The Foreign Intelligence Surveillance Court (FISC, also known as FISA, because the FISC is a product of and the Foreign Intelligence Surveillance Act) entertains applications submitted by the United States Government for “approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.” Here are five interesting facts most people don’t know about the FISC.
1. The FISC is not a product of the attacks of September 11, 2001.
The Court was around long before that. The FISC Foreign Intelligence Surveillance Court was established in 1978 when Congress enacted the Foreign Intelligence Surveillance Act (FISA), which is codified, as amended, at 50 U.S.C. §§ 1801-1885c. That section of the United States Code is worth a long read, too.
2. The Court’s not part of “The Swamp.”
Although the 11 members of the FISA are designated by the Chief Justice of the United States, the FISC federal district court judges selected come from across the United States to sit in Washington, D.C. By law, three of the 11 judges reside within 20 miles of the District. Until 2009, the FICA sat in the Department of Justice Headquarters, when it was moved to even more neutral territory of the Federal Courthouse. The 11 judges rotate through duty in D.C. for a week-long tour of duty at a time. So, only one of the 11 is on duty, unless the government brings a particularly complex case. In those cases, the presiding judge will call in as many judges as necessary to work the government’s request. And the judges aren’t appointed for life, as many federal judges are. The 11 FICA judges serve only seven years.
3. many requests never reach the bench.
Some applications brought to the FICA never get far beyond the FICA staff attorneys. By the time the application gets beyond the staff attorneys and before the bench, the government and FICA staff lawyers have probably engaged in a rather detailed collaborative process. When the government submits an application, FICA staff lawyers, sometimes guided by the judge, review the application for legal sufficiency, for clarification of legal standings or facts before the application formally and finally goes to the judge for decision. “Court legal staff may meet with the government as often as 2-3 times a week, or as few as 1-2 times a month, in connection with the various matters pending before the Court,” Presiding Judge Reggie Watson explained to Judiciary Committee Senators Patrick Leahy and Charles Grassley in a July 2013 correspondence. “Many applications are altered prior to final submission or even withheld from formal submission entirely,” Watson writes, “often after an indication that a judge would not approve them.” In short, once it becomes clear that the government’s application is illegal, the government may choose to just drop the whole thing rather than go through the formalities of assured rejection.
4. much of its work happens in secret.
Yes, much of what the FICA does is done in secret, and applications for surveillance are generally completed ex parte, which means “with respect to or in the interests of one side only or of an interested outside party.” It wouldn’t do to inform the subject of the application, “Hey, we’re trying to surveil your communications, could you come in and tell us why we shouldn’t?” Additionally, the secrecy is necessary “to protect classified national security information.” Information in any application is likely classified secret. It has to be, of course. For instance, in some cases, the government may apply to use a means of surveillance that relies on new technology unknown to the public, “novel use of technology or a request to use a new surveillance or search technique,” as Watson describes it.
5. Private parties can challenge a FISA request.
Non-governmental parties ordered by FISC to conduct surveillance do have an opportunity to challenge the court. As of 2013, there was only one non-governmental entity to “substantively contest” a FISC directive, and that was Yahoo! In 2007. Yahoo! refused to comply. The government filed a motion to force compliance. Yahoo! was invited in for a hearing. That same year, the ACLU petitioned the court to release records. In 2013 the Electronic Frontier Foundation filed a motion with the court to disclose certain records. Google, Microsoft, and others have sought relief from FICA orders, as well.
There’s a lot more to learn. The FISC Rules of Procedure are only 18 pages long (15 if you don’t count the table of contents), and pretty easy to understand with a few Google searches to interpret legal terms of art like ex parte.
