Criminal Courts Pose Greater Privacy Threat Than FISA Courts

Privacy advocates long have accused the Foreign Intelligence Surveillance Court (FISC) of being a rubber stamp for America's intelligence agencies, regularly granting them warrants to spy on both Americans and foreign nationals.

While there are good reasons to be skeptical of any court that operates in secret, the first complete annual reporting on FISC surveillance approvals — required under the USA Freedom Act of 2015 — does offer a glimmer of good news. The FISA court appears to be somewhat stingier in approving surveillance for the intelligence agencies than our more mundane criminal courts.

Of course, it isn’t an especially high bar. For 2016 — the first full-year report, after receiving a partial report for 2015 — shows that the court approved 99.5 percent of all requests, or 1,743 approvals out of 1,752 requests. The court modified 339 applications and rejected portions of 26 more. When combined with the nine outright rejections, 21.3 percent of the requests were ordered to undergo “substantive modifications” by the court. 

By contrast, the U.S. Courts 2015 Wiretap Report found that traditional criminal courts did not deny even a single request for a wiretap in the United States out of 4,148 total applications. This is particularly noteworthy given that one would expect the wiretapping of American citizens in domestic criminal investigations to raise thornier constitutional issues than intercepting foreign communiques in highly classified proceedings. 

Section 702 of the FISA Amendments Act of 2008 allows foreign targets to be wiretapped through an obscure and furtive process. Orders cannot be authorized under 702 to spy on “U.S. persons,” an intelligence term-of-art that includes both U.S. citizens and permanent residents. Despite those restrictions, some communications from citizens will be swept up in the collection activity as a matter of course. The law requires the identities of U.S. persons whose communications are collected incidentally to be masked. That way, personal details aren’t available to analysts unless the intercepts go through an unspecified process to expose that information.

Such secrecy is what concerns privacy advocates. If we can’t read the court’s decisions or get access to the investigations, how can we know the court is operating within the limits set by the Constitution and applicable laws? 

History is riddled with examples of power corrupting because no one was watching. We all remember the Bush administration’s clandestine detention program in the early 2000s. The program was technically secret, although leaks revealed some of its contours before the certain aspects of the practice was officially banned in 2007. Moral concerns aside, the fact that there were several cases of mistaken identity — which resulted in indefinite detention of individuals who were incorrectly thought to be high-ranking Al Qaeda members — demonstrates the dangers inherent to a lack of oversight. 

Those same fears about the intelligence community appeared justified in the wake of Edward Snowden’s revelations about PRISM metadata collection, which prompted many critics of the program to examine the government’s broader surveillance authorities. It’s encouraging that the FISA court appears to be scrutinizing applications, but continued vigilance is warranted.

Meanwhile, comparing FISC’s performance to our criminal courts should raise some significant alarms about the latter. The normal operation of the criminal-justice system generates more opportunities for dubious wiretapping. Moreover, such surveillance is targeted specifically at people within the country or preparing to come into it. That there was not a single application among the more than 4,000 filed in 2016 that moved a court to deny a warrant beggars belief.

It’s good to keep watch for potential problems with the FISA courts. But we might have even bigger worries here at home.

Arthur Rizer is national security and justice policy director with the R Street Institute. Daniel Oglesby is a technology research assistant with the R Street Institute.