Deeplinks

Podcast Episode: The Secret Court Approving Secret Surveillance

Read the original article: Podcast Episode: The Secret Court Approving Secret Surveillance

Episode 001 of EFF’s How to Fix the Internet

Julian Sanchez joins EFF hosts Cindy Cohn and Danny O’Brien as they delve into the problems with the Foreign Intelligence Surveillance Court, also known as the FISC or the FISA Court. Sanchez explains how the FISA Court signs off on surveillance of huge swaths of our digital lives, and how the format and structure of the FISA Court is inherently flawed.

In this episode, you’ll learn about:

  • How the FISA Court impacts your digital privacy.
  • The makeup of the FISA Court and how judges are chosen;
  • How almost all of the key decisions about the legality of America’s mass Internet spying projects have been made by the FISC;
  • How the current system promotes ideological hegemony within the FISA court;
  • How the FISC’s endless-secrecy-by-default system insulates it from the ecosystem of jurisprudence that could act as a guardrail against poor decisions as well as accountability for them;
  • How the FISC’s remit has ballooned from approving individual surveillance orders to signing off on broad programmatic types of surveillance;
  • Why we need a stronger amicus role in the FISC, and especially a bigger role for technical experts to advise the court;
  • Specific reforms that could be enacted to address these systemic issues and ensure a more fair review of surveillance systems.

Julian is a senior fellow at the Cato Institute and studies issues at the intersection of technology, privacy, and civil liberties, with a particular focus on national security and intelligence surveillance. Before joining Cato, Julian served as the Washington editor for the technology news site Ars Technica, where he covered surveillance, intellectual property, and telecom policy. He has also worked as a writer for The Economist’s blog Democracy in America and as an editor for Reason magazine, where he remains a contributing editor. Sanchez has written on privacy and technology for a wide array of national publications, ranging from the National Review to The Nation, and is a founding editor of the policy blog Just Security. He studied philosophy and political science at New York University. Find him on Twitter at @Normative.

Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio.

 Please subscribe to How to Fix the Internet using Stitcher, TuneIn, Apple Podcasts, Spotify, or your podcast player of choice. You can also find this episode on the Internet Archive. If you have any feedback on this episode, please email podcast@eff.org

Resources

NSA & FBI

Court Cases

Section 215 & FISA

Books

Transcript of Episode 001: The Secret Court Approving Secret Surveillance

Danny O’Brien:
Welcome to How to Fix the Internet with the Electronic Frontier Foundation, a podcast that explores some of the biggest problems with face online right now. Problems whose source and solution is often buried in the obscure twists of technological development, societal change, and subtle details of Internet law.

Cindy Cohn:
Hi everyone, I’m Cindy Cohn, the Executive Director of the Electronic Frontier Foundation, and I’m also a lawyer.

Danny O’Brien:
And I’m Danny O’Brien, and they let me work at EFF too—even though I’m not a lawyer. Welcome to How to Fix the Internet, a podcast that explores some of the more pressing problems facing the net today and then solves them. You’re welcome, Internet.

Cindy Cohn:
It’s easy to see everything that’s wrong with the Internet and the policies that govern it. It’s a lot harder to start naming the solutions to those problems, and even harder sometimes to imagine what the world would look like if we got it right. But frankly, that’s the most important thing. We can only build a better Internet if we can envision it.

Danny O’Brien:
So with an ambitious name like ‘How to Fix the Internet’, you might think we’re going to tackle just about everything. But we’re not, and we’re doing that on purpose. Instead, we’ve chosen to go deep on just a few specific issues in this podcast.

Cindy Cohn:
And sometimes we know the right answer—we’re EFF after all. But other times, we don’t. And like all complex things, the right answer might be a mix of different ideas or there may be many solutions that could work or many roads to get us there. There is also some bad ideas some times and we have to watch for the blow back from those. But what we hope to create here is a place where experts can both tell us what’s wrong, but give us hope in their view of what it’s going to look like if we get it right.

Danny O’Brien:
I do feel that some parts of the digital world are a little bit more obviously broken than others. Mass surveillance seems like one of those really blatant flaws at EFF we’ve spent years fighting pervasive US government surveillance online and our biggest fights have been in what seem to us the most obvious place to fight it, which is in the public US courts. But there is one court where our lawyers will likely never get a chance to stand up and argue their case. Even though it’s got surveillance in its name.

