The Foreign Intelligence Surveillance Court (FISA) was originally created as an 11 member, secret court, mostly focused on approving case-by-case wiretapping orders. However, over the years it has become a close parallel to the Supreme Court, acting as the arbiter of intelligence issues. In several classified rulings, the FISA court has created a more or less secret body of law. This court has expanded the National Security Agency’s (NSA) power, allowing it to collect large amounts of data on Americans. FISA has also taken on a much larger role, assessing constitutional questions on a regular basis as well as instituting important judicial precedents.
Over the past few weeks, the NSA has been receiving quite a bit of criticism from the public, with many questioning the legality of some of its policies. The most recent concern is the demand for Verizon phone services to hand over its customers’ phone records and call details to the NSA. This order was made in the “secret court” known as the Foreign Intelligence Surveillance Court. This order was given under the Patriot Act – an act that decreases the amount of restrictions put on intelligence agencies’ ability to collect various data. The act allows the NSA to collect phone data in certain situations, namely security threats. Under the Patriot Act, the NSA is able to order businesses to hand over all of their records so long as it is relevant to an authorized investigation.
While this sounds like a good idea, the Electronic Privacy Information Center (EPIC) considered the order unlawful, and believe that the NSA was taking advantage of the Patriot Act. In order to challenge the NSA, EPIC filed an emergency petition to the Supreme Court. There are some alleged discrepancies over the FISA order, in that the judge who approved it did not necessarily have the authority to direct Verizon, or any phone company, to hand over call records and details. Another problem with this order is that the Patriot Act requires the call records to be relevant to national security investigation. Alan Butler, the lawyer for EPIC, said that, “It is simply implausible that all call detail records are relevant.”
However, the FISA court has actually found a way around relevancy, simply by changing the way the word “relevant” is interpreted in the Patriot Act. In the mid-2000’s, the FISA court decided that “relevant” could be expanded to allow the database of records on millions of people in its entirety, opposed to only asking for records pertaining to a criminal case. This allows the NSA as well as the FISA court near unfettered access to telephone “metadata.” This data allow the government to learn the identity every person who uses a cellphone to communicate, the length of his or her conversation, and even the location and time that the conversation took place. **Privacy advocates consider the government’s ability to collect limitless metadata to be an unneeded and invasive way to conduct surveillance of citizens’ communication activities.
With the decreased regulation of the NSA’s power, many are becoming worried that Americans will soon be left with little privacy in their day-to-day lives. While it probably won’t become a modern day Big Brother, it is clear the NSA has been expanding its powers and becoming much more invasive than it was a few years back.
This order was given under the Patriot Act, and act that decreases the amount of restrictions put on intelligence agencies’ ability to collect various data.