United States Foreign Intelligence Surveillance Court

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The E. Barrett Prettyman United States Courthouse, the seat of the FISC

The United States Foreign Intelligence Surveillance Court ( FISC , Court of the United States on the surveillance of foreign intelligence ) is a 1978 created the Federal Court of the United States , the monitoring actions of the national foreign intelligence agencies should regulate. The FISC is based on 50 USC § 1861 (c) (2) (C) in the Foreign Intelligence Surveillance Act (FISA). Both FISA and FISC came into being as a result of the recommendations of the Church Committee , which investigated the sometimes illegal activities of the FBI , CIA and NSA .

Court building

The court consists of an eleven-member judicial panel (originally seven), the members of which are selected and appointed by the presiding judge of the Supreme Court from all federal judges. The federal judges remain in their respective positions, one of them serving at the FISC each week and being in Washington, DC . New proceedings are always presented to the judge on duty, who usually decides. If a trial is a repetition or extension of an earlier case, the decision can be passed to the judge originally competent, who is already familiar with the specifics of the case. The court will meet in a specially secured courtroom in the E. Barrett Prettyman United States Courthouse , the central federal courthouse for Washington DC.

A revision to the United States Foreign Intelligence Surveillance Court of Review (FISCoR) is possible against decisions of the first instance . This consists of a three-headed panel selected from the eleven judges of the first instance.

The meetings are fundamentally subject to confidentiality ; the court decides for itself whether and which judgments to publish. The government decides on the publication of judgments and other court documents in the possession of the federal government using the usual rules of secrecy.

Procedure

In order for federal investigative agencies to conduct any type of surveillance of an American citizen , an application must be submitted to the FISC for approval. The domestic intelligence agency FBI also monitors foreign agents. In addition, the FISC must be called if American communication companies are to be obliged to release communication data of a domestic nature or with foreign countries. This task of the FISC is partially replaced by National Security Letters under the USA PATRIOT Act , which can be issued unilaterally and directly by investigative authorities when a national security matter is concerned.

If, in the case of imminent danger, the authorities have searched suspects or monitored their communications without prior authorization from the FISC, the court must be informed immediately; this can subsequently approve the measure within one week.

Only the federal government is entitled to file a petition in surveillance cases ; there is no defendant, making the FISC one of the few cases in the US judicial system that does not use litigation. Third parties can also call the FISC with questions about their own responsibilities and activities.

Criticism of the practice

On December 20, 2005, Judge James Robertson walked out of the FISC to protest current surveillance practices. Four days earlier, the New York Times had published the news that the administration under President George W. Bush had carried out telephone surveillance for the first time without the approval of the FISC. In May 2006 it became known that the NSA was storing and analyzing the telephone traffic data of millions of US citizens without permission. The government relied on presidential powers as defined by the USA PATRIOT Act , which was passed after the terrorist attacks of September 11, 2001 .

From the beginning of June 2013, the FISC was permanently in the limelight through publications based on documents by Edward Snowden as part of the global surveillance and espionage affair. Former FISC Judge James Robertson, after uncovering the court's case law, came to the conclusion that, contrary to its original role as an investigative body, since the expansion of its jurisdiction under the 2008 FISA amendment, the court has performed functions that are more like those of the Supreme Court or correspond to a federal authority. With its jurisprudence, it not only authorizes individual cases, but also regulates the methods of the security authorities. Then, however, the proceedings before the court would also have to be adapted, in particular the disputed proceedings would have to be introduced, in which the government representatives were faced with a party that represented the interests of those affected by the actions of the authorities. These plans were further reduced in the further reform discussion and stopped in November 2014 by the House of Representatives of the United States .

The New York Times followed suit when it revealed that the National Security Agency itself classified three court decisions since 2001 as milestones in intelligence agency empowerment. In a reaction to the media reports, US President Barack Obama suggested in August 2013 that elements of a contentious procedure be introduced in some FISC cases in which the government side is confronted with a representative of civil rights.

In response to media reports, the presiding judge of the FISC admitted that the court had no way of independently controlling the intelligence services but had to rely on their reports. It was previously known that the NSA had exceeded the limits of the surveillance orders in thousands of cases due to human or technical errors. Furthermore, contrary to the law, large parts of these cases were not reported back to the FISC, but were dealt with internally for various reasons.

One of the most serious cases was that the NSA maintained a list of telephone numbers from 2006 to 2009, which was checked daily against the connection data of all calls in the United States. The court only allowed this access to specific suspects in anti-terror investigations. It was only three years later that the court learned that only 10% of the numbers on the list belonged to a terrorist investigation and that over the years, over 200 NSA employees had access to this top-secret data due to an expansion of responsibilities.

