The FISA Court and Its Secrets
The United States Foreign Intelligence Surveillance Court, also known as FISC or the FISA Court, was established under the Foreign Intelligence Surveillance Act of 1978. The court was created to oversee and manage surveillance requests on surveillance warrants on foreign soil, against foreign spies or agents located inside the United States. The court is sought by federal law enforcement and intelligence agencies in the US to gain legal access to private data on those they are currently investigating.
The court was initially located on the 6th floor of the Robert F. Kennedy Department of Justice Building, from 1978 to 2009. After 2009, the court was moved to the E. Barrett Prettyman United States Courthouse in Washington, DC. The court and the government operate on paid tax dollars from American citizens who expect the court and the authorities to protect their civil rights, anonymity, and humanity as private residents of the United States.
However, in 2013, a top-secret order was issued by the court. The order required Verizon’s subsidiary to provide a daily record of all calls from private citizens in the United States. This order included ordinary domestic calls made by residents. All records were then forwarded to the NSA. Knowing lines were crossed within a secretive court to spy on all Americans, what are your feelings on the Patriot Act now? Was it done to keep us safer or manipulate a situation to document, database, record, and violate Americans’ civil rights and private data?
Before someone can spy on our phone conversations or even those who may be criminal actors representing foreign countries, a warrant must be issued. Wiretapping is a federal offense that is enforced by the FBI or the Attorney General’s office. It is a federal crime to wiretap or use a machine to record others’ communications unless the court grants permission. Each warrant issued requires that a request be submitted before an individual judge. In exceptional circumstances, the court allows third parties to apply for a warrant as an amicus curiae. This literally means ‘friend of the court.’
The other way for a warrant to be issued is under an emergency. If the Attorney General determines an emergency, the AG can issue emergency electronic surveillance without going through the court. Within seven days, the AG must get approval through the court.
It is against the law for a representative to reapply for the same electronic surveillance warrant with a different judge if they have been previously turned down. However, there is the right to appeal via the United States Foreign Intelligence Surveillance Court of Review.
Generally speaking, when a request is made to the court, it is granted. It is sporadic for a FISA warrant to be turned down by the court. From 1979 to 2004, for over 25 years – 18,746 applications were submitted before the court. Only four were ever rejected. These four requests once they had appealed their case before the US FISC of Review, the court partially granted all four proposals. The data shows a 0.03 percent of total applications that are ever rejected by the court.
Secrets and Confidences
Over time, there have been accusations of secrecy and particular confidentiality supplied by the court. Due to the court’s nature, for national security and other significant reasons, the court hearings are closed to the public. At this time, when the FISA Court convenes, no one outside of the required attendees knows which area of the E. Barrett Prettyman Courthouse they are using. Does this secrecy help or harm our nation? It can be argued that collecting data secretly on foreign spies on American soil is done for the betterment and safety of our country. However, how can that still be the argument when everyday citizens turn on the secrecy and collection of data?
Several things over the past twenty years have come to light. Attorney General John Ashcroft was rebutted in May of 2002. The court released an opinion that the FBI and Justice Department had brought false allegations to the court. Court officials went so far to say that they purposely “supplied erroneous information to the court” in at least 75 applications for surveillance. FBI Director Louis J. Freeh personally signed one of the applications. In 2003, the court began to require more stringent modifications and evidence to be presented with the applications.
The New York Times shocked Americans with its article in December 2005. It reported that the Bush administration had been conducting mass surveillance against American citizens. He had not obtained specific approval for the wiretapping from the FISA court for these cases since early 2002. Wiretapping by any citizen without going through proper channels is a federal crime, even for the land’s highest office. After the information went public, Judge James Robertson resigned in protest four days later.
Judge James Robertson went on even further in expressing his outrage. In 2013 when Edward Snowden leaked the information to the public regarding the extent of the wiretapping, Judge Robertson criticized the court-sanctioned expansion of citizens’ surveillance. He also noted and expressed great concern that the court was allowed to create a secret body of law. The government had pushed to circumvent the court’s rules before 2003 when the court began demanding more modifications of warrant requests.
Are these secrets of data collection among American citizens enough to cause you concern yet? Much more, ‘We the People’ do not know about what the court is doing with its secretive databases. The Obama administration in 2011 under secrecy won permission from the court to reverse all restrictions on the NSA’s use of intercepted phone calls and emails. After this stunning move by the administration to further control US citizens’ data, it now allows the NSA and other federal agencies to deliberately search American citizens’ communication files within its massive databases.
It was not just the highest office of the land, Presidents, who has authorized the spying on residents for no cause. In 2008, Congress authorized section 702 of the Foreign Intelligence Surveillance Act to endorse searches that take place under their databases. However, the law states that the target must be a foreigner that is believed to be outside of the United States, and the court must approve surveillance procedures for one year at a time. This may sound like it is in the best interest of National Security, but is it?
Section 702, once enacted, meant that a warrant for each individual target is no longer required. This enactment means that all communications with Americans could be picked up without the court first deciding if there is probable cause. It does not matter if the individuals were considered spies, terrorists, or even “foreign powers.” To further degrade the trust between Americans and its federal government, the FISA court moved in secrecy to extend the length of time that the NSA can retain intercepted US communications. The deletion date for records moved automatically from five to six years and allowed for an extension if needed for foreign intelligence or counterintelligence purposes. The court did this with no public knowledge or even getting authorization from Congress.
