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FISA court faces legal challenges to secrecy

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AP Photo by J. Scott Applewhite With a chart listing thwarted acts of terrorism, Senate Judiciary Committee Chairman Sen. Patrick…

AP Photo by J. Scott Applewhite

With a chart listing thwarted acts of terrorism, Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., left, and Sen. Dianne Feinstein, D-Calif., right, chair of the Senate Intelligence Committee, question top Obama administration officials on Capitol Hill about the National Security Agency’s (NSA) surveillance programs.

The disclosure requests come amid heightened public attention directed at the secret court, after a series of high-profile leaks and media disclosures offered a small glimpse into the secret court’s inner workings. The court handles nearly all matters in secret, making it difficult for the media to fully cover and for the public to fully appreciate the scope of cases that the court handles.

Documents made public by former NSA contractor Edward Snowden show that the FISA Court had authorized the government to obtain records from telecommunications giant Verizon. The order allowed the government access to so-called metadata about every call in Verizon’s network, including ones that took place only within the United States.

In most cases, when the government seeks a warrant from the court, it must allege that a target of the surveillance warrant is a “foreign power” or “the agent of a foreign power.”

The FISA Court was created under the Foreign Intelligence Surveillance Act of 1978 to review warrant applications and issue warrants in national security investigations. The court’s 11 judges are assigned there on a rotating basis from other federal district courts throughout the nation, and one of them must be from a D.C. court.

AP Photo by Kin Cheung

A supporter holds a picture of Edward Snowden, a former CIA employee who leaked top-secret information about U.S. surveillance programs, outside the U.S. Consulate General in Hong Kong.

The leaked documents also revealed the existence of a separate program, known as PRISM, under which the federal government has collected information about foreigners from American communications companies.

Two such companies, Google and Microsoft, have asked the FISA Court’s permission to publish “aggregate data” about the FISA requests they receive.

In a June 18 filing, Google sought permission to publish two pieces of information: “the total number of FISA requests it receives” and “the total number of users or accounts encompassed within such requests.” The next day, Microsoft asked the court for permission to disclose essentially the same information about its own involvement in the PRISM program.

Some early media reports on PRISM suggested that the federal government had direct access to servers of these technology companies, an impression Google and Microsoft sought to counter with their filings.

Both companies argued that the information they seek to publish is not classified and is, therefore, protected by the First Amendment. Microsoft’s brief also argued that the government’s interest in secrecy of aggregate numbers was greatly lessened considering that government officials had publicly confirmed the programs’ existence.

The government’s response was initially due July 9, but federal attorneys twice filed for extensions of time to file, the most recent deadline as of press time was July 30.

Despite the protections at stake, both companies framed their requests narrowly. Google even noted the limited nature of its request, adding it did not want to publish “which FISA authorities the government has actually invoked to compel production of data.”

These authorities could be made public in response to broader requests for FISA Court transparency, filed June 10 by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic.

The groups requested that the court publish its previous opinions “evaluating the meaning, scope, and constitutionality of Section 215 of the Patriot Act.” Section 215, read together with the Foreign Intelligence Surveillance Act, provides the legal framework for the government to collect “tangible things” — such as records of technology users — if they are relevant to an “authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.”

“The public has an undeniable first amendment right of access to judicial opinions interpreting the scope, meaning and constitutionality of our surveillance laws,” said Patrick Toomey, an ACLU lawyer who worked on the filing. “The public can’t consent to the government’s power to conduct surveillance without knowing what its laws mean.”

During its investigations, the government asks the FISA Court for information under Section 215’s legal standard, and the court gives a related order. The civil liberties groups have accordingly asked the FISA Court to publish the legal precedents and opinions that it uses to analyze the government’s requests for surveillance under Section 215.

After the groups filed, The New York Times reported on July 6 that “more than a dozen classified rulings” from the FISA Court exist, constituting a “secret body of law giving the National Security Agency the power to amass vast collections of data on Americans.”

According to the Times story, the opinions are lengthy, and they address “broad constitutional questions” and create “important judicial precedents” in the legal arena of surveillance, with “almost no public scrutiny.”

The civil liberties groups have called the lack of public oversight troubling, if the FISA Court is indeed shaping surveillance law behind closed doors. “The public cannot assess the country’s laws, the work of their legislators, or the powers conferred upon their executive officials unless they know what the courts take those laws to mean,” their brief argues.

And similar to the Microsoft and Google briefs, the groups argue that public acknowledgment by the government of the surveillance programs reduces, if not negates entirely, the government’s interest in keeping things secret. The public disclosures “eliminate any interest in continued sealing of the Court’s legal opinions,” they wrote.

In response to the ACLU brief, the government directly argues that there is no First Amendment right of the public to access the FISA Court’s opinions. Instead, any publication of the opinions must also go through the executive branch.

A FISA Court rule says that even if the court itself wants to publish a particular opinion, the court may first “direct the executive branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected.”

Although the rule says that the court “may” direct the executive branch to redact the opinion first, the government argues in its response to the ACLU that this requirement will nearly always be triggered because the court’s expertise does not lie in making declassification decisions — that expertise lies with the executive branch.

Offering what might be a glimmer of hope for transparency advocates, the government’s brief observes that “the government continues to review material,” including the FISA Court’s opinions, “for potential declassification and release to the public, where national security will allow,” and that a “declassification review process is already occurring.”

The Reporters Committee, joined by 14 news organizations, filed a friend-of-the-court brief in all three cases, supporting both the disclosure of the aggregate data on the technology companies and the release of the FISA Court’s legal precedents.

The Reporters Committee brief argues that the public has a “formidable First Amendment interest” in receiving information on how the FISA Court interprets the laws that created it, and that the public has a heightened interest in hearing what willing speakers — the communications companies — have to say regarding data on what FISA order have collected from them.

Two other friend-of-the-court briefs have been filed: one by another coalition of civil liberties groups, including the Electronic Frontier Foundation, in favor of Google and Microsoft’s motions, and another by a group of 16 U.S. representatives from both parties in favor of the ACLU’s request for publication of FISA court precedent.

The representatives argue that even if they or other elected officials are briefed on the content and implications of FISA Court opinions and orders, they are forbidden from discussing them in the House or Senate chamber, or with their constituents.

Other federal government officials have spoken out against the court’s secrecy, including one of its former judges.

Judge James Robertson, who served on the FISA Court from 2002 to 2005, said at a recent hearing that the court’s decisions are ultimately flawed because the court only hears from the government.

Recent changes to the FISA framework made the program more like “programmatic surveillance,” Robertson said. “I don’t think that is a judicial function.”