For the first time, a court file of the U.S. Foreign Intelligence Surveillance Court (FISC), which is also responsible for the NSA eavesdropping program, has been made public
The court file bears the file number "Misc. 13-01", is the first "other" Act of 2013. In this proceeding, the Foreign Intelligence Surveillance Court, established some 35 years ago, also ruled for someone other than the U.S. government for what appears to be the first time. The petitioning civil rights organization EFF is pleased with the success it achieved on Wednesday, although it is only a partial victory. EFF seeks (partial) disclosure of a single FISC decision by the Department of Justice.
The spy court
The FISC was established in 1978 and authorizes electronic surveillance and physical searches of non-U.S. citizens in the U.S. at the request of government agencies. The procedures are usually contentious because the target of the surveillance or search is not informed of the procedure or the decision. Only the target’s telephone or Internet provider can fight an order, but it must also keep quiet about it. In addition, the FISC can order the surrender of all physical items, including data.
The government only has to show that it wants to spy on a foreign entity. Even their assistants are allowed to be the target, which also includes all network operators. The government does not have to claim that there is a reason to interfere with the rights of the target or that the target has acted unlawfully. Accordingly, the prospects for providers to fend off a spy warrant from the FISC are slim.
Court decisions are secret
FISC decisions are virtually always classified information. In the 35 or so years of its existence, the FISC has released only a single-digit amount for partial publication. Even the number of proceedings conducted is not known. According to Wikipedia, in 2003 and 2004 alone, more than 1.700 government requests approved. Of these nearly 3.500 permits, only 183 did not correspond exactly to the government’s request but were approved by the court in a modified form.
Almost a year ago, EFF had already approached the U.S. Department of Justice (DOJ) with a request under the Freedom of Information Act. Thus sought was the release of all written FISC decisions in the Department’s possession finding a violation of law by a government agency; specifically, either a violation of the Fourth Amendment of the U.S. Constitution or a "Circumvention of the mind" of the Foreign Intelligence Surveillance Act (FISA). Since the ministry did not provide any information, the EFF filed suit in a federal district court at the end of August. Subsequently, in early January 2013, the Justice Department admitted to possessing two copies of a single such decision. However, these documents were covered by exceptions in the Freedom of Information Act – the district court could have decided otherwise. In addition, the Ministry argued that the FISC rules prohibited any disclosure anyway. And in matters of FISC rules, the district court had no jurisdiction.
The EFF then went directly to the FISC for clarification on how its rules should be interpreted. In these proceedings, the Ministry of Justice argued that the FISC itself was also unlawful. Thus, no court would have had jurisdiction and no one would have checked whether the secrecy was in compliance with the law.
The government also warned against a partial publication of the FISC decision from October 2011. That was "very likely to mislead the public about the role of the court and the ies that will be discussed in the decision".