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Charting 33 Years’ of FISA Reports to Congress

Update 6.13.2013: This morning NPR’s Morning Edition program had a particularly good primer report on FISA and the issue of “rubber stamping” — I recommend it as it provides some excellent context for the numbers discussed below.

On their website, the Federation of American Scientists provide an archive of the US Attorney General’s Annual FISA Report to Congress. The reports, dating back to 1979, offer valuable information about the volume of cases that have passed through the FISA courts. I have taken all of the major data in these reports and placed it in a Google Spreadsheet (note, I’ve enabled public commenting on the spreadsheet in case anyone wishes to publicly flag any of the data).

Below you’ll find the most pertinent data from that spreadsheet broken out with some initial analysis.

FISA Surveillance Requests

FISA Surveillance Requests (1979 – 2000) FISA 79-2000(Often, applications sumbitted in late December are approved in the new year.
This leads to certain years having a 100+% approval rate)

The extremely high approval rate during this time period is immediately apparent. 1999 is the only year where there was not a 100% success rate, and in that case, five applications were submitted in late December and a sixth application was held up in the review process. All six of the outstanding 1999 applications were approved in the first quarter of 2000. In 21 years, only a single application, in 1997, was denied (the government chose to withdraw that application rather than amending it).

The year 2000 is notable for two reasons. It was the first year in which the number of FISA applications past 1000. It also marked the first year in which the FISA court chose to modify an application. While we do not know the specifics of modifications, the reports to Congress suggest that “modify” can mean a partial rejection or a limiting of the scope of the warrant. As the next chart shows, since 2000 the court continued to occasionally modify applications.

FISA Surveillance Requests (2000 – 2012)FISA 2000-2012

From 2000 to 2012, we find that the FISA court denied 12 applications out of 21,914, and modified another 2% or 498 (note that in 2002, the FISA modifications were later overturned on appeal) applications. We also see that the government withdrew a total of 26 applications.

What is exceedingly clear from these numbers is that, in the vast majority of cases, FISA approves physical search and electronic surveillance applications with no changes. Looking at these numbers, it’s hard not to see the courts as something of a “rubber stamp.”

FISA Business Record Requests

The FISA courts deal with more than just applications for individual surveillance. Starting in 2005, the Attorney General was also required to report on FISA applications for Business Records. Assistant Attorney General William E. Moschella’s 2005 report included the following explanation about these requests:

In his April 4, 2005 testimony before the Senate Judiciary Committee, Attorney General Gonzales noted that the Justice Department was increasingly using business records orders to obtain subscriber information, such as names and addresses, for telephone numbers captured through court-ordered pen register or trap and trace devices. This information is routinely obtained in criminal investigations. The use of business records requests in conjunction with pen register applications accounts for much of the increase in the number of business records orders reported here as compared to statistics previously made public. Section 128 of the USA PATRIOT Improvement and Reauthorization Act specifically amended the pen register provisions of the FISA statute (50 U.S.C. � 1842) to authorize the disclosure of subscriber information in connection with such court-authorized collection. We expect that this new provision will result in a decrease in the number of requests for business records orders that are reported in the future. [Emphasis Mine -- MB.]

FISA Business Records Requests (2005 – 2012)Business Records 2005-2012

Two things to note here:

First, despite the William Moschella’s predictions, we see that in recent years, the number of these requests have significantly grown, not decreased.

Second, while the FISA courts have approved 100% of the applications, we find a far greater amount of push-back and modification than we did in the surveillance applications. In part this may be because these are requests for far larger amounts of data.

US Person’s Information Requests

Thanks to provisions in 2005’s USA PATRIOT Improvement and Reauthorization Act, the Justice Department also began to include information about requests for information about US citizens in the annual FISA Reports. These are requests made by the FBI to National Security Letter authorities. According to the Electronic Privacy Information Center, these are applications for

an extraordinary search procedure which gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others. These entities are prohibited, or “gagged,” from telling anyone about their receipt of the NSL, which makes oversight difficult. [source]

Requests on US PersonsThe reports reveal that the numbers given from 2005 to 2008 are “good-faith” estimates as there was no unified system in place for tracking NSL requests. A robust tracking system for this data only came online in 2009.

