How the Secret FISA Court Justifies Spying

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The top-secret Foreign Intelligence Surveillance Court court at the center of the National Security Agency spying scandal is "almost a parallel Supreme Court," according to a new report in The New York Times, that has interpreted constitutional law to promote unprecedented levels of surveillance. 

The Times' Eric Lichtblau reports the 11-member court has become the only voice on questions of surveillance pertaining to our constitutional rights, despite an increase in judicial oversight. The cases that face FISA are rarely disputed or debated anywhere else, not even the Supreme Court. They are the first and only voice in the judicial surveillance debate. The FISA court is "regularly assessing broad constitutional questions and establishing important judicial precedents," all behind closed doors, with little to no forum for public or private challenges. There's an appeal process set up that's only been used a "handful" of times. The court granted a whopping 1,800 surveillance requests last year. No request was denied. 

The court's most important ruling was the expansion of the "special needs" doctrine to include terrorism cases. The special needs doctrine was established in a 1989 Supreme Court ruling allowing railway workers be drug tested on the job. It's the same law that allows police to carry out drunk driving checkpoints and for the TSA to search your bags and body at the airport. But the FISA court has ruled this same rule applies to the gathering of massive amounts of metadata from many forms of communication, too. It's a legally questionable practice, at best, Lichtblau explains

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

And the NSA hasn't used this broad ruling to only focus on your standard chaos and mayhem brand of terrorism, either. The intelligence service routinely uses their metadata collection, taken from the world's vast network of fibre optic cables as part of a deal made long ago, to monitor and investigate espionage cases, nuclear proliferation and cyber attacks. Even though the NSA collects these massive troves of metadata, like almost every communication by email of phone in Brazil, as the Guardian's Glenn Greenwald revealed today, agents still need court-approval to access the content of the collected messages. One source explained it with a fishing analogy that seems to work well: 

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

That makes the spying seem so quaint, right? It's almost relaxing. 

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