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Enhancing Civil Liberties Protections in Surveillance Law

At the secret Foreign Intelligence Surveillance Court, the recently added advocate for privacy rights should be expanded.

February 27, 2020

This was origin­ally published by Just Secur­ity.

Author­iz­a­tion for the National Secur­ity Agency’s (NSA) now-halted program of collect­ing records of phone call details is slated to expire on March 15, unless renewed by Congress, prompt­ing a flurry of legis­la­tion to revoke the author­ity for the program and prohibit other forms of surveil­lance. Along with the recent contro­versy over the surveil­lance of former Trump campaign offi­cial Carter Page, the upcom­ing reau­thor­iz­a­tion has promp­ted a re-exam­in­a­tion of the role of amicus curiae in the Foreign Intel­li­gence Surveil­lance Court (FISC) and the Foreign Intel­li­gence Surveil­lance Court of Review (FISCR) (collect­ively the FISA courts).

The intro­duc­tion of amici into the FISA courts’ process was a key improve­ment in the USA Free­dom Act of 2015, seek­ing to inject civil liber­ties and privacy perspect­ives into the other­wise secret, ex parte oper­a­tions of the courts. Several recent bills have proposed ways to strengthen and expand the 2015 law’s amicus provi­sion, as have vari­ous comment­at­ors, includ­ing former FBI General Coun­sel Andrew Weiss­mann. The Safe­guard­ing Amer­ic­ans’ Private Records Act (SAPRA), intro­duced by Sen. Ron Wyden (D-OR) and Rep. Zoe Lofgren (D-CA), is the most ambi­tious plan, both in terms of tight­en­ing surveil­lance stand­ards and its propos­als vis-à-vis amici. SAPRA would funda­ment­ally restruc­ture the amicus program by author­iz­ing amici to “raise any issue with the Court at any time,” whether or not the courts reques­ted such input, and ensur­ing amici access to every FISA court opin­ion, tran­script, plead­ing, and other court docu­ments. Given the extraordin­ary secrecy surround­ing FISA applic­a­tions and the poten­tial stand­ing issues raised by a roving amicus, these propos­als are likely to run into strong head­winds.

The follow­ing outlines a series of propos­als that would minim­ize these types of concerns, but still strengthen the role of amici. They are based on our analysis of the FISA court cases involving amici since the USA Free­dom Act was passed. The analysis will be published by the NYU Annual Survey of Amer­ican Law later this year.


The 2015 USA Free­dom Act author­izes the appoint­ment of two types of amici. First, it requires the FISA courts to appoint an amicus in any case involving “novel or signi­fic­ant inter­pret­a­tion of the law,” unless the court issues a find­ing that it was not appro­pri­ate to do so. These amici would be drawn from a pool appoin­ted by the courts, and have expert­ise in “privacy and civil liber­ties, intel­li­gence collec­tion, commu­nic­a­tions, tech­no­logy, or any other area that may lend legal or tech­nical expert­ise” to the courts. Second, the law makes expli­cit the inher­ent author­ity of the courts to appoint amici in any instance they deem appro­pri­ate. Since the law was enacted, the courts have named amici in at least 11 cases; decisions are publicly avail­able for eight of these.

We analyzed this body of case law to assess the impact of the amicus provi­sions, with a partic­u­lar focus on whether the amici were appoin­ted in all cases that seemed to present novel or signi­fic­ant inter­pret­a­tions of law and whether the parti­cip­a­tion of amici contrib­uted to protect­ing Amer­ic­ans’ privacy and civil liber­ties by constrain­ing surveil­lance programs.

We found that in at least four cases, the FISC did not appoint amici, although it seemed to be required by the stat­ute, includ­ing one case in which the govern­ment obtained permis­sion to expand its author­ity to query commu­nic­a­tions collec­ted warrant­lessly under Section 702 of the FISA Amend­ments Act of 2008 for the calls and e-mails of partic­u­lar Amer­ic­ans. These quer­ies are commonly referred to as “back­door searches,” which privacy and civil liber­ties advoc­ates have long argued circum­vent the Fourth Amend­ment’s warrant require­ment. No amicus was appoin­ted in any case involving an indi­vidual surveil­lance applic­a­tion, such as the Carter Page orders.

We also found that the abil­ity of amici to convince the FISA courts to impose seri­ous constraints on the NSA’s surveil­lance programs has so far been limited, and that the amicus pool itself is weighted towards former national secur­ity offi­cials, creat­ing the percep­tion that the court is not recept­ive to civil liber­ties voices.

Nonethe­less, the amicus provi­sions of the USA Free­dom Act provide a start­ing point for Congress and the public to hold these insti­tu­tions account­able. Moreover, the amicus exper­i­ment is still in its infancy, having oper­ated for just under five years. Over time, the FISA courts may become more recept­ive to their parti­cip­a­tion and argu­ments.

