Documents Show FISA Court Refusing To Grant FBI's Requests To Scoop Up Communications Along With Phone Metadata

from the rubber-stamp-runs-dry dept

A handful of FOIA documents [PDF] obtained by EPIC (Electronic Privacy Information Center) are shedding some new light on the FISA court and its relationship with the FBI. The good news is that the court is not quite the rubber stamp it's often been portrayed as. Even though a vast majority of requests are improved, there appears to be a significant amount of modification happening behind the scenes.

The documents reveal that the Foreign Intelligence Surveillance Court (FISA) told the FBI several times between 2005 and 2007 that using some incidental information it collected while monitoring communications in an investigation — specifically, numbers people punch into their phones after they’ve placed a call — would require an explicit authorization from the court, even in an emergency.

The FBI wanted to trap these digits using its pen register orders, which are only supposed to provide numbers called and received. This additional information had been considered "content," as these post-cut-through digits could reveal details such as credit card info or social security numbers.

The FBI's collection of content -- along with the call metadata it was actually authorized to receive -- appears to have continued until a FISA judge finally asked it what it was doing with this "incidentally collected" content. The DOJ, of course, argued that is was entitled to this information.

In May 2006, the government told the court that it had the authority to collect that sensitive information, and would “in some cases … specifically seek authority for secondary orders requiring a service provider to provide all dialing, routing, addressing or signaling information transmitted by a target telephone, which, in light of technological constraints, may include content and non-content digits alike,” the report continues.

It also claimed that, although it specifically sought to collect this info with modified pen register orders, it was only accessed for a limited number of reasons: national security, emergencies, exigent circumstances, etc. The FISA court doesn't appear to have believed the FBI's claims that it was seeking this information just to use it only in the rarest of circumstances.

The court “had made modifications to the government’s proposed pen register orders,” reads the biannual report to Congress obtained by EPIC. “Although the [FISA Court] has authorized the government to record and decode all post-cut-through digits dialed by the targeted telephone, it has struck the language specifically authorizing the government to make affirmative investigative use of possible content” unless permission is specifically granted by the court.

This pushback wasn't just limited to the nation's most secret court. The FBI also met resistance at local levels when trying to scoop up content with its metadata.

In July 2006, a magistrate judge in Texas denied an application for a pen register because filtering technology would not eliminate the additional content information.

This lower-level refusal was addressed by the FISA court, which asked the FBI how it expected this magistrate's refusal to affect its FISA court requests. The FBI replied it no longer had to worry about it as revisions to the US Patriot Act had given it permission to collect it all -- even stuff the agency treated as content when crafting its altered pen register requests.

This failed to move the court. It also failed to alter the FBI's tactics. The FBI continued to submit requests for post-cut-through content and the court, quite frequently, continued to strip this part of the agency's request from its approved orders. After several years, this became standard operating procedure for the FISA court, which instituted a blanket refusal on FBI requests for post-cut-through content, even for "emergency" reasons. This resistance is likely what prompted the FBI to turn something it wasn't being allowed to obtain into formal agency policy by 2011.

The new documents shed some new, somewhat surprising, light on the inner workings of the mostly-opaque FISA court, showing that it is not always inclined to give the government what it wants. It also shows the government doesn't seem to handle rejection very well, having to be told "no" repeatedly before the message sinks in.

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Filed Under: fbi, fisa, fisa court, fisc, mass surveillance, metadata, requests, rubber stamp, surveillance