It’s also worth nothing that for two years, 2007 and 2008, that the Justice Department released information about the number of corrective requests. The requests are sought in cases where the government discovered that they pulled information for the wrong “John Smith.” There is apparently no requirement for correction information to be reported. However, given that the 2008 numbers suggest that in 1/5 of cases the FBI pulled info for the wrong person, it would be nice to know if things have gotten better or worse.

Related Posts:

About Matt Bernius
Matthew is a PhD student in Cultural Anthropology at Cornell University, researching the intersection of technology and culture. Prior to Cornell, he earned a Masters in the Social Sciences from the University of Chicago and was a visiting professor at the Rochester Institute of Technology. Matt started his career at Eastman Kodak, spending eight years in a variety of web development, community and content strategy roles. In his spare time (off OTB) Matt slogs (slow-blogs) on the future of reading/media, studies martial arts and self defense, and volunteers, along with his wife, at the Rochester Animal Shelter. Follow him on twitter @mattbernius.

Comments

  1. stonetools says:

    What is exceedingly clear from these numbers is that, in the vast majority of cases, FISA approves physical search and electronic surveillance applications with no changes. Looking at these numbers, it’s hard not to see the courts as something of a “rubber stamp.”

    Or maybe the warrants are carefully drawn in order to comply with the law. Or maybe the warrants are originally denied, then redrafted and successfully re-submitted.
    I’m betting that in federal courts, MOST warrant requests are eventually granted-with no indication that the courts are “rubber stamping” those requests.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. Matt Bernius says:

    @stonetools:

    Or maybe the warrants are carefully drawn in order to comply with the law.

    That is entirely a possibility. I suspect that most of these requests are made with a certain amount of proven boiler plate text which speeds things through the process.

    Still, a 2% denial/modification rate for the last 12 years seems especially good. However I agree that without other statistics to compare it to, we can’t be certain of that.

    Or maybe the warrants are originally denied, then redrafted and successfully re-submitted.

    No. My understanding is that every pushback is reported. The reports are pretty specific that denials and modification orders always give the government the opportunity to append and resubmit. If a request is denied and successfully resubmitted its still listed as a denial. (See the 1997 report for an example of how this is handled — http://www.fas.org/irp/agency/doj/fisa/1997rept.html)

    Like or Dislike: Thumb up 3 Thumb down 0

  3. Mikey says:

    @stonetools: I think you’ve got the “why” down pretty well. I’ve commented on this before, but I’ll do so again: I know people who obtain FISA warrants and the process takes months (I was told 6-9 months) and the supporting documentation can run hundreds of pages.

    I’d say the high approval rate is due to the submitters ensuring they get it right the first time, because if they don’t, they may have to wait a while.

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  4. Matt Bernius says:

    @Mikey:

    I know people who obtain FISA warrants and the process takes months (I was told 6-9 months) and the supporting documentation can run hundreds of pages.

    Given data in the reports, I question whether or not every application “takes months.” As I mentioned in 1999 the report clearly states that five of the hold over applications were filed in late December and approved in early January of 2000.

    I’m sure that some requests take months, but it seems like others move rather quickly.

    Any thought’s on the higher degree of modifications when it comes to Business Records? Could the fact that requests are wider reaching be the source of the significantly higher amount of FISA pushback?

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Mikey says:

    @Matt Bernius: I’m sorry, I wasn’t clear–I meant the whole process of doing the application, submitting, having the judge go through it, etc. The actual time at the FISA court is less. And of course there’s an expedite process for time-sensitive targets. But what it comes down to is the submitters don’t want to work up an application for five months and get it kicked back. Plus, they know what they’re doing–it’s not just any Joe Field Agent who submits these things.

    Don’t really know about Business Records, unfortunately.

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  6. Jeremy R says:

    Apparently Snowden has gone full defector. He gave an interview to a pro-Beijing paper where he ties his not being deported to exposing U.S. cyber operations on the Chinese, and he gave them their first taste, making a number of claims:

    http://www.scmp.com/news/hong-kong/article/1259508/edward-snowden-us-government-has-been-hacking-hong-kong-and-china

    “People who think I made a mistake in picking HK as a location misunderstand my intentions. I am not here to hide from justice, I am here to reveal criminality,” he said.

