EFF Says FISA Court Needs to Change

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Alvin Bryan

Alvin Bryan is a freelance writer and online privacy enthusiast enthusiast currently contributing quality tips and troubleshooting on personal VPN services, and online privacy and security news. You can also find him on Google +.

FISA Court SurveillanceThe FISA court, or FISC, doesn’t operate in the same way that other courts do. It rules on US surveillance in secret even when Constitutional rights are involved. It has grown beyond its original purpose. It is partial to the government, and agencies are taking advantage of this. FISC needs to start supporting citizens’ rights, and it needs to open up at least summaries of important decisions made.

How the FISA Court Works

The FISA Court has the power to interpret the Constitution and US law, like other courts do. But this court does not hold its sessions in public nor provide transcripts for decided cases. Some FISC judges don’t agree with this lack of transparency. And when insiders are conflicted about how an operation is running, it means something is very wrong. Legislators have also been voicing their opinions about how FISC works, especially from the time when secret documents showed us the truth about NSA spying. Transparency is a big part of true NSA reform.

The public’s idea of a court is a place where opposing viewpoints can be aired without prejudice. We see both sides presenting witnesses and evidence to support their claims. Each side can look at what the other side has and argue merits based on law. Less commonly, we understand a court to be a place where police can ask a judge to allow them to search a suspect’s home, for instance, without hearing from that suspect. But when the suspect is arrested based on what is found, he can still contest the evidence and the warrant itself in court. And if due process was not followed from the request for a warrant to the search, the evidence can be suppressed.

FISA Court ReformThe FISA court operates very differently from the above. FISC was formed under Section 103 of FISA. It was created to give permission to government agencies to conduct electronic surveillance within US borders. It is responsible for granting the NSA authorization to take customer data. Specifically, it allowed the NSA to take the detailed call data of Verizon customers. FISC decides how it will do things and does so in secret. The government is supposed to take great pains to show FISC judges everything that has bearing on each surveillance request. But they also decide for themselves what they should do. Plus, anything that goes on inside FISC has no chance of being reviewed or contested in court. All the data that is handed over to FISC judges comes from government agencies only. And all evidence taken from approved surveillance activities is kept secret even when it is used against a suspect in court.

Why the FISA Court Must Change

FISA has changed a lot since it was first enacted in 1978, so the FISA court has, too. It is no longer what Congress intended it to be. This can be seen in the FISA’s Section 702 and the Patriot Act’s Section 215. Under these, the government has had expansive spying powers since the 1990s. They are using these powers to engage in mass surveillance. Congress wanted FISA so warrants for individual surveillance of important foreign targets could be issued faster. Mass spying on non-targets and Americans is way out of bounds. As it is now, national security still gets protected, but our rights don’t.

So the FISA court now has a huge pile of judicial precedent and secret policy that they should never have had. The FISA court was never meant to interpret wide-ranging constitutional issues or establish legal precedents. And it cannot continue to do so with hardly any public oversight. Their decisions are impacting millions if people who are not even suspected of any wrongdoing. Of course, FISC does not issue orders or pass sentences. It just approves surveillance requests. But when these requests began to concern mass surveillance, FISA started making its own rules. So said James Robertson, a federal judge sitting in the DC court, to the Privacy and Civil Liberties Oversight Board.

What makes all this more dangerous is that the FISA court is depending on only one source of information. It is the government alone that gives them the details on which they base their decisions. The FISA court depends on an honor code that the government will give them all that they need to know. But looking at the FISA court’s decisions clearly shows that it is not enough. Secret laws made on the basis of misinformation is what has most shocked the American public. Case in point, the FISA court interpreted section 215 of the Patriot Act and decided that it was perfectly fine to allow the government to gather up massive amounts of American’s call records in the interest of investigating international terrorism.

FISA Court NSAThanks to Edward Snowden, we have been able to see the kinds of decisions that FISC has made. We have seen how the NSA has neglected its duties and delayed informing the FISA court. In two EFF cases, the NSA failed in their duty to inform the FISA court about court orders to preserve records that the agency had obtained during surveillance activities. These records were to be used as evidence in the cases against the NSA. This neglect caused a conflict with another ruling that ordered certain records to be destroyed. The FISA court recognized that the NSA’s disregard for procedure could have caused serious problems. It was not proven to be a deliberate move on the part of the NSA, but if an emergency San Francisco federal court hearing has not sorted it out, the EFF cases could have fallen through.

Many judges have recognized that the NSA has deliberately twisted the range and scale of mass electronic surveillance in at least three separate cases to obtain warrants. They have also obviously intentionally given inaccurate information to the FISA court on multiple occasions in their requests for surveillance activities. An honor system is clearly not enough where the NSA is concerned. Another Judge for the United States District Court for DC and former FISC judge John Bates said that the NSA regularly and purposefully violated the requirements for surveillance requests. The NSA formed a habit of twisting the facts to get approval for mass surveillance. And the fact that they got away with it so often means that the FISA court has been malfunctioning for decades. Bates said that the system for regulating requests has never functioned properly.

The Changes That Need to Happen

What is most needed in the FISA court is an advocacy group to see to the civil liberties and privacy rights of surveillance targets. This includes the innocent people whose data gets scooped up in dragnet programs. The FISA court also must have more transparency through an organized and established system of publishing decisions on surveillance.

Having an advocate for targets’ rights would change the FISA court to be more like other courts. There would be two sides, and the chance to object to questionable practices. The FISA court would no longer have to depend on the honor of government agencies to get accurate and timely information. FISC judges are not experts on the details of electronic surveillance. The advocacy group would bring technical proficiency to the hearings so that any legal problems can be identified before decisions are made. The FISA court would no longer be able to ignore the law when government agencies choose to withhold critical information.

The FISA court needs to publish records of any interpretations of constitutional and other law. The people need to be able to understand what is happening as a result of those decisions. This means that it cannot be intelligence agencies alone that can permit certain documents to be declassified. The EFF suggests that FISC and the Attorney General be a part of the process that determines which FISC opinions should be opened to the public. They should also collaborate on forming clear guiding principles so that noteworthy interpretations made of the constitution can be watched over.

FISA Court TransparencyThe USA Freedom Act bill of the Senate is a good start regarding the needed changes to the FISA court. First, it addresses the need to declassify FISA court rulings as described above. It further orders the Office of the Director of National Intelligence to cooperate with the Attorney General in making summaries of FISA court opinions that are not declassified. The new USA Freedom Act will also call for the creation of a special advocates panel that will take care of civil liberties and privacy rights. This means that the panel will ensure that any interpretations made of the law will remain in line with these rights and liberties.

There is opposition to the Senate’s USA Freedom Act that might complicate things. Judge Bates wants the NSA to be more forthright. But he prefers an amicus provision to actual advocacy. An amicus provision would of course not allow for any representation. We are not trying to maintain balance her, but effect change that will prevent further violations of rights. Bates says that the government might not want to share information if there is a panel present that advocates public interests. But what the government wants is irrelevant. They are required to disclose any pertinent details and must be made to do so.

According to Ohio Northern District judge James Carr, real reform cannot be accomplished without the panel. Carr also says that the panel should not only advocate for interpretations of law but also represent targets that will be affected by proposed surveillance activities. This representation is very important, especially for appeals.

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