Power Wars Blog by Charlie Savage

FOIA: Some newly declass’d FISA Court stuff from the 2011 Bates MCT/702 case

Here are some newly declassified documents from a FISA lawsuit that add to the historical record of the MCT issue that arose in 2011. They provide a little bit more information about the sequencing of the case before the Foreign Intelligence Surveillance Court and the questions that Judge John Bates was asking. I don’t immediately see a stand-alone New York Times news story in them so I’m just posting them here in case they are of interest to specialists.

Context: In August 2013, early in the wave of declassifications of FISA Court rulings following the Snowden disclosures, the government made public two rulings from October and November 2011 by Judge John Bates. They were about the FISA Amendments Act Section 702 program’s upstream system and the problem of multi-communication transactions, or MCTs, that resulted in purely domestic messages being collected without a warrant. That’s of course been in the news again lately because it turned out the fix Bates agreed to, to make this reasonable under the Fourth Amendment, was never properly implemented by the N.S.A, and this spring the agency decided to end “about the target” collection, which will significantly cut down on the number of MCTs it will ingest.

One of the important things in the declassified 2011 Bates opinions that has been oft cited in surveillance legal policy writings ever since is that the N.S.A. had told him it collected “more than 250 million Internet communications” a year via the FISA Amendments Act, of which about 91 percent came from the Prism system (from Silicon Valley firms like Google) and about 9 percent came from the upstream system (from telecoms like AT&T). Last year, I came to suspect that something about this number may be wrong – that it is possible Bates may have misunderstood something – and decided to FOIA for the other materials in the docket, which the government had not released when it put out his opinions.

With help from David McCraw, the NYT FOIA lawyer, we filed suit, combining this request with several other outstanding ones for national-security related documents in the possesion of the Justice Department. Here is the first tranche of files related to the 2011 FISC/MCT case stemming from that lawsuit. It’s not the good stuff yet, but rather some low-hanging fruit. So stay tuned for future tranches, which will be more difficult for them to agree on how and what to declassify.