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

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.

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.

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.

Cohn: Yeah, and some­times we know the right answer. You know, we’re EFF after all. But oth­er times, you know, 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’s also some bad ideas some times and we have to watch for the blow­back 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 and their view of what it’s going to look like if we get it right.

O’Brien:do feel that some parts of the dig­i­tal world are a lit­tle bit more obvi­ous­ly bro­ken than oth­ers. And 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’s 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.

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 pub­lic 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 of 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.

O’Brien: Joining us now to dis­cuss just what an anom­aly in American and glob­al jus­tice 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’s 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 fol­lows there.

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

Julian Sanchez: Hey, thanks for hav­ing me on.

Cohn: So 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?

Sanchez: Yeah, I mean I don’t know if I have an ori­gin sto­ry or 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 sort of dial in, and I think it was some­thing that peo­ple sort of sensed was a kind of pri­vate activ­i­ty as they were writ­ing mes­sages to each oth­er and tool­ing around and look­ing for things to down­load. But you know, some­times I would just be sit­ting there watch­ing them and think­ing oh gosh you know, the per­son who oper­ates the plat­form real­ly has vis­i­bil­i­ty on a lot of things that we don’t instinc­tive­ly think of as observed. 

And prob­a­bly just as a result of being online, I guess for some val­ues of online” from a pret­ty young age, I was inter­est­ed in a lot of the sort of puz­zles of how you apply rules that we expect to gov­ern our con­duct in the phys­i­cal space to this nov­el regime. I remem­ber in col­lege jump­ing ahead and read­ing Lawrence Lessig’s Code and him dis­cussing the sort of 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, so 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 sort of uni­ver­sal­ly with­out a war­rant, or should we— We need think dif­fer­ent­ly about it than for exam­ple the Supreme Court thinks about dog sniffs, where they have sort of said well, 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 sort of peer­ing into a pro­tect­ed space.

And then I guess more recent­ly, I…sort of whim­si­cal­ly, when 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 guess I was sort of 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 sort of inher­ent­ly fas­ci­nat­ing. This was at a time when— I was still a jour­nal­ist at the time. This was a time when most of the reporters writ­ing about this did not under­stand FISA very well, cer­tain­ly had not read this rather thick and to nor­mal human beings bor­ing trea­tise. And so I found myself, because I now had 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.

Cohn: Yeah you know, 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. So we end­ed up kind of becom­ing the only peo­ple around who knew about the secret court, kind of before every­body sud­den­ly became aware of it. But let’s back up a sec­ond, you know. Why do we have a FISA Court? Where is it, who’s on— Well, I’ve talked a lit­tle about who’s on it, but where’s this idea come from?

Sanchez: So 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. And 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 Well 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. 

And the idea of hav­ing a sep­a­rate court for this I think grew out of a num­ber of fac­tors. One is the sense that there was this need for extreme secre­cy, where you were deal­ing with poten­tial­ly peo­ple with for­eign state back­ing, who were not nec­es­sar­i­ly going to be stick­ing around for crim­i­nal pros­e­cu­tion. And when you’re talk­ing about intel­li­gence gath­er­ing, crim­i­nal pros­e­cu­tion isn’t nec­es­sar­i­ly the point. And so this is an activ­i­ty that is not real­ly designed to yield crim­i­nal cas­es. You don’t real­ly want the meth­ods ever dis­closed. You’re deal­ing with adver­saries who have the capa­bil­i­ty to poten­tial­ly plant peo­ple in ordi­nary courts, that’s where you’re dis­cussing your sources, meth­ods, and your intel­li­gence, so there was the sense that it would be bet­ter to have a sep­a­rate, extra-secure court—and also that you might not wan­na have to explain all this…both highly-sensitive and poten­tial­ly quite com­pli­cat­ed intel­li­gence prac­tices and infor­ma­tion to what­ev­er ran­dom mag­is­trate judge hap­pened to be on the ros­ter in the juris­dic­tion where you were looking.

And also the nature of intel­li­gence sur­veil­lance is quite dif­fer­ent inso­far as again, you’re not nec­es­sar­i­ly look­ing at some­one who has com­mit­ted a crime. You think some­one is work­ing on behalf of a for­eign pow­er and try­ing to gath­er intel­li­gence for them or engage in clan­des­tine intel­li­gence activ­i­ties. But you don’t nec­es­sar­i­ly have a spe­cif­ic crime you think has been com­mit­ted. Your pur­pose in gath­er­ing intel­li­gence is not to pros­e­cute crimes. So I think this is the clus­ter of rea­sons around the for­ma­tion of a sep­a­rate court for that pur­pose, and it orig­i­nal­ly con­sist­ed of sev­en fed­er­al cir­cuit judges, now it’s eleven after the USA PATRIOT Act increased the num­ber. And so they con­tin­ue serv­ing on their reg­u­lar courts and then in effect take turns in rota­tion, sit­ting for a week and hear­ing appli­ca­tions from the Justice Department and the FBI to con­duct elec­tron­ic surveillance.

Cohn: Yeah, and the court start­ed out as one thing, this idea of kind of just indi­vid­ual secret war­rants for spies, basi­cal­ly. But it’s real­ly changed in the past decade. Can you walk us through how those shifts hap­pened, and why?

Sanchez: Sure. And of course to the extent that old­er FISA Court opin­ions are not avail­able— The first-ever pub­lished opin­ion of the FISA Court was in 2002, and it was quite a few years before we got a sec­ond. Now quite a num­ber of more recent ones are pub­lic but we sort of have to spec­u­late about the ear­li­er his­to­ry of the court. But vet­er­ans of the court, that is retired FISC judges, have effec­tive­ly con­firmed that in its ear­ly years, the FISA Court was pri­mar­i­ly about assess­ing the ade­qua­cy of indi­vid­ual war­rant appli­ca­tions. So this is just sort of bread and but­ter mag­is­trate judge…almost scut work, right. It was Okay, have you made the show­ing that there’s prob­a­ble cause to believe that the tar­get of this sur­veil­lance is an agent of a for­eign pow­er? You have, you haven’t—” In 99.9% of cas­es it was you have,” and they’d sort of pass on that indi­vid­ual warrant.

And as we get to the…in par­tic­u­lar sort of the post‑9‍/‍11 era and you’re deal­ing with ques­tions of try­ing to one, often fig­ure out who an unknown tar­get is; You might have some­one who’s using a par­tic­u­lar email address or oth­er account but you don’t oth­er­wise nec­es­sar­i­ly have an identity—and you’re poten­tial­ly try­ing to sift through a lot of data to fig­ure out who your tar­get is, or which data per­tains to the peo­ple you’re inter­est­ed in, there is a shift toward more pro­gram­mat­ic sorts of sur­veil­lance. And so the court increas­ing­ly is not just pass­ing on the ques­tion of Have you estab­lished a prob­a­ble cause show­ing with respect to Bad Guy X,” but rather does the law, does a statute writ­ten to deal with pre-Internet com­mu­ni­ca­tions tech­nol­o­gy per­mit you to do the sur­veil­lance you’re con­tem­plat­ing. And in par­tic­u­lar might it allow you to gath­er infor­ma­tion in ways that go beyond just tar­get­ing a par­tic­u­lar facil­i­ty, a par­tic­u­lar phone line that is the home phone of a par­tic­u­lar known tar­get. And so it end­ed up build­ing this kind of secret body of prece­dent around what kinds of pro­grams for kin­da Internet-type net­work sur­veil­lance were per­mis­si­ble under a statute that was not writ­ten with that in mind.

Cohn: Yeah, they real­ly did shift from indi­vid­ual war­rants to kind of approv­ing whole pro­grams, and whole pro­grams that real­ly went beyond…kind of Is this per­son a spy?” to Let’s look at this whole net­work and see maybe if there is some­thing that indi­cates that a spy might be there.” It real­ly flips the kind of basis way that we think about inves­ti­ga­tions. I mean from my per­spec­tive, obvi­ous­ly I’ve been lit­i­gat­ing this in the courts for a long time so— It kind of flipped the whole thing on its head.

