The Foreign Intelligence Surveillance Court (FISA) is packed with judges who own stock in the telecom companies handing over data to the government.
When the National Security Agency would like to take a look at all of the metadata of phone calls made by people using Verizon, a program revealed last summer by Edward Snowden, they must obtain approval from the secretive Foreign Intelligence Surveillance Court (better known as the FISA Court), which typically grants such requests. VICE has obtained disclosures that reveal for the first time since this program was made public that FISA Court judges have not only owned Verizon stock in the last year, but that at least one of the judges to sign off on the NSA orders for bulk metadata collection is a proud shareholder of the company complying with these requests.
On May 28 last year, Judge James Zagel, a FISA Court member since 2008, purchased stock in Verizon. In June of this year, Zagel signed off on a government request to the FISA Court to renew the ongoing metadata collection program.
He's not the only one. We filed a request to the courts for the personal finance statements for all of the FISA Court judges. About a month ago, federal judges began turning in their disclosures, which cover the calendar year of 2013. The disclosures show that FISA Court Judge Susan Wright purchased Verizon stock valued at $15,000 or less on October 22. FISA Court Judge Dennis Saylor has owned Verizon stock, and last year collected a dividend of less than $1,000. The precise amount and value of each investment is unclear—like many government ethics disclosures, including those for federal lawmakers, investments amounts are revealed within certain ranges of value.
The FISA Court continually rotates with respect to how it deals with requests from the government. In essence, each judge takes turns overseeing surveillance asks from the Feds. Judge Roger Vinson, the judge who signed off on the order disclosed by Snowden last year, requested an extension for filing his personal finance statement. While it's not clear how the rotation schedule works, it's certainly plausible Judge Saylor or Judge Wright will soon be asked to renew the next request by the NSA for metadata from telecom companies.
Do the investments constitute a conflict of interest? Federal judges are bound by an ethics law that requires them to recuse themselves from cases in which they hold a financial stake in the outcome, or in cases in which their "impartiality might reasonably be questioned."
In the past, revelations about stock ownership have invalidated certain court decisions. For example, after an eye-opening investigation from the Center for Public Integrity, which revealed that a federal judge who participated in a mortgage foreclosure-related decision owned stock in Wells Fargo, a case was re-opened. The FISA Court is different. For one thing, FISA proceedings are ex parte, meaning Verizon isn't even a party for the NSA requests. However, telecom companies certainly have a stake in how they comply with government orders, and some ethicists say judges would be well served if they simply steer clear of these types of investments.
"I think prudence would suggest that a FISA judge would not acquire investments in these telecommunication stocks," says Professor William G. Ross, an expert on judicial ethics at Samford University's Cumberland School of Law in Alabama. "I'm not saying there is a conflict of interest, which my impression says there's probably not," Ross says, adding, "this is between what's improper and what's prudent."
District court clerks told VICE that judges typically do not offer responses on the record for these types of inquiries. Judge Saylor's office could not offer a comment, and a request for comment was also sent to the other judges.
Last year, Gawker reported that many FISA Court judges have owned various telecommunication stocks over the years. But the ethics forms we obtained show that since the Snowden revelation, FISA Court judges have been specifically purchasing and holding stock in the company that is the only named telecom giant known for its compliance with the NSA's bulk data orders.