On Monday the Wall Street Journal revealed details of a previously secret ruling of the Foreign Intelligence Surveillance Court (FISC), a ruling providing the foundation for NSA dragnet snooping. In 2006, Congress strengthened the Patriot Act by requiring that phone and other records could not be collected unless they were “relevant” to an investigation into terrorism or foreign intelligence. Previous judicial understandings of relevance required that there be a reasonable possibility that the things sought would produce information related to the subject of the criminal investigation. Large sets of data did not meet the standard because the records of many innocent people could not reasonably be thought to be pertinent.
The FISC secret ruled that the government could garner millions of records and that the relevance requirement would not prevent the government from making a showing with respect to the many millions of people that the NSA had no reason to suspect. Representative Jim Sensenbrenner argued that the ruling made the relevance standard meaningless: “It’s like scooping up the entire ocean to guarantee you catch a fish.”
Aside from the questionable character of the ruling, you might wonder how the Wall Street Journal learned about the secret ruling. The Journal credits interviews with former administration and congressional officials. The offices of Senators Wyden and Udall apparently confirmed the existence of the ruling. The Journal says that the orders of the FISC were classified. Unlike Edward Snowden, one might guess that the administration will not seek to prosecute the sources for the Journal story. Perhaps there are wise people somewhere who know why Snowden cannot blow the whistle, but present and former government officials are free to do so.