FISA Court: Updates to the Public Docket and More


US Capitol BuildingThe US Government  responded yesterday to the FISC’s order to conduct a declassification review in the Yahoo case. Their response asks for 45 and 60 days to complete the full review. They cite the need for interagency coordination, the volume and type of materials, and multiple FOIA requests in support of this request.

In the Microsoft and Google cases, the Government asked for a third extension of its deadline to respond to Microsoft’s motion. Microsoft and Google both consented to the extension.

In other news about the FISA Court, Reggie B. Walton, the presiding judge, responded to Sen. Patrick Leahy’s request for more information about the court processes and procedures. On July 18, Sen. Leahy requested this information in preparation for a Senate Judiciary Committee hearing on the implementation of FISA Authorities (scheduled for July 31).

Judge Walton’s response gives us some insight into how FISA warrants and bulk surveillance orders are obtained. All of the information is declassified. I was surprised at the seeming informality of the relationship between the government, who seeks the warrants, and the court staff and judges, who issue them. Judge Walton describes the process of submission, review, modification, and order as one that starts with a formal filing, and may move  into phone conversations (via “secured line”) and meetings between court staff and the Government. I am not a litigator, so I am not familiar with the ins and outs of warrant requests and issuances, but I am under the impression that most communications between parties and the court – even for date changes, name changes, telephonic conferences, etc. – are done via motion. That  is, they are filed and responded to in writing. Perhaps the ex parte nature of the FISC proceedings lends itself to this kind of informal (unrecorded) exchange, but it seems troubling from a transparency process. As we have seen, however, non-governmental parties are sometimes able to intervene or respond to the government’s motions. Shouldn’t communications be documented in that case?

Another interesting item from the statement is the description of how nongovernmental parties are able to get into the FISC. One way is to fail to comply with a FISC order. This is what happened in the Yahoo case. Once they refused to provide the data in the order, the Government filed a motion to compel compliance. Yahoo was then able to brief the FISC in response.

Judge Walton mentions another way to challenge a production order – via 50 USC §1861(f)(2)(A)(i), which provides that:

A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 1803 (e)(1) of this title. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 1803 (e)(1) of this title.

The same section allows the provider to challenge the nondisclosure order imposed in connection with the production order. However, according to the judge, “to date, no recipient of a production order has opted to invoke this section of the statute.”  (p. 8) As I’ve already mentioned, Yahoo came into the court by refusing to comply with the order. Google and Microsoft seek to release aggregate data about orders, not to challenge them on their face. The EFF and ACLU suits are by non-parties seeking access to opinions and information from the Court.

For more information on the FISC Public Docket, see my last post.