Sanchez: And so we know for exam­ple— Maybe I should give some maybe more con­crete exam­ples. We know there was a bulk tele­pho­ny meta­da­ta pro­gram under one FISA author­i­ty that actu­al­ly was sort of the sec­ond case of this kind the FISA Court had to con­sid­er. There was an ear­li­er ques­tion pre­sent­ed by a pro­gram that used what was called the pen trap author­i­ty, pen reg­is­ter trap and trace author­i­ty, which is, in kind of the tra­di­tion­al phone con­text this is about essen­tial­ly real-time meta­da­ta sur­veil­lance. Meaning let’s say there’s a par­tic­u­lar phone num­ber that we think is up to no good. Maybe we don’t have a full-blown prob­a­ble cause wire­tap order for that num­ber yet, but we want to know who this tar­get is call­ing and who’s call­ing that tar­get. So a pen reg­is­ter trap and trace order lets you get real-time data about what calls are hap­pen­ing to and from that num­ber and who they’re from, and how long the call lasts. And in the Internet era then the ques­tion is well what kind of real-time meta­da­ta does that let you get, and when the statute talks about a facil­i­ty at which this infor­ma­tion col­lec­tion is direct­ed, tra­di­tion­al­ly that meant well, a phone num­ber is the facil­i­ty. But in the Internet era, you had ques­tions like well okay, can the facil— And because the stan­dard for this kind of trap and trace, because you’re not get­ting full-blown—in the­o­ry, you’re not get­ting the full con­tent, the full email, the full phone con­ver­sa­tion, you can get one of these pen trap orders under Section 214 of the USA PATRIOT Act with a lot less than prob­a­ble cause.

So the ques­tion is okay well, we’re not talk­ing about reg­u­lar phones any­more, we’re talk­ing about Internet accounts and IP address­es and servers. What can a facil­i­ty be? Can we say Well we want all the meta­da­ta and the real-time trans­ac­tion­al infor­ma­tion for a par­tic­u­lar serv­er, and all the traf­fic com­ing to and from that?” So we’re not just talk­ing about one indi­vid­ual phone line or maybe even a cor­po­rate phone line used by a num­ber of peo­ple, but facil­i­ties that may be han­dling mil­lions of peo­ple’s traf­fic, or at least tens of thou­sands of peo­ple’s traf­fic. And the court—you know, I don’t think that is an opin­ion that is pub­lic in full at this point, but essen­tial­ly said Well, at least with respect to inter­na­tion­al com­mu­ni­ca­tions, we’re going to be pret­ty per­mis­sive about what you can collect.”

O’Brien: And I mean, this is the oth­er shift that I see, which is that not only is FISA not deal­ing with reg­u­lar phones any­more, but it’s deal­ing with these big servers with mil­lions of peo­ple. But also the sort of tar­get has changed, too, part­ly because we’re not real­ly talk­ing about agents of a for­eign pow­er, right. We’re not talk­ing about spy ver­sus spy. It became much more dis­solved than that, it’s like we’re talk­ing about ran­dom sort of sto­chas­tic ter­ror­ists who you don’t nec­es­sar­i­ly know who they are. 

But also, this switch between Okay we can do for­eign sur­veil­lance because we’re tar­get­ing for­eign pow­ers and their spies”, to We’re just sur­veilling for­eign­ers,” right, like they don’t have rights under this court. So the ques­tion is how do we scoop out this data and sep­a­rate the stuff that legal­ly we are con­cerned about, which is US cit­i­zens’ com­mu­ni­ca­tions, but every­thing else is kind of fair game. And then what we have [is] a secret court that does­n’t even have any kind of rep­re­sen­ta­tion of US cit­i­zens’ inter­ests, but also mak­ing this kind of human rights and for­eign pol­i­cy deci­sion, too.

Sanchez: Yeah. I mean, the debate around the author­i­ties that the FISA Court over­sees has been very US citizen-centric. So you can watch tapes from CSPAN where a lot of defend­ers there are say­ing Well look, as long as they’re tar­get­ing for­eign­ers, who cares, they don’t have con­sti­tu­tion­al rights.” 

Some of us think well, peo­ple are human and have human rights even if they had the poor taste to be born some­where oth­er than the United States. And so this is per­haps not some­thing we should entire­ly shrug off. But also that there’s this inter­est­ing shift from the idea that you should be con­cerned if the com­mu­ni­ca­tions of an American with Fourth Amendment rights are sur­veilled, too. The idea that real­ly what’s sig­nif­i­cant in terms of encroach­ing on peo­ples’ rights is who is tar­get­ed. And you know, for prac­ti­cal rea­sons, of course, you under­stand why this would be the focus, because you can­not in advance know whose com­mu­ni­ca­tions you will inter­cept when you tar­get some­body. You can know who you’re going to tar­get but you have no idea who they might talk to. That’s the point in part of doing the surveillance.

But, if you sort of look at the text of the Fourth Amendment, it does­n’t say the right of the peo­ple against being tar­get­ed shall not be vio­lat­ed. It says the right off the peo­ple to be secure in their per­sons and hous­es and papers, or the dig­i­tal equiv­a­lent there­of. And in a sense, the fun­da­men­tal Fourth Amendment con­cern was—at the time—was gen­er­al war­rants, with the idea of these sort of open-ended autho­riza­tions to search that did not tar­get any­one. And so from the per­spec­tive of the peo­ple who signed off on the Fourth Amendment, it was not a mit­i­gat­ing con­sid­er­a­tion to say Well, don’t wor­ry if your com­mu­ni­ca­tions are col­lect­ed, you weren’t the tar­get.” The thing they found most egre­gious, the thing they thought was the most offen­sive abuse, was sur­veil­lance that did not have a par­tic­u­lar tar­get that made it open to any­one to be swept into the dragnet.

O’Brien: Right, and just to spell this out, gen­er­al warrants—and this is a British inven­tion so I apologize—was this idea that you could just get a war­rant for every­body in a town, or every­body who might be asso­ci­at­ed with it. So this ear­ly mass sur­veil­lance warrant.

Sanchez: And it’s inti­mate­ly con­nect­ed with political…essentially polit­i­cal dis­sent and sup­pres­sion. So some of the most con­tro­ver­sial ear­ly cas­es that the American framers looked to involved a pub­li­ca­tion called The North Briton. I think The North Briton 45 was the one that real­ly annoyed the king. And so there was an autho­riza­tion giv­en to the king’s mes­sen­gers to make dili­gent search for these unknown anony­mous writ­ers and pub­lish­ers of this sedi­tious pub­li­ca­tion. And of course the whole prob­lem was it was pub­lished anony­mous­ly, so they did­n’t know in advance who was respon­si­ble so they thought Well we need the author­i­ty to be able to kin­da rifle through the pos­ses­sions of all the folks we sort of sus­pect of maybe not being as loy­al as they ought to be” and gave them carte blanche to decide who the appro­pri­ate tar­gets are, and that’s some­thing that the British courts ulti­mate­ly said was destruc­tive of lib­er­ty in a pret­ty tox­ic way. Chief Justice Pratt, lat­er Lord Camden, wrote some pret­ty inspi­ra­tional prose about why that kind of author­i­ty was fun­da­men­tal­ly incom­pat­i­ble with a free soci­ety, and that was a great influ­ence on the framers of the Fourth Amendment, who had the same objec­tion to gen­er­al war­rants or gen­er­al search autho­riza­tions that empow­ered cus­toms offi­cials to essen­tial­ly look for con­tra­band with­out par­tic­u­lar­ized judi­cial authorization.

