Friday, September 13, 2013

Who Watches the Watchmen: The Foreign Intelligence Surveillance Court

Earlier this week, Director of National Intelligence James R. Clapper released a number of newly-declassified documents related to the operations of the National Security Agency. The NSA has occupied the headlines all summer, since former contract employee Edward Snowden released materials to the media which exposed details of large-scale government surveillance programs. But this week's releases were actually prompted by a ruling in a Freedom of Information Act lawsuit filed several years earlier by the watchdog Electronic Frontier Foundation (see news release & searchable collection of documents).

The documents include a number of redacted opinions and orders from the Foreign Intelligence Surveillance Court (FISC). The operations of this mysterious federal court, which was established in 1978 by the Foreign Intelligence Surveillance Act (FISA), have long been a source of interest for scholars and privacy advocates. Federal law provides that "The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States" (50 U.S.C. § 1822(c)). Other sections of the U.S. Code direct the U.S. Attorney General to provide a semiannual summary of the court's activities to select committees within the House and Senate. These reports, dating back to 1979, have been compiled and archived on the Federation of American Scientists' FISA information page. However, they contain only brief descriptions of the total number of applications to the court for electronic surveillance authorization, and the number withdrawn or granted.

But other materials from this court have proven elusive. As noted in a 2007 Congressional Research Service report, "Only one opinion has been published since the court's inception in 1978": 2002's In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (full text via Google Scholar). A handful of other FISC opinions and orders, not selected for formal publication, have been collected by groups like the Electronic Privacy and Information Center and FAS, which culled them from FOIA releases and congressional document reprints. The September 10 document release includes several more opinions from 2006-2009, identified only by docket number, which shed additional light on the operations and reasoning of the Foreign Intelligence Surveillance Court.

To learn more about the legal issues surrounding FISA and the FISC, check out the treatises The Law of Electronic Surveillance (KF9670 .C373 & online in Westlaw); Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age (KF1263.C65 P76 & online in Bloomberg Law & PLI Discover PLUS), and Privacy Law and the USA Patriot Act  (KF9430 .P67 & online in LexisNexis). For help with locating these or other treatises, be sure to Ask a Librarian.