Author Archives: Clint Davidson

The FISC Rules

.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.

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?

National Scrutiny Agency

FISC BR 13-80

I always prefer going to primary sources in the midst of a controversy.  When the story broke this past week about a certain former NSA contractor releasing documents to selected journalists that included a sweeping court order for Verizon phone records, I went looking for the order.  I was concerned that the actual document might be taken down rather quickly and become a thing of legend.  Having had some difficulty locating it amidst all the other chatter, I decided to re-post it here.  You can find it at the link above: FISC BR 13-80.  It should also be embedded at the end of this post.

By all appearances it is a genuine certified copy of an Order from the Foreign Intelligence Surveillance Court that was signed on April 25th of 2013.  The scope of it is truly immense. Flow charts and power point presentations are cute, but a general warrant is a terrifying thing.

Note that this is titled “Secondary Order.”  I would be very interested in seeing the first or primary order and even more interested in seeing this:

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are  relevant to an authorized investigation…USC 1861 (a)2(A)

“By that, do mean a statement of probable cause?”  Well, yes actually.   Apparently there is an investigation that requires production of:

“all call detail records or telephony metadata created by Verizon for communications between the United States and abroad or wholly within the Unites States, including local telephone calls.”  (WHAT?..Yes, it really says that)

One might argue that the Order is limited in scope to the extent that it expires on July 19, 2013.  What a relief.  Until you consider the possibility that there was a prior order that expired on or about the date this Order was signed that asked for substantially the same records.  From April 25th to July 19th, 2013 is 85 days.  So an order of this type can be issued for not more than 90 days unless the FBI files a motion to extend that order with the Court within the 90 day duration of the order sought to be extended.  The extended order may be renewed for an additional 90 period, subject to the review and approval of the Court. The last passage is a deduction of the author.  The actual procedural rules of the FISA Court, assuming they must exist somewhere, are not found in 50 USC Chapter 36, Foreign Intelligence Surveillance.

These proceedings are not adversarial but are wholly Ex Parte.

Interested readers who would like to learn more about the FISA Court and the Foreign Intelligence Surveillance Act are directed to the following links:

FISC BR 13-80