FISA Court Argues To Senate That It's Not A Rubber Stamp

from the sometimes-it-requests-changes dept

The FISA Court is still trying to shed its reputation as a rubber stamp. In a new letter, responding to questions from Senator Grassley, the court explains that, while it’s true that it eventually approves basically all requests that the intelligence community brings before the court, that doesn’t take into account the changes it requires. It starts out by noting, as it has previously, that the “over 99%” approval rate is only for “final applications” and doesn’t fairly consider that it frequently asks for substantial changes. In response to that earlier statement, Senator Grassley had asked how many times does it ask for substantial changes, and the court sent back the following late last week:

During the three month period from July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action. This does not include, for example, mere typographical corrections. Although we have every reason to believe that this three month period is typical in terms of the historic rate of modifications, we will continue to collect these statistics for an additional period of time and we will inform you if those data suggest that the recent three months were anomalous.

Of course, by July 1st, it’s pretty clear that the FISC knew that it was going to be under substantial scrutiny concerning these efforts, and the whole “rubber stamp” discussion had already been widespread in the press. While the court insists that this is probably no different than in the past, the real question is what was it in the past… and there, the FISC admits, it has no idea. In responding to the request for historical data, it notes:

FISC [is] just beginning a practice of collecting statistics on the rate at which such modifications occur.

In other words, back before there was any public scrutiny, nobody much bothered to monitor these things and make sure that the FISC wasn’t just a rubber stamp — and there’s no real way to go back and check.

Also, there’s the whole question of how do you define “substantial.” While the FISC at least admits the bar is higher than typographical corrections, it also admits that the rating is somewhat in the eye of the beholder:

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches. Therefore, the determination of exactly when a modification is “substantial,” and whether it was caused solely by the FISC’s intervention, can be a judgment call.

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Comments on “FISA Court Argues To Senate That It's Not A Rubber Stamp”

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Anonymous Coward says:

They’re not because you have to be an incompetent jackass to qualify for the rubber stamp title.
These morons are full fledged retards and it’s a wonder they can actually make it through everyday life.

I wouldn’t trust goddamn word from any of them.. Seriously I’d feel safer having a sleepover at Kim Jong Un’s wearing a fuck North Korea T-shirt with a side of daddy didn’t love you over anyone connected to the NSA.

horse with no name says:


“In other words, back before there was any public scrutiny, nobody much bothered to monitor these things and make sure that the FISC wasn’t just a rubber stamp — and there’s no real way to go back and check. “

There is little reason to assume that the “change” rate was different is the past. More, it seems that the lack of statistics has more to do with not thinking that they would have to justify their actions to the noisy 1%ers in the blogosphere who are raising a stink.

The fact that they have changed to track the stuff is an indication that they take the whining seriously enough to start collecting the data. I cannot imagine a reason why outside of answering critics, that they would have considered keeping a scorecard before.

Anonymous Coward says:

Re: odd

See, that’s an issue. Because, were it not, as people claim, a “rubber-stamp,” then there would be documentation proving that from before the additional scrutiny.

But there isn’t. And FISC haven’t done so. As it is the easiest way to counter its detractors, I must therefore imply that it was, indeed, a rubber-stamping court.

Anonymous Coward says:

Re: odd

There is little reason to assume that the “change” rate was different is the past.

Actually there is plenty of reason to assume the so called “substantive changes” have increased in the past several months. They are facing a massive public backlash, and their actions are increasingly coming under genuine legal scrutiny. That’s pretty high incentive to sit up and start taking their job more seriously instead of lazing about an letting just any old thing through.

Rich Fiscus (profile) says:

If we take the judges at their word, keeping in mind what we know they did sign off on, what must the nearly 25 percent of NSA requests they claim to have turned down look like. I’m guessing something like this:

My astrologer told me to beware of the numbers 2 and 7 so I made a list of every area code that has both those numbers.

He named his son Corey and his daughter Anne. If you say them together really fast it sounds kind of, a little, almost, just like Quran.

Elvis came to me in a dream…

…and then I saw his face in the bong water.

If you play the third track on the new Slipknot album backwards you can distinctly hear ‘at GMail dot com.’ I couldn’t make out the first part so we’ll need to intercept everything.

Sorry, my mistake. They did actually approve the last one.

Anonymous Coward says:

why not make it even more simple?

no one on FISC gave a fuck then, no one gives a fuck now and no one will give a fuck in the future!

as long as they are allowed to continue, as they were earlier this week/late last week, to do as they like, untested and more importantly, unaccountable, the ‘security services’ will have a free hand and the people will be screwed even more!!

Anonymous Coward says:

This follows right in the vein of Alexander, Clapper, Feinstein, Obama, and all the other apologists trying to support the unsupportable.

See what a great job we do is the theme but we can’t show you how great because it is secret. It’s like asking adults to believe in Santa Clause while their putting the presents under the tree for the kids. Mainly because all the documentation coming from Snowden says otherwise.

Magic mirrors and fairy dust isn’t working guys. You’re actually going to have to do something besides say “Trust us” if you expect the public to believe that you are doing the right things. You’re going to have to document it and expect it to be gone over with a fine toothed comb given all the lying and misdirection that has proceeded the statements in this article.

The confidence and trust the public had has been broken. It will take more than words to restore it.

kenichi tanaka (profile) says:

The FISA court argues that it’s not a rubber stamp court? Then what do you call it when you have a secret court that doesn’t allow for another attorney to argue AGAINST the issuance of DOJ FISA warrants?

Until the court starts allowing another attorney to argue against these warrants, then it is a RUBBER STAMP court. AND PUH-LEEZE, it’s treason to even discuss a warrant? Who the hell came up with that rule?

I guess the DOJ doesn’t want suspects knowing about their warrants until after they’ve been prosecuted.

Anonymous Coward says:

There is something I don’t get it.

How can the government anonymize data for release and it cannot even come up with a way to disclose pertinent data in a safe and secure way.

Locations, dates and names can be replaced with meta equivalents, which would preserve operational value but giving out relevant information that can be checked allowing statistical numbers to collected without giving out, where, when or whom is being target.

Isn’t this the government claims they are doing just collecting metadata?

Well how about collecting some metadata without the contents too on how many times agent 006 1/2 came before a judge FJ0001-2013-09 to ask for procedure SNOOPY2013-07.

Is to much to ask for a bit not much a tinny winy bitsy of honesty?

Anonymous Coward says:

Re: Re:

Remember folks you don’t need specifics just relations to see what is happening.

Start asking that from the government and the excuses they give out will be the one you use to attack their practices.

They say they protect privacy by not targeting the content, well, we protect the government snooping equally by not targeting the content just the relations of that content to each other.

Anonymous Coward says:

Can’t the government create a schema where all information is entered between tags and automatically anonymized?

Agent [agent name]John Smith[/agent name] requests [judicial act]surveillance[/judicial act] of [target]John Smith Jr.[/target] on [date]january[/date] on his property located at [location]GPS coordinates xxxx.yyyy[/location], [address][/address].

This protects names, locations, dates and operations doesn’t it, while still creating a way to track and observe in an open forum if it is being abused or not.

Is this not exactly what the government is doing to its people and saying is perfectly safe?
So what are the reasons the government wouldn’t want to do it now?

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