In her first appearance representing the American public before the top-secret Foreign Intelligence Surveillance Court in 2015, Amy Jeffress argued that the FBI is violating the Fourth Amendment by giving agents “virtually unrestricted” access to data from one of the NSA’s largest surveillance programs, which includes an untold amount of communications involving innocent Americans.
The NSA harvests data from major Internet companies like Facebook and from huge fiber optic backbones in the U.S. without a warrant, because it is ostensibly “targeting” only foreigners. But the surveillance program sweeps up a large number of Americans’ communications as well. Then vast amounts of data from the program, including the domestic communications, are entered into a master database that a Justice Department lawyer at the 2015 hearing described as the “FBI’s ‘Google’ of its lawfully acquired information.”
The FBI routinely searches this database during ordinary criminal investigations — which gives them to access to Americans’ communications without a warrant.
Jeffress, a former federal prosecutor now serving as an independent “friend of the court,” expressed frustration over the casualness with which the FBI is allowed to look through the data. “There need be no connection to foreign intelligence or national security, and that is the purpose of the collection,” she told Thomas Hogan, then the chief judge of the court. “So they’re overstepping, really, the purpose for which the information is collected.”
The FISA Court has been widely criticized for its secrecy, its extreme tendency to defer to the government, and the fact that until recently it only heard the government’s side of the case. In 2015, Congress passed a law establishing the position of “amicus curiae” to represent the interests of the public and civil liberties, and Jeffress is one of five amici now serving.
Jeffress, who is now a partner at the law firm Arnold and Porter, declined an interview request, citing the sensitivity of the FISA Court’s proceedings.