Reforming 702: Strengthening FISA Amici
March 2, 2023 |
This post is part of a running blog series on Section 702 ahead of its reauthorization deadline in December 2023. In this series, EPIC will dive deeper into Section 702 and the need for significant reform. For the other parts of this series, click here.
Overview of the FISA Court and the Role of Amici
In enacting the Foreign Intelligence Surveillance Act of 1978 (FISA), Congress created a new court, the Foreign Intelligence Surveillance Court (FISC). The FISC is comprised of eleven district judges (including one Presiding Judge) who are appointed by the Chief Justice of the United States to terms of no more than seven years. The FISC has jurisdiction over the four traditional FISA activities—electronic surveillance, physical searches, pen/trap surveillance, and compelled production of tangible things—as well as the authorization of programmatic surveillance under Section 702.
Unlike a traditional court, the FISC typically operates through a secretive, non-adversarial ex parte process. Until the passage of the USA FREEDOM Act of 2015, FISA Court judges heard almost exclusively from the government; the target of the surveillance order has no notice of the order and therefore no opportunity to appear or contest it. This process was ultimately a compromise between the three branches of government, in an effort to balance the need for judicial review with the need to maintain some level of secrecy given the sensitive national security programs at issue.
This compromise is not without controversy. EPIC and other civil liberties groups have long argued that the FISA Court is excessively secretive and unduly deferential to the government. These concerns are heightened in the context of programmatic surveillance—such as those programs conducted under Section 702—where the FISC’s role is limited to reviewing and approving government certifications and procedures on an annual basis, rather than reviewing individual orders.
Following the Snowden leaks and revelations of the NSA’s mass surveillance programs that had been approved by the FISC, Congress sought to bolster transparency and safeguards in an effort to assuage concerns that the FISA Court had become a “rubber stamp.” Therefore, Congress formalized the process for appointing independent amici curiae for orders before the FISC, which until then had been ad hoc and rarely used. Under the USA FREEDOM Act, the FISC must appoint one of the amici—drawn from a pool of outside experts with top security clearances, many of whom are former government lawyers—for cases that “present a novel or significant interpretation of the law,” unless the court finds that an appointment is not appropriate. Since the USA FREEDOM Act, amici have offered their perspectives on specific legal and technical issues, including the retention of phone call metadata, the government’s authority to use pen registers when communications content may be collected, and issues pertaining to the reauthorization of surveillance programs conducted under Section 702.
The Need for Reform
While amici have been incorporated into FISA Court review on a limited basis, they continue to have a narrowly circumscribed role and lack authority to truly advocate on behalf of the public, severely limiting their value. This is particularly true in the context of programmatic surveillance like under Section 702, where amici involvement is inconsistent despite the sweeping scope of these surveillance programs and their impact on Americans.
The shortcomings of the current FISC amici framework are no surprise. The amici role Congress ultimately adopted in 2015 was yet another compromise; the original version of the USA FREEDOM Act—consistent with recommendations by the Privacy and Civil Liberties Oversight Board (PCLOB)—would have established a “special advocate” to advocate on behalf of the public’s privacy and civil liberties, and would have taken a more directly adversarial role. Instead, it is an individual amici’s decision whether, and to what extent, to advise the court on civil liberties issues and take an adversarial stance toward the government.
The current amici framework has several features that tilt the balance of FISA Court review even more heavily toward the government. First, unlike the special advocate, the USA FREEDOM Act ultimately left the appointment of amici entirely to the discretion of FISA Court judges, which many saw as “leav[ing] the status quo virtually unchanged.” Second, amici do not have full access to information related to matters they participate in, hindering their ability to effectively address government representations and arguments. Further, amici cannot petition FISC to certify a question of law to the Foreign Intelligence Surveillance Court of Review (FISCR) for appellate review (and from the FISCR to the Supreme Court), nor can they pursue appellate review of final decisions. This essentially creates a one-way ratchet of judicial review, whereby only the government can appeal an adverse decision.
While it can be hard to accurately gauge the influence of FISC amici given the extent to which FISC opinions and amicus briefs remain classified or heavily-redacted, there are indications that amici have had a limited—but positive—effect on privacy and civil liberties. What is clear is that amici are underutilized. Through the end of 2021, the FISC had only appointed amici on 25 occasions since the passage of the USA FREEDOM Act.
