Should interpretation of the laws and Constitution of the United States take place in one-sided secretive courts, away from the public eye?
For years, it has. But even Foreign Intelligence Surveillance Court (FISC) judges don't agree on how exactly the FISC should work. Since the Snowden disclosures, hundreds of lawmakers have made it clear that they want to see more transparency in the court by supporting various NSA reforms. Most recently, 18 Senators co-sponsored the new USA FREEDOM Act, S. 2685, which offers a few important changes to the FISC.
So who's right? A look at the history and procedures of the FISC make it clear: real reform is needed now.
How We Think Courts Work, and How that Measures Up to the FISA Court
As a society, we imagine courts are places where adversarial proceedings take place. In television, literature, and movies, we see each side taking responsible for gathering the evidence and witnesses that will be most helpful to their argument . They put forth their evidence and argue the law where applicable. And each side has the opportunity to know and take apart the other side's evidence.
Of course some court situations are not adversarial. The most commonly known situation is when a judge signs a warrant so law enforcement can conduct a search after hearing only from the cops. But when those warrants result in evidence that is used in court, there's still a chance to challenge the validity of the warrant and the search--and if they were done incorrectly, that evidence can often be suppressed.
The FISA Court is very different. Created by Section 103 of the Foreign Intelligence Surveillance Act of 1978, the purpose of the FISC is to "hear applications for and grant orders approving electronic surveillance anywhere within the United States."
The court makes its own rules and operates in secret. It decides matters like the now infamous Verizon order leaked by Edward Snowden, which allowed for the collection of call detail records for millions of innocent Verizon customers. It relies on a general "heightened duty of candor," meaning that the government is supposed to go to extreme lengths to tell the court everything it ought to know to make the right decision.
Now, if this was just a simple process of approving applications for surveillance, and if the evidence could later be challenged in court, this might make sense. But, as we've learned, this process is not so simple and can involve critical issues of constitutional law and interpretations what Congress meant in FISA. The court must rely on one-sided information from the government and has to trust that that information is complete. And the data collected by the NSA and FBI under those applications often remains secret, even when it, or information derived from it, is used in criminal proceedings.
Why the FISA Court Needs to Change
Among the myriad reasons the FISC must change, three stand out.
First, FISA has become a drastically more complicated law than when it was originally passed in 1978, and the role of the FISC has accordingly grown far beyond the bounds of what Congress envisioned. Second, because of those changes, the FISC has created a huge body of secret policy and legal precedent. Finally, the court's reliance on the government to provide all the necessary information needed to fairly make decisions is not sufficient, something that is painfully obvious as one reads the FISC decisions themselves. It's also something EFF has recently experienced in our NSA cases.
The court's mandate has expanded exponentially since 1978, especially during the 90s. More recently, Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act--both of which were passed decades after the initial FISA--granted far broader spying authorities to the government than had existed before, and the government has claimed the right to conduct mass surveillance under these provisions. What Congress originally authorized when creating the FISC, with the Church Committee hearings freshly in mind, was an expedited system of approving individualized warrants for foreign surveillance of specified individuals--much like what regular magistrate judges do with warrants now, with safeguards built in for the national security context.
That bears repeating: When FISA was passed, it authorized individualized warrants for surveillance. Now, the court is approving mass surveillance.
This is key, because as "current and former officials familiar with the court's classified decisions" told the New York Times in July of last year, the court is no longer simply approving applications. It is "regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny," affecting millions of innocent people. As former FISC judge James Robertson stated to the Privacy and Civil Liberties Oversight Board, "What [the FISC] does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 (FISA) amendment has turned the FISA court into an administrative agency making rules for others to follow."