"In Secret, Court Vastly Broadens Powers of N.S.A." by the NYT's Eric Lichtblau describes the Foreign Intelligence Surveillance (FISA or FISC) court and the growing body of law that it is creating in secret:
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.
At Volokh Conspiracy, Orin Kerr says Pulitzer prizewinner Lichtblau's summary of the rulings is tantalizingly vague. For example:
[I]f the FISC has done something unusual with the special needs exception, then, it must be with[in] its scope. On this, Lichtblau says that “the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment” under the special needs doctrine. But I’m not sure what that means. Does “communications data” mean just non-content metadata that is generally understood to be outside Fourth Amendment protection? If so, then I don’t understand Lichtblau’s description. If there is no Fourth Amendment “search” in the first place, you never get to the special needs doctrine to say whether a warrantless search is okay. Alternatively, perhaps “communications data” includes the contents of communications. But in that case, I don’t know in what circumstances the FISC was saying that the special needs exception applied. The Fourth Amendment is exquisitely fact-specific. You can’t apply the special needs doctrine without facts. Given that, it’s hard to know if an application of the special needs doctrine was routine or plainly wrong without knowing what the facts were that the court was considering.
A reader recommends the Wall Street Journal's "Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering" for enlightenment.