A handful of FOIA documents [PDF] obtained by EPIC (Electronic Privacy Information Center) are shedding some new light on the FISA court and its relationship with the FBI. The good news is that the court is not quite the rubber stamp it’s often been portrayed as. Even though a vast majority of requests are improved, there appears to be a significant amount of modification happening behind the scenes.
The documents reveal that the Foreign Intelligence Surveillance Court (FISA) told the FBI several times between 2005 and 2007 that using some incidental information it collected while monitoring communications in an investigation — specifically, numbers people punch into their phones after they’ve placed a call — would require an explicit authorization from the court, even in an emergency.
The FBI wanted to trap these digits using its pen register orders, which are only supposed to provide numbers called and received. This additional information had been considered “content,” as these post-cut-through digits could reveal details such as credit card info or social security numbers.
The FBI’s collection of content — along with the call metadata it was actually authorized to receive — appears to have continued until a FISA judge finally asked it what it was doing with this “incidentally collected” content. The DOJ, of course, argued that is was entitled to this information.