Background: The Foreign Intelligence Surveillance Act of 1978 (FISA) created the Foreign Intelligence Surveillance Court (FISC). FISC is the federal court that reviews and authorizes foreign intelligence surveillance warrants. The FISC has 11 judges who are appointed by the Chief Justice of the Supreme Court. FISC hearings and orders are classified, and only receive arguments from the Government.
Controversy: The Court has rejected 11 applications and approved 33,942, modifying 504 applications, since its creation. This has led to the perception that the Court is a rubber stamp for government surveillance activities. The ACLU argued for example, “The statistics shouldn’t reassure anyone who’s worried about the scope of the government’s surveillance activities…And documents made public over the last few months show that the FISA court has generally interpreted those laws in the broadest possible way.” The FISC is mistrusted because it holds its hearings in secret, only hears arguments from the government, and keeps its rulings classified.
The court has also been criticized for a lack of technical expertise necessary to make decisions about surveillance programs. This calls into question the court’s ability to oversee surveillance programs.
Assessment: While there are merits to strengthening the FISC, the criticisms lack insight into the workings of the Court. The high rate of approvals by the FISC is due to an intensive vetting process by the Justice Department (DOJ) and the legal departments of the IC. What follows an application for a warrant is an iterative process between the federal government and the Court, whereby the court provides comments and Justice amends the application until it is ready for approval. In a three month period during the summer of 2013 Judge Walton, “observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action.”
The ex parte nature of proceedings before the FISC is fundamentally sound and has worked well for decades in adjudicating the Government’s applications for authority to conduct electronic surveillance or physical searches in the national security context under FISA.
Greater transparency for court decisions is a proposed area of reform. Suggestions for the court include changes to the review process, increased transparency on decisions, and more controversially, the creation of a public advocate that can represent privacy and civil liberty issues in the court proceedings. This proposal has been met with criticism. As one former intelligence official noted, this reform risks creating excessive and overly bureaucratic oversight that hinders then intelligence process. Because declassification can help dispel myths surrounding the scope of the court’s activities, some limited increases in transparency may be desirable going forward. The Privacy and Civil Liberties Oversight Board (PCLOB) recommended further release of opinions by the FISC to, “the maximum extent consistent with national security,” which could curb some of the controversy surround FISC secrecy and shed light on the court’s reasoning.
The PCLOB also recommended that, “[t]he FISC should take full advantage of existing authorities to obtain technical assistance and expand opportunities for legal input from outside parties.” This reform would ensure FISC judges are sufficiently (and independently) educated on the matters upon which they rule, and can give ample consideration to programs employing complex surveillance technologies.
Clara Fritts and Scott F. Mann are research associates with the Strategic Technologies Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C.
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