The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a federal court established under the Foreign Intelligence Surveillance Act of 1978 as “a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.” Requests for search warrants are typically issued by the National Security Agency (NSA) and Federal Bureau of Investigation (FBI).
In 2013, weeks after Edward Snowden leaked confidential documents showing that the NSA requested a daily, ongoing feed of all call detail records—including those for domestic calls—from Verizon, The New York Times famously reported that the FISA Court “has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.”
In light of this controversy, we decided to ask future lawyers, lawmakers and American citizens what they thought about FISA Court oversight in our third Scholarship Essay Content. The response we received was overwhelming. Students from colleges and universities all around the country submitted in-depth answers and practical solutions. While we had to choose one winner of the scholarship prize, we also wanted to share a handful of the best responses we received from other applicants.
What most interested us was that most students believed in at least some form of additional oversight and regulation, arguing that oversight was beneficial to the American public as well as our national ideals of privacy and justice.
Continue reading to see for yourself what these 12 students have to say:
Is more oversight of the FISA court needed? If so, what type of oversight do you suggest?
Read Henry’s full essay here
Sarah Banafe, University of Texas at Arlington:
“Without a warrant, the FISC permits agencies to disregard the American people’s right to a reasonable search and seizure for the sake of gathering intel. The practice itself is Machiavellian in nature because although it may seem like a small price to pay for protecting a nation, it is actually a slippery slope that diminishes the integrity and liberties of the people in it… More oversight in the FISC and its proceedings can be achieved by significantly amending Section 702. Amendments should allow a pragmatic amount of public access to the FISC proceedings and prevent warranted or warrantless information on U.S. citizens. Given that the sole purpose of the FISA and FISC is to surveil on foreign powers, we cannot allow the American people to become fodder in its practice… As long as the Section 702 remains as it is, there will continue to be a disconnect between the people and the FISC which will weaken any trust the people have in the government. Amending Section 702 to increase oversight in the FISC would grant the American people clarity and trust in their liberties and in the government.”
As long as the Section 702 remains as it is, there will continue to be a disconnect between the people and the FISC which will weaken any trust the people have in the government.
Jacob Bayles, University of South Carolina:
“The Declaration of Independence declares that ‘whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.’ The FISA court should be altered, not abolished, to ensure that the power of the court is derived from ‘the consent of the governed.’ Though the FISA court should be conducted clandestinely to protect information of national security, it is important to concurrently ensure that the rights of the people are not unduly infringed upon… To rectify this violation of rights, the House of Representatives should vote on one member of its body to serve as the Advocate General before the FISA court on behalf of the defendant. The creation of the Advocate General ensures that the Government can clandestinely conduct its investigation while also protecting the rights of the defendant. To maximize the effectiveness of the Advocate General, he or she would be limited to two terms in the position; each term would last the length of a congressional term.”
Chris Dimitropoulos, University of California at San Diego:
“I believe more oversight is needed in order to restrict the overgrowth of power from the FISA government. Since terror and influence is on the rise, the FISA should retain most of its power to ensure the safety and purity of our people; however, no Court should rival the power of the Supreme Court. A solution towards restricting its power can be done by making the process to grant a warrant more studious or more bureaucratic.”
Overall, limiting the power of the FISA Court can aid in times of peace, but during a crisis, retaining the power of the FISA Court is important.
Joshua Friedeman, Regent University:
“The issue is not a matter of oversight. Oversight does exist, and it seems to be sufficient. The real issue is one of trust in the system as a whole—and whether or not that system even deserves the trust of the American people. This is a much greater issue that transcends the FISA court. If America cannot trust its political system, there are much graver concerns that the country must address than the oversight of a single court. Surveillance is no longer an issue of there is nothing left to surveil. “
Christina Hulik, Pace University:
“It would be a step in the right direction to curtail some of the basic problems that this court condones. The control on the selection of the Judges would limit any biased opinions of these Judges. The procedural aspects of the Court should be made public to a certain degree. There should be more diversity exhibited in the selection process so that the decisions that the Judges make would be more impartial and not one-sided. The control on the selection of Judges would also help in eliminating biased opinions. Congress should be involved in some way in the selection of the Judges. The nomination of Judges must be impartial without any involvement of the patronage system. All the Judges should be approved by Congress, whether they be nominated by the President or anyone else. I believe that the FISA Court has to have full accountability of all of its activities and I also believe that before the FISA Court convenes into the full investigative process, there should be a probable cause which can substantiate the need of the investigation.”
