FISC Judge Reggie Walton Hesitantly Amends Latest Section 215 Order To Conform With Presidential Directive

from the contact-chaining-or-beer?-'less-hoppy-than-usual' dept

As was noted here in January, the non-rubber stamp FISA court rubber stamped the latest NSA bulk record request without hesitation, almost as though the previous seven months of leaks had never happened.

That order has now been amended due to the January 17th presidential directive issued in conjunction with the administration’s NSA reforms. The amended order, written by outgoing FISC judge Reggie Walton, makes the changes requested (two hops instead of three, RAS selectors approved by a FISC judge) and provides some more background on the NSA’s minimization techniques.

While Walton has no problem with the new two-hop contact chaining limit, he does seem concerned with the RAS approval being left to the court. He spends several paragraphs discussing this particular aspect, which seems a bit strange, considering he was the same judge who temporarily limited the NSA to seeking approval from the court to search the collection back in 2009, after uncovering years of agency abuse. (Unfortunately, Smith vs. Maryland is again mentioned in support of the notion that untargeted bulk collections don’t violate the Fourth Amendment. This is a 1979 ruling on pen registers that doesn’t really apply to the Section 215 collections — and likely wouldn’t except that FISC judge Kollar-Kotelly gave it a very favorable reading back in 2004/2005 [thanks for nothing, needless redactions!].)

Although the Court is satisfied that the effect of the government’ proposal to require RAS approvals by the FISC would be consistent with Section 215’s definition of “minimization procedures,” that is not the end of the discussion. FISA contemplates that the Executive Branch, which formulates the minimization procedures and receives the tangible things from the recipient of the production order, will apply those procedures, with appropriate oversight by the FISC.

Historically, the minimization procedures proposed by the government and approved by the Court under PISA have reflected this allocation of responsibilities, which also recognizes the distinct roles of the Executive Branch and the Judiciary in our system of government. The government’ proposal to require RAS determinations by the FISC as a prerequisite to NSA queries of the database would deviate from this framework by giving the Court a more prominent role not just in overseeing Executive Branch compliance with FISC-approved procedures, but in the actual application of those procedures. It could also impose substantial new burdens on the FISC that are not contemplated by FISA.

Walton considers the balance of power and sees a potential tipping point, wherein the court becomes the seat of power. This power-shift could be an issue, but one that could be mitigated somewhat by the installation of a public advocate, as has been suggested by the PCLOB (Privacy and Civil Liberties Oversight Board).

Walton seems resistant to turning the court into an oversight entity, which it really isn’t. That’s supposed to be the legislative branch’s role, but that has been undermined by cheerleaders masquerading as overseers who have withheld information from their fellow legislators. Walton also may not trust the agency enough at this point to feel comfortable approving RAS requests. His earlier declassified court orders pointed out that the agency deliberately misrepresented its tactics and day-to-day operations to the court for nearly a half-decade. Approving an RAS request means having some faith that the evidence being presented is true and Walton doesn’t seem to have that confidence.

Why this lack of confidence should mean allowing the NSA to continue to access the collection without limitation isn’t discussed by Walton’s statements, but that’s the only alternative if the court decides it doesn’t want this burden, something Walton indicates is a possibility.

The Executive Branch, of course, cannot unilaterally compel the FISC, an Article court, to assume the RAS-approval function, and the Court would be within its discretion under FISA to reject this aspect of the Motion. fig 50 U.S.C. 1861(c)(1) (permitting the Court to grant the govemment’s application “as modified”).

The Court is cognizant of the fact that this program is under review by the other branches of government and that changes may result from the review. While this policymaking assessment is ongoing, the Executive Branch is asking the Court for additional assistance in reassuring the public that adequate protection is afforded to information concerning United States persons that is being acquired pursuant to a FISC order.

That being said, Walton notes the court is also not expressly forbidden from performing this function and admits the FISA court has performed this function before.

The Court sees nothing in the language of the Act that would preclude it from accepting the Executive Branch’s invitation to assume responsibility for making RAS determinations. This role in fact parallels the core judicial function of determining whether applications for authority to conduct electronic surveillance or physical search are supported by probable cause.