O’Brien: And there’s this sub­tle thing here where you know, you only get to make that kind of dis­crim­i­na­tion, that kind of dif­fer­ence, par­tic­u­lar­ly when you’re sep­a­rat­ing what is ter­ror­ism and what is polit­i­cal action, if there’s some­one in the court tes­ti­fy­ing on behalf of the per­son that might be being tar­get­ed. And that’s what a secret court like the FISA Court just did­n’t have for a very long time and bare­ly has now.

Sanchez: Regular courts don’t have that either, of course, right. I mean, when you are going to apply for a wire­tap, even if it’s in a crim­i­nal case, you don’t call up the lawyer of the per­son you’re wire­tap­ping and say, Would you come in and do an adver­sar­i­al pro­ceed­ing in court about whether we can wire­tap you.” You tend not to get very much use­ful infor­ma­tion that way. 

But, there is the back end. Which is to say yeah, you have an ex parte pro­ceed­ing on the front end. You don’t noti­fy the tar­get in advance that you’re going to do a wire­tap. But that process is con­di­tioned by the knowl­edge that the point of a crim­i­nal wire­tap, a so-called Title II wire­tap,” is to gath­er evi­dence for a crim­i­nal pros­e­cu­tion that when that pros­e­cu­tion occurs, you’re going to have dis­cov­ery oblig­a­tions to the defense coun­sel. They are going to have an incen­tive to kick the tires pret­ty hard and poke every­thing with a sharp stick and make sure every­thing was exe­cut­ed prop­er­ly and the war­rant was obtained prop­er­ly and if it was­n’t they’ll get the case thrown out. And so that knowl­edge that you’ve got to expect that kind of wire brush when it comes time to go to court means that real­ly from the outset—you know, you talk to peo­ple who work on get­ting crim­i­nal wire­tap orders—that they’re in con­sul­ta­tion with their lawyers and they are talk­ing about how are we going to do this in a way that is going to stand up in court, because if this gets thrown out, you’ve just wast­ed your time. And prob­a­bly a fair amount of mon­ey in the process. And the fact that that does­n’t exist on the FISA side, that essen­tial­ly 99% of FISA orders are not intend­ed to ever result in a crim­i­nal pros­e­cu­tion, are nev­er going to result in dis­clo­sure to the tar­get, are effec­tive­ly per­ma­nent­ly covert, means you real­ly don’t have to wor­ry about that. You are pre­sent­ing to the FISA Court your sort of ver­sion of Why I think there’s evi­dence that this per­son is a for­eign agent.” And if you’ve cher­ry picked the facts, as seems to have hap­pened in the case of for­mer Trump cam­paign advi­sor Carter Page, if you’ve decid­ed to include the incul­pa­to­ry infor­ma­tion but leave out the infor­ma­tion that might call into doubt your the­o­ry of the case or make it look like well per­haps there’s anoth­er expla­na­tion for some of these things that look incrim­i­nat­ing on face…well, you’re prob­a­bly nev­er going to be called into account for that. Because the FISA Court is rely­ing on your rep­re­sen­ta­tion, and they’re prob­a­bly nev­er going to hear from the tar­get that, Well they put togeth­er a very mis­lead­ing argu­ment for why I was a for­eign agent.”

Cohn: Yeah, I feel like a part of the prob­lem here is that judges, they real­ly do only get one side of the sto­ry. This is one of the rea­sons that EFF helped get passed some changes to the law as part of the USA FREEDOM Act to cre­ate anoth­er enti­ty that could at least weigh in and help the court hear from the oth­er side, make it a lit­tle more adversarial. 

But I do think the judges get cap­tured. And also, one of the things we’ve learned now is that thanks to the US Supreme Court kind of catch­ing the Department of Justice not even telling crim­i­nal defen­dants when FISA infor­ma­tion was used, they’re sup­posed to be telling crim­i­nal defen­dants when FISA infor­ma­tion was used. And to date, nobody whose been pros­e­cut­ed, even in the pub­lic courts, on the basis of secret FISA infor­ma­tion has ever had access to be able to fig­ure out like, whether what they were told was true. The Carter Page sit­u­a­tion is real­ly an anom­aly com­pared to so many oth­ers because of the—

Sanchez: Literally unique.

Cohn: Yeah. And—

Sanchez: It is the only case of a FISA Court appli­ca­tion being even part­ly public.

Cohn: Yeah. And that did­n’t hap­pen because there was a legal sys­tem to do it, that hap­pened because of polit­i­cal deci­sions. And so, nobody else is going to get that, is the point. I think peo­ple should­n’t say Well you know, Carter Page found out that there were lies under­neath his.” So I think that it’s good to get that input but I think it’s unrea­son­able to expect that that’s the only time that’s ever hap­pened? It’s just the only time we’ve ever found out about it.

O’Brien: As a non-lawyer and some­one who tries to avoid look­ing at pol­i­tics almost all the time these days, could you just explain what Carter Page was, and why that was different?

Sanchez: Sure. Carter Page was a for­eign pol­i­cy advi­sor to the Trump cam­paign who had all sorts of incred­i­bly sketchy ties to Russia. He was actu­al­ly some­one who was on the FBI, the New York office of the FBI’s radar before he had any asso­ci­a­tion with the Trump cam­paign. They were essen­tial­ly prepar­ing to open an inves­ti­ga­tion of him before he was announced as a Trump advi­sor. When he joined the cam­paign this was sort of passed on to FBI head­quar­ters and he—in a sense they were sort of gen­er­al­ly try­ing to fig­ure out to what extent the Trump cam­paign was aware of and poten­tial­ly com­plic­it in the elec­toral inter­fer­ence oper­a­tion that Russia was run­ning on Trump’s behalf or at least against the inter­ests of Secretary Clinton. And because of the sort of panoply of shady con­nec­tions, Carter Page became the per­son they thought Well this is the one we can most eas­i­ly tar­get or get a war­rant for. We don’t want to go after the can­di­date him­self, but—” and at this point Page has had actu­al­ly left the cam­paign, but he was the one who seemed to be the most like­ly to actu­al­ly be direct­ly con­nect­ing Russian intel­li­gence with the cam­paign, the most plau­si­ble link.

There was a real­ly dis­turb­ing exchange between I think it was Marsha Blackburn and Inspector General Horowitz from DOJ. He put out this IG report on Crossfire Hurricane that focused pret­ty cen­tral­ly on the sur­veil­lance of Carter Page and was very crit­i­cal of the many errors and omis­sions in that process, in par­tic­u­lar when it came to the renewals of the sur­veil­lance on Page. And Blackburn— I think she asked this with the aim that he would say well this is incred­i­bly unusu­al and there­fore the only expla­na­tion for it is some sort of agen­da to get Trump, or polit­i­cal bias against Trump. But she asked, How com­mon is it for there to be this many errors and this much slop­pi­ness in the FISA process? Is this out of the ordi­nary?” And Horowitz had to, quite can­did­ly, say, I just don’t know. I hope not, but we’ve just nev­er done this kind of indi­vid­u­al­ized deep dive on a FISA appli­ca­tion before. We’ve done…audits. But this kind of— We’re dig­ging into the case file, not just look­ing at whether the facts in the appli­ca­tion matched what was in the case file, but whether there are impor­tant facts that were left out and paint­ed a mis­lead­ing picture…we just haven’t done that before so frankly, we don’t know how unusu­al this is.” And that ough­ta be disturbing.

Cohn: And we do know, though, that even the pro­gram­mat­ic looks that the Inspector Generals have looked—or when the FISA Court them­selves has caught the Department of Justice in lies, which they have a lot, that this is real­ly an ongo­ing prob­lem. It’s one of the big frus­tra­tions for us in terms of try­ing to bring some account­abil­i­ty to the mass spy­ing, is that the FISA Court… The part where the FISA Court approves a lot of things that come before it does­n’t real­ly both­er me as much as the fact that the FISA Court itself con­tin­u­al­ly finds out that the Department of Justice has been lying to them, and doing things very dif­fer­ent­ly than they’ve rep­re­sent­ed, and hav­ing a lot of prob­lems, and they always just kind of con­tin­ue to just say you know, Go and sin no more,” right, rather than actu­al­ly cre­at­ing an account­abil­i­ty or changes, and I think that that…that mes­sage gets received.

