GreenGoo wrote:Ah. That's totally different than the narrative being portrayed in the media, then.
Kurth, do you have an opinion on this? Besides 2014 is only a single year out of 33 and possibly an outlier, I guess.
Does it really matter that it's an iterative process if the end result is always granting a warrant? I mean, sure, it might put limits that the NSA would prefer not to be there, but that an NSA request is never rejected at all (statistically close enough) seems suspect. These are the same guys listening in on domestic phone calls and generally looking into data streams on the internet.
They don't seem like they're the kind of people who would work hard to get all their ducks in a row.
I can't get the 2014 report to load, but I suspect it doesn't actually contradict the notion that the "rubber stamp" label is overblown.
When that report refers to applications that have been revised by the FISA court, I think that's referring to instances in which the FISA court itself has revised the application. From my understanding of the process, further informed by what the FISA judges (and critics) on the panel discussion I attended in 2015, in the normal course, an application is basically submitted in draft form and the FISA judge sends it back with suggested edits and revisions. As the panel described, "we are not correcting for grammar and punctuation" (paraphrasing here). They are making substantive and significant changes to the applicatoins where they believe the authorities are overreaching.
Regarding whether or not it matters if this is an iterative process, I think it matters a lot. It's exactly the sort of process that should provide some assurance that the ducks are, indeed, in a row.
Here's a boring law analogy for you: The process to get a patent application through the USPTO is an iterative process. It involves submitting an application for a patent followed by one or more (usually more) "office actions" in which the PTO examiner rejects the claims as overbroad in light of the prior art. In most cases, the issued patent that emereges from the USPTO after this iterative examination process is significantly different in scope from the application that was originally submitted. The issuance rate may be high, but that says very little about the thoroughness of examination. And, yes, bad patents do issue and get lots of press, but by and large the PTO does it's job.
The big difference here, though, is that the PTO does it's job in public. We can all look and judge for ourselves whether it's doing a good job or not. The fundamental problem with the FISA court process is that it's all ex parte and secret.
I'm a big believer in trust, but verify. Listening to the judges on the panel and the reps from the security agencies, I believe that they are smart, well-intentioned and generally reasonable people. But I have a hard time entrusting anyone with the kind of power the FISA court has when we don't have the ability to verify.