US judges say FISA court privacy advocate may be counterproductive

Judge John D. Bates in a letter on behalf of the federal judiciary opposes some of the proposed reforms of surveillance programs

Foreign Intelligence Surveillance Court judges have said the creation of a privacy advocate in the secret court could be counterproductive and hamper its work.

The FISC court was set up under the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain a judicial warrant for certain kinds of intelligence gathering operations.

The creation of the position of a privacy advocate, to represent privacy and civil liberty issues in the court, was first suggested in August by U.S. President Barack Obama in the wake of demands for reforms of the surveillance programs of the National Security Agency. The agency came under scrutiny after disclosures through newspaper reports by former NSA contractor, Edward Snowden, of its dragnet surveillance, including the bulk collection of phone records of Americans.

A panel appointed by Obama, called the Review Group on Intelligence and Communications Technology, has also recommended a number of changes in the way NSA programs are conducted, including taking the collected phone records out of the hands of the agency and requiring individual court orders for most searches of the records database.

Obama is expected to announce new guidelines on Friday, according to reports.

"Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation," John D. Bates, a former presiding judge of the FISC, wrote in a letter to Senator Dianne Feinstein, chairman of the Senate select committee on intelligence, which was released Tuesday.

The involvement of the privacy advocate in routine FISA matters would hamper the work of the courts, including its ability to receive complete and accurate information from intelligence agencies, without providing benefits such as privacy protection, according to the letter.

In matters in which an outside voice could be useful, the judges favor an advocate appointed by the court rather than an advocate "with independent authority to intervene at will."

The judges are also in favor that the 11 district court judges appointed to serve on the FISC continue to be appointed by the U.S. Chief Justice. They also warn against release of court opinions, stating that the government may often want to redact the opinion to conceal from the public details about how a surveillance is conducted, as it could provide tips for evasion to intelligence targets. Redacted opinions may not have the "factual context" required to understand the reasoning and results of court opinions, the judges said.

Bates said he was writing the letter and accompanying document, summing up the views of former and current FISC judges, in his capacity as director of the Administrative Office of the United States Courts. He said he also acts as a liaison for the judiciary on FISA matters, at the request of the U.S. Chief Justice.

He said the comments by the judiciary focus on the operational impact on the courts arising from the proposed changes, but do not comment on policy choices the political branches of government are considering.

Some of the proposed changes would, however, increase the courts' workload, which even if additional resources are provided, would prove disruptive to the courts' ability to perform their duties, including responsibilities under FISA and the U.S. Constitution to ensure that the privacy interests of U.S citizens and others are protected, Bates wrote.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is

Join the CSO newsletter!

Error: Please check your email address.

Tags regulationsecuritylegalU.S. National Security AgencyForeign Intelligence Surveillance Courtlegislationgovernmentprivacy

More about IDGNational Security AgencyNSATechnology

Show Comments

Featured Whitepapers

Editor's Recommendations

Solution Centres

Stories by John Ribeiro

Latest Videos

  • 150x50

    CSO Webinar: Will your data protection strategy be enough when disaster strikes?

    Speakers: - Paul O’Connor, Engagement leader - Performance Audit Group, Victorian Auditor-General’s Office (VAGO) - Nigel Phair, Managing Director, Centre for Internet Safety - Joshua Stenhouse, Technical Evangelist, Zerto - Anthony Caruana, CSO MC & Moderator

    Play Video

  • 150x50

    CSO Webinar: The Human Factor - Your people are your biggest security weakness

    ​Speakers: David Lacey, Researcher and former CISO Royal Mail David Turner - Global Risk Management Expert Mark Guntrip - Group Manager, Email Protection, Proofpoint

    Play Video

  • 150x50

    CSO Webinar: Current ransomware defences are failing – but machine learning can drive a more proactive solution

    Speakers • Ty Miller, Director, Threat Intelligence • Mark Gregory, Leader, Network Engineering Research Group, RMIT • Jeff Lanza, Retired FBI Agent (USA) • Andy Solterbeck, VP Asia Pacific, Cylance • David Braue, CSO MC/Moderator What to expect: ​Hear from industry experts on the local and global ransomware threat landscape. Explore a new approach to dealing with ransomware using machine-learning techniques and by thinking about the problem in a fundamentally different way. Apply techniques for gathering insight into ransomware behaviour and find out what elements must go into a truly effective ransomware defence. Get a first-hand look at how ransomware actually works in practice, and how machine-learning techniques can pick up on its activities long before your employees do.

    Play Video

  • 150x50

    CSO Webinar: Get real about metadata to avoid a false sense of security

    Speakers: • Anthony Caruana – CSO MC and moderator • Ian Farquhar, Worldwide Virtual Security Team Lead, Gigamon • John Lindsay, Former CTO, iiNet • Skeeve Stevens, Futurist, Future Sumo • David Vaile - Vice chair of APF, Co-Convenor of the Cyberspace Law And Policy Community, UNSW Law Faculty This webinar covers: - A 101 on metadata - what it is and how to use it - Insight into a typical attack, what happens and what we would find when looking into the metadata - How to collect metadata, use this to detect attacks and get greater insight into how you can use this to protect your organisation - Learn how much raw data and metadata to retain and how long for - Get a reality check on how you're using your metadata and if this is enough to secure your organisation

    Play Video

  • 150x50

    CSO Webinar: How banking trojans work and how you can stop them

    CSO Webinar: How banking trojans work and how you can stop them Featuring: • John Baird, Director of Global Technology Production, Deutsche Bank • Samantha Macleod, GM Cyber Security, ME Bank • Sherrod DeGrippo, Director of Emerging Threats, Proofpoint (USA)

    Play Video

More videos

Blog Posts

Market Place