The President's NSA Speech, and the FISC's Oversight Role

By Wells Bennett
Wednesday, January 29, 2014, 12:33 PM

In his speech earlier this month, President Obama announced interim changes to the handling of bulk telephony metadata---ones that he would seek to implement immediately, and that would not call for legislative changes.  According to the President, after his address but before the metadata program’s reauthorization, the Justice Department would "work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency."

At first, I wondered aloud about how Justice Department lawyers would go about doing this---and in particular, whether the FISC would go along---given the absence of any “ask for query permission” procedure under existing law. Over at Volokh, Orin puzzled over the issue as well; likewise Ben and Peter, during a Brookings talk and on Lawfare, respectively. Having mulled a bit more, allow me now to walk my skepticism back a bit. I think I've figured it out.

On further reflection, I think there is little reason to doubt the Foreign Intelligence Surveillance Court’s (“FISC”) willingness to adopt the President’s approach. The executive branch and the court could easily devise a procedure whereby NSA would only query collected metadata after the court approved the NSA’s proposed finding of a “reasonable and articulable suspicion” (“RAS”).

While this is not spelled out in the statute, the court’s recent practice certainly points in this direction. Throughout the metadata program’s lifespan, the FISC has shown flexibility in its application of Section 215’s front-end procedural requirements. (Ditto its substantive requirements, in my view---chiefly the “relevance” standard, and Section 215's relationship to prohibitions set forth in the Electronic Communications Privacy Act---but that’s another, and by now quite well-developed story.) For example, Section 215 says that the the Director of the FBI can make an application for an order compelling the production of tangible things; and insists that the application include minimization procedures applicable to the FBI’s retention and dissemination of those things.  If the order seeks especially sensitive materials, the Director or another high-ranking FBI person must sign off. The statute thus suggests, as David Kris has put it, that “the FBI will receive the tangible things pursuant to the FISA court’s order.”

At the same time, Section 215 doesn’t say that the FBI can compel a company to produce records to the NSA, or that, the NSA must adopt its own minimization and handling protocols. And yet that’s been the story of bulk collection for a while now, with the Justice Department asking the court to order bulk production of telephone records to the NSA directly; and the NSA submitting, for court blessing, its own set of minimization protocols to go along with the FBI’s. (The violation of NSA minimization rules was what lead, incidentally, to Judge Reggie Walton’s 2009 decision to sanction the government, by requiring it to submit RAS findings to the FISC.)  The court, in other words, repeatedly has endorsed a setup that Section 215 doesn't explicitly authorize, but that it also doesn't explicitly prohibit, either---a setup that includes adjusting its own role as need be.

With this track record in mind, I don’t think it would especially trouble the FISC if, say, the Justice Department unilaterally sought to modify NSA’s minimization regime, by asking that the court review the NSA’s RAS determinations before any metadata queries could proceed. Were the FISC to accept this arrangement, the as-amended procedures would---like all other minimization rules---take the force of a court order that the executive branch would be obligated to follow.

Of course, that tweak doesn’t flow beautifully from Section 215 itself, and surely would enlarge the FISC’s oversight role, so far as data usage goes. But it wouldn’t be too much of a change relative to those contemplated in the FISC’s past practices, and its (for better or worse) accommodating stance towards Section 215’s text more generally. Given both, I would be surprised if the FISC suddenly insisted upon strict obeisance to Section 215's every jot and tittle---and rejected a RAS preapproval mechanism as beyond its authority.