Spanish officers chose how to implement the search, conducted it without American input besides the MLAT request, and benefited from the fruits of the search.” As these cases show, courts are extremely reluctant to find sufficient U.S. involvement for the purpose of applying the Fourth Amendment even in cases whose facts appear demonstrate a substantial degree of participation.

Does the Fourth Amendment Apply to U.S.-U.K. Intelligence Sharing?

Similar to the NSA’s upstream collection, the U.K. government’s Tempora program involves the bulk interception, storage, and search of Internet traffic passing through fiber optic cables. According to the Guardian, GCHQ has intercepted more than 200 fiber optic cables landing the United Kingdom. The NSA’s involvement in this program suggests to some that it is essentially a joint project. The collected data is automatically searched and then extracted according to terms selected by both agencies: GCHQ has set over 40,000 search terms, while the NSA has set at least 31,000. Reports further indicate that a team consisting of 250 NSA and 300 GCHQ analysts is tasked with examining the intercepted material. The NSA also paid GCHQ at least 100 million pounds between 2010 and 2013 for its services, and in one report, GCHQ boasted about its “unique contributions” to the NSA’s investigation of the American citizen responsible for an attempted car bomb attack in Times Square in 2010. Whether this intelligence sharing implicates the Fourth Amendment may depend of course on the precise details of the arrangement, but Snowden’s disclosures suggest there is enough of a possibility that the U.K. is playing a role in American surveillance for this scenario to present a useful hypothetical at the very least.

Given the current state of the joint venture doctrine, the United States government may have a plausible legal argument that receiving information on U.S. persons from the United Kingdom does not constitute a joint venture to which the Fourth Amendment applies—even if the NSA requests the information from GCHQ or provides them with tips. The U.S. government may argue that its setting almost half of the terms according to which data is searched may be considered such a request. The case law suggests that NSA officials may also be present and participate in the search, so long as they do not “control” it (see, e.g., United States v. Cotroni). Reports that a team consisting of 250 NSA and 300 GCHQ analysts is tasked with examining Tempora’s intercepted material may indicate a variety of levels of U.S. participation, or may be irrelevant if the analysis takes place after the “search” is complete. It is also difficult to analyze the allegation that the NSA paid GCHQ over 100 million pounds between 2010 and 2013 without more information. For example, payment may be analogized to the consideration involved in mutual legal assistance treaties, or could be justified by the fact that it facilitates British compliance with the UKUSA Agreement and related obligations. While one can expect courts to draw the line at intentional circumvention of domestic law, U.S. government officials have denied this, and it would in any case be quite difficult to prove.

Criticisms of the joint venture doctrine and courts’ reluctance to find sufficient U.S. involvement for the purpose of applying the Fourth Amendment in even seemingly clear-cut cases are especially salient when it comes to cooperation involving electronic surveillance. In the few cases in which courts have found joint investigations sufficient to trigger the Fourth Amendment, U.S. officials have been physically present during the search and either directly seized evidence or provided armed cover in support of a foreign seizure. Unlike the search or seizure of physical evidence, electronic surveillance does not necessarily require the presence of law enforcement at all, let alone that of U.S. officials. Other than making the request, it is not clear how else the United States could participate in such a foreign investigation. It is therefore difficult to imagine how the sharing of electronic surveillance would ever trigger the Fourth Amendment under the current application of the joint venture doctrine. Furthermore, it is not clear how the doctrine would apply to foreign electronic surveillance of U.S. persons located in the United States since all of the cases involve foreign investigations of U.S. persons located abroad.

Mass surveillance programs are unlike foreign investigations involving the electronic surveillance of a U.S. person because they collect vast quantities of data that may either be searched automatically on an ongoing basis according to certain terms, or stored and later searched once a request has been made. In the case of automatic searching, the United States could hypothetically have an enormous influence on whether a particular search is carried out—by setting search terms, helping design the surveillance system, or contributing to its infrastructure—without ever requesting surveillance of any individual. If the NSA has unrestricted access to Tempora, or jointly analyzes the intercepted data, then it would be very difficult to deny their substantial participation. If GCHQ both automatically searches the intercepted information and shares it with the NSA according to a set of criteria predetermined by American officials, it is difficult to see how the United Kingdom is acting as anything but a U.S. agent. In this case, a court may either apply the joint venture doctrine or it could find the doctrine wholly inapplicable and conclude that the NSA is receiving intelligence from GCHQ about U.S. persons located in the United States and apply the Fourth Amendment as though the NSA were collecting the same intelligence itself. The Fourth Amendment may not be triggered under the joint venture doctrine, however, if GCHQ only shared intelligence gathered through the program upon its own initiative or in response to a particularized NSA request for information on a U.S. person located abroad.

The silver platter principle seems to be premised on the fact that investigations of U.S. persons abroad depend on, or are at least greatly facilitated by, the cooperation of foreign governments. If the United States asks another country to conduct a search of a U.S. person located in the United States, however, it is difficult to avoid the conclusion that the government is circumventing domestic law and not just practical or logistical realities—even if the joint venture analysis otherwise applies. The fact that both Tempora and Prism involve the mass collection of Internet data makes these programs especially problematic—both in terms of the joint venture doctrine and the Fourth Amendment. Unlike the NSA’s bulk telephony metadata collection program, which observes national borders insofar as only the American government can obtain the information from domestic third parties, the NSA and GCHQ may have direct access to a lot of the same Internet traffic, making it even more likely that the United States and the United Kingdom are circumventing domestic law. Current legal doctrines addressing the applicability of the Fourth Amendment do not adequately address this scenario. Of course, whether the United States is violating the Fourth Amendment is a separate question.

*Of course, these current reports of intelligence sharing between the United States and the United Kingdom are part of a much longer history of cooperation between the two countries in this area, dating back to the United Kingdom-United States of America (UKUSA) Agreement of 1946. While I could have equally addressed American intelligence sharing arrangements with the other members of the Five Eyes alliance (Canada, Australia, and New Zealand) or “third parties” (e.g. Israel), I have chosen to focus on the United States and United Kingdom because of their particularly close relationship.

**Privacy International has raised similar concerns in the United Kingdom, alleging that GCHQ may be circumventing U.K. law by obtaining data on British citizens from the NSA’s PRISM program. The complaint separately challenges the Tempora program as violating the Regulation of Investigatory Powers Act of 2000, as well as EU law and the Human Rights Act.

***Conduct deemed to “shock the judicial conscience” has included acts of “torture, terror, or custodial interrogation” or forcible abduction and would not apply to intelligence sharing.