I've read the Foreign Intelligence Surveillance Court's ("FISC") recently published opinion
, and I was immediately struck by one thing: It was an Advisory Opinion
. One of the first things you learn about Federal Courts is that they don't do Advisory Opinions. That's because of the "Case or Controversy
" requirement, which means that a case before a Federal Court must litigate a tangible interest between real parties that is ripe for adjudication.
The other major attribute of Advisory Opinions is that they are prospective in nature. The litigant seeking an Advisory Opinion is asking the court: "Is this legal? Is this Constitutional? Is it advisable?" What I liken the FISC process to is the hoops that law enforcement and prosecutors have to jump through to obtain search warrants. Let me show you how the process worked in the FISC case. First you have a chest full of information or data like this ....
There are a number of chests, and they store different types of metadata, which, for telephone calls, is just the anonymous telephone number, the date of the call, the duration, who it was to, and that's about it. For internet communications, it contains the same type of basic information, including the IP address, recipient's IP address and date. Those chests made up about 94.4% of all the informatiojn collected by the NSA, and the vast, vast majority of it related to international communications. The FISC was pretty adamant about it not containing "U.S. Person information" unless that person had directly contacted a target of surveillance.
The court said that the Government safeguards in place were fine for these unopened chests of data, and that they could search it.
There was one chest of unopened data that contained more information. It was "upstream" and the means of finding it required, in many instances, that multiple communications ended up bundled together. Some of these bundles of internet communications could contain "U.S. Person Information," and even actual content of personal information. So the Government wanted to know this: If we use the following targeting, retention, use, minimization and transmission safeguards, will you let us open the chest? That was to be their key to open the chest.
The FISC Judge looked at the key and said it wasn't good enough. Maybe later when the technology is better, but I will not let you open that locked chest until you have provided me with a better key. Even though the Court admitted that that chest contained important foreign intelligence, and even though it only constituted approximately 5.4% of the information the NSA had obtained, that particular chest of information was still off limits because of privacy and Fourth Amendment concerns.
Here are some screengrabs I've lifted from the FISC opinion:
This is the Court going through the proposed minimization measures the Government has said it would apply to minimize the likelihood of an invasion of privacy. This was one part of the key that the Government was showing the Court in order to get at the information in the chest. Note that I have underlined the word "proposed" in two places. This tells me that this was an Advisory Opinion. Here's another screengrab making basically the same point:
And below, the Court is saying that the Government's key doesn't fit because the "proposed minimization procedures" are inadequate when balanced against the Fourth Amendment:
Finally, for the last screengrab, we have a portion of the Court's opinion discussing the other weight to be balanced: Actual Foreign Intelligence.
The paragraph above is discussing a different category of data. This data relates to actual messages sent to and from such locations (and I'm guessing here) as buildings associated with Iran's nuclear facilities, known terrorist camps and buildings in Yemen and Afghanistan and the like. As you can see, that's a lot of foreign signal intelligence that they're gathering.
What I believe all of this shows is that we have a system of checks and balances in place, that the privacy of Americans is paramount, but there is also a Governmental interest in obtaining foreign intelligence, and, most importantly, that the Government cannot unlock any chest of information unless they present a key that protects the rights of Americans.