Contrary to Reports, We Cannot Say FISC Rejected a Record Number of FISA Applications Last Year

With the FISC report of its own surveillance approvals came out last week, some reporters claimed that the report showed the FISC Had rejected a record number of surveillance orders.

In my own post on the report, I noted that the rise from 8 to 18 rejected applications under the FISC standard was alarming.

The FISA Court released its second annual report on approval rates today (the obligation to produce such a report dates to 2015 and it produced a partial report covering that year). It shows that the FISA Court rejected and modified far more joint applications last year than the prior year, with just a 70% complete approval last year as compared to a 79% complete approval the year before, as reflected in this table.


Most alarming, though, is the rise in outright rejections, from 8 to 18. This suggests the government is trying to wiretap and otherwise surveil people as agents of a foreign power that the FISC doesn’t agree are such.

And all this happened at a time when the government submitted fewer overall combined applications. Remember, the government can and sometimes does take its wiretapping elsewhere if the FISC rejects a practice.

But given that’s using a standard that has only been in place for 2.5 years, we can’t use it to make judgments across historical FISC practice.

I had explained to Whittaker before this that FISC used a different standard than DOJ, and made 4 efforts to get him to correct this headline, to no avail.

DOJ has now released its own version, which tracks approvals for final applications. It shows while it withdrew two applications (which likely means that of the three applications DOJ withdrew or changed after FISC told the government it would appoint an amicus to review the application, two were for content), all of the final applications it submitted to the court were approved.

During calendar year 2017, the Government filed 1,349 final applications to the Foreign Intelligence Surveillance Court (hereinafter “FISC”) for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes. The 1,349 applications include applications made solely for electronic surveillance, applications made solely for physical search, and combined applications requesting authority for electronic surveillance and physical search. Of these, 1,321 applications included requests for authority to conduct electronic surveillance.

Two of these applications were withdrawn by the Government. The FISC did not deny any final, filed applications in whole, or in part. The FISC made modifications to the proposed orders in 154 final, filed applications. Thus, the FISC approved collection activity in a total of 1,319 of the applications that included requests for authority to conduct electronic surveillance.

In other words, we can’t say whether last year was an outlier, with the court rejecting a bunch more applications (though there are reasons to suggest that’s a trend), because the only metric for which we have historical numbers shows the same rubber stamp 100% approval.

Which is another way of saying that for decades the government gave us garbage numbers and only in the wake of the Snowden disclosures are we getting some meaningful metrics (though I Con the Record’s numbers are already headed in the opposite direction, becoming even less useful).

Update: I think there’s still a discrepancy in these reports. Here’s what I understand the numbers to look like (I’ve added 2016 to show how this tracks across time). Last year, to find the total number of final applications (the number DOJ uses), you could simply take the FISC number and subtract the Denied in Full number (1485-8=1477). But if you do that this year (1372-24=1348), you’re off by one. I think that’s because FISC is counting one of the applications the government claims to have withdrawn as a Denied in Part.

1 reply
  1. Avattoir says:

    X = DoJ.
    Y = FISC

    X would (does) include FBI – for domestic applications. For FISC applications, DoJ acts not just ‘with’ the FBI (under its national security mandate), but as well, in any given application, for the CIA, indeed conceivably many if not most of the agencies or agency departments which the NSA considers its ‘customers’.

    Whereas, in contrast, Y is … just Y.

    What Y regards as an integral application is up to Y. Each application made to Y by X for a warrant could be recorded as ‘integral’, that is, as ‘one’ application. Presumably, that’s what Y does: i.e. that’s how it keeps track of “applications”, including those that don’t result in the granting of a warrant. And that last category could be counted as ‘denied, failed, abandoned or withdrawn (whatevs)’.

    But that would not mean that DoJ would count each application by the same integral standard, or use the same simple dichotomy to allocate each outcome of each package sent or each application presented to the FISC – those resulting in warrants being granted into one pile, those not into the other.

    Nor would it be rational for members of the intel community, for whom in each case the DoJ is their ‘mouthpiece’ and the NSA their ‘supplier’, to count individual contacts with the FISC by their counsel as having any useful meaning. Presumably each is more interested in whether, or not, it ends up with the product that it seeks. That could entail 2, 3, a dozen, or several, or many more than that number of contacts, whatever the number, between their legal representative and the authorizing body. Would the mere fact that their counsel may (or may not, even) report that it took 14 contacts with including 2 actual personal attendances on the FISC, each of which the FISC might (who knows) count as integral, to get to Mission Accomplished, carry any meaning, any useful information for the client/customer agency or department.
    Maybe, maybe not; whichever, I doubt the treatment is consistent in any way that would matter for the kind of rough-grained accounting we see in the DNI’s public report.

    Note that so far I’ve restricted this to considering entirely bureaucratic considerations, regardless of political motivations. And there are most certainly political motivations involved, all over the place.

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