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?
Section I. Every court has rules and procedures. Do the following describe proceedings in the FISA court, Kafka’s court, or both?
Judges hear only one side of the case – the government’s.
Lawyers are barred from reading secret government filings about their clients.
Lawyers have to respond to secret government filings – without reading them.
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?
"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.”
“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...”
"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.”
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?
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?
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?
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.