The excessive access of the NSA to the connection data of American telephone users also aroused criticism by the FISC. Judge Reggie Walton stated in 2009, according to a brief released in September 2013, that the NSA is using data in an unlawful form “on a daily basis” and thereby violating the rights of “thousands” of citizens. He asked if the program could continue in these circumstances and questioned whether the benefits to national security outweighed it. The NSA replied that until the problems were investigated, no one in the agency had an overview of the ongoing programs and that the staff involved assumed that this data was subject to less strict access rules that could only be used for other procedures.

Also in August 2013, it became known that in 2011 the FISC had sharply criticized the NSA's sharp exceeding of the stipulated requirements for eavesdropping on Internet communications for the past three years. When accessing data at nodes with the upstream program, the NSA recorded so-called multi-communication transactions on a large scale . The suspicion and the approval only related to one of several interrelated communication lines. The NSA had not notified the court of this excessive effect of its method for years. It was not until 2011 that the NSA finally made it possible to select only the relevant communication strand and to exclude all others from storage. The presiding judge's decision also revealed that between 2009 and 2011 the NSA had misrepresented the real breadth of its actions to the court in two additional cases.

On the other hand, in October 2011 the FISC expanded its previous case law regarding the analysis of NSA databases. In 2008, the FISC decided that the NSA needed individual judicial approval if it wanted to search for American communication participants in legally recorded data of cross-border communication. At the request of the Obama administration, the court abandoned this principle and redefined the term target . Since then, the NSA has been allowed to evaluate existing communication data with domestic reference according to any criteria and participants without further approval. At the same time, it became known that this new interpretation was the basis for warnings that the two US Senators Ron Wyden and Mark Udall had issued in 2012. At that time, however, as the keepers of secrets, they were not yet allowed to speak about the decision that has since been released.

A previous NSA evaluator expressed the view in 2013 that the FISC's oversight of the judiciary over the actions of investigative authorities was "ridiculous". He called the court “ a kangaroo court with a rubber stamp. “Of several tens of thousands of requests, the FISC would have rejected about six. The whistleblower Daniel Ellsberg , known through the distribution of the Pentagon Papers, described the statement by US President Obama that the court would oversee the separation of powers as "nonsense" . Both the FISC and the intelligence committees of the US Congress are fully integrated into the structures of the secret services and have adopted their standards of value. The journalist, lawyer and intelligence expert James Bamford agrees . In his view, the Foreign Intelligence Surveillance Act, which was reformed in 2008, has largely eliminated the court as a supervisory authority, as the executive no longer has to state an individually named threat as a reason for surveillance. He also describes how the role of Congress has shifted from overseeing the executive and judicial branches to cheering fans of the surveillance authorities.

A 400-page report was published in late 2019 for which the Justice Department reviewed the practice of FISA applications and decisions. He came to the conclusion that the FBI systematically distorted the presentation of facts in the applications and withheld information in the application that was favorable for the accused. The Senate Judiciary Committee then initiated a review of FISA.

history

Since the founding of the court, the number of applications rose from an initial 319 in the first full financial year 1980 to 1984 to 635, and then fluctuated between 500 and 600 applications per year until 1994. In 2000, the number of 1,000 applications was exceeded for the first time, the highest value to date was reached in 2007 with 2,371 applications. Applications by the federal government are hardly ever rejected: for the first time in 2003, four applications were rejected; between 1979 and 2012 there were 33,942 approved applications compared to only 11 rejected.

This is why the revision option is rarely used. For the first time, the investigating authorities turned to the FISCoR in 2002, when John Ashcroft , the then Minister of Justice , additional surveillance powers granted get wanted after the FISC in the pending case criticized the carried out 75 inspections as disproportionate and even an FBI agent from further proceedings excluded . The appeal court granted the application and allowed the investigative measures.

The addressees of the orders or third parties hardly ever turn to the auditor. According to a 2013 report by the FISC presiding judge to the United States Senate, the Internet company Yahoo's complaint in 2008 marked the first time an investigative investigator had reviewed the order. Yahoo attacked the requirement under the Protect America Act of 2007 that, if requested by the NSA, it should grant full access to all data, connection data and communication content of its customers without individual court order. In the company's opinion, the order was too extensive and unspecific. In the decision of August 22, 2008, the auditors confirmed the instruction and stated that a refusal would result in heavy fines against the company or imprisonment against the management. It was only released in September 2014 that the dispute concerned connection and content data and that the NSA program PRISM, which was revealed in 2013, was the subject of the proceedings. Until then, all observers assumed that only the release of connection data had been requested and confirmed. The legal basis Protect America Act was incorporated in the 2008 amendment to FISA.

