The National Security Operations Center. Image: NSA
Last year, the federal government asked the Foreign Intelligence Surveillance Court for the authority to conduct electronic surveillance 1,588 times. Guess how many were turned down? Not a single one.
According to a letter sent from Peter Kadzik of the Department of Justice to Vice President Joe Biden and a host of important lawmakers (Sens. Harry Reid, Mitch McConnell, and Dianne Feinstein, Congressmen Mike Rogers, John Boehner, and a few others), the FISC never turned down a government request to conduct electronic surveillance and only made modifications in 34 of the 1,588 applications. Even if those modifications were substantial, that’s a shocking statistic.
Or, maybe it shouldn’t be. In 2012, FISC didn’t turn down any of the 1,789 government applications to conduct electronic surveillance, either. Same with 2011, and 2010. The last time it turned down an application was 2009, when it denied one.
Of course, much of what happens on the FISC court is completely secret, so we’ll likely never know what the modifications were. It was only last year that we actually saw a FISC court order, when Glenn Greenwald obtained a copy of one that ordered Verizon to turn over millions’ of customers metadata.
The stats contained in Wednesday’s letter means that the FISC is either rubber stamping essentially any government request to conduct surveillance, or the federal government is just really really good at determining when it needs to conduct surveillance on foreign enemies.
I’d bet on the former, especially considering what we’ve learned about how the secret court works. Essentially, it was set up to allow the government to conduct surveillance on foreign entities under the Foreign Intelligence Surveillance Act of 1978, hence the name of the thing. With the Edward Snowden leaks, we’ve learned that surveillance is happening on a much broader scale than that original act intended, and that the definition of “foreign” can be finessed in such a way to include American citizens.
The lack of transparency in the whole process is one of the most frustrating things about government surveillance, says Amie Stepanovich, a lawyer at the civil liberties group Access. The FISC sent 34 applications back to the federal government for modification, but we have no idea why they asked or what was changed.
"These reports were intended to give a window into the surveillance practices, but they contain little useful information, such as the number of people who are targeted by surveillance or have their personal information incidentally collected. And, while there is information that is legally required to be made public, there is no real limit on what information could be made available. Despite this, the ‘most transparent administration’ has taken no steps to supplement what information is contained in this report, which could create new norms and standards for reporting in future administrations," she wrote to me in an email. "More than any other single reform, we need to act now to mandate greater transparency into government surveillance operations in order to guarantee that the public stays informed and able to participate in a meaningful conversation about human rights and the limits of government power."