Reforming The Foreign Intelligence Surveillance Court's Interpretive Secrecy Problem

Abstract

This symposium essay focuses on national security surveillance and democratic legitimacy. The essay provides a very brief overview and history of the section 215 metadata program and the section 702 program. The essay recounts how much of the legal foundation for the section 702 program was widely debated in Congress. Members of Congress, advocacy groups, and the public were aware (or at least had the opportunity to make themselves aware) of the scope of the program, which was based in large part on the Terrorist Surveillance Program. The essay contrasts that record of public debate with the section 215 program, which relied upon a broad interpretation of a statute. That interpretation was argued in secret, issued in secret, not subject to appellate review, and not disclosed to members of Congress while they were debating whether the statute enabling the section 215 program should be renewed. The essay contends that this lack of democratic transparency is a significant failure of the FISA Court system, which the essay notes should be remedied. The essay then argues that FISC interpretive secrecy can be remedied by mandating appellate review of FISC opinions and orders and by imposing a requirement that all FISC opinions and orders are presumptively published, subject to appropriate redactions (with those redactions being subject to automatic appellate review).

Keywords: FISC, FISA, surveillance, secrecy, transparency, accountability, foreign intelligence surveillance act, section 215, section 702, metadata

JEL Classification: N4, K1