O’Brien: And that’s sort of the point where a court like this becomes a rub­ber stamp, right. Because the FBI or who­ev­er is com­ing to them say­ing, Yup, we just want to extend this inves­ti­ga­tion. It’s just the same as it nor­mal­ly was.” 

Do you think that the FISA judges get cap­tured in this way? That they just end up spend­ing so much time lis­ten­ing to the intel­li­gence ser­vices and the FBI and not hear­ing the oth­er side of the sto­ry, that they just end up being overly…reliant on that point of view?

Sanchez: I think— You know, absolute­ly. I mean, that’s just…necessarily the case. I’ve heard from retired FISA judges that they would hear from gov­ern­ment lawyers things like You will have blood on your hands if you don’t approve this sur­veil­lance.” And again, because most of this stuff is nev­er going to be pub­lic, you have on one side the Look, if you are too pre­cious about pro­tect­ing civ­il lib­er­ties, you have peo­ple say­ing there could be an attack that would kill dozens or hun­dreds or thou­sands of peo­ple.” And on the oth­er side…you know, these peo­ple are nev­er gonna—you’re nev­er going to be account­able for autho­riz­ing too much sur­veil­lance, because this is not designed to end in a tri­al. You’re nev­er going to be real­ly grilled about why you approved this dubi­ous elec­tron­ic surveillance.

I would add that there is a defense intel­li­gence folks and for­mer FISC judges them­selves some­times make of the very high approval rate, which is quite high or used to…certainly for most of the court’s his­to­ry it’s been extreme­ly high, 99% plus. Though not that much high­er, frankly, than ordi­nary Title III appli­ca­tions. And one of the ways that they would defend this and say No, we’re not a rub­ber stamp despite this 99% approval rate” is they would say Look, you need to under­stand how this process real­ly works in prac­tice. Which is, it’s not that they just kin­da come in blind with an appli­ca­tion that we decide.” There is this kind of back and forth where they will have what’s some­times called a read appli­ca­tion, a kind of first draft, and they will go to…not the judges direct­ly but FISA Court staff, who may be in con­tact with the judges and say, Well this is the appli­ca­tion we were think­ing of submitting.”

And they’ll hear back Well…maybe you should nar­row this a lit­tle bit. Maybe we would approve it for a short­er peri­od of time, or for these peo­ple but not those peo­ple. Or we would approve this if you had bet­ter sup­port for this claim.” 

And so there is this sort of exchange that then essen­tial­ly results in appli­ca­tions only being sub­mit­ted when the FBI and DOJ know it’s in a state the FISC is going to approve it. Maybe they don’t sub­mit it at all if the court says No, this is not some­thing we would sign off on.” 

And just…very quick­ly to fin­ish this point off, which is— And you would think okay, well that would explain it. But the prob­lem is, right, you’ve cre­at­ed a process that is guar­an­teed to result in a FISA…kinda dock­et his­to­ry” that con­sists only of approvals. So when you get a pro­posed appli­ca­tion and the court says well, this does­n’t quite meet the stan­dard” that appli­ca­tion does­n’t actu­al­ly ulti­mate­ly get sub­mit­ted. It only gets sub­mit­ted when they know the court is going to say yes, when they’ve refined it in such a way that the court is will­ing to sign off on it.

The prob­lem is then you’ve cre­at­ed a body of prece­dent that con­sists exclu­sive­ly of approvals. Of a par­tic­u­lar set of facts where the bal­ance of con­sid­er­a­tions is such that the court is going to say yes. And so then you thus have no record of where the bound­aries are, right. Of these are the con­di­tions and the fact pat­terns under which the court will say no, so that years down the line, a judge who’s look­ing at appli­ca­tions can say Okay, here is our record of yeses and nos. Here’s our records of what’s with­in bounds. And here’s our record of what’s out of bounds.” You only have a kind of…history of yes.” And that is…problematic, right. You don’t have a kind of doc­u­men­tary record of what pre­vi­ous judges have said No, under these facts that’s a bridge too far.”

Cohn: And so that’s why some of the for­mer judges have said Look, this isn’t real­ly a court any­more, it’s more like some kind of an admin­is­tra­tive agency.” I mean this is what you do if you want the FCC to approve a license, right. You can have this back and forth and then you final­ly sub­mit some­thing that works. There’s lots of oth­er kinds of bod­ies that work that way but courts don’t, and courts don’t for some good rea­sons.

O’Brien: Alright so, you’ve said that this court does­n’t real­ly have much over­sight. But I have heard spoke that there’s anoth­er insti­tu­tion around the FISC called the FISCR? Is that just like the superla­tive of the FISC, or— How do those relate?

Sanchez: What we real­ly is need is a FISCest. Yeah, so the Foreign Intelligence Surveillance Court of Review is where appeals from the Foreign Intelligence Surveillance Court go. They’ve sat, that we know of, maybe a half a dozen times. All I think in the 21st cen­tu­ry. It’s pos­si­ble they’ve sat pre­vi­ous­ly and we don’t know about it, but…five or six times that the pub­lic is aware of. And the inter­est­ing thing struc­tural­ly about the FISCR is that effec­tive­ly the only time they’re ever going to hear a case is on the rare occa­sions when the gov­ern­ment did­n’t get what they want.

Cohn: I have to agree. This isn’t real­ly a way that holds the FISC account­able when it makes errors, and cer­tain­ly not when it makes errors that hurt…you, the peo­ple who are the sub­jects of surveillance. 

You know, we’ve man­aged how­ev­er to get some reforms over the years. EFF played a pret­ty big role in get­ting some changes to the FISA Court as part of the USA FREEDOM Act. What’s your view on those changes and the impact of them, Julian?

Sanchez: I think they’ve been pret­ty sig­nif­i­cant. I think we already have cas­es that we know about where the ami­cus of the USA FREEDOM Act cre­at­ed a pan­el of ami­ci, or friends of the court, who at least in cas­es involv­ing nov­el ques­tions of law or tech­nol­o­gy can be invit­ed by the court to pro­vide their exper­tise, to pro­vide per­haps a con­trary view to the gov­ern­men­t’s argument—inevitably—for why they should have more pow­er to sur­veil, more broad­ly. And we already have cas­es where ami­ci have sort of suc­cess­ful­ly opposed pro­posed sur­veil­lance that we know about or have iden­ti­fied prob­lems with prac­tices by the FBI. I think there was a release made about a year and change ago that was essen­tial­ly ini­ti­at­ed by one of the ami­ci that involved the dis­cov­ery that the FBI agents were search­ing this sort of bulk for­eign sur­veil­lance data­base, it’s called the 702 data­base, in a vari­ety of improp­er ways and essen­tial­ly tak­ing this sup­pos­ed­ly for­eign intel­li­gence data­base and rou­tine­ly look­ing for US per­son infor­ma­tion in it with­out any real con­nec­tion to a nation­al secu­ri­ty or for­eign intel­li­gence case. And so, we were prob­a­bly catch­ing more prob­lems than we were before. 

It does­n’t fun­da­men­tal­ly change the struc­tur­al prob­lems with the court, but it does I think make it a lit­tle bit bet­ter. It has already paid off in ways that are pub­lic, and per­haps in oth­ers that we don’t know about.

