Published by The Lawfare Institute
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The Administrative Office of the U.S. Courts today released its statutorily mandated annual report on activities of the FISA courts. The unclassified version of the report contains summary statistics on the number of applications made under various statutory authorities and the number of those applications granted, modified, or denied in part or in full. The reporting requirement was enacted in 2015, and this is the first report containing a full year of statistics.
In 2016, the FISC received 1752 applications and certificates, of which approximately 78 percent (1378 applications) were granted as requested. About 19 percent (339 applications) were granted with modifications by the court to the government’s proposed order, imposing a reporting requirement, changing the description or specification of a target, modifying the government’s proposed minimization procedures, or shortening the duration of authorities requested. So in total about 98 percent (1717 applications) were granted either as requested by the government or with modifications.
Another 26 applications were denied in part—the court granted some authorities or targets requested in these orders but not others. And nine—0.5 percent of applications—were denied in full.
The bulk of the government’s applications—1338 of the 1752, or about 76 percent—were for combined authorities under 50 U.S.C. § 1805 (electronic surveillance) and § 1824 (physical searches). Of those, 1052 (78.6 percent) were granted, 260 (19.4 percent) were granted with modifications, 18 (1.4 percent) were denied in part, and eight (0.6 percent) were denied in full.
Another 105 applications were made under only § 1805 (electronic surveillance), with 61 (58.1%) granted as requested, 39 (37.1 percent) granted with modifications, and five (4.8 percent) denied in part. Forty-two applications were made under only § 1824 (physical searches), of which 28 (66.7 percent) were granted, 11 (26.2 percent) were granted with modifications, and three (7.1 percent) were denied in part. No application made exclusively under either § 1805 or § 1824 was denied in full.
A smaller number of applications were made under more specific statutory authorities. One hundred and twenty-five were made under § 1861 for access to business records, of which 108 (86.4 percent) were granted, 16 (12.8 percent) were granted with modifications, and one (0.8 percent) was denied in full.
Sixty were made under § 1842, authorizing the government to request authority to establish pen registers or trap and trace devices for foreign intelligence collection. (A pen register is a device that records all telephone numbers called from a particular telephone, while a trap and trace device records the numbers of all incoming calls to the phone.) Of those 60 applications, 50 (83.3 percent) were granted and 10 (16.7 percent) were granted with modifications.
The most surprising aspect of the report is that it indicates that no certificates made under § 1881a—FISA Section 702—for targeting certain non-U.S. persons located outside the United States were acted on by the FISC in 2016, though the report redacts the number of applications made over the course of the year. A spokesman for the FISA Court has confirmed that this figure is accurate.
No applications were made under § 1881b for acquisitions inside the United States targeting certain U.S. persons located outside the United States. Finally, 82 applications were made pursuant to § 1881c, which authorizes targeting of U.S. persons located abroad where there is probable cause to believe the U.S. person is an agent of a foreign power. Of those applications, 79 (96.3 percent) were granted as requested and three (3.7 percent) were granted with modifications.