America’s Secret Courts: What You Should Know

Photo courtesy of Crunchy Footsteps via Flickr. Modified by Curiousmatic.

How The Foreign Intelligence Surveillance Court (FISC) operates to secretly approve surveillance orders.

If you didn’t know about America’s secret court created by FISA (Foreign Intelligence Surveillance Act) in 1978, that’s probably because it stands up to its secrecy.

FISA was born after Supreme Court rulings in 1972, when the government became aware of  a substantial amount of unauthorized spying in the 60’s and 70’s without legal framework or judge approval. Despite such snooping being allegedly in the name of “national security,” the court ruled in 1972 that the government should not have unlimited power to conduct surveillance.

According to the EFF Self-Defence Surveillance Project, because this ruling proved problematic for foreign investigations, Congress decided to provide a legal framework for government surveillance in 1978 by forming FISA. This act would provide court oversight to foreign intelligence investigations. In secret, of course.

How do secret courts work?

FISC was originally composed of seven district judges to serve a maximum of seven years, appointed by Chief Justice, according to the Electronic Privacy Information Center (EPIC). In 2001 the number of judges was increased from seven to eleven, with three required to live within 20 miles of Washington DC.

In 2008, the Fisa Amendments Act (FAA) legalized the National Securita Agency (NSA)’s previously unlawful data collection under the supervision of FISC, according to Forbes.

The FISC reviews applications for warrants related to national security investigations. According to the Federal Judicial Center (FJC), each application must contain the Attorney General’s certification that the target of the proposed surveillance is either a “foreign power,” “the agent of a foreign power,” or in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.

What’s the big secret?

Though nobody is denying the existence of FISC or FISA, what makes the court secret is the manner in which they operate. All hearings and decisions are conducted behind closed doors, and according to EPIC, the target of the order is not given an opportunity to appear at the hearing or informed they have been spied on.

If the target is served with a warrant, it is accompanied by a gag order forbidding them from telling anyone about it except their lawyer, the SSD states.

The American Civil Liberties Union (ACLU) attests that FISA poses a threat to individual rights, proposing a FISA Oversight Bill, which would prevent abuse and ensure both oversight and accountability of all decisions. The ACLU has not responded to Curiousmatic’s request for comment.

Secret Courts and the NSA

The National Security Agency (NSA) is known to use FISA as a mechanism for gathering data on foreign internet users, utilizing big tech companies such as Google, Microsoft, Facebook, Yahoo, and Apple.

Microsoft and Google have been reported by the Guardian to be suing the US Government for denying them their right to publish information on FISA’s requests that would clarify their involvement (or lack there of) in NSA’s tactics.

In a newly declassified court opinion published by the Electric Frontier Foundation (EFF), details of the NSA’s unconstitutional gathering of internet data is clarified to have been kept a secret from FISA for three years. (Yep, secrets kept from the secret court!) The NSA has collected at least 56,000 wholly domestic emails, and will continue to do so even after lying to FISA, as long as the transactions are  found clean and deleted after review.


Do you find America’s secret courts problematic? Tweet us @curiousmatic, or leave us a comment! 

Jennifer Markert