This is an undated file photo of famed author Franz Kafka. An undated file photo of famed author Franz Kafka.(AP Photo/ho)

When Edward Snowden first went public, he did it by leaking a 4-page order from a secret court called the Foreign Intelligence Surveillance Court, or FISA court. Founded in 1978 after the Watergate scandal and investigations by the Church Committee, the FISA court was supposed to be a bulwark against secret government surveillance. In 2006, it authorized the NSA call records program – the single largest domestic surveillance program in American history.

“The court” in Franz Kafka’s novel The Trial is a shadowy tribunal that tries (and executes) Josef K., the story’s protagonist, without informing him of the crime he’s charged with, the witnesses against him, or how he can defend himself. (Worth noting: The FISA court doesn’t “try” anyone. Also, it doesn’t kill people.)

Congress is debating a bill that would make the FISA court more transparent. In the meantime, can you tell the difference between the FISA court and Kafka’s court?

1

Section I. Every court has rules and procedures. Do the following describe proceedings in the FISA court, Kafka’s court, or both?


People who are served with court orders have to keep them secret. 
FISA court
Kafka court
Both

2

Judges hear only one side of the case – the government’s.

FISA court
Kafka court
Both

3

Lawyers are barred from reading secret government filings about their clients.

FISA court
Kafka court
Both

4

Lawyers have to respond to secret government filings – without reading them.

FISA court
Kafka court
Both

5

Section II. The FISA court has been the subject of intense debate in Congress and the federal courts. Which of these are quotes from real government officials discussing the FISA court, and which are direct quotes from The Trial?


“…proceedings are generally kept secret not only from the public but also from the accused.”
FISA court
Kafka court

6

"The public cannot argue that the… opinion should be released until it has seen the opinion, and it cannot see the opinion until it has been released.” 

FISA court
Kafka court

7

“The targets of their proceedings are ordinarily not represented by counsel. Indeed it seems likely that targets are usually unaware of the existence of the proceedings...”

FISA court
Kafka court

8

"The courts don’t make their final conclusions public, not even the judges are allowed to know about them, so that all we know about these earlier cases are just legends.”

FISA court
Kafka court

9

Section III. How about some extra FISA court trivia?

In 2013, a private attorney who argued before the FISA court, Marc Zwillinger, testified about the experience before an independent oversight board. Which of the following is an actual statement from his testimony?
"filing documents with the court... has always been a little bit like trying to get a letter to Santa Claus"
“Where’s my secret decoder ring?”
“Arguing before the court can be fun, if you like debating people while wearing noise-cancelling headphones."
“You asked me if I’ve spoken to a FISA court judge. I don’t know, have I met Keyser Söze?"

10

In The Trial, an expert on that court declares: “I must admit, I never saw a single actual acquittal.” Historically, what percentage of government surveillance applications does the FISA court reject? 

10%
1%
.1%
Less than .1%

11

The decisions of the FISA court, like those of the court in The Trial, are secret by default. A few months before the Snowden disclosures, four senators asked the FISA court to declassify summaries of some of those opinions. What did the court’s presiding judge say in response?

Summaries will likely confuse the public.
It’s difficult for a judge to summarize the work of another judge.
The court lacks the resources to write summaries.
Deleting the secrets in an opinion will leave only “a remnant void of much or any useful meaning.”
All of the above.

Your score: 0 / 11

Alvaro Bedoya is executive director of the Center on Privacy & Technology at Georgetown Law. From 2011 to 2014, he was chief counsel to the Senate Judiciary Subcommittee on Privacy, Technology and the Law, and to its then-chairman, Senator Al Franken.

Ben Sobel is a researcher and incoming Google Policy Fellow at the Center.