A Need to Increase Amicus Parti­cip­a­tion 

Congress should expand the amicus provi­sion to include three addi­tional circum­stances that merit amicus appoint­ment:

  • When the NSA asks for FISA courts approval for the use of new tech­no­lo­gies and new applic­a­tions of exist­ing tech­no­lo­gies, as well as author­iz­a­tion of new programs. The NSA is almost certainly devel­op­ing new surveil­lance programs and tech­no­lo­gies that will impact Amer­ic­ans’ privacy and civil liber­ties. Under current law, the FISA courts might be temp­ted to treat these as applic­a­tions of exist­ing preced­ent, and there­fore not subject to the amicus require­ment.
  • When the govern­ment requests reau­thor­iz­a­tion of its program­matic surveil­lance. FISC reviews of mass surveil­lance programs, such as the programs author­ized under Section 702 and the recently discon­tin­ued Section 215 call records program, reveal repeated viol­a­tions of rules craf­ted by the courts to ensure the consti­tu­tion­al­ity of the programs. Amici have contrib­uted to assist­ing the FISC in address­ing these issues. For example, in 2015, amicus Amy Jeffress argued that the FBI should be required to justify its searches of data collec­ted without warrants under Section 702. While the FISC did not accept the recom­mend­a­tion, it required the FBI to report on its searches of this data. When the Bureau repor­ted that its agents had searched the data for unau­thor­ized purposes on several occa­sions, the FISC in 2018 (when Jeffress was again amicus, along­side two others) accep­ted her proposal. But no amicus was appoin­ted for Section 702 reau­thor­iz­a­tion in the inter­ven­ing years, despite a clear need. In 2016, no amicus parti­cip­ated in the reau­thor­iz­a­tion process in which the FISC found that NSA had for years flouted court-imposed rules designed to protect Amer­ic­ans’ privacy. Nor was an amicus appoin­ted when the FISC once again reviewed the 2016 reau­thor­iz­a­tion applic­a­tion in April 2017 and allowed the govern­ment’s request to expand its back­door search author­ity. Simil­arly, the reviews of the Section 215 call-detail records program are marked by repeated instances of the NSA’s fail­ure to comply with court-imposed safe­guards.
  • When indi­vidual elec­tronic surveil­lance applic­a­tions under Title I of FISA involve polit­ical or reli­gious activ­it­ies. When the FISC was estab­lished in 1978 to review indi­vidual surveil­lance applic­a­tions, many in Congress were concerned that the cover of foreign intel­li­gence would be used to target polit­ical activ­it­ies. While alleg­a­tions that the surveil­lance of Carter Page was polit­ic­ally motiv­ated have gener­ated the most public atten­tion, civil liber­ties groups have long been concerned that FISA was being used to target Amer­ican Muslims for their polit­ical activ­it­ies and reli­gious beliefs. For example, in 2014, The Inter­cept repor­ted that the FISC author­ized the surveil­lance of five prom­in­ent Amer­ican Muslim men – includ­ing a former senior policy advisor in the Depart­ment of Home­land Secur­ity under George W. Bush who had held a top-secret secur­ity clear­ance and the head of the largest Amer­ican Muslim civil rights organ­iz­a­tion. The public record shows that the courts have not appoin­ted amici in any case involving a FISA Title I order author­iz­ing surveil­lance (David Kris, the former assist­ant attor­ney general for the National Secur­ity Divi­sion of the Depart­ment of Justice, was appoin­ted as amicus to assist the court in eval­u­at­ing the proced­ural changes proposed by the FBI to ensure that future surveil­lance requests will not have the same factual short­com­ings as the Page applic­a­tions). The USA Free­dom Reau­thor­iz­a­tion Act of 2020 proposed by the House Judi­ciary Commit­tee would mostly capture these crit­ical Title I surveil­lance orders by requir­ing that an amicus be appoin­ted in any case that presents “signi­fic­ant concerns with respect to the activ­it­ies of a United States person that are protec­ted by the first amend­ment to the Consti­tu­tion,” unless the court finds such an appoint­ment inap­pro­pri­ate. 

Prior­it­ize Privacy and Civil Liber­ties Interests

The original intent of the USA Free­dom Act’s amicus reform was to provide the FISA courts with civil liber­ties and privacy perspect­ives to balance against the govern­ment’s national secur­ity argu­ments. However, the current amicus pool is weighted towards former high-level govern­ment lawyers and prosec­utors, some of whom, like Kris, have been involved in defend­ing and devel­op­ing surveil­lance programs. A tech­nical expert recently appoin­ted to the pool previ­ously served as a govern­ment witness in Wiki­me­dia v. NSA, a case chal­len­ging the consti­tu­tion­al­ity of Section 702 collec­tion. While amici with back­grounds work­ing in the govern­ment on national secur­ity issues are certainly more than capable of making civil liber­ties argu­ments, their exper­i­ence and rela­tion­ships may predis­pose them to believe that all or most of FISA surveil­lance is consti­tu­tional. Their over-repres­ent­a­tion in the amicus pool and appoint­ment in crit­ical cases, such as the Section 702 reviews, height­ens the percep­tion that the FISA courts are unin­ter­ested or unwill­ing to hear privacy and civil liber­ties argu­ments.

