April 19, 2014

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Do Judges Play a Role After the NSA Call Records Have Been Collected?

Those who defend the NSA’s massive call records collection program point out that although the program allows indiscriminate data collection, it also meaningfully restricts data analysis and use. They note, in particular, this paragraph from Director of National Intelligence Clapper’s June 6, 2013, press release:

By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.

It seems to me that some have probably misunderstood this paragraph to suggest that the judges of the FISA Court (FISC) play a role in approving each individual query made to the data, the way a judge approves a warrant to search for or seize evidence in a criminal case. An article in Slate explained, somewhat approvingly, that “the rules that most of us would apply at the collection stage—reasonable suspicion, specific facts, court approval—are applied instead at the query stage”. A blog post author on Forbes explained that “[i]n order to analyze the data at hand, the NSA must get a court order justified by the reasonable suspicion of an imminent terrorist act.” Some legal scholars may be making the same assumption.

I think these commentators are probably wrong. Director Clapper seems to talking about the FISC’s review of the overall program, not suggesting that FISC judges play a role in approving each query of the data.

To some, this may not matter much. Many portray the FISC as a rubber stamp, not a meaningful check, a failure of checks and balances. I too worry about the independence of the FISC, but I would be a tiny bit less worried if I knew that a judge had to approve every single query to the database. But I doubt seriously that this is the case and I think people are misreading the press release.

I wonder if this misconception is held broadly among the members of the general public who have been telling pollsters that they are not worried about the program. I wonder if legislators telling the press not to worry understand that once NSA has collected this data, no meaningful interbranch check operates. I would hope that something else stands between the NSA analyst and evidence of our patterns of behavior–audit requirements, mid-level management approvals–but I am betting that no judge occupies that position.

Comments

  1. Whoever says:

    One can be fairly (at least 51%) certain that the FISA court is not approving individual queries of the data simply by looking at the number of warrants issued by the FISA court. This number is (if I recall correctly) around 1500 per year, which is far too small to allow for individual review of the queries.

    • paul says:

      I wouldn’t be sure of that. It depends on what you call a “query”.1500 requests for, say, all records involving person X and all of their associates, for example, might be reviewable by the court. And although such a request would be implemented by multiple actual database queries, it wouldn’t be stretching the concept too far to call it a single query.

      But after reading the release text carefully, I agree with Paul Ohm, just because it’s so delicately worded to give the impression that each query is reviewed while actually saying only that the rules for making queries have been reviewed by the court. (And that’s even after allowing for Clapper’s dubious history of veracity.)

      I wonder to what extent this seizure and storage regime is ultimately an artifact of the Bell System breakup: in the old days, the NSA or whoever would have simply requested records from The Phone Company, and mandated retention times (as is being done across the Atlantic) to make sure that old data was still available. Now, with so many carriers to deal with (and no promise that persons of interest will use the same carrier) the NSA considered it necessary to bring all the data inhouse immediately — or rather to outsource it to a single entity rather than multiple ones.

  2. nedu says:

    Yesterday (June 13) Senator Diane Feinstein told reporters that no additional court order is needed to query the database.

    Lifting a quote from a story in Politico:

    “To search the database, you have to have reasonable, articulable cause to believe that that individual is connected to a terrorist group,” Feinstein told reporters. “Then you can query the numbers. There is no content. You have the name, and the number called, whether it’s one number or two numbers. That’s all you have… if you want to collect content, then you get a court order.”

    Asked to confirm that intelligence officials do not need a court order for the query of the number itself, Feinstein said, “that’s my understanding.”

    Senator Feinstein is the chair of the Senate Select Committee on Intelligence, and thus –in some administrative sense– the successor to Idaho’s former Senator Frank Church.

  3. Nathan T. says:

    One thing is certain, no matter how you interpret that paragraph, it is still an outright lie.

    You can’t get approval of a quarry with “a reasonable suspicion, based on specific facts” unless you have first analyzed the data in the first place to get those specific facts. Which means, regardless of the judge’s role, someone, at some point is analyzing the data; and that happens independently of any judicial oversight.

    Perhaps a simple analogy in the form of some questions. If I have 1000 people in a room, and I know 1 person is a terrorist, what do I look for among the group to determine which person is the terrorist? But, supposing, I have 1000 people in a room, and I just think one of them is a terrorist, but in reality none are? What then do I have to look at to determine who the terrorist is?

    Note in the last question the fallacy, I am presuming a terrorist when none exists, and so I am asking the question based on my presumption. This is the fallacy in the entire NSA collection, they are collecting data on the presumption of finding terrorists and doing some sort of analyzing of that data.

    So, it really doesn’t matter how you answer those questions, when it comes to finding the non-existent terrorist; EVERYTHING that is “analyzed” is in violation of some or all 1000 people in the room. Doesn’t matter if a judge is sitting there saying to each and every query, “yea it’s okay to analyze the data for the word ‘terrorist,’” or “for phone numbers in Russia,” or any other criteria or not; the collection of the data, and the choice to analyze it at all is in violation of the Constitution; regardless of judicial oversight. And the whole paragraph is an outright lie carefully worded to appease the US Populace.