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Of these 1,789 applications, one was withdrawn by the Government.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.
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.