How The Secret Surveillance Court Is Single-Handedly Changing The Rules

CREDIT: Associated Press


CREDIT: Associated Press

As more and more evidence develops on the creeping scope of the National Security Agency’s surveillance, two strains of overreach are emerging. On the one hand are exploitations of holes in security protections, such as recent reports of NSA skirting some encryption of Internet data. On the other hand are actual, legally sanctioned expansions of the permissible scope of surveillance, as determined by the secret Foreign Intelligence Surveillance Court.

In the most recent revelation of the second sort, the Washington Post revealed this weekend that a 2011 decision expanding the scope of permissible surveillance of Americans overturned an earlier 2008 court-imposed ban on those same sorts of searches, after the administration tested the limits of the practice well beyond what even the 2011 court would allow. It did so by redefining what it means to surveil a “target,” in a way that the Washington Post described as seeming to defy common English language use.

This weekend’s report is the latest evidence that the secret Foreign Intelligence Surveillance Court’s work is interpreting and expanding the law without any sunlight, review, or public debate on how the statute is being interpreted. Previous reporting after the leaks of Edward Snowden have revealed that the court’s interpretation of “relevant” in another provision has also enabled the government to collect massive databases on the numbers Americans call, and the location they are calling from. And while we know the government has only rejected .03 percent of government requests, most of the court’s decisions remain secret.

In the recently released 2011 case, Judge John D. Bates expanded what it means to “target” someone under Section 702 of the FISA Amendments Act. That section defines a permissible “target” of an investigation as a non-U.S. person not located within the United States. Lawmakers have relied upon this definition to ensure Americans that the scope of surveillance is at least limited to those conversations in which one party is a foreign “target” even if another party is an American. But in 2011, the court defined “target” as much broader, and said that the government could investigate that target not just by monitoring conversations he or she has with other people, but also by monitoring the conversations of others, including Americans, that are “about” that target.

The problem with this expansion is more than it may initially seem. While determining the parties to a phone call or email conversation can be achieved without looking at its substance, determining whether a conversation is “about” someone requires some consumption of that conversation just to determine whether it meets the criteria. There are limitations on how the government does this, explained in excellent detail by the Electronic Frontier Foundation. In fact, many of these limitations were imposed by the FISA court, and in that same 2011 decision, Judge Bates only partially upheld the government’s surveillance methods, while berating the government for the overreach of its program. This case, Bates wrote, was the third time in three years that the government had made a “substantial misrepresentation regarding the scope of a major collection program,” including running queries of metadata with impermissible search terms.

Judge Bates came to this conclusion in a detailed, 81-page opinion that carefully considered the relevant statute. But only one party was making arguments: the government. The secret court’s one-sided system in which no one opposes the government is likely one reason why it has granted almost every single one of its requests. Other reasons may be that government requests are frequently approved only after being asked to refine or limit the request.

But no amount of secret judicial oversight is equivalent to the check of an adversarial system. While a unilateral process may seem more appropriate when a judge is doing what many of the nation’s magistrate judges do in other criminal investigations — approve or reject individual warrants based on whether there is probable cause — it is considerably more alarming in cases like this one where the court is interpreting the law to authorize new tactics going forward based only on the arguments of one biased party, and without any obligation to ever make its decisions public. What’s more, as a former FISA judge recently explained, defendants in criminal cases later have an opportunity to object to the warrant if they are charged. Subjects of FISA surveillance usually never do.

The latest piece of this story comes as the Justice Department is poised to release a slew of new documents this week, pursuant to a long-running lawsuit filed by several public interest groups. Among the documents will be several new FISA decisions interpreting Section 215 of the Patriot Act. According to plaintiff Electronic Frontier Foundation, the government fought a Freedom of Information Act court order to make these documents public for several years, and agreed only as public scrutiny surrounding this issue has escalated over the past several months.