Week 8 Take-Aways

1. The USA Freedom Act of 2015 made three changes to the FISA court:

a.       The appointment of 5 amicus curiae to advise the FISA court in making decisions on significant or novel interpretations of the law to protect privacy and the public interest. They are only called in at the request of the court and are not an overview board.

b.      Novel or significant interpretations of the law must be made public to the extent that is practical.

c.       The Director of National Intelligence must make all past court decisions public to the extent that is practical.

2. Two motions have recently been filed in the Apple v. FBI case:

a.       A motion to vacate the magistrate’s order, filed by Apple

b.      A motion to compel Apple to create the software to unlock the iPhone, filed by the FBI

3.  EPSN and journalist Adam Schefter are being sued by Jason Pierre-Paul for invasion of privacy. Adam Schefter released a photo of Pierre-Paul’s medical record describing his amputation. The privacy claim is based on the fourth privacy tort “public disclosure of private facts”.

4. The current “status quo” method of appointing judges to the FISA court was unanimously disapproved of. The class was split almost evenly (3-4-4) among the other three options. Each option presents advantages and disadvantages in terms of accountability, representation, and political influence.

5. There are multiple concerns with the set-up of the FISA court, as well as multiple reforms proposed to address some of those concerns. Common concerns raised were:

a.       Rubber Stamping – the court has a very high (>90%) approval rate. This could be explained by the court simply being a blanket rubber stamp for the government or it could be because only proposals with a good chance of approval are even brought before FISC.

b.      Lack of transparency – the court’s proceedings are currently carried out ex parte. There is a call for greater public access to the court, but this must be weighed against the need for secrecy for the sake of national security.

c.       Accountability – there is no oversight of the court, either from the public or within the court. The amicus curiae were a start at creating an advising board which takes the public’s interests into account, but they must be invited to the court, which is only required for novel or significant interpretation of a law.