Cindy Cohn:
Our topic today is the Foreign Intelligence Surveillance Court, which is also called the FISC or the FISA Court. The judges who sit on this court are hand picked by the chief justice of the United States Supreme Court, that’s currently Justice Roberts. The FISA Court meets in secret and has a limited public docket and until recently it had almost no public records of its decisions. In fact, the very first case on the FISC docket was an EFF transparency case that ended up getting referred to the FISC. But this where almost all of the key decisions about the legality about America’s mass Internet spying projects have been made and what that means is pretty much everybody in the United States is affected by the secret court’s decisions despite having no influence over it and no input into it and no way to hold the court accountable if it gets things wrong.

Danny O’Brien:
Joining us now to discuss just what an anomaly an American and global injustice the secret FISA Court is, and how we could do better is Julian Sanchez, the Cato Institute’s specialist in surveillance legal policy. Before joining Cato, Julian served as the Washington editor for Ars Technica where he covered surveillance, intellectual property and telecom policy. He has also worked as a writer for the Economist blog, Democracy in America and is an editor for Reason Magazine where he remains a contributing editor. He’s also on Twitter as Normative and that’s one of my favorite follow there.

Danny O’Brien:
Julian, welcome to the podcast. We are so happy to have you hear today.

Julian Sanchez:
Thanks for having me on.

Cindy Cohn:
Julian, you have been incredibly passionate about reining in mass surveillance for as long as almost anyone, perhaps even me. Where does that passion come from for you?

Julian Sanchez:
I don’t know if I have an origin story. I was bitten by a radioactive J. Edgar Hoover or something, but as an adolescent I was in a way much more technical than I am now. I ran a dial-up BBS when that was still a thing before everyone was on the Internet and I remember watching people dial in and I think it was something people sensed was a private activity as they were writing messages to each other and tooling around looking for things to download. Sometimes I would just be sitting there watching them and thinking, gosh, the person who operates the platform really has visibility on a lot of things that we don’t instinctively think of as observed. Probably just as a result of being online, for some values of online from a pretty young age, I was interested in a lot of the puzzles of how you apply rules that we expect to govern our conduct in the physical space to this novel regime.

Julian Sanchez:
I remember in college jumping ahead and reading Lawrence Lessig code and discussing the puzzle of the idea of a perfect search. That is to say, if you had a piece of software, a virus let’s say, that could go out and look only for contraband, it would only ever report back to the server if it found known child pornography or known stolen documents. Would that constitute a search? Is that the kind of conduct that essentially, because it would never reveal anything but contraband, could be done universally without a warrant or should we think differently about it than, for example, the Supreme Court thinks about dog sniffs. If it only ever reveals what is criminal, that is, the presence of narcotics or bombs, then it doesn’t technically count as a search even though it is a way of peering into a protected space.

Julian Sanchez:
more recently, whimsically, the Risen and Lichtblau story back in 2005 ‘Bush Lets US Spy on Callers Without Courts,’ which was the first public hint of what we later came to know was a mass program of warrantless surveillance called, Stellar Wind. I was just dissatisfied with the quality of the coverage and ended up buying the one book you could get about FISA, ‘National Security Investigations and Prosecutions’ by David Kris and Douglas Wilson, and burning through it like Harry Potter. I just found it inherently fascinating. This was at a time when, and I was still a journalist at the time, it was a time when most of the reporters writing about this did not understand FISA very well. They certainly had not read this rather thick, and to normal human beings, boring treatise and so I found myself, because I now have this rather strange knowledge base, writing quite a lot about it, partly just because the quality of a lot of the coverage of the issue was not very well informed.

Cindy Cohn:
We had a similar experience here at EFF, which was, at that time it was my colleague, Lee Tien and I, and we had read Kris and so we ended up becoming the only people around who knew about the secret court before everybody suddenly became aware of it. But let’s back up a second. Why do we have a FISA Court? Where is it? I’ve talked a little about who is on it, but where does this idea come from?

Julian Sanchez:
This grows out of the Foreign Intelligence Surveillance Act of 1978 that was passed in response to disclosures of a dizzying array of abuses of surveillance authority and their power more generally by the FBI especially, but the American intelligence community in general. For decades, oversimplifying a bit, effectively wire tapping had been initially just illegal period and then very tightly constrained and the FBI had essentially decided those rules can’t possibly really apply to us and so FISA, for the first time, created an intelligence specific framework for doing electronic surveillance. The idea of having a separate court for this, I think, grew out

[…]

Read the original article: Podcast Episode: The Secret Court Approving Secret Surveillance