Cohn: Yeah. I think so, too. I mean hon­est­ly, we felt like well the first thing we have to do is get more infor­ma­tion out about it so that we can make our case that Congress ought to step in and change it, because those kinds of changes take a pret­ty strong lift on our side if we want to try to change things. Especially because the oth­er side gets to do secret brief­in­gs to the intel­li­gence communities.

But you know, the theme of this pod­cast is how do we fix these things. So Julian, what would it look like if we got this right? You know, we need to do nation­al secu­ri­ty inves­ti­ga­tions. I don’t think any­body would say that we’re just…never going to do those. What would it look like if we got the role of the FISA Court right?

Sanchez: I men­tioned this— I’m not sure this is the right idea, but it’s just sort of worth putting out as a pos­si­bil­i­ty, which is just…we don’t nec­es­sar­i­ly need a FISA Court. There are oth­er coun­tries that just have all sur­veil­lance gov­erned by a kind of uni­form set of rules that reg­u­lar judges are han­dling. And you could say well, appli­ca­tions will go to the…whatever juris­dic­tion is appro­pri­ate. To the extent that you know one. And you’ll use the same pro­ce­dures you use any time a court that is not a spe­cial secret court has to han­dle clas­si­fied infor­ma­tion, which can hap­pen in a vari­ety of cir­cum­stances. Like for exam­ple when you need to pros­e­cute some­one for a crime that involves using clas­si­fied information. 

But, assum­ing the FISA Court is going to stick around, I think the most impor­tant thing that can be done is just remove the pre­sump­tion of per­ma­nent covert­ness. So the ami­ci I think have been very use­ful, but they are fun­da­men­tal­ly a kind of kludge, right. They are a way of try­ing to par­tial­ly rein­tro­duce the kind of back­end account­abil­i­ty that is the norm for crim­i­nal search­es and crim­i­nal elec­tron­ic sur­veil­lance. That is to say, in crim­i­nal inves­ti­ga­tions, not sur­veil­lance that is criminal. 

And one way you could do that more direct­ly is just by end­ing the pre­sump­tion of per­ma­nent covert­ness. I think the idea that elec­tron­ic sur­veil­lance is going ulti­mate­ly to be dis­closed to the tar­get even­tu­al­ly, it’s some­thing the Supreme Court has effec­tive­ly said is an essen­tial con­sti­tu­tion­al require­ment. That one of the things that makes a search rea­son­able, in Fourth Amendment terms is, if not at the time it’s con­duct­ed then at least after the fact, the tar­get of that sur­veil­lance or that search needs to become aware of it, and have an oppor­tu­ni­ty to chal­lenge it, and have an oppor­tu­ni­ty to seek reme­dies if they believe that they’ve been tar­get­ed inappropriately.

And the idea that you can just sort of sys­tem­at­i­cal­ly make a judg­ment that that’s not appro­pri­ate, that that’s not nec­es­sary for this entire cat­e­go­ry of sur­veil­lance tar­gets, even in cas­es where they do the sur­veil­lance and they say Oh we were wrong. This per­son was not a for­eign agent. We did­n’t find what we expect­ed,” just seems total­ly mis­guid­ed. You can’t that friv­o­lous­ly dis­pense with an kind of essen­tial con­sti­tu­tion­al require­ment. So you know, there may be cas­es where you don’t want to reveal the sur­veil­lance after the fact, espe­cial­ly if we’re talk­ing about a for­eign per­son, some­one who does not actu­al­ly have Fourth Amendment rights. But there may be cas­es where there are some pow­er­ful con­sid­er­a­tions that you should maybe for quite a while not dis­close that the sur­veil­lance happened. 

But this should­n’t be the pre­sump­tion. This should be some­thing they have to argue for, in the indi­vid­ual case. That okay, the sur­veil­lance is done, why should you not have to tell this US per­son, and maybe in very many cas­es there will be good rea­sons not to, but it should­n’t be tak­en for grant­ed. It should be some­thing that even­tu­al­ly they should assume we will in fact have to dis­close. Or cer­tain­ly if it turns out we were wrong, it’s very like­ly the court is going to make us dis­close. And there­fore one, intro­duce the actu­al check on the back end of peo­ple kick­ing the tires and hav­ing the oppor­tu­ni­ty to chal­lenge sur­veil­lance they believe is improp­er. But also on the front end cre­at­ing the under­stand­ing on the part of the peo­ple who are sub­mit­ting these appli­ca­tions that you can­not assume this will be secret. You can­not assume you will nev­er be account­able if you’ve targeted—especially an American—either on weak evi­dence or a selec­tive arrange­ment of the evi­dence. And I think that would go a long way toward align­ing incen­tives in a much health­i­er way.

Cohn: Yeah, I total­ly agree. I cer­tain­ly— From your mouth to the Ninth Circuit’s ears, because we have that very ques­tion up in EFFs case con­cern­ing nation­al secu­ri­ty let­ters, which you know, do empow­er the gov­ern­ment to request infor­ma­tion from ser­vice providers and then car­ry what is essen­tial­ly turn­ing out to be an eter­nal gag on those com­pa­nies. I com­plete­ly agree with you that hav­ing something…you know, the pub­lic hav­ing a lit­tle sun­shine, be the dis­in­fec­tant for some of the prob­lems that we’ve seen can be very helpful.

I also think that I’m not quite sure why we need a secret court hand-selected by the Chief Justice of the Supreme Court to do this? I mean, our Article III judges do han­dle cas­es involv­ing clas­si­fied infor­ma­tion. We have a very spe­cial law called the Classified Information Protection Act that gov­erns that, and peo­ple are not reg­u­lar­ly leak­ing clas­si­fied infor­ma­tion out of the fed­er­al court. So I feel like it might have been rea­son­able in 1978 to think that that could be a prob­lem. I think now in 2020 we have a lot of expe­ri­ence with reg­u­lar courts han­dling clas­si­fied infor­ma­tion and we don’t see a prob­lem there. So we might be able to help a lit­tle bit by broad­en­ing the scope of the judges involved from the hand-picked ones.

O’Brien: Isn’t this also part and par­cel of fix­ing all the prob­lems around the FISA Court, reform­ing the clas­si­fi­ca­tion process? Because I think that some­thing that you’ve iden­ti­fied, Julian, is there’s sort of this…dark black ops world of gov­ern­ment where the default is to clas­si­fy infor­ma­tion, and then there’s this rest of gov­ern­ment which has this pre­sump­tion that it should be exposed to pub­lic review. And we’ve got this sort of creep­ing move­ment, par­tic­u­lar­ly around sur­veil­lance, where the pre­sump­tion is clas­si­fi­ca­tion. And there’s no exter­nal way of chal­leng­ing that. The same peo­ple who want to con­duct these pro­grams are also the peo­ple that deter­mine whether they’re secret or not.

Sanchez: Yeah I think that’s absolute­ly right, and it’s one of the rea­sons I think the FISA Court sort of has the…appear­ance of a reg­u­lar court. You always hear when peo­ple crit­i­cize the FISA Court they’ll say Well these are you know, reg­u­lar Article III judges.” But in a lot of ways it is sort of a Potemkin court because it is a court with a lot of the trap­pings, but divorced from the larg­er con­text that gives us some rea­son to have con­fi­dence in the out­put, I guess, of the legal process. Which is to say, yeah these are Article III judges, but nor­mal­ly Article III judges do not sort of exist in a vac­u­um. They exist in a con­text of high­er courts who will be review­ing their deci­sions and hear­ing argu­ments from who­ev­er lost the case that you’ve ruled on, and may issue a bench slap, may over­turn your rul­ing in a per­haps gen­tle and per­haps some­what scathing way. You have the knowl­edge that this is some­thing that advo­ca­cy groups are going to look at and write about. That the legal com­mu­ni­ty is going to write law review arti­cles about. That you may find your peers and col­leagues in the legal com­mu­ni­ty mak­ing— Well, maybe not mak­ing fun of you, but the gen­tile law jour­nal ver­sion of stick­ing a kick me” sign on your back if you write some­thing that’s not very well thought-out. So you remove all of that con­text, you remove the review from above, the review in a sense by a larg­er com­mu­ni­ty, and you remove a lot of the incen­tives for deci­sions to be you know, effec­tive­ly high-quality.

