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.