Public advocate: FBI’s use of PRISM surveillance data is unconstitutional

A public advocate appointed by the nation’s secretive surveillance court in 2015 argued that a little-known provision of the PRISM program, which enables the FBI to query foreign intelligence information for evidence of domestic crime, violated the Constitution. But the court disagreed with her. The Foreign Intelligence Surveillance Court asked Amy Jeffress, the advocate, in August to assess the provision, according to a court opinion filed in November but released by the intelligence community only on April 19.

The court, which weighs government applications for surveillance, traditionally hears arguments only from the government in closed sessions. Its opinions generally are classified. Jeffress, a former federal prosecutor and Justice Department official now in private practice, was the first public advocate or “amicus curiae” appointed under the USA Freedom Act, a law enacted in June to impose new limits and greater transparency on government surveillance. Jeffress raised concerns about the way the program’s rules allowed the FBI to query that data using email addresses and other “selectors” of US people for “purposes of any criminal investigation” — that is, for purposes not related to foreign intelligence. “There is no requirement that the matter be a serious one, nor that it have any relation to national security,” she said in a brief, according to the opinion by Judge Thomas F. Hogan of the Foreign Intelligence Surveillance Court. “These practices do not comply with...the Fourth Amendment,” she wrote, according to Judge Hogan’s redacted opinion. They go “far beyond the purpose” for which the data is gathered, she said.