O’Brien: Can I just quick­ly ask, what’s an Article III judge? What does that mean?

Sanchez: Article III of the Constitution estab­lish­es the judi­cial branch. So these are judges who are part of the judi­cial branch of the American gov­ern­ment as laid out in Article III of the Constitution.

O’Brien: Right. As opposed to FISA, which is sort of…really part of the exec­u­tive almost, right?

Cohn: So Article III judges, as Julian said, are judges who are appoint­ed and approved by Congress in accor­dance with the way the Constitution cre­ates the judi­cia­ry. There’s lots of oth­er peo­ple who are judges in our world who get called judge” but aren’t Article III judges. So the mag­is­trate judges, who are judges who han­dle a lot of stuff for judges. Immigration judges. Lots of peo­ple who—

O’Brien: Judge Judy.

Cohn: Judge Judy. Well, she’s a state court judge…yeah yeah. But TV judges, yeah. Lots of peo­ple get called judges. And so when peo­ple like Julian and I say Article III judges, we mean judges who were select­ed by the President and approved by the Congress in accor­dance with the process­es that have devel­oped out of Article III. Article III of the Constitution does­n’t actu­al­ly lay all of that out, but that’s the process. It’s to dis­tin­guish from oth­er kinds of judges. And the FISA Court is made up of judges who have been approved under Article III, it’s just a sub­set of those that are hand-picked by the Chief Justice of the US Supreme Court to serve on it. And for a long, long time, the Chief Justice would gen­er­al­ly only pick judges who lived in the east­ern side of the coun­try. There were very, very few judges from the Ninth Circuit, which is where we are out here in California. And the the­o­ry was well, what if they have to get on their horse and dri­ve to DC to look at secret things? And we made fun of them and so did a lot of oth­er peo­ple that point out that there are ways that you don’t phys­i­cal­ly have to be in DC and that you can still review clas­si­fied infor­ma­tion because the FBI does it all the time. And we final­ly have one judge from the Ninth Circuit who is on the FISA Court.

Sanchez: Although by statute, I think there’s a kind of min­i­mum num­ber of FISA Court judges who have to live within…I for­get the dis­tance but it’s thir­ty miles of DC or some­thing like that. 

But it is a very unusu­al struc­ture. That is to say… I think it’s pretty—basically unique. This is a court with eleven judges, all of whom were cho­sen by one per­son, John Roberts. And you can say well, these are all peo­ple who have been at least approved by the Senate and con­firmed to their reg­u­lar posts. But the com­po­si­tion of the pan­el is impor­tant. They don’t usu­al­ly sit as a pan­el, they usu­al­ly indi­vid­u­al­ly kind of take turns hear­ing cas­es. But there’s a lot of sort of social sci­ence research show­ing that essen­tial­ly your peer group mat­ters. If you have a bench that is com­posed of lets say…this is the research at least—about Democratic appointees and Republican appointees, that if the major­i­ty of judges are con­ser­v­a­tive, the lib­er­al judges on that pan­el, on that bench, will tend to vote more like con­ser­v­a­tives, and vise ver­sa. A con­ser­v­a­tive, or at least some­one who start­ed as a con­ser­v­a­tive with a bunch of demo­c­ra­t­ic appointees as their peers will come to vote more and more like a lib­er­al. And indeed may vote more lib­er­al­ly than the ini­tial­ly con­ser­v­a­tive judge with a major­i­ty peer group of lib­er­als. And so the fact that you have peo­ple cho­sen essen­tial­ly by one per­son, prob­a­bly not par­tic­u­lar­ly ide­o­log­i­cal­ly diverse or diverse in per­spec­tive. I know there’s a lot more for­mer pros­e­cu­tors and for­mer defense attor­neys who get picked for the FISC (but that’s prob­a­bly true for the judi­cia­ry in gen­er­al), it does mean you have not just all the struc­tur­al rea­sons that the court is going to be dis­posed to be def­er­en­tial to the gov­ern­ment, but also a selec­tion bias in the com­po­si­tion of the court to the extent that John Roberts is favor­ably dis­posed toward grant­i­ng the gov­ern­ment this kind of author­i­ty and choos­es peo­ple whose per­spec­tives he finds con­ge­nial. You’re going to have a body that prob­a­bly does not have a lot of very staunch civ­il lib­er­tar­i­ans on it.

Cohn: One of the things that we did as part of help­ing push for this ami­cus rule is to include in the kind of peo­ple who can help the judges, tech­ni­cal peo­ple. Because one of the things we saw after Mr. Snowden revealed a lot of the spy­ing and the gov­ern­ment uni­lat­er­al­ly made some of these deci­sions pub­lic, is that they were not near­ly as well-reasoned as we had hoped. And some of that may be because the judges don’t have the kind of help that they need to do this, because of the secre­cy and the lim­i­ta­tions on access to clas­si­fied information.

So we were able to get the ami­cus to include not just lawyers but also tech­ni­cal peo­ple. But I feel like at that point it’s kind of too late, you know. One of the things that I think would make—frankly, and this just isn’t FISA Court but I think all courts—do a bet­ter job with tech­ni­cal issues is if they had more resources to explain how the tech works for them. And I think that espe­cial­ly in the kinds of sit­u­a­tions around mass spy­ing, which is where we start­ed and where we spend a lot of EFF’s ener­gy, any­way, these are com­plex sys­tems. And if you’re turn­ing a legal analy­sis about how our peo­ple are tar­get­ed and how tar­get infor­ma­tion is col­lect­ed, you have to under­stand how the tech­nol­o­gy works.

Sanchez: Yeah. There’s some spe­cif­ic rul­ings relat­ed to the bulk meta­da­ta col­lec­tion, both the tele­phone records col­lec­tion under 215 and then that pri­or Internet meta­da­ta rul­ing, where look­ing back on some of these that even­tu­al­ly have became pub­lic, the court is effec­tive­ly say­ing well, there’s a rul­ing from the late 70s, specif­i­cal­ly in Maryland, that says tele­phone records are not pro­tect­ed by the Fourth Amendment, you don’t have a Fourth Amendment right against your tele­phone records being obtained by the gov­ern­ment. Because you’ve essen­tial­ly turned over this infor­ma­tion vol­un­tar­i­ly and this is infor­ma­tion the com­pa­ny keeps as a mat­ter of course in its own busi­ness records. 

And the FISA Court effec­tive­ly reads that as well, so com­mu­ni­ca­tions meta­da­ta is not pro­tect­ed. And again, the opin­ions that have been released are fair­ly heav­i­ly redact­ed. But there does­n’t appear to be any­where where in okay­ing this kind of very broad col­lec­tion that does­n’t require par­tic­u­lar­ized war­rants based on prob­a­ble cause, any­one sort of spoke up and said, Well, you know, Internet com­mu­ni­ca­tion does not work like the old phone sys­tem. All this traf­fic that is occur­ring over the net­work, when you send an email, Comcast does not keep a busi­ness record of what emails you sent. Maybe your employ­er, or whatever—your email provider has a record like that. But Comcast as a back­bone provider does­n’t have that as a busi­ness record you can rou­tine­ly obtain. You’re col­lect­ing infor­ma­tion that is, as far as the back­bone provider is con­cerned just con­tent, as much as the con­tent of the email itself or the con­tent of a phone con­ver­sa­tion would be content.” 

