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May 07 2013

The FISA Court: An Important Rubber Stamp

The Foreign Intelligence Surveillance Court was set up by FISA to handle requests for warrants that involve the gathering of intelligence on foreign operatives in the US, though it deals almost entirely with terrorism now. So how can it be both important and a rubber stamp? Because as Kevin Gosztola reports, while it rarely denies a warrant request it does often modify them. A new DOJ report says:

During calendar year 2012, the Government made 1,856 applications to the Foreign Intelligence Surveillance Court (the “FISC”) for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes. The 1,856 applications include applications made solely for electronic surveillance, applications made solely for physical search and combined applications requesting authority for electronic surveillance and physical search. Of these, 1,789 applications included requests for authority to conduct electronic surveillance.

Of these 1,789 applications, one was withdrawn by the Government. The FISC did not deny any applications in whole or in part. The FISC made modifications to the proposed orders in 40 applications. Thus, the FISC approved collection activity in a total of 1,788 of the applications that included requests for authority to conduct electronic surveillance.

Gosztola continues:

To put this into perspective, from 1978 (when it began to review requests) to 2012, it has rejected 11 FISA applications made by the FBI and other federal law enforcement agencies. It has approved 33,946 FISA application requests. And there has been a nearly 85% increase in the number of requests since 2000.

According to the report, “212 applications to the FISC for access to certain business records (including the production of tangible things) for foreign intelligence purposes,” were made. None of these requests were denied in whole or in part either. However, modifications were made to 200 “proposed orders,” which suggest for the vast majority of requests the FBI was on dubious legal grounds when it decided it wanted to obtain information.

Those modifications are important, as they do place limits on the FBI’s ability to gather information illegally. That’s why I’m not terribly worried about warrants that are approved by the FISC. I’m far more concerned about the wholesale data mining carried out by the NSA, with no warrants at all, and the use of National Security Letters, which do not require warrants. There are no safeguards at all on those.

6 comments

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  1. 1
    Ben P

    I feel like more facts are probably needed.

    If you were to pull aside your average state court judge who takes search warrant requests, I wouldn’t be terribly surprised if their numbers look similar, hundreds of warrants granted for every one rejected, but a number where the judge says “If you’re looking for X, why are you searching Y”

  2. 2
    asonge

    I agree, just having a court AT ALL, where you could possibly be asked to justify what you’re asking for, you’re not going to ask for wide-ranging things as often. If you had any of those FISA judges get tired of how much of a PITA you were being about wiretapping too many questionable cases, you’re going to not file as many questionable cases. It’s like the doctrine of prior restraint…it’s effective in limiting speech, but in this case, having a rubber-stamp court that’s still an authority in some way is effective in limiting the kind of cases it will see when it does establish what is interested in entertaining.

  3. 3
    TGAP Dad

    There is a fundamental difference in mission between the NSA and FBI. Whereas the FBI is a law-enforcement agency, who ultimately would like to get their suspects indicted, tried and convicted, the exclusionary rule prevents them from presenting evidence that is derived from unconstitutional means. However, the exclusionary rule is not even relevant to the NSA, who wants to get all the info they can and sift through it to ostensibly get bad guys. Ignoring the obvious potential for abuse here, but what we need is some kind of disincentive to the NSA to illegally collect, store and disseminate the information they do. Since the NSA refuses to even acknowledge that such a program exists, the limitation would likely have to come rom the executive branch. Good luck with that under the present administration, or any succeeding ones likely to be elected.

  4. 4
    zippythepinhead

    While FISC may approve 99.9% of warrant requests, how does that compare to the handling of warrants in other courts in general?

  5. 5
    baal

    The mere fact that the FBI or other LEA needs to assemble a case or application to a judge is a check on abuse. Think about an email to your friend vs an email to your boss.

  6. 6
    ema

    [W]hat we need is some kind of disincentive to the NSA to illegally collect, store and disseminate the information they do.

    Not to worry, the NSA can always run to the IRS and tap into its data mining operation:

    While the agency has declined to give details about what third-party personal data it will use in robo-audits and data mining, it has told government and industry groups that its computers are capable of scanning multiple networks at the same time to collect “matching” comprehensive profiles for every taxpayer in America. Such profiles will likely include shopping records, travel, social interactions and information not available to the public, such as health records and files from other government investigators, according to IRS documents.

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