Since the attacks on September 11, 2001, the Foreign Intelligence Surveillance Court (FISC) has been at the center of government efforts surrounding the expansion of inter-agency information sharing when it comes to data collected by the National Security Agency.
Despite what is know about the rules and manner by which that information is regulated—specifically personal data belonging to U.S. citizens not under direct investigation or targeted for surveillance by court order—new reporting in Wednesday's New York Times by Charlie Savage and Laura Poitras, based on documents leaked by NSA whistleblower Edward Snowden, reveal previously undisclosed decisions by the FISA court that dramatically altered the NSA's ability to share that information.
The existence of key orders by the FISC—with monikers like "Raw Take Order" and "Large Content FISA"—say civil liberty advocates, prove important privacy protections are being undermined and betray claims by the NSA and other agencies that safeguards to protect such data are being retained.
Instead, say critics, the internal timeline (see NSA slide) of key orders, laws, and policies surrounding surveillance collection and sharing show how important protections have been steadily eroded by the secret court, the executive branch, and Congress over the last twelve or more years have been systematically eroded.
According to the Times:
Previously, with narrow exceptions, an intelligence agency was permitted to disseminate information gathered from court-approved wiretaps only after deleting irrelevant private details and masking the names of innocent Americans who came into contact with a terrorism suspect. The Raw Take order significantly changed that system, documents show, allowing counterterrorism analysts at the N.S.A., the F.B.I. and the C.I.A. to share unfiltered personal information.
The leaked documents that refer to the rulings, including one called the “Large Content FISA” order and several more recent expansions of powers on sharing information, add new details to the emerging public understanding of a secret body of law that the court has developed since 2001. The files help explain how the court evolved from its original task — approving wiretap requests — to engaging in complex analysis of the law to justify activities like the bulk collection of data about Americans’ emails and phone calls.
“These latest disclosures are important,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. “They indicate how the contours of the law secretly changed, and they represent the transformation of the Foreign Intelligence Surveillance Court into an interpreter of law and not simply an adjudicator of surveillance applications.”
As the Times notes, the latest revelations about the FISA court "come amid a debate over whether the surveillance court, which hears arguments only from the Justice Department, should be restructured for its evolving role. Proposals include overhauling how judges are selected to serve on it and creating a public advocate to provide adversarial arguments when the government offers complex legal analysis for expanding its powers."
Responding to the latest revelations, the ACLU's Jameel Jaffer said the NSA's internal documents tell a different story than the one the agency has told publicly about its approach to the minimization rules that were once designed to closely monitor and restrict the way surveillance data of Americans is shared by various government agencies.
“It seems that at the same time the government has been touting the minimization requirements to the public, it’s been trying behind closed doors to weaken those requirements,” Jaffer told the Times.