The USA Freedom Act: A Sounding Brass and Tinkling Symbol ?

The major criticisms of how the Foreign Intelligence Surveillance Court (FISC) has historically operated is that its hearing are closed, that only the government appears and submits briefs and that there is no adversarial process when the Court reviews a government application for a surveillance order.  In response to these criticisms, Congress in June of 2015 authorized the Court to appoint five “advisors” to assist the Court in cases that “present a novel or significant interpretation of the law.” 

Analyze the various procedural reforms that have been proposed, review the reforms Congress adopted and opine on whether the adopted reforms are substantial or cosmetic.

INTRODUCTION

            One of the hallmarks of American law is the idea that law works best in an adversarial system. That means that two sides will work diligently and within proper legal bounds to promote their side of a legal controversy and arrive at a just outcome. One court, The Foreign Intelligence Surveillance Court, however, for the past 37 years has operated outside the bounds of this adversarial process. The Court meets in absolute secrecy, until very recently never published any of its decisions or orders, and made its rulings after listening to only to the federal government, seeking permission to conduct widespread electronic surveillance in search of intelligence about threats to U.S. national security.

            The Foreign Intelligence Surveillance Court (FISC) was established by Congress in 1978.  The Court reviews applications made by the United States Government for approval of electronic surveillance, physical search, and certain other forms of investigative actions for foreign intelligence purposes. The FISC consists of 11 district judges chosen by the Chief Justice and drawn from seven of the federal judicial circuits. 50 U.S.C.A. § 1803(a). Since FISA's enactment and September 10, 2001, there were a total of 46 emergency authorizations issued by various Attorneys General and later ratified by the FISC, but in the year immediately following September 11, 2001, there were 113 emergency authorizations issued and ratified.

            In June, 2015, Congress passed the USA Freedom Act. H.R. 2048, Pub.L. 114–23. The Act modified several provisions of the Patriot Act. The act imposes limits on the bulk collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the National Security Agency. Since its inception, the FISC has been conducted in a highly secured facility in Washington, D.C.

USA FREEDOM ACT

            Under the Act, the FISC is required to “appoint no fewer than five individuals to be eligible to serve as amicus curiae, who shall serve pursuant to rules the presiding judges may establish.” On November 25, 2015, the Court appointed the first five individuals to serve as the amicus curiae to the Court. These individuals are Jonathan G. Cedarbaum, John D. Cline, Laura Donohue, Amy Jeffress, and Marc Zwillinger.  These individuals have varying backgrounds and qualifications. Ms. Donahue is currently a law professor at Georgetown Law. The American Civil Liberties and Electronic Frontier Foundation have both lauded these individuals as impressive.

            Under 50 U.S.C. § 1803(i)(2)(A), the Court is required to appoint one of these five individuals “to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law.” The statute, however, carves out an exception this requirement. The court is not required to appoint an amicus if such appointment is “not appropriate.” The duties of the appointed amici include providing legal arguments that advance the protection of individual privacy and civil liberties, information related to intelligence collection or communications technology, and/or legal arguments or information regarding any other area relevant to the issue presented to the court.”

           

PUBLIC REACTION

            Although some organizations have recognized this provision of the Act as a step forward in making the Court more transparent and fair, others have complained the act does not do enough to curb overbroad surveillance and recognize individual privacy rights.  The Electronic Frontier Foundation ambivalently acknowledged the Act as a “step in the right direction.”

AMICUS CURIAE

            With regard to the new amicus curiae provision of the Act, much of the dissatisfaction stems from the great amount of discretion afforded to the court whether to appoint an amicus.  The Act currently only compels a judge to appoint an amicus when an application “presents a novel or significant interpretation of the law.”  Under the act, an application presents a novel or significant interpretation of the law when it involves settled law to novel technologies or circumstances, or any other novel or significant construction or interpretation of any provision of law or of the Constitution of the United States.” Thus, because the court is only required to appoint amici when the application includes novel technologies or circumstances, and because the court is allowed to use its discretion to make such a determination, the mandatory language of the provision seems illusory. On the other hand, because of the dizzying pace of contemporary technological advancement, one could argue the court will always be presented with an application that requires the interpretation of settled law to a novel circumstance. Furthermore, the Electronic Frontier Foundation admitted that under the new act, there might be tremendous public pressure on the court if they choose not use an amicus because the court’s decision to do so is public record. Mark Jaycox of the  Electronic Freedom Foundation commented, “[t]he bill forcefully says if the government is going to engage in anything new, you are highly recommended to use an amicus….”

            From my point of view, it is hard to dismiss the amici provision of USA Freedom Act as a mere cosmetic change, but it is also difficult to view it as a victory for those who want to see the FISC become more transparent and accountable for its decisions to ratify mass surveillance. Assuming one of the purposes of the provision is to create a more transparent, adversarial court, the statute does not seem to go far enough to ensure that the court is considering an application from a variety of perspectives and with true objectivity. Specifically, 50 U.S.C. § 1803(2)(A) states that a court must appoint an amicus when the application presents novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate. The statute does not clarify what is meant by “appropriate.” Assuming “appropriate” merely means that the court finds the application does not involve a novel issue, an experienced judge could certainly always articulate a rationale for an amicus to be inappropriate. Even if the judge’s finding is deficient or otherwise dubious, who has standing to appeal such a finding? The statute does not contain any check for a deficient finding. The fact that groups such as the EFF are counting on public pressure to sway the court to use amici underscores the facial deficiencies of the statute. On the other hand, making a finding that an amicus is inappropriate public record is not insignificant. It certainly is one step close to transparency. Although it is not without its shortcomings, the amicus provision of the Act is more than mere cosmetic change. At best, it will place more pressure on the FISC to utilize amici. At worst, it will confirm the concerns of privacy advocates if the court consistently refuses to appoint amici. As a member of the Center for American Progress stated, “[i]t’s as good as we’re going to get out of this Congress…”