Previously, in 2002, the civil rights organization ACLU and the National Association of Criminal Defense Lawers had appealed to the court with two statements, known as Amicus Curiae , on an ongoing case.

In 2012, 1,856 applications were made to the FISC for approval of surveillance measures. These requests can each concern individual documents, all data of a person or all data of a certain type about all customers of a company, so that the number does not allow any statement to be made as to how many people or investigations were affected. 1,789 requests related to electronic surveillance. None of these motions were rejected in whole or in part, however the government withdrew one motion after discussion with the court. In another 40 cases, the application was revised after the consultation. Of the 212 requests for customer data disclosure, none were rejected, but 200 requests were modified in the course of the legal proceedings.

In 2013, several internet companies turned to the court as part of the 2013 surveillance and espionage affair, requesting orders and the confidentiality of these orders to be checked. They abandoned the lawsuits in January 2014 when they were allowed to publish the number of inquiries they had received under various surveillance laws by order of magnitude.

Web links

Individual evidence

  1. ^ Charlie Savage: Roberts's Picks Reshaping Secret Surveillance Court , New York Times, July 25, 2013.
  2. ↑ Foreign Intelligence Surveillance Court: Misc 13-01, judgment of June 12, 2013 (PDF; 98 kB).
  3. ↑ USCourts: FISC Rules of Procedure (PDF; 1.3 MB), as of 2010.
  4. ↑ Guardian: US must fix secret Fisa courts, says top judge who granted surveillance orders , July 9, 2013.
  5. ^ Spiegel online: Failed NSA reformer: First hardliner, now helpless November 21, 2014
  6. ↑ Charlie Savage, Laura Poitras: How a Court Secretly Evolved, Extending US Spies' Reach , March 11, 2014
  7. ^ White House: Remarks by the President in a Press Conference , Aug. 9, 2013.
  8. ↑ Washington Post: Court: Ability to police US spying program limited , August 15, 2013.
  9. ^ Washington Post: NSA broke privacy rules thousands of times per year, audit finds , Aug. 15, 2013.
  10. ^ FISC: Order , January 29, 2009.
  11. ↑ Washington Post: Declassified court documents highlight NSA violations in data collection for surveillance , September 10, 2013.
  12. ↑ Guardian: NSA violations led judge to consider viability of surveillance program , September 10, 2013.
  13. ↑ a b FISC: Hon. John D. Bates - Memorandum Opinion , October 3, 2011.
  14. ^ New York Times: Secret Court Rebuked NSA on Surveillance , Aug. 21, 2013.
  15. ↑ Washington Post: Obama administration had restrictions on NSA reversed in 2011 , September 7, 2013.
  16. ↑ Spencer Ackerman: Fisa chief judge defends integrity of court over Verizon records collection . The Guardian, June 6, 2013.
  17. ^ Daniel Ellsberg: Edward Snowden: Saving us from the United Stasi of America . The Guardian, June 10, 2013.
  18. ↑ reddit.com: Interview with James Bamford , June 13, 2013.
  19. ^ Charlie Savage: We Just Got a Rare Look at National Security Surveillance. It was ugly. New York Times, December 11, 2019
  20. ↑ New York Times: Horowitz Hearing Highlights: Watchdog Warns Against Exonerating FBI in Russia Inquiry, Pointing to Flaws , December 11, 2019
  21. ↑ Electronic Privacy Information Center: FISA Statistics .
  22. ^ Conor Friedersdorf: FISA Court Orders Are Rarely Challenged, Presiding Judge Says , The Atlantic, July 30, 2013.
  23. ^ A b c Judge Reggie B. Walton: Letter to the Chairman of the United States Senate Committee on the Judiciary , July 29, 2013.
  24. ^ DOJ: What is the Protect America Act?
  25. ↑ FISCoR: ON PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT (PDF; 3.7 MB), August 22, 2008 (greatly abbreviated for confidentiality purposes ).
  26. ^ New York Times: Secret Court Ruling Put Tech Companies in Data Bind , June 13, 2013.
  27. ↑ Washington Post: US threatened massive fine to force Yahoo to release data , September 11, 2014
  28. ↑ Department of Justice: Annual Report 2012 of the FISC (PDF; 75 kB).
  29. ↑ heise.de: NSA scandal: US Internet services are allowed to provide more precise information about user inquiries and drop their complaint, January 28, 2014