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
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.
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.]
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]
The 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.