I feel that there is a need for more oversight of the Foreign Intelligence Surveillance Act (FISA) Court, but there would have to be limitations on what can be changed or modified.
Tianna Jordening, Northern Arizona University:
“Institutions such as the Federal Intelligence Surveillance Court (FISC) are controversial because it can be difficult to determine how much management is needed in a court that operates on delicate matters such as impending terrorist attacks. However, it is important that the FISC has more oversight so both functions effectively and maintain the best interest, privacy, and safety of United States citizens… To put the public’s mind at ease, it would be prudent of the FISC to set up more supervision over the court’s actions. One possible solution would be to appoint an inspector general to oversee the FISC and make sure there is no abuse of power. The court’s cases and verdicts could still be confidential but appointing someone who would be aware of what transpires in the court, and is making sure the warrants are granted with sufficient cause would be enough to ensure the public that their privacy is not being compromised. Another option would be to appoint a committee to oversee the process of approving the warrants.”
Angela Mayfield, New York University:
“With growing criticism of the Foreign Intelligence Surveillance Act Court (FISA court), the oversight involved must evolve as technology and data use changes… Improvements can be made in terms of how surveillance applications are approved, how long they are valid for, and how the collected data is used for better oversight of the FISA court… Narrowing the scope of how the data is used and the privacy measures that must be taken is another oversight that must continue to be updated as the world changes. With the use of artificial intelligence and other advances in technology, it is important that data privacy is appropriately maintained. Small errors or breaches of privacy can have an enormous impact.”
Abigail Price, Hillsdale College:
“The problem with the FISA court as it is now is that, while the idea behind the court is laudable, it operates completely internally. The records of even the daily operations of the court are secret. The judges are appointed by the Chief Justice, who is in turn appointed by the president. There is no external oversight of the process; everything is done completely internally. How can a court be expected to provide any sort of oversight when it itself cannot be overseen?… To counteract this threat, I would suggest first releasing basic information concerning daily operations of the court to the public. The public is the best defender of its own liberty and safety, therefore releasing such basic information may help keep the court in check. Next, I would suggest making the applications submitted to the FISA court more specific, so that information is not collected on such a wide scale as it is now, reducing its power significantly. Lastly, I would suggest creating a judicial body to ensure that agencies actually operate as they specify in applications to the FISA court, instituting more oversight of what actually occurs after the application is granted by the FISA court.”
How can a court be expected to provide any sort of oversight when it itself cannot be overseen?
Kaitlin Smith, Marshall University:
“Increasing the amount of oversight and requiring a more thorough search into those who call in tips should be mandatory as it would ensure that those who abuse their privilege of information will be brought to justice through a fair court process… Oversight in the form of inquiring further into the backgrounds of those who accuse others of providing illegal information to international persons may help eliminate an element of unfairness in the FISA courtrooms. It is urgent that we continue to invest our government’s resources into ways we can improve the quality of the treatment and pursuit of justice that we are entitled to as American citizens. In conducting research on who is the one indicating cause for concern, we may find more useful information than we imagined, and it can help our courts determine who exactly is responsible for threatening the safety of American citizens and preserve our rights and freedoms.”
Brian Ta, University of California – Los Angeles:
“The FISA court has the capability of becoming an effective method to ensuring a balance between the safety and comfort of the citizens of America. Although pressure to reduce security risks has increased, it is essential that individuals are able to retain their rights. Therefore, enhancements and alterations to strengthen FISA oversight are as important as ensuring national safety.”
Hayden Willingham, University of Idaho:
“More individualized oversight by the FISA court system is needed to ensure that each government surveillance agencies follows their strict minimization and targeting procedures and to prevent the usage of unauthorized ‘incidental’ collected data.”