Congress should ensure that these voices are heard by the FISA courts by requir­ing them to appoint at least one amicus with expert­ise in civil liber­ties in every case that meets the expan­ded stand­ards outlined above. But the courts don’t need to wait for Congress to act – they can start expand­ing the amicus pool to include a greater diversity of exper­i­ences.

Expand the Amicus Role 

Even when amici are tapped, their mandate can be limited by the scope of the ques­tions posed by the appoint­ing court. For example, when the FISC reviewed the govern­ment’s annual request for reau­thor­iz­a­tion for the Section 702 program in 2018, amici were specific­ally appoin­ted to address two ques­tions relat­ing to “abouts” collec­tion (the collec­tion of commu­nic­a­tions that are not just to or from but “about” a target). The court did not soli­cit or eval­u­ate amicus perspect­ives with regard to the multi­tude of other signi­fic­ant issues revealed in the course of the review, includ­ing the previ­ously unknown FBI prac­tice of conduct­ing “batch quer­ies,” which are searches of Section 702 data using multiple query terms at once, some of which may not meet the require­ment of being reas­on­ably likely to return foreign intel­li­gence inform­a­tion.

Congress should clarify that, as already reflec­ted in the USA Free­dom Act stat­ute, when amici are appoin­ted, they may weigh in on any issue relev­ant to the case, not just on the issues iden­ti­fied by the court as requir­ing amicus involve­ment.

Amici also should be given the abil­ity to bring issues to the atten­tion of the FISCR. Such an avenue would have been import­ant in the Section 702 author­iz­a­tions in which amici were involved. In 2015, the FISC rejec­ted Jeffress’ sugges­tion that the FBI be required to docu­ment its justi­fic­a­tions for back­door searches of Section 702 inform­a­tion. If she had been able to bring the issue to the FISCR, it might not have taken until 2018 to impose this sens­ible and relat­ively modest safe­guard; by that time, the bureau had clearly abused this author­ity.

Amici’s inab­il­ity to bring issues to the atten­tion of the FISCR further disad­vant­ages them vis-à-vis the govern­ment. In the wake of the 2018 Section 702 author­iz­a­tion in which the FISC required the FBI to follow stat­utory require­ments for collect­ing inform­a­tion on its searches for Amer­ic­ans’ inform­a­tion and imposed the docu­ment­a­tion require­ment, the govern­ment appealed to the FISCR. But Jeffress and the other two amici had no obvi­ous proced­ural mech­an­ism for bring­ing crit­ical issues – such as whether query­ing of Section 702 data requires its own Fourth Amend­ment analysis – to the atten­tion of the FISCR.

Prede­cessor bills to the USA Free­dom Act gave amici the abil­ity to appeal adverse decisions from the FISC to the FISCR. These were stripped out of the final legis­la­tion, in part because of concerns that giving amici stand­ing to appeal could viol­ate Article III of the Consti­tu­tion and separ­a­tion-of-powers prin­ciples. But stand­ing concerns should not preclude allow­ing amici to bring to the atten­tion of the FISCR issues that they believe were wrongly decided. In cases where amici are appoin­ted, the SAPRA legis­la­tion, for example, would enable them to refer matters for en banc review or to the FISCR as the court “considers appro­pri­ate,” and to refer FISCR decisions to the Supreme Court as the court “considers appro­pri­ate.” Allow­ing the courts to make the ulti­mate decision on “appro­pri­ate­ness” avoids the concern that amici are not parties to the case with stand­ing to bring appeals.

Amici also need better access to inform­a­tion. For an amicus to make the best argu­ment, she must have access to relev­ant inform­a­tion and docu­ments. However, the USA Free­dom Act left it to the FISA courts to determ­ine what mater­i­als should be provided to an amicus. In at least one case, the 2015 Section 702 reau­thor­iz­a­tion, amicus Jeffress was not provided access to a set of FBI proced­ures from 2011, which limited her analysis.

Congress should ensure that amici have access to all mater­i­als that could impact their analyses by adopt­ing a provi­sion included in an earlier version of the USA Free­dom Act – intro­duced by Senator Patrick Leahy (D-CT) and suppor­ted by 58 senat­ors – mandat­ing that amici “shall have access to all relev­ant legal preced­ent, and any applic­a­tion, certi­fic­a­tion, peti­tion, motion, or such other mater­i­als as are relev­ant” to their duties.

