The Race to Unmask America's Secret Surveillance Court: A Progress Report

The secret Foreign Intelligence Surveillance Court, which meets in secret to approve the government's secret requests for communications data,is not known for its openness. Here are the organizations, companies, and elected officials trying to peek under the covers.

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The secret Foreign Intelligence Surveillance Court, which meets in secret to approve the government's secret requests for communications data is not known for its openness. As the Court has become a focus of attention in the wake of the Edward Snowden leaks, we're learning more about how it makes its decisions — mostly because of lawsuits from advocacy organizations and tech companies. But elected officials are now playing a much larger role in the effort, with a number of members of Congress joining an ACLU lawsuit. So here's who's trying to peel back the secrecy on the Court, and how it's going.

The Advocates


What it wants: The Court's opinions which authorized the collection of Americans' phone metadata. There are two legal authorities the NSA primarily uses to justify its surveillance. One is the Patriot Act. The NSA, with the FISC's apparent blessing, uses Section 215 of the Act to justify the daily collection of metadata on phone calls made with a number of different carriers. Shortly after the Snowden leaks began, the ACLU filed a suit with the FISC, asking it to release its opinions related to that authorization. Or, in other words: How did the Court decide that it was OK for the NSA to collect all of that data. (You can read the filing here.)

What it's got: Last week, the ACLU's lawsuit got a boost from an amicus brief filed by 16 members of the U.S. Congress. (It's here.) In it, the elected officials argue that the FISC should comply with the ACLU's request. The rationale?

The opinions sought in the Motion are essential to the proper functioning of the legislative branch of government and an informed public debate. They provide a critical gloss namely, judicial interpretation and construction-on the laws governing the nation's surveillance practices. Without access to this information, Congress and the public cannot have a meaningful debate about how these laws operate in practice.

The Patriot Act's original sponsor, Jim Sensenbrenner of Wisconsin, has indicated that he thinks the NSA's actions exceed the intent of the law. That's the context to the argument above: How can Congress evaluate the law if it isn't clear on how it's being interpreted. And, moreover, how can the American people evaluate the legislator's decisions?

Status: Pending.

The Electronic Frontier Foundation

What it wants: Release of a Court opinion in which it determined that the NSA's activity violated the Fourth Amendment. The EFF's filing deals with that other legal authority for NSA surveillance, Section 702 of the amended Foreign Intelligence Surveillance Act. This is the section that is used to justify the collection of content from service providers like Facebook and Google as part of the PRISM system. The NSA is not allowed to include Americans' information in that collection.

What it's got: In a letter to Ron Wyden last summer, the office of the Director of National Intelligence revealed that the FISC found Constitutional violations on "at least one occasion" — meaning that the NSA unreasonably searched Americans' information. The EFF asked the Department of Justice to release that opinion under the Freedom of Information Act; it declined, saying the FISC wouldn't let it. Last month, in a surprise ruling the Court disagreed, clearing the DOJ to release the opinion. The EFF has now taken that FISC decision and asked the Court reviewing its FOIA request to lift a stay on its decision of whether or not the DOJ should have to release the decision. (Read the filing.) One key argument the EFF makes: The process has already been far slower than the Freedom of Information Act allows.

Status: Moving forward.

The PRISM companies


What it wants: The authority to tell users about NSA data requests. After Google was implicated as a participant in the NSA's PRISM program, the EFF called the company out for not including those requests in its quarterly transparency report detailing times in which the government has sought user data.

What's it's got: Legally, the company couldn't include those requests, since they were secret. So Google asked the Court to let it include them. Last week, the presiding judge on FISC, Reggie Walton, indicated that he planned to allow it. The Department of Justice has until July 9 to offer arguments against releasing the data.

Status: Moving forward.

Yahoo (Round 1)

What it wanted: Not to participate in PRISM. Yahoo held out against participation in the government's PRISM data-collection-and-analysis system. In 2008, it filed a request with FISC to keep it from having to comply with the NSA's efforts.

What it got: As reported by The Times, the Court ruled against Yahoo.

The Yahoo ruling … shows the company argued that the order violated its users’ Fourth Amendment rights against unreasonable searches and seizures. The court called that worry “overblown.”

“Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse,” the court said, adding that the government’s “efforts to protect national security should not be frustrated by the courts.”

Indeed, those efforts rarely have been so frustrated. The FISC rarely rejects government requests

Status: Closed; Yahoo lost.

Yahoo (Round 2)

What it wanted: To be publicly identified as the company involved in that 2008 fight.

What it got: After The Times report on the lawsuit last month, Yahoo asked the Court to unseal the details of the case, allowing it to admit to being the company that filed the suit. The Court agreed to do so.

Status: Closed; Yahoo won.

The politicians

The House 

What it wants: The declassification of key FISC rulings.

What it's got: Two members of the House, Reps. Adam Schiff, Democrat of California, and Todd Rokita, Republican of Indiana, introduced a bill that would declassify rulings similar to the requests made by the ACLU and EFF. (Neither Schiff nor Rokita were parties to the ACLU amicus brief.

Status: The bill is queued for consideration in House committees. It has 17 cosponsors.


What it wants: Same as the House.

What it's got: Seven senators introduced similar legislation a week prior to the Schiff-Rokita bill. Its language echoes the amicus brief: "substantive legal interpretations of what the FISC says the law means should be made public."

Status: The bill is at the Judiciary Committee. It has twelve cosponsors, including the chair of that committee.

President Obama

What he wants: A decent political outcome.

What he's got: The president is reportedly considering cutting to the chase on these various legal and legislative questions, and asking the FISC to release a redacted version of its opinions. Under certain scenarios, this would address the concerns of the legislators and organizations listed above. And it would provide the president with one of his few opportunities to demonstrate that he is sensitive to the concerns people have raised about the surveillance system his administration operates.

Status: It hasn't happened yet.

Photo: A woman on a cell phone walks past the building that houses the FISC. (AP)

This article is from the archive of our partner The Wire.