Who Safeguards Your Privacy Before the Foreign Intelligence Surveillance Court?

Answers to your questions about the news.
June 6 2013 4:01 PM

People v. NSA

Who represents the public at the Foreign Intelligence Surveillance Court?

Attorney Speaking to Court.
Applications for surveillance orders from the FISA court are nonadversarial, which means the target of the investigation is not represented

Photo by Fuse/Thinkstock

The National Security Agency is collecting metadata on the calls of all Verizon customers according to a report from the Guardian. Obama administration officials have defended their surveillance activities, without admitting to anything specific, noting that the Foreign Intelligence Surveillance Court approves such intelligence gathering. Who represents the privacy interests of ordinary Americans before the secret intelligence court?

No one. Applications for surveillance orders from the FISA court are nonadversarial, which means the target of the investigation is not represented. The judges, working on their own, are supposed to ensure that the government meets the legal standard. In practice, there’s little the judges can do to stop investigators from getting what they want because the standard is so low. The government must show that it seeks information “relevant to an authorized investigation.” Relevance is presumed if the government merely states—not proves—that the records relate to: “(1) a foreign power or an agent of a foreign power; (2) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (3) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.” Absent congressional action, it’s very unlikely you’ll have representation before the FISA court anytime soon. Last year, the Supreme Court ruled that a group of journalists and attorneys lacked standing to challenge the procedures because they couldn’t prove any injury to themselves.

Although you had no opportunity to contest the order that delivered your phone data to the NSA, Verizon likely had some say. After a surveillance order is issued, electronic service providers may present a challenge if they feel the order is impractical or overly burdensome.

Advertisement

The government has an astonishing success rate before the FISA court. Between 2010 and 2012, the court approved all of the 5,180 applications for surveillance and physical searches except for one that the government unilaterally withdrew. Despite receiving more than a 1,000 requests every year since 2002, the court has never denied more than four applications in a single year.

Those statistics may be slightly unfair to the judges, though. Former FISA court judges claim that they sometimes persuade government investigators to modify or narrow their requests before issuing the approval. In 2012, the judges modified 39 orders out of 1,856. The government must also submit “minimization procedures” along with the application, which are supposed to prevent the misuse of information belonging to innocent people. However, as with other aspects of foreign intelligence gathering, it’s difficult to ascertain whether the government is complying with its own minimization procedures.

The current makeup of the FISA court is probably favorable to approvals. The 11 judges on the lower level of the court and the three appellate judges are appointed by the chief justice of the United States. Since the FISA court was established in 1978, every chief justice has been a Republican appointee with a fairly broad view of the government’s powers in safeguarding national security.

Got a question about today’s news? Ask the Explainer.

Explainer thanks Stephen I. Vladeck of American University Washington College of Law, who blogs on national security law at Lawfare.

Watch Verizon's lost "Can you hear me now?" NSA ad:

TODAY IN SLATE

Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

Chief Justice John Roberts Says $1,000 Can’t Buy Influence in Congress. Looks Like He’s Wrong.

After This Merger, One Company Could Control One-Third of the Planet's Beer Sales

Hidden Messages in Corporate Logos

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

How Can We Investigate Potential Dangers of Fracking Without Being Alarmist?

My Year as an Abortion Doula       

  News & Politics
Politics
Sept. 16 2014 11:25 AM The GOP’s Phantom Menace The Republican Party’s new agenda is trying to solve problems that don’t exist.
  Business
Business Insider
Sept. 16 2014 10:17 AM How Jack Ma Founded Alibaba
  Life
Atlas Obscura
Sept. 16 2014 8:00 AM The Wall Street Bombing: Low-Tech Terrorism in Prohibition-era New York
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
  Arts
Brow Beat
Sept. 16 2014 10:52 AM Bill Hader Explains Why Playing Stefon Made Him Laugh and Why LeBron James Is Funny
  Technology
Future Tense
Sept. 16 2014 7:36 AM The Inspiration Drought Why our science fiction needs new dreams.
  Health & Science
Bad Astronomy
Sept. 16 2014 7:30 AM A Galaxy of Tatooines
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.