Intelligence surveillance court could become less secret
By Ellen Nakashima and Spencer S. Hsu
The secretive court that oversees domestic surveillance for intelligence investigations is proposing new rules that could lift the veil slightly on its deliberations.
The Foreign Intelligence Surveillance Court was set up under the 1978 Foreign Intelligence Surveillance Act (FISA) to protect the privacy interests of Americans in foreign intelligence investigations. But for national security reasons, it makes decisions in secrecy; its orders are rarely made public.
One big issue for civil liberties and open government advocates is that when the government brings a request for electronic surveillance on a citizen to the court, no one is there to represent the citizen's interest - except perhaps the phone, Internet or e-mail service provider being asked to provide the government access to the data.
Now, the FISC has drafted a revision to its rules of procedure to clarify, among other things, who has standing to challenge surveillance orders, and to give judges more discretion in disclosing rulings. While it's not a giant leap for civil liberties and transparency, privacy advocates and some industry lawyers say it's a step in the right direction.
The revisions grow in part out of the FISA Amendments Act of 2008 (FAA), which gave the government authority to seek FISA court approval to conduct surveillance on a "basket" of targets outside the United States in which one end of an e-mail or phone call may be inside the United States.
The revised rules would clarify that industry lawyers have standing to appeal all types of orders issued by the court. The court can issue many different types of orders, ranging from basket directives under the FAA to orders to wiretap a particular phone number in the United States, to "Section 215" business record orders for "any tangible thing" including books and records.
Under the court's proposal, all orders - not just Section 215 or basket surveillance orders - could be challenged by a provider. Up to now, it has not been clear whether, for instance, a wiretap order for a phone number in the U.S. can be challenged, said Michael Sussmann, a lawyer with Perkins Coie who represents phone and Internet companies.
"The rules indicate that a motion can be made to challenge U.S.-based surveillance," Sussmann said. "That relieves some of the ambiguity as to what access a provider has to the court if it wants to challenge an order," Sussmann said.
The court rarely releases opinions, but when it chooses to do so, existing rules require it to submit the opinion to the executive branch first for redaction. Under the new rules, the court "may" seek executive branch review.
Giving the court more discretion "is a good thing," said Melissa Goodman, staff attorney for the American Civil Liberties Union, which has sued unsuccessfully to participate in FISA court proceedings. But "it would be even better if the FISA court went further and said there would be a presumption in favor of disclosure of important and significant legal rulings."
The public can comment on the proposed rules until Oct. 4.
Ellen Nakashima and Spencer S. Hsu
| September 13, 2010; 11:25 AM ET
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