FISC Judge Reggie Walton Hesitantly Amends Latest Section 215 Order To Conform With Presidential Directive
from the contact-chaining-or-beer?-'less-hoppy-than-usual' dept
As was noted here in January, the non-rubber stamp FISA court rubber stamped the latest NSA bulk record request without hesitation, almost as though the previous seven months of leaks had never happened.
That order has now been amended due to the January 17th presidential directive issued in conjunction with the administration’s NSA reforms. The amended order, written by outgoing FISC judge Reggie Walton, makes the changes requested (two hops instead of three, RAS selectors approved by a FISC judge) and provides some more background on the NSA’s minimization techniques.
While Walton has no problem with the new two-hop contact chaining limit, he does seem concerned with the RAS approval being left to the court. He spends several paragraphs discussing this particular aspect, which seems a bit strange, considering he was the same judge who temporarily limited the NSA to seeking approval from the court to search the collection back in 2009, after uncovering years of agency abuse. (Unfortunately, Smith vs. Maryland is again mentioned in support of the notion that untargeted bulk collections don’t violate the Fourth Amendment. This is a 1979 ruling on pen registers that doesn’t really apply to the Section 215 collections — and likely wouldn’t except that FISC judge Kollar-Kotelly gave it a very favorable reading back in 2004/2005 [thanks for nothing, needless redactions!].)
Although the Court is satisfied that the effect of the government’ proposal to require RAS approvals by the FISC would be consistent with Section 215’s definition of “minimization procedures,” that is not the end of the discussion. FISA contemplates that the Executive Branch, which formulates the minimization procedures and receives the tangible things from the recipient of the production order, will apply those procedures, with appropriate oversight by the FISC.
Historically, the minimization procedures proposed by the government and approved by the Court under PISA have reflected this allocation of responsibilities, which also recognizes the distinct roles of the Executive Branch and the Judiciary in our system of government. The government’ proposal to require RAS determinations by the FISC as a prerequisite to NSA queries of the database would deviate from this framework by giving the Court a more prominent role not just in overseeing Executive Branch compliance with FISC-approved procedures, but in the actual application of those procedures. It could also impose substantial new burdens on the FISC that are not contemplated by FISA.
Walton considers the balance of power and sees a potential tipping point, wherein the court becomes the seat of power. This power-shift could be an issue, but one that could be mitigated somewhat by the installation of a public advocate, as has been suggested by the PCLOB (Privacy and Civil Liberties Oversight Board).
Walton seems resistant to turning the court into an oversight entity, which it really isn’t. That’s supposed to be the legislative branch’s role, but that has been undermined by cheerleaders masquerading as overseers who have withheld information from their fellow legislators. Walton also may not trust the agency enough at this point to feel comfortable approving RAS requests. His earlier declassified court orders pointed out that the agency deliberately misrepresented its tactics and day-to-day operations to the court for nearly a half-decade. Approving an RAS request means having some faith that the evidence being presented is true and Walton doesn’t seem to have that confidence.
Why this lack of confidence should mean allowing the NSA to continue to access the collection without limitation isn’t discussed by Walton’s statements, but that’s the only alternative if the court decides it doesn’t want this burden, something Walton indicates is a possibility.
The Executive Branch, of course, cannot unilaterally compel the FISC, an Article court, to assume the RAS-approval function, and the Court would be within its discretion under FISA to reject this aspect of the Motion. fig 50 U.S.C. 1861(c)(1) (permitting the Court to grant the govemment’s application “as modified”).
The Court is cognizant of the fact that this program is under review by the other branches of government and that changes may result from the review. While this policymaking assessment is ongoing, the Executive Branch is asking the Court for additional assistance in reassuring the public that adequate protection is afforded to information concerning United States persons that is being acquired pursuant to a FISC order.
That being said, Walton notes the court is also not expressly forbidden from performing this function and admits the FISA court has performed this function before.
The Court sees nothing in the language of the Act that would preclude it from accepting the Executive Branch’s invitation to assume responsibility for making RAS determinations. This role in fact parallels the core judicial function of determining whether applications for authority to conduct electronic surveillance or physical search are supported by probable cause.
Indeed, the Court has previously approved query requests in this matter, albeit under distinct circumstances and pursuant to different authority. Provided that the number of selectors used to query the metadata remains relatively close to the present level, the Court is satisfied that it will be able to undertake the additional work that will be required, at least until the expiration of the January 3 Primary Order. In consideration of the unique facts and circumstances that are now presented, the Court will approve the Executive Branch’s proposal to require RAS approvals by the FISC as a prerequisite to queries of the telephony metadata acquired pursuant to the Court’ orders in this matter.
As it stands right now, the NSA is back to its 2009 form, in terms of seeking court approval for collection searches. The current order will expire towards the end of March, at which point the court will revisit this requirement. As Techdirt noted earlier, Walton’s term with the FISA court is ending, so this decision will possibly rest in the hands of two incoming judges or another FISA judge who may not be quite as amenable to the administration’s reform demands. For the time being, the NSA will have to somehow “make do” with showing some sort of evidence before being allowed to search its bulk collections, which is a definite improvement over its previous unrestricted access.