So there is this way in which this tech­no­log­i­cal dif­fer­ence between how the phone net­work works and how pack­et switch net­works like the Internet work, that is pret­ty clear­ly direct­ly mate­r­i­al to whether this impor­tant prece­dent applies. And if this prece­dent does­n’t apply, it makes a huge dif­fer­ence because it means what you’re doing is essen­tial­ly col­lec­tion of con­tent that’s pro­tect­ed by the Fourth Amendment, as opposed to col­lec­tion of some kind of busi­ness record that, under this unfor­tu­nate prece­dent, is not pro­tect­ed by the Fourth Amendment.

And it’s not that you can’t imag­ine some kind of poten­tial argu­ment they would make about this. But what was dis­turb­ing is that it did­n’t even look like the court had con­sid­ered this. The court had not even fac­tored in there’s actu­al­ly this tech­no­log­i­cal dif­fer­ence that calls into ques­tion whether this is the appro­pri­ate prece­dent. And it’s one thing to say, they made a deci­sion about that that I don’t approve of. But it’s anoth­er thing to say, they have not even fac­tored this in; they’re not even ques­tion­ing whether this tech­no­log­i­cal dif­fer­ence makes an impor­tant legal dif­fer­ence. Because they don’t seem to…be even cog­nizant that these two net­works oper­ate in very dif­fer­ent ways.

Cohn: Yeah you know, I’m a huge fan of metaphors, but some­times you read these deci­sions and you real­ize that the court actu­al­ly did­n’t go beyond the metaphor lev­el to fig­ure out whether that’s actu­al­ly what’s going on. And just because there are sim­i­lar­i­ties between phone net­works and the way emails work does­n’t mean that they’re actu­al­ly the same. So I want­ed to just sum­ma­rize some of the ideas we’ve had about—because again, we’re try­ing to fix things here. I think that the fix­es that we have talked through are, per­haps get rid of the secret court alto­geth­er and let the reg­u­lar courts han­dle these cas­es is def­i­nite­ly worth think­ing about. 

Certainly that all of the court’s deci­sions and the mate­ri­als pre­sent­ed to the court would even­tu­al­ly be made pub­lic, and that the bur­den is on the gov­ern­ment to say why they should­n’t be made pub­lic. You know, there’s cer­tain­ly stuff that can be redact­ed if you need to pro­tect peo­ple’s per­son­al pri­va­cy. But the gov­ern­ment needs to demon­strate why these things should be pri­vate, and I would argue they need to do that peri­od­i­cal­ly, that it’s just not one and done and then it stays secret forever.

I think we’ve talked a lit­tle bit about mak­ing sure that the judges are cho­sen dif­fer­ent­ly? That the choice by the Chief Justice caus­es real dan­gers and haz­ards in the abil­i­ty of the court over time to real­ly be…to hold the gov­ern­ment to its word and make the gov­ern­ment do its work. 

I cer­tain­ly think that the…personally, I don’t put words in yours—but that the role of the ami­ci is small but mighty and needs to get big­ger. So that the court real­ly does have some­thing, espe­cial­ly in cas­es… You know, one of the things that we’ve lost is the adver­sar­i­al process at the end that we have in the case of reg­u­lar war­rants. If we’re not going to have that adver­sar­i­al process at the end when we decide whether the evi­dence is admis­si­ble, we need to have more of an adver­sar­i­al process in the begin­ning so that there is more of a shake-out of what they get to do at the begin­ning since there isn’t going to be one at the end.

O’Brien: So we have this sort of to-do list of what to fix. And you know, tak­ing notes. We also want­ed to sort of try and imag­ine what this bet­ter world would look like if we did man­age to fix the Internet. But I want to nar­row this down a bit. Julian, as some­body who’s a jour­nal­ist who writes about a secret court, and has to do the research to try and map out what’s going on there, if we did fix this process, how would your job change? Like what could you imag­ine writ­ing about now and pre­sent­ing to the pub­lic that maybe you can’t or strug­gle to explain in the cur­rent situation?

Sanchez: Sure. I mean, it’s already changed sig­nif­i­cant­ly. Again, for decades there were basi­cal­ly no FISA Court opin­ions that were pub­lic. And then there were a very tiny hand­ful. And now there are…dozens of pub­lic FISC opin­ions since the pas­sage of USA FREEDOM. So it’s pos­si­ble to talk con­crete­ly about what the FISA Court says on a range of com­pli­cat­ed ques­tions as opposed to sort of just mere­ly spec­u­lat­ing about the dif­fer­ent ways a court might inter­pret a statute that is, again, often not super clear because it was writ­ten before the tech­nolo­gies it now applies to existed. 

But cer­tain­ly to have a more adver­sar­i­al back end would open up I think the pos­si­bil­i­ty of eval­u­at­ing how often, essen­tial­ly, they get it right. We just have no sense cur­rent­ly of how often elec­tron­ic sur­veil­lance approved by the FISC is actu­al­ly gen­er­at­ing intel­li­gence use­ful enough to jus­ti­fy the intru­sion. We don’t autho­rize wire­taps to catch jay­walk­ers, as a rule. There’s a list of fair­ly seri­ous crimes that are eli­gi­ble for wire­taps. But in the FISA case, you have a num­ber of def­i­n­i­tions of for­eign intel­li­gence. FISA orders have to be geared toward col­lect­ing for­eign intel­li­gence infor­ma­tion, and a lot of the def­i­n­i­tions of that…it’s rather com­plex multi-part def­i­n­i­tion, are the kind of things you would think. You know, threats to the nation­al secu­ri­ty of the United States. But one of the rather broad­er ones is infor­ma­tion that is rel­e­vant to the con­duct of for­eign affairs of the United States. And so, when you’re look­ing back and say­ing did we get any­thing worth­while out of this, there’s a whole lot of com­mu­ni­ca­tions between peo­ple who are not ter­ror­ists or spies or crim­i­nals that if they’re busi­ness­peo­ple or gov­ern­ment offi­cials, or talk­ing to busi­ness­peo­ple or gov­ern­ment offi­cials, might well in some sense be rel­e­vant to the con­duct of for­eign affairs of the United States. 

And because you don’t have as you do on the Title III— This is a dif­fer­ent Title III. The Omnibus Crime Control Act of 1969. So, ordi­nary crim­i­nal wire­taps are some­times called Title III orders. And in that case at least, you can say alright well, you did a wire­tap, what per­cent­age of these wire­tap orders you got result­ed in a pros­e­cu­tion and how many of those result­ed in con­vic­tions? And to the extent that you did a wire­tap and then you con­vict­ed some­one of a fair­ly seri­ous crime, you have at least a sense that it was not com­plete­ly friv­o­lous, that you did­n’t just invade peo­ple’s pri­va­cy for no rea­son. And…we don’t have any­thing like that on the FISA side, real­ly. Surveillance ends, and then 99% of the time there is no pros­e­cu­tion; that’s not the point of FISA or a for­eign intel­li­gence sur­veil­lance. But okay, they stopped at some point wire­tap­ping some­one. Did they get it right? Did they get it wrong? Was the infor­ma­tion in the appli­ca­tion a fair rep­re­sen­ta­tion of the facts avail­able? Were they dili­gent about try­ing to present a com­plete pic­ture to the court or did they only present what sup­port­ed their desired results? And that’s all a per­spec­tive that we’d be much more like­ly to have if effec­tive­ly peo­ple who were sur­veilled but ulti­mate­ly weren’t doing any­thing wrong had the abil­i­ty to drag that into the light.

Cohn: Julian’s point is real­ly well tak­en. I mean, one of the things we’ve seen when we’ve kind of lift­ed up the cov­er a lit­tle bit on some of these FISA Court inves­ti­ga­tions is how lit­tle they get out of some of them. I mean cer­tain­ly in the con­text of Section 215, which is the mass tele­phone records col­lec­tion, that at the end of the day there was one pros­e­cu­tion against a Somali guy who was send­ing mon­ey home that was the only one where the FISA evi­dence was used. 

