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Secret Court’s Judge Says It Alters 24% of Data Requests

About a quarter of government requests to the secret U.S. surveillance court undergo “substantive changes” because of judicial action, the court’s presiding judge said in a letter to Congress.

Allegations that the Foreign Intelligence Surveillance Court rubber-stamps virtually every government request for a warrant to obtain records and communication intercepts were shown by a sampling of data to be untrue, U.S. District Judge Reggie Walton said in the letter to the leaders of the Senate Judiciary Committee.

“We have observed that 24.4 percent of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of court inquiry or action,” Walton said.

The letter to the lawmakers came as a number of Internet companies, including Google Inc., Yahoo! Inc. and Facebook Inc., have petitions before the court to release more information about the number and nature of compulsory requests for information that they receive from the government.

In a July 29 note to the committee chairman Patrick Leahy, a Democrat from Vermont, and Charles Grassley, a Republican from Iowa, Walton acknowledged that only Yahoo, in a 2007 case, has contested a demand for information from the government.

‘Judgment Call’

The sample Walton reviewed covered an undisclosed number of cