United States Foreign Intelligence Surveillance Court: Difference between revisions

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United States Foreign Intelligence Surveillance Court
Location	Washington, D.C., United States
Established	1978

The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate's Church Committee.^[1] Its powers have evolved and expanded to the point that it has been called "almost a parallel Supreme Court."^[2]

Since 2009, the court has been located in the E. Barrett Prettyman United States Courthouse in Washington, D.C.^[3][4] For roughly thirty years of its history, it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building.^[3][4]

In 2013, a top-secret order issued by the court was leaked to the media by Edward Snowden. It required a subsidiary of Verizon to provide a daily, ongoing feed of all call detail records – including those for domestic calls – to the NSA, and sparked considerable public controversy.

FISA warrants

Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. The court may allow third parties to submit briefs as amici curiae. When the U.S. Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance, as required by 50 U.S.C. § 1805.

If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court, but may appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002 (In re Sealed Case No. 02-001), 24 years after the founding of the court.

It is also rare for FISA warrant requests to be turned down by the court. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, with an additional seven being rejected. In all, over the entire 33-year period, the FISA court has granted 33,942 warrants, with only 11 denials – a rejection rate of 0.03 percent of the total requests.^[5]

On May 17, 2002, the court rebuffed then-Attorney General John Ashcroft, releasing an opinion that alleged that FBI and Justice Department officials had "supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh."^[8] Whether this rebuke is related to the court starting to require modification of significantly more requests in 2003 is unknown.

On December 16, 2005, The New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without the knowledge of the court since 2002.^[9] On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance,^[10] and later, in the wake of the Snowden leaks of 2013, criticized the court-sanctioned expansion of the scope of government surveillance and its being allowed to craft a secret body of law.^[11] The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.

Secrecy

Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only government attorneys are permitted to appear before the court. Because of the nature of the matters heard before it, court hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be "on call" at all times to hear evidence and decide whether or not to issue a warrant.

A heavily redacted version of an 2008 appeal by Yahoo of an order issued with respect to NSA's PRISM program had been published for the edification of other potential appellants. The identity of the appellant was declassified in June 2013.^[12]

Criticism

There has been growing criticism of the court since the September 11, 2001, attacks. This is partly because the court sits ex parte – in other words, in the absence of anyone but the judge and the government present at the hearings.^[4] This, combined with the minimal number of requests that are rejected by the court has led experts to characterize it as a rubber stamp (former National Security Agency analyst Russell Tice called it a "kangaroo court with a rubber stamp").^[13] Some requests are modified by the court but ultimately granted, while the percentage of denied requests is statistically negligible (11 denied requests out of around 34,000 granted in 35 years – equivalent to 0.03 percent).^{[6][13][14][15]}

A 2003 Senate Judiciary Committee Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, cited the "unnecessary secrecy" of the court among its "most important conclusions":

"The secrecy of individual FISA cases is certainly necessary, but this secrecy has been extended to the most basic legal and procedural aspects of the FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung the implementation of the FISA. Much more information, including all unclassified opinions and operating rules of the FISA Court and Court of Review, should be made public and/or provided to the Congress."^[16]

Allegations of bias

In a July 2013 interview Senator and privacy advocate Ron Wyden described the FISC warrant process as "the most one-sided legal process in the United States". "I don't know of any other legal system or court that really doesn't highlight anything except one point of view", he said. Later in the interview he said Congress should seek to "diversify some of the thinking on the court".^[17]

Elizabeth Gotein, a co-director of the Liberty and National Security Program of the Brennan Center for Justice at the New York University School of Law, has criticized the court as being too compromised to be an impartial tribunal that oversees the work of the NSA and other U.S. intelligence activities. Since the court meets in secret, hears only the arguments of the government prior to deciding a case and its rulings cannot be appealed or even reviewed by the public, she has argued that: "Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they're subject to capture and bias."^[18]

A related bias of the court results from what critics such as Julian Sanchez, a scholar at the Cato Institute, have described as the near certainty of the polarization or group think of the judges of the court. Since all of the judges are appointed by the same person (the Chief Justice of the United States), nearly all currently serving judges are of the same political party (the Republican Party), hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings, group polarization is almost a certainty. "There's the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with", Sanchez said.^[18]

Appointment process

The court's judges are appointed solely by the Supreme Court Chief Justice without confirmation or oversight by the U.S. Congress.^[19] This gives the chief justice the ability to appoint like-minded judges and create a court without diversity. "The judges are hand-picked by someone who, through his votes on the Supreme Court, we have come to learn has a particular view on civil liberties and law enforcement", Theodore Ruger, a professor at the University of Pennsylvania Law School, said with respect to Supreme Court Chief Justice John G. Roberts. "The way the FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does."^[19] And Stephen Vladeck, a law professor at American University's Washington College of Law, added, "Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity".^[20]

There are some reform proposals. Senator Richard Blumenthal from Connecticut proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court's decisions, but six other Supreme Court justices would have to sign off. Another proposal authored by Representative Adam Schiff of California would give the president the power to nominate judges for the court, subject to Senate approval, while Representative Steve Cohen proposed that Congressional leaders pick eight of the court's members.^[21]

Judicial and public oversight

Stephen Vladeck, a professor at the American University's Washington College of Law, has argued that, without having to seek the approval of the court (which he has said merely reviews certifications to ensure that they – and not the surveillance itself – comply with the various statutory requirements), the U.S. Attorney General and the Director of National Intelligence can engage in sweeping programmatic surveillance for one year at a time.^[22] There are procedures used by the NSA to target non-U.S. persons^[23] and procedures used by the NSA to minimize data collection from U.S. persons.^[24] These court-approved policies allow the NSA to:^[25]

• keep data that could potentially contain details of U.S. persons for up to five years;
• retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• preserve "foreign intelligence information" contained within attorney–client communications; and
• access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the U.S., for the purposes of ceasing further surveillance.

According to The Guardian, "The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants".^[25] Glenn Greenwald, who published details of the PRISM surveillance program, explained:

that this entire process is a fig leaf, "oversight" in name only. It offers no real safeguards. That's because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the Fisa court puts its approval stamp on the NSA's procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic. When it is time for the NSA to obtain Fisa court approval, the agency does not tell the court whose calls and emails it intends to intercept. It instead merely provides the general guidelines which it claims are used by its analysts to determine which individuals they can target, and the Fisa court judge then issues a simple order approving those guidelines. The court endorses a one-paragraph form order stating that the NSA's process "'contains all the required elements' and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment 'are consistent with the requirements of [50 U.S.C. §1881a(e)] and with the fourth amendment to the Constitution of the United States'". As but one typical example, The Guardian has obtained an August 19, 2010, Fisa court approval from Judge John Bates which does nothing more than recite the statutory language in approving the NSA's guidelines. Once the NSA has this court approval, it can then target anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to them the emails, chats and calls of those they target. The Fisa court plays no role whatsoever in reviewing whether the procedures it approved are actually complied with when the NSA starts eavesdropping on calls and reading people's emails. The guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the agency has in choosing who will be targeted. [...] The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the DOJ and Director of National Intelligence, which conduct "periodic reviews … to evaluate the implementation of the procedure." At a hearing before the House Intelligence Committee Tuesday afternoon, deputy attorney general James Cole testified that every 30 days, the Fisa court is merely given an "aggregate number" of database searches on US domestic phone records. [...] The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.^[26]

Deputy Attorney General James M. Cole and NSA Deputy Director John C. Inglis cited the court's oversight in defending the constitutionality of the NSA's surveillance activities before during a hearing before the House Judiciary Committee in July 2013. Representative Jerrold Nadler, challenged Cole's defense of the program's constitutionality, and he said the secrecy in which the court functioned negated the validity of its review. "The fact that a secret court unaccountable to public knowledge of what it's doing ... may join you in misusing or abusing the statutes is of no comfort whatsoever", Nadler said.^[27]

Secret law

In July 2013, The New York Times published disclosures from anonymous government whistleblowers of secret law written by the court holding that vast collections of data on all Americans (even those not connected in any way to foreign enemies) amassed by the NSA do not violate the warrant requirements of Fourth Amendment to the U.S. Constitution. It reported that anyone suspected of being involved in nuclear proliferation, espionage or cyber-attacks, according to the court, may be considered a legitimate target for warrantless surveillance. Acting like a parallel U.S. Supreme Court, the court greatly broadened the "special-needs" exception to do so.^[2]

The newspaper reported that in "more than a dozen classified rulings, the nation's surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans".^[2][a] It also wrote, with respect to the court:

In one of the court's most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the 'special needs' doctrine and carved out an exception to the Fourth Amendment's requirement of a warrant for searches and seizures [...]. The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government's need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.'s collection and examination of Americans' communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law – used to justify airport screenings, for instance, or drunken-driving checkpoints – and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects.^[2]

The "special-needs" doctrine is an exemption to the Fourth Amendment's Warrants Clause which commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be and seized". The U.S. Supreme Court has recognized an exemption to the Warrants Clause "outside the foreign intelligence context, in so-called "special-needs" cases. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, Vernonia Sch. Dist. 4 7J v. Acton, 515 U.S. 646, 653 (1995) (upholding drug testing of highschool athletes and explaining that the exception to the warrant requirement applied "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement [s] impracticablen (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987))); Skinner v. Ry. Labor Execs. Ass'n, 489 U.S . 602, 620 (1989) (upholding regulations instituting drug and alcohol testing of railroad workers for safety reasons); cf. Terry v. Ohio, 392 U.S . 1, 23-24 (1968) (upholding pat-frisk for weapons to protect officer safety during investigatory stop)".^[28] The U.S. Foreign Intelligence Surveillance Court of Review concluded on August 22, 2008, in the case In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act that the "special-needs" doctrine applied by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the U.S.^{[28][29][30][31]}

James Robertson – a former judge for the U.S. District Court for the District of Columbia, who, in 2004, ruled against the Bush administration in the Hamdan v. Rumsfeld case, and also served on the FISC for three years between 2002 and 2005 – said he was "frankly stunned" by the newspaper's report that court rulings had created a new body of law broadening the ability of the NSA to use its surveillance programs to target not only terrorists but suspects in cases involving espionage, cyberattacks and weapons of mass destruction.^[32] Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. He said, "That whole notion is missing in this process".^[2]

The court concluded that mass collection of telephone metadata (including the time of phone calls and numbers dialed) does not violate the Fourth Amendment as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American's communications. This concept is rooted partly in the special needs doctrine. "The basic idea is that it's O.K. to create this huge pond of data", an unnamed U.S. official said, "but you have to establish a reason to stick your pole in the water and start fishing".^[2] Under the new procedures passed by the U.S. Congress in the FISA Amendments Act of 2008, even the collection of metadata must be considered "relevant" to a terrorism investigation or other intelligence activities. The court has indicated that while individual pieces of data may not appear "relevant" to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to U.S. officials with knowledge of the decisions.^[2]

A secret ruling made by the court redefined the single word "relevant" enabled the NSA to gather phone data on millions of Americans. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed.^[33] Under the Patriot Act, the Federal Bureau of Investigation can require businesses to hand over "tangible things", including "records", as long as the FBI shows it is reasonable to believe the things are "relevant to an authorized investigation" into international terrorism or foreign intelligence activities. The history of the word "relevant" is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information did not meet the relevance standard because significant portions – innocent people's information – would not be pertinent. But the court has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means "relevant" can have a broader meaning for those investigations, say people familiar with the rulings.^[33]

People familiar with the system that uses phone records in investigations have said that the court's novel legal theories allow the system to include bulk phone records, as long as there are privacy safeguards to limit searches. NSA analysts may query the database only "when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization", according to Director of National Intelligence James Clapper.^[33] The NSA database includes data about people's phone calls – numbers dialed, how long a call lasted – but not the actual conversations. According to Supreme Court rulings, a phone call's content is covered by the Constitution's Fourth Amendment, which restricts unreasonable searches, but the other types of data are not.^[33]

"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, said Mark Eckenwiler, a lawyer who until December 2012 was the Justice Department's primary authority on federal criminal surveillance law. "I think it's a stretch" of previous federal legal interpretations, said Eckenwiler. If a federal attorney "served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court".^[33] Given the traditional legal definition of relevant, Timothy Edgar, a former top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council in the Bush and Obama administrations, noted it is "a fair point" to say that someone reading the law might believe it refers to "individualized requests" or "requests in small batches, rather than in bulk database form". From that standpoint, Edgar said, the reinterpretation of relevant amounts to "secret law".^[33]

