FISA Court Skips Talking to Privacy Advocates

The Foreign Intelligence Surveillance Court selected to not consult a panel of privacy advocates in its first decision made since the enactment the USA Freedom Act.

The court opted to forgo appointing a so-called "amicus" of privacy advocates as it considered whether the USA Freedom Act could reinstate spying provisions of the Patriot Act even though they expired on June 1 amid an impasse in the Senate. The Court ruled that the Freedom Act's language -- which will restore the National Security Agency's bulk collection of U.S. call data for six months before transitioning to a more limited program -- could revive those lapsed provisions, but in assessing that narrow legal question, Judge Dennis Saylor concluded that the Court did not first need confer with a privacy panel as proscribed under the reform law.

"The statute provides some limited guidance, in that it clearly contemplates that there will be circumstances where an amicus curiae is unnecessary (that is, 'not appropriate')," Judge Saylor wrote. "At a minimum, it seems likely that those circumstances would include situations where the court concludes that it does not need the assistance or advice of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonable or rational outcome." Saylor reasoned that in decisions where the "outcome is sufficiently clear" and that reasonable jurists would agree, the appointment of privacy panel is not required by the Freedom Act. "This is such an instance," Judge Saylor concluded.