And then the Ninth Circuit just ruled in this case, which is called Maolin, a cou­ple of weeks ago that frankly the gov­ern­ment was over­stat­ing how much the FISA Court infor­ma­tion was being used and essen­tial­ly was mis­lead­ing Congress and the American peo­ple about the use­ful­ness of it even in the very one case left standing.

Sanchez: This is absolute­ly a pat­tern we see when… When it was for­eign wire­tap­ping, one com­po­nent of Stellar Wind was first dis­closed, we heard. Well it turned out this had saved thou­sands of lives, had absolute­ly essen­tial to pre­vent­ing ter­ror­ist attacks. And then years lat­er the Inspectors General of the var­i­ous intel­li­gence agen­cies put out a report that says, Yeah, actu­al­ly we dug into this and we talked to the offi­cials and they real­ly could not come up with a con­crete case of an intel­li­gence suc­cess that depend­ed on this war­rant­less sur­veil­lance that was part of Stellar Wind.” 

With the meta­da­ta pro­gram after the Snowden dis­clo­sures we heard No no, there are so many cas­es where ter­ror­ist’s plans have been dis­rupt­ed as a result of this sort of sur­veil­lance.” And then again a lit­tle bit lat­er, not quite as long after the fact in that case hap­pi­ly, we get two dif­fer­ent inde­pen­dent pan­els, the Privacy and Civil Liberties Oversight Board and a kind of hand-picked pres­i­den­tial com­mit­tee, look­ing at this and con­clud­ing fair­ly quick­ly, no, that was­n’t true. In fact, we just could­n’t iden­ti­fy any cas­es where unique intel­li­gence of oper­a­tional val­ue was derived from this frankly enor­mous intru­sion on the com­mu­ni­ca­tions pri­va­cy of American cit­i­zens. That in the rare cas­es where there was some use­ful infor­ma­tion that was passed on, it was effec­tive­ly duplica­tive of infor­ma­tion that the FBI already had under tra­di­tion­al, law­ful, tar­get­ed orders for a par­tic­u­lar per­son­’s records.

Cohn: Yeah, that takes me to the kind of last one on our list of things that would be great if we fixed the FISA Court. Which is, you know, some real account­abil­i­ty for the peo­ple who are affect­ed by what hap­pens in the FISA Court. And I appre­ci­ate the Inspectors General. They have done some good work uncov­er­ing the prob­lems. But that’s just not the same as real­ly empow­er­ing the peo­ple affect­ed to be able to have stand­ing, whether it’s in a secret court or a reg­u­lar court, and be able to say this infor­ma­tion has come out that I was spied on and I want to have some rec­om­pense. And there’s a whole set of legal doc­trines that are currently…boulders on our way to get­ting that kind of relief in our NSA spy­ing cas­es that I think that some more clar­i­ty in the FISA Court and some more reforms of the FISA Court would real­ly help get out of the way.

O’Brien: So this is, See you in court in a court that I can see.”

Cohn: [laughs] Exactly.

Sanchez: Exactly.

O’Brien: Alright. Well Julian, thank you so much for tak­ing us through all of this. I look for­ward to your week­ly col­umn explain­ing exact­ly what hap­pened every day in a new, reformed FISA Court, and look for­ward to see­ing you on the Internets, too.

Sanchez: I’m always there.

Cohn: Thank you so much, Julian. We real­ly appre­ci­ate you join­ing us and your will­ing­ness to get as wonky as we do is great­ly, great­ly appre­ci­at­ed over here at EFF, not just on this pod­cast but all the time.

Sanchez: Yeah. Thank you so much for hav­ing me. aND I look for­ward to catch­ing up with you guys when we can get on planes again.


Cohn: Wow, that was real­ly a fun inter­view. And boy, we went deep in that one.

O’Brien: I like it. I like it when you folks get nerdy on the laws.

Cohn: The thing about the secret court is, even though you can get pret­ty wonky about it, every­one is impact­ed by what this court does. This court approved tap­ping into the Internet back­bone. It approved the mass col­lec­tion of phone records. And it approved the mass col­lec­tion of Internet meta­da­ta. And two of those three pro­grams have been stopped now but they weren’t stopped by the court, they were stopped Congress or by the gov­ern­ment itself decid­ing that it did­n’t want to go for­ward with them. So—

O’Brien: After those things were made pub­lic, even though this whole sys­tem was designed to keep them secret.

Cohn: Right. And it took them going pub­lic before we were even able to get to the place where we saw that the court had approved a bunch of things that I think most Americans did­n’t want. And clear­ly Congress stopped two of the three of them and you know, we’re workin’ on the third.

O’Brien: I mean, I do feel…like I’m hon­ing a talk­ing point here and I feel there’s this con­tra­dic­tion with for­eign intel­li­gence sur­veil­lance court in that it’s not real­ly a court? Because there aren’t two par­ties dis­cussing, it’s just one, effec­tive­ly? It’s not real­ly about for­eign data because its brief has expand­ed for these pro­grams that’re tak­ing place on US soil and can scoop up US per­sons’ infor­ma­tion. And I’m not going to say it’s not intel­li­gent, but it does­n’t have like the tech­ni­cal insid­er advise and intel­li­gence that allows it to make the real­ly right deci­sions about chang­ing tech­nol­o­gy. So I think that real­ly just leaves sur­veil­lance” out of its title. That’s the only thing that’s true about this name.

Cohn: I mean, it is the sur­veil­lance court. I think that’s cer­tain­ly true. And I agree with you about the intel­li­gence, that basi­cal­ly this court real­ly isn’t equipped to be doing the kinds of eval­u­a­tions that it needs to be able to do in order to pro­tect our rights.

O’Brien: Not with­out help. I mean, I think that get­ting an ami­cus role into this and get­ting assis­tance and get­ting what Julian described as this ecosys­tem, this infra­struc­ture of jus­tice around it—super struc­ture, is the impor­tant thing.

Cohn: And that’s the thing that became so clear in the con­ver­sa­tion with Julian, is just how fix­able this is, you know. The list is not very long, and it’s pret­ty straight­for­ward about what we might need to be able to bring this into some­thing that has account­abil­i­ty and that fix­es some of the prob­lems. And that’s real­ly great since that’s the whole thing we’re try­ing to do with this pod­cast, is we’re try­ing to fig­ure out how you fix things. And I think it’s pret­ty clear that if we real­ly do need to fix the Internet, we also need to fix…as a piece of that we need to fix the FISA Court.

O’Brien: Okay. So we’ll both, after we fin­ish record­ing here, go off and do that. And if you’d like to know more about that par­tic­u­lar work that we do when we’re not in the stu­dio, you can go to eff​.org/​p​o​d​c​ast, where we have links to EFF blog posts and work. But we also have full tran­scripts, links to the rel­e­vant court cas­es and oth­er back­ground info on this pod­cast, bios on our amaz­ing guests, and also ways to sub­scribe to fix the Internet so you won’t miss our next excit­ing episode.

Thanks for lis­ten­ing in and we’ll see you next time.


O’Brien: Thanks again for join­ing us. If you’d like to sup­port the Electronic Frontier Foundation here are three things you can do today. One, you can hit sub­scribe in your pod­cast play­er of choice. And if you have time, please leave a review. It helps more peo­ple find us. Two, please share on social media and with your friends and fam­i­ly. Three, please vis­it eff​.org/​p​o​d​c​ast, where you will find more episodes, learn about these issues, and can donate to become a mem­ber and lots more. Members are the only rea­son we can do this work. Plus you can get cool stuff like an EFF hat, or an EFF hood­ie, or even a cam­era cov­er for your laptop. 

Thanks once again for join­ing us, and if you have any feed­back on this episode, please email podcast@​eff.​org. We do read every email. This pod­cast was pro­duced by the Electronic Frontier Foundation with help from Stuga Studios. Music by Nat Keefe of Beat Mower.

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