Jury still out on FISA court

Critics say latest claims that court is tougher than thought on NSA and FBI requests lack key data

Data released by the presiding judge of the Foreign Intelligence Surveillance Court (FISC) suggest that the secret court is tougher on government requests for wiretaps on foreign terrorism suspects than had been generally assumed.

Nonetheless, critics contend that the jury is still out on whether the court truly acts as a bulwark against unconstitutional surveillance demands by government agencies.

Steve Vladeck, professor of law and the associate dean for scholarship at American University Washington College of Law, cautioned against reading too much into the court's latest missive touting its toughness in questioning electronic surveillance requests from U.S. spy agencies.

"The data alone is practically useless without a deeper sense of the nature of the push back the FISA Court is undertaking. And I, for one, am skeptical that it's as forceful as we might like it to be," Vladeck said.

In an Oct. 11 letter to Sen. Chuck Grassley (R-Iowa) Ranking Member of the U.S. Senate Judiciary Committee and other lawmakers, FISC Chief Judge Reggie Walton provided some new details on how the court handles surveillance requests.

In the three-month period between July 1 and Sept 30, 2013, Walton said that 24.4% of all government requests for orders were sent back for revisions and clarifications.

In most of the cases, the requested changes were "substantive," Walton said. "This does not involve, for example, mere typographical corrections."

The letter, however, did not provide details on or examples of changes typically required by the court.

The FISC has received considerable scrutiny in the wake of media leaks by contract worker Edward Snowden earlier this year about the National Security Agency's massive spying programs.

The court oversees wiretap requests by the NSA and FBI filed under the Foreign Intelligence Surveillance Act (FISA).

A report released in May by the U.S. Department of Justice showed that the court had approved each of the 1,856 requests it received in 2012 to conduct electronic and physical surveillance and the 212 requests for access to business records of suspected spies. The government itself withdrew a handful 2012 requests, the report said.

The numbers were touted by privacy advocates and others as proof that court rubber-stamps government surveillance requests. The court and its backers have vigorously denied such charges.

In a footnote to a letter to Judiciary Chairman Sen. Patrick Leahy (D-Vermont) over the summer, Walton said the FISA court's approval rate for wiretap applications isn't much different than the rate of approval of law enforcement requests to federal district courts. Between 2008 and 2012, federal courts refused just five wiretap applications from the 13,593 applications that had been filed, Walton said.

In a blog post on Thursday. Joel Brenner, former inspector general of the NSA, contended that noted Walton's latest letter reinforces his belief that the court is not merely a rubber stamp.

"Now we know: the Foreign Intelligence Surveillance Court bounces a quarter of the government's applications for surveillance orders," Brenner wrote. "It also turns out the FISA Court is tougher on the government's applications for orders designed to get foreign intelligence sitting on U.S. circuits than are the federal courts with respect to government applications for traditional wiretap warrants."

Court backers have long maintained that the FISC gives government requests more scrutiny than critics say. "But the data to prove it have been missing. Now we have them," Brenner said.

Comparing the FISA courts approval rates with that of regular federal courts isn't valid, Vladeck said.

"First, the data from 'ordinary' wiretaps in the district courts is incomplete insofar as it doesn't indicate how many of those wiretaps are subsequently challenged and thrown out," he said. Motions to suppress or civil lawsuits can't be used to challenge FISA orders, Vladeck noted.

"More fundamentally, we have no sense of exactly how the FISA Court is pushing back in these cases," he said.

For instance, there is still little information on whether the amendments it requires are minor or material, or whether they ask the government to narrow the scope of their surveillance.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His email address is jvijayan@computerworld.com.

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