    Snowden said that according to unverified documents seen by the Post, the NSA had been hacking computers in Hong Kong and on the mainland since 2009. None of the documents revealed any information about Chinese military systems, he said.

    One of the targets in the SAR, according to Snowden, was Chinese University and public officials, businesses and students in the city. The documents also point to hacking activity by the NSA against mainland targets.

    Snowden believed there had been more than 61,000 NSA hacking operations globally, with hundreds of targets in Hong Kong and on the mainland.

    “We hack network backbones – like huge internet routers, basically – that give us access to the communications of hundreds of thousands of computers without having to hack every single one,” he said.

    “Last week the American government happily operated in the shadows with no respect for the consent of the governed, but no longer. Every level of society is demanding accountability and oversight.”

    Snowden said he was releasing the information to demonstrate “the hypocrisy of the US government when it claims that it does not target civilian infrastructure, unlike its adversaries”.

    “Not only does it do so, but it is so afraid of this being known that it is willing to use any means, such as diplomatic intimidation, to prevent this information from becoming public.”

    “Things are very difficult for me in all terms, but speaking truth to power is never without risk,” he said. “It has been difficult, but I have been glad to see the global public speak out against these sorts of systemic violations of privacy.

    “All I can do is rely on my training and hope that world governments will refuse to be bullied by the United States into persecuting people seeking political refuge.”

    Asked if he had been offered asylum by the Russian government, he said: “My only comment is that I am glad there are governments that refuse to be intimidated by great power”.

    “The reality is that I have acted at great personal risk to help the public of the world, regardless of whether that public is American, European, or Asian.”

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  7. HarvardLaw92 says:

    @Jeremy R:

    This guy just went from “needs to be in prison” to “needs to have a needle in his arm” IMO.

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  8. PD Shaw says:

    I’m not surprised by the acceptance rate, the judges only have reason and the information selected for them by the government to review under a fairly minimal standard:

    Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a “U.S. person,” there must be probable cause to believe that the U.S. person’s activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”

    In other words, FISA only requires a suspicion of a relationship, not any particular wrongful act or participation in elements of a crime.

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  9. Mikey says:

    @HarvardLaw92: What an unbelievable ego he’s got. Full-blown narcissist. “I”M SAVING THE WOOOORRRRLLLLLD!”

    Like or Dislike: Thumb up 0 Thumb down 0

  10. HarvardLaw92 says:

    @PD Shaw:

    PD – foreign nationals enjoy no protections under our Constitution. The standards are appropriate.

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  11. PD Shaw says:

    @HarvardLaw92: I don’t necessarily agree that foreign nationals enjoy no protections under our Constitution (for one thing even Khalid Sheikh Mohammed has the right to the Writ), but I didn’t mean to suggest the standards were inappropriate, but they are not very onerous. They are what they are.

    (I also doubt that Congress could raise the standard since doing so would interfere with the President’s inherent constitutional authority to conduct foreign intelligence surveillance.)

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  12. HarvardLaw92 says:

    @PD Shaw:

    Foreign national means “a person located on foreign territory who is not a US citizen”

    US national means “A US citizen, wherever situated, or a non-citizen subject to the jurisdiction of the US”

    If they are here, or in US custody, obviously they enjoy constitutional protections. If they are there, it’s open season / do as you please.

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  13. Ben Wolf says:

    @HarvardLaw92: Why don’t you suit up and take him out, Internet Tough Guy.

    Like or Dislike: Thumb up 0 Thumb down 2

  14. HarvardLaw92 says:

    @Ben Wolf:

    No, I follow the law. Trial. Conviction. Needle.

    Surely you aren’t going to tell me that you support what he’s doing now? I could see maybe, maybe see you supporting his initial release, but are you actually going to tell me that you support him telling China how we spy on them?

    If so, I’d suggest joining him in China.

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  15. [...] host did ask Obama a question predicated on the FISA court’s well-deserved reputation for being a rubber stamp for the NSA: “But has FISA court turned down any request?”  [...]

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  16. [...] host did ask Obama a question predicated on the FISA court’s well-deserved reputation for being a rubber stamp for the NSA: “But has FISA court turned down any request?”  [...]

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  17. [...] host did ask Obama a question predicated on the FISA court's well-deserved reputation for being a rubber stamp for the NSA: "But has FISA court turned down any request?"  But [...]

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