.And surprisingly in favor of the Electronic Frontier Foundation. Also, as I expected, the FISA Court has its own procedural rules. This is in accord with the axiom that any court must have rules of procedure to function. They are not at all hard to find either. http://www.uscourts.gov/uscourts/rules/FISC2010.pdf
Returning to the recent opinion of June 13, the Foreign Intelligence Surveillance Court decided that they could allow the release an opinion of the Court that was found to be responsive to the EFF’s Freedom of Information Act request. A copy of that opinion happened to be in the possession of the Justice Department. The lawyers for the Justice Department naturally opposed this.
The EFF’s FOIA request had asked for among other things, FISC opinions where the court had held that a proposed data collection activity of the government was unreasonable under the Fourth Amendment. We can now say that there appears to exist at least one opinion where that was so held. Whether or not we will ever read the text of it remains to be seen. The matter was remanded back to the District Court.
The EFF story can be read here: FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case
More specifically what the EFF requested concerned “collection carried out pursuant to the Section 702 minimization procedures.” This is a reference to Section 702 of the FISA Amendments Act of 2008 also known as Public Law 110-261. Section 702(b)actually refers to “Limitations” and states at item (5) that the government’s acquisition of foreign intelligence information “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
Section 702 amended 50 USC 1881a. There we find the language concerning the fourth amendment at 1881a(b)(5). The term “minimization procedures” is also found in Section 1881 and elsewhere in Chapter 36. Minimization procedures seems to be a more specific reference to the governments efforts to comply with the limitations from Section 702 that were codified at 1881a(b).
The FISC or FISA court as its often called has frequently been portrayed as a mysterious black box that signs off on all government surveillance requests. How its supposed to operate proves relatively easy to learn about. How it operates in practice is less transparent.
Where the oversight or review of the Court’s actions occurs is less clear. How do you address allegations of an unlawful activity that also happens to be classified as top secret?