The Path Forward
Congress has already nearly passed FISC amici reform. In 2020, as part of a proposed bill reauthorizing Section 215 of the USA PATRIOT Act, the Senate passed the Lee-Leahy Amendment by an astounding, bipartisan 77-19 vote. Though the Lee-Leahy Amendment did not become law because Congress ultimately failed to reauthorize Section 215, it provides a solid foundation for FISA Court reform.
The Lee-Leahy Amendment would have strengthened amici by authorizing them to participate in a broader set of FISA court proceedings, not just those presenting “novel and significant” issues. Specifically, the Amendment would have encouraged amici participation—again subject to the FISA judge’s discretion—in those cases that:
- Present “significant concerns” relating to activities protected by the First Amendment;
- Present or involve a “sensitive investigative matter,” (i.e., an investigative matter involving a domestic public official or political candidate, religious or political organization, or news media);
- Involve a request for approval of a new program, technology, or use of existing technology;
- Present a request to the FISC for reauthorization of programmatic surveillance (such as under Section 702); or
- Otherwise presenting novel or significant civil liberties concerns.
Along with expanding the scope of FISC amici involvement, the Lee-Leahy Amendment would also strengthen the FISC amici’s role in advocating for civil liberties and influencing FISC outcomes. The Amendment would, for the first time, require that at least one of the amici appointed possess privacy and civil liberties expertise, and would also allow amici to raise novel or significant privacy or civil liberties issues even if the FISC has not requested assistance on that particular issue. Finally, the Amendment would have given amici the right to full access to all government filings and information related to these matters, as well as the right to petition FISCR for appellate review, or the Supreme Court after FISCR review.
Given the widespread and bipartisan support for the Lee-Leahy Amendment, inclusion in any bill reauthorizing Section 702 should be non-controversial. However, while these reforms are a solid foundation, Congress should think ambitiously about ways to further bolster the amici role, including by granting amici the unconditional right to participate in the above subset of FISA Court cases and ensuring that amici have adequate resources to do their jobs effectively. Together, these reforms would bring the FISC amici closer to the PCLOB’s original proposal for a “special advocate.”
 While electronic service providers and recipients of production orders may seek to challenge or modify those orders, they rarely do so.
 See, e.g., Dina Temple-Raston, FISA Court Appears to Be Rubber Stamp for Government Requests, NPR (June 13, 2013), https://www.npr.org/2013/06/13/191226106/fisa-court-appears-to-be-rubberstamp-for-government-requests.
 Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114–23, sec. 401(i)(2)(A), 50 U.S.C. § 1803(i)(2)(A), 129 Stat. 268 (2015) [hereinafter USA FREEDOM Act of 2015].
 See, e.g., Thomas Earnest, New NSA Reform Proposal from Sen. Leahy and Rep. Sensenbrenner, Just Sec. (Oct. 4, 2013), https://www.justsecurity.org/1652/nsa-reform-proposal-leahy-sensenbrenner/.
 Steve Vladeck, The USA FREEDOM Act and a FISA “Special Advocate”, Lawfare (May 20, 2014), https://www.lawfareblog.com/usa-freedom-act-and-fisa-special-advocate.
 See Simon Chin, Note, Introducing Independence to the Foreign Intelligence Surveillance Court, 131 Yale L.J. 655, 696–99 (2021) (concluding so based on a survey of declassified FISC opinions and interviews with former FISA court judges as well as current and former FISA amici).
 See Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2021 (Apr. 27, 2022), https://irp.fas.org/agency/doj/fisa/2021rept-aousc.pdf; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2020 (Apr. 29, 2021), https://irp.fas.org/agency/doj/fisa/2020rept-aousc.pdf; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2019 (Apr. 27, 2020), https://irp.fas.org/agency/doj/fisa/2019rept-aousc.pdf; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2018 (Apr. 25, 2019), https://irp.fas.org/agency/doj/fisa/2018rept-aousc.pdf; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2017 (Apr. 25, 2018), https://irp.fas.org/agency/doj/fisa/2017rept-aousc.pdf; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2016, https://irp.fas.org/agency/doj/fisa/2016rept-aousc.pdf; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2016, https://irp.fas.org/agency/doj/fisa/2015rept-aousc.pdf.
 H.R. 6172, 116th Cong. § 2 (as passed by Senate, May 14, 2020).