Indeed, the Court has previously approved query requests in this matter, albeit under distinct circumstances and pursuant to different authority. Provided that the number of selectors used to query the metadata remains relatively close to the present level, the Court is satisfied that it will be able to undertake the additional work that will be required, at least until the expiration of the January 3 Primary Order. In consideration of the unique facts and circumstances that are now presented, the Court will approve the Executive Branch’s proposal to require RAS approvals by the FISC as a prerequisite to queries of the telephony metadata acquired pursuant to the Court’ orders in this matter.

As it stands right now, the NSA is back to its 2009 form, in terms of seeking court approval for collection searches. The current order will expire towards the end of March, at which point the court will revisit this requirement. As Techdirt noted earlier, Walton’s term with the FISA court is ending, so this decision will possibly rest in the hands of two incoming judges or another FISA judge who may not be quite as amenable to the administration’s reform demands. For the time being, the NSA will have to somehow “make do” with showing some sort of evidence before being allowed to search its bulk collections, which is a definite improvement over its previous unrestricted access.

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Comments on “FISC Judge Reggie Walton Hesitantly Amends Latest Section 215 Order To Conform With Presidential Directive”

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Anonymous Coward says:

“It could also impose substantial new burdens on the FISC that are not contemplated by FISA.”

I don’t recall right now but is he one of the parties who stated that the FISC couldn’t bear any new burdens at all, because overwork, and that adding new members or providing new resources to the court would be a bad idea, because well because? Do I unjustly malign the Judge or do I inadvertantly imply he’s doing as he knows he ought?

Christenson says:

NYT: Responsibility for Snowden on exactly three low-level NSA types

Hope Mr Moody is busily working this one… my own feelings (no actual data) are that they tortured that poor civvy employee with a bogus polygraph test until he or she came up with something plausible. [That is, if the employee (sacraficial lambs) ACTUALLY EXISTS AT ALL].

Anonymous Coward says:

I’m still not satisfied. I see no mention of a “search warrant” being a requirement, in order to “query/search” through American citizen’s personal metadata information.

As far as I’m concerned. Section 215 has always been, and still is, unconstitutional. Heaven forbid the Secret FISC Court, needs to issue individualized warrants, like every other non-secret court in this country. Except Texas. Texas issues search warrants ‘after’ the search has been illegally carried out.

Anonymous Coward says:

Its alright folks, just little bit of tyrrany, not the full blown kind……..what?….yes, offcourse theres a difference /s

Dont have this persons consent, and i vote for the dismantling COMP-FUCKING-PLETELY of their surveilance capabilities……BECAUSE of their actions, the way they’ve gone about it, and their justifying of all this

Anonymous Coward says:

For the time being, the NSA will have to somehow “make do” with showing some sort of evidence before being allowed to search its bulk collections

And therein lies the problem, they need permission to do an official search, but what is to stop them searching the database to find something that they can use parallel construction on to get official permission to search for what they found.gency.

john dillon says:

who do we complain to?

six plus months since snowden brings to our attention that our government systematically tramples our constitutional rights and we’re back essentially to square one?
the economy is crumbling, the infrastructure is in decline, the world hates us so we resort to spying on ourselves?
at 65 I’ve seen the war mongering actions of our nation drain us. the lies to and deception of the public Tonkin, yellowcake and we’re not spying on us citizens (to name a couple)are a disgrace. how about we tell our elected officials to give peace a chance.

Pragmatic says:

Re: who do we complain to?

Why would they give peace a chance when war is so damn good for business and many of our reps have a finger in the MIC/surveillance pie?

The economy is crumbling because they STILL believe that what’s good for big business is good for the rest of us. Unfortunately, big business doesn’t employ so many of us any more so if it ever was true before, it ain’t now.

As for the infrastructure, if we get rid of the notion that if we don’t directly benefit from something we shouldn’t be taxed to pay for it, the problem should resolve.

Basically, selfishness is killing us because the most powerful, influential people are as selfish as hell, and those of us who have deluded ourselves that they’re on the winning team aren’t any better.

Anonymous Coward says:


He thinks the court shouldn’t serve in an oversight role for this? Really? Isn’t that what is supposed to happen under the Constitution anyway. The government is supposed to go to the court and show why they suspect someone and need a warrant to search them that the court then decides if is should grant them it or not. Is that not by definition oversight of the process by the court? Really? Astounding.

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