Enhance Trans­par­ency

Since Snowden revealed details of the NSA’s massive surveil­lance oper­a­tions in 2013 and the FISC’s approval of a program focused on Amer­ic­ans, the agency and the FISA courts have made signi­fic­ant progress on trans­par­ency. This is in part due to the USA Free­dom Act’s require­ment that the Director of National Intel­li­gence (DNI), in consulta­tion with the Attor­ney General, conduct declas­si­fic­a­tion reviews of all FISA court rulings that include signi­fic­ant construc­tions or inter­pret­a­tions of law, unless the DNI deems the with­hold­ing of docu­ments “neces­sary to protect the national secur­ity of the United States or prop­erly clas­si­fied intel­li­gence sources or meth­ods.”

However, there is no require­ment for the declas­si­fic­a­tion of amicus briefs, and briefs from only six of the eleven cases involving amici since 2015 have been declas­si­fied. Without these briefs, the public has to rely on the courts’ released rulings to get a glimpse of an amicus’ argu­ments, if they are refer­enced by the court at all. Congress should mandate declas­si­fic­a­tion reviews of amicus briefs modeled on the exist­ing declas­si­fic­a­tion provi­sion for decisions, includ­ing the require­ment that if the DNI decides not to release a brief for national secur­ity reas­ons, an unclas­si­fied state­ment summar­iz­ing the amicus’ argu­ments must be published instead.

Moreover, the time between the issu­ance of a FISA court decision and its declas­si­fic­a­tion can range from a day to more than 12 years, which hampers the public’s abil­ity to under­stand and assess the court’s case­load and func­tion­ing. Congress should set dead­lines for the declas­si­fic­a­tion of decisions, opin­ions, and orders that include novel or signi­fic­ant inter­pret­a­tions or that meet any of the expan­ded categor­ies of crit­ical cases outlined above. For example, the USA Free­dom Reau­thor­iz­a­tion Act of 2020 would require that declas­si­fic­a­tion reviews be completed and court docu­ments released – includ­ing from all proceed­ings involving an amicus appoint­ment – no later than 180 days after issu­ance.

Inform­a­tion about the FISA courts’ activ­it­ies is scattered in redac­ted court filings, FOIA releases, govern­ment trans­par­ency reports, and Privacy and Civil Liber­ties Over­sight Board reviews. There is no offi­cial one-stop shop where the public can go to under­stand the full scope of the courts’ activ­it­ies. Indeed, the best resource for access­ing the FISA courts’ decisions, orders, and other mater­i­als is not the court’s own website or any govern­ment site, but a website organ­ized by FISA amicus and Geor­getown Law Professor Laura K. Dono­hue. The FISA courts, either on their own initi­at­ive or at the direc­tion of Congress, should publish a complete docket (includ­ing any neces­sary redac­tions) list­ing their annual case­load and indic­at­ing when amici have been appoin­ted.

Lastly, Congress should require trans­par­ency about the inter­ac­tions between the FISA courts’ staff and the Depart­ment of Justice. Well before Snowden, there were concerns that the FISA courts acted as a rubber stamp for the govern­ment’s surveil­lance initi­at­ives, with crit­ics point­ing to the fact that the courts rejec­ted just 11 out of almost 34,000 govern­ment surveil­lance requests from 1979 to 2012. The courts’ defend­ers explained that these numbers do not reflect the revi­sions or with­draw­als of applic­a­tions urged by court staff upon review of DOJ’s draft versions of applic­a­tions.

But this informal, undoc­u­mented revi­sion and review system raises concerns that the FISA courts work with the DOJ to craft accept­able surveil­lance requests. The courts may view this process as a way to ensure greater civil liber­ties protec­tions, but it also shields the govern­ment from preced­ent unfa­vor­able to its posi­tion: we know what surveil­lance is permit­ted, but not what surveil­lance is not permit­ted. The modi­fic­a­tion rate has increased signi­fic­antly since the passage of the USA Free­dom Act in 2015, which may reflect greater vigil­ance by court staff, but also high­lights the need for greater trans­par­ency about the back-and-forth between the court staff and the DOJ. Accord­ingly, as recom­men­ded by recent FISA legis­la­tion intro­duced by Rep. Chris Stew­art (R-UT), Congress should mandate trans­par­ency by requir­ing the Attor­ney General to main­tain records of all writ­ten or oral commu­nic­a­tions between the DOJ and the FISA courts. In addi­tion, amici should be given access to the commu­nic­a­tions relev­ant to their assigned cases.

With the impend­ing sunset of Section 215, it is past time to enact broad surveil­lance reforms (such as those set out in SAPRA) and expand the role of amici in FISA proceed­ings. Adopt­ing these recom­mend­a­tions will posi­tion amici to make force­ful civil liber­ties and privacy argu­ments in front of the courts, effect­ing change from within the FISA court system.