Secretive Surveillance Court Skips Talking to Privacy Advocates

Jose Luis Magana/AP

Despite the Freedom Act's passage, the FISA Court opted not to consult a privacy panel on its first opportunity to do so.

The secretive court that oversees U.S. spying programs selected to not consult a panel of privacy advocates in its first decision made since the enactment earlier this month of major surveillance reform, according to an opinion declassified Friday.

The Foreign Intelligence Surveillance Court opted to forgo appointing a so-called "amicus" of privacy advocates as it considered whether the USA Freedom Act could reinstate spying provisions of the Patriot Act even though they expired on June 1 amid an impasse in the Senate.

The Court ruled that the Freedom Act's language—which will restore the National Security Agency's bulk collection of U.S. call data for six months before transitioning to a more limited program—could revive those lapsed provisions, but in assessing that narrow legal question, Judge Dennis Saylor concluded that the Court did not first need confer with a privacy panel as proscribed under the reform law.

"The statute provides some limited guidance, in that it clearly contemplates that there will be circumstances where an amicus curiae is unnecessary (that is, 'not appropriate')," Saylor wrote. "At a minimum, it seems likely that those circumstances would include situations where the court concludes that it does not need the assistance or advice of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonable or rational outcome."

Saylor reasoned that in decisions where the "outcome is sufficiently clear" and that reasonable jurists would agree, the appointment of privacy panel is not required by the Freedom Act. "This is such an instance," Saylor concluded.

But some privacy advocates were rankled by the Court's reasoning, and suggested Saylor was too relaxed in his discussion regarding when privacy experts should be called on to weigh in on a decision.

"Propriety in the spirit of the USA Freedom Act is when the decision at hand were to have an impact on the rights of individuals, not necessarily when the Court conjectures that a decision is self-evident," said Amie Stepanovich, U.S. policy manager at Access, an international digital-rights organization. "It is the job of the amicus to raise issues that may not be readily apparent on first blush, meaning that what first may appear to be a clear-cut decision actually raises underlying questions. The Court must respect the presumption of the statute in favor of appointing the amicus."

Many civil-liberties organizations that supported the Freedom Act view its creation of a privacy panel as one of the law's strongest and most important provisions. The FISA Court has long been derided as a "rubber-stamp" for government surveillance orders—a criticism that has only grown more pronounced in the two years since the Edward Snowden revelations began.

Friday's declassified opinion did not restore the NSA's controversial phone dragnet, but it set the stage for the Court to do so. The Freedom Act will effectively end the mass-surveillance protocol, first exposed publicly by Snowden, but only after a six-month transition period during which the NSA prepares to switch to a more limited program. Under the new system, the NSA will be able to collect call metadata from phone companies only on an as-needed, generally targeted basis after obtaining approval from the FISA Court.

The decision notes that the Justice Department applied for a new surveillance order on June 11 but "factual details of the applications are classified, and not necessary to resolve the issue addressed in this opinion."