Who’s in Charge?
With all the spying going on to record American citizens’ lives and conversations, precisely who is to blame? Who is in charge of allowing this turn of intelligence collection against Americans? Abuse of power comes in many forms and different political parties. As mentioned above, many actions were taken directly by US Presidents, both Democratic and Republican. The Attorney General of either party has sanctioned such moves against the people. However, what has been happening more often than not is that the court is doing whatever it wants and disregarding the law or getting approval from the administration.
How can this happen? This illegal wiretapping is happening because the court sits ex parte. This means the court is operating in the absence of anyone but the judge and government party making the request. If the government makes a request 99.97% of the time, the court grants the surveillance warrant. Many people, both private and in government, have accused the court of being a kangaroo court that rubber-stamps anything put in front of them. This particular accusation of being a kangaroo court with a rubber stamp was noted by a National Security Agency analyst, Russ Tice.
FISA court President Reggie B. Walton rejects the idea entirely, as he stated in a letter to Senator Patrick J. Leahy. “The annual statistics provided to Congress by the Attorney General … – frequently cited to in press reports as a suggestion that the Court’s approval rate of application is over 99% – reflect only the number of final applications submitted to and acted on by the Court. These statistics do not reflect that many applications are altered to prior or final submission or even withheld from final submission entirely, often after indicating that a judge would not approve them. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize.”
How can this be true if the court has only denied 11 requests in the past 35 years? With a cloak of secrecy and a consistent approval of proposals, how are average Americans, who are the ones being spied on, going to trust that this isn’t a farce? The General Council of Office of the National Security Agency, Robert S. Litt, also defended the court’s record. “When the Government prepares an application for a section 215 order, it first submits to the FISA court what’s called a “read copy,” which the court staff will review and comment on. They will almost invariably come back with questions, concerns, problems that they see. And there is an iterative process back and forth between the Government and the FISA court to take care of those concerns so that at the end of the day, we’re confident that we’re presenting something that the court will approve. That is hardly a rubber stamp. It’s rather severe and extensive judicial oversight of this process.”
While most Americans would disagree, feeling that this type of secrecy and spying combine to make a terrifying sense of the government against its people. In 2003 a Senate Judiciary Committee agreed. An Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures was produced condemning the “unnecessary secrecy” of the court. This criticism of the court and government overstepping their positions was clear and its most important conclusion.
The report stated that the ‘secrecy’ maintained by the court had overstepped its boundaries. “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.”
Protecting Citizens and Their Data
No American wants to feel like there is a target on their back from a government they support with their tax dollars. The ACLU’s deputy legal director, Jameel Jaffer, stated that safeguards for Americans had been lost. “In light of revelations that the government secured telephone records from Verizon and Internet data from some of the largest providers that safeguards that are supposed to be protecting individual privacy are not working.”
The Guardian criticized that no legislation had been made, and the allowances given to the court did not protect citizens. “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.”
The NSA fought back, defending their constitutionality and their procedures to minimize data collection from Americans. The court approved the following guidelines for the use and discretion of data for the NSA.
- “keep data that could potentially contain details of US persons for up to five years;
- retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, the threat of harm to people or property, are encrypted, or are believed to include any information relevant to cybersecurity;
- preserve “foreign intelligence information” contained within attorney-client communications; and
- access the content of communications gathered from “US-based machine[s]” or phone numbers to establish if targets are located in the US, to cease further surveillance.”
Data Retention and Release
Despite which way we land on deciding the constitutionality of Americans’ wiretapping, the NSA keeps databases on citizens. Like any other corporation, what privacy regulations do they follow? How do they protect the data? Who determines the redaction process? Some of the guidelines above seem a bit like fluff compared to the severe nature of wiretapping and violating Americans’ trust. They are no more stringent than the concept of privacy rules and regulations that many companies face today. There is always a set “deletion date” for data, and encryption is used to protect the integrity of any data kept. Could we ask ourselves why the court-approved rules were not more stringent when dealing with the critical implications that this data could hold?
When files are released, if and when, they are redacted to the point of being nearly illegible. What methods of redaction and encryption is being used at the NSA? America spent 52.6 billion dollars on cyber-defense in a given year. How much of this tax payor dollar amount was used to protect the United States residents against being abused by its own “secret courts?”
Here we are in 2020, and just last week, more information was released about a ruling that occurred in December 2019. The FISA court itself found other agencies in violation of private data of citizens. The court ruled “that the FBI had committed “widespread violations” of rules intended to protect Americans’ privacy when analysts search through a repository of emails gathered without a warrant, but it nevertheless signed off on another year of the program.” So, American’s private data is being collected, could be abused, or used in a court to imprison them – the court agrees it is wrong – yet signed off to allow it to continue for at least another year. Do you feel protected or violated?
Another court has also stepped in to rule that the program that was being used by the NSA, which collected bulk logs of domestic phone calls, was illegal. However, it stopped short of overturning any convictions, even if wrongful, of those accused of crimes through the data collection process. Section 702, which allows for warrantless wiretapping, has yet to be ended by the courts or Congress. In fact, in 2018, Congress reauthorized its use, putting more stringent rules requiring that the court approves how the analysts can query the data. They did not require a more rigorous ruling defining who could be wiretapped without a warrant, only on how the database can be searched. Data collection of personal information of Americans is still its highest priority.