Ride the Lightning

Secret Court Vastly Broadens NSA's Powers

July 8, 2013

The New York Times reported yesterday on a troubling expansion of the National Security Agency's powers granted by the 11-member Foreign Intelligence Surveillance Court (FISC). Apparently, in more than a dozen rulings, a secret body of law has been created which allows the NSA not only to amass huge amounts of data in the pursuit of terrorists, but also when investigating suspects who might be involved in nuclear proliferation, espionage and cyberattacks. The information comes from seven current and former officials familiar with the court's classified decisions.

The article describes the evolution of FISC and notes that it has become almost a parallel Supreme Court on surveillance issues. One of the most important decisions carves out a new "special needs" doctrine.

The special needs doctrine was established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. The FISC judges have expanded that doctrine by ruling that the NSA’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment. A once narrow doctrine is now very broadly used to collect communications.

Secret findings have eased access to data on espionage, cyberattacks and other possible threats involved with foreign intelligence, the definition of which has broadened. In contrast to the Supreme Court, the FISC hears only from one side – the government – and its rulings are almost never made public. There is a Court of Review which can hear appeals, but that has occurred only a few times. No case has ever been taken to the Supreme Court.

FISC was created by Congress in 1978 as a check against wiretapping abuses by the government. It meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. A single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Beyond broader legal rulings, the judges have had to resolve questions about newer types of technology, like video conferencing, and how and when the government can get access to them. I will wager that the government generally wins the right to access.

It appears that a central concept of the decisions is that collecting "metadata" – the times of phone calls, numbers dialed, length of call etc. – is fine if the government establishes a valid reason under national security regulations. Content is protected. As one official said, “The basic idea is that it’s O.K. to create this huge pond of data but you have to establish a reason to stick your pole in the water and start fishing.”

Somehow, I imagine a flotilla of poles being stuck in a lot of ponds.