2013 NSA controversy

In June 2013, a copy of a top-secret warrant, issued by the court on April 25, 2013, was leaked to London's The Guardian newspaper by NSA contractor Edward Snowden.^{[34][35][36][37][38]} That warrant orders Verizon Business Network Services to provide a daily feed to the NSA containing "telephony metadata" – comprehensive call detail records, including location data^{[citation needed]} – about all calls in its system, including those that occur "wholly within the United States, including local telephone calls."^[39] The Obama Administration published on July 31, 2013^[40][41] a FISA Court ruling supporting an earlier order requiring a Verizon subsidiary to turn over all of its customers' phone logs for a three-month period, with rules that must be followed when accessing the data.^[42]

The document leaked to The Guardian acted as a "smoking gun" and sparked a public outcry of criticism and complaints^[34][43][44] that the court exceeded its authority and violated the Fourth Amendment by issuing general warrants.^[45] The Washington Post then reported that it knew of other orders, and that the court had been issuing such orders, to all telecommunication companies, every three months since May 24, 2006.^[46]

Since the telephone metadata program^[47] was revealed, the intelligence community, some members of Congress, and the Obama administration have defended its legality and use. Most of these defenses involve the 1979 Supreme Court decision Smith v. Maryland which established that people do not have a "reasonable expectation" of privacy for electronic metadata held by third parties like a cellphone provider. That data is not considered "content", theoretically giving law enforcement more flexibility in collecting it.^[48]

On July 19, 2013, the court renewed the permission for the NSA to collect Verizon customer records en masse.^[49][50] The U.S. government was relying on a part of American case law known as the "third-party doctrine". This notion said that when a person has voluntarily disclosed information to a third party — in this case, the telephony metadata — the customer no longer has a reasonable expectation of privacy over the numbers dialed nor their duration. Therefore, this doctrine argued, such metadata can be accessed by law enforcement with essentially no problem.^[51]

Composition

When the court was founded, it was composed of seven federal district judges appointed by the Chief Justice of the United States, each serving a seven-year term, with one judge being appointed each year. Chief Justice John Roberts appointed all of the current (as of 2013) judges, only one of whom was nominated by a Democratic President.^[2] In 2001, the USA PATRIOT Act expanded the court from seven to eleven judges, and required that at least three of the Court's judges live within twenty miles (32 km) of the District of Columbia. No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISA court.

Membership

(as of 13 July 2013^[update])

Former members

See also

• Commission nationale de contrôle des interceptions de sécurité
• In re: Sealed Case No. 02-001
• NSA call database
• NSA warrantless surveillance (2001–07)
• Operation CHAOS
• Star Chamber

References

Notes

References

Further reading

• "The NSA Files". The Guardian. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)

External links

This article's use of external links may not follow Wikipedia's policies or guidelines. Please improve this article by removing excessive or inappropriate external links, and converting useful links where appropriate into footnote references. (July 2013) (Learn how and when to remove this message)

• Rules of Procedure (November 1, 2010) U.S. Foreign Intelligence Surveillance Court
• U.S. Foreign Intelligence Surveillance Court, allgov.com
• "Judge Walton Named to Foreign Intel Surveillance Court". from Secrecy News. Retrieved May 24, 2007.
• "Judge John D. Bates Appointed to the FISA Court". from Secrecy News. Retrieved March 24, 2006.
• "New FISA Court Judge Appointed". from Secrecy News. Retrieved May 24, 2006.
• Lichtblau, Eric (March 29, 2006). "Judges on Secretive Panel Speak Out on Spy Program". The New York Times. Retrieved March 29, 2006.
• "Big Brother is Listening" by James Bamford, Atlantic Monthly, April 2006.
• Diamond, John (December 18, 2005). "NSA's surveillance of citizens echoes 1970s controversy". USA Today. Retrieved December 18, 2005.
• Ashcroft, John (2001). "(Untitled DOJ memo summarizing FISA applications for calendar year 2000)". Retrieved December 17, 2005.
• Ashcroft, John (2002). "(Untitled DOJ memo summarizing FISA applications for calendar year 2001)". Retrieved December 17, 2005.
• Ashcroft, John (2003). "(Untitled DOJ memo summarizing FISA applications for calendar year 2002)". Retrieved December 17, 2005.
• Moschella, William E. (2004). "(Untitled DOJ memo summarizing FISA applications for calendar year 2003)" (PDF). Retrieved December 17, 2005.
• Moschella, William E. (2005). "(Untitled DOJ memo summarizing FISA applications for calendar year 2004)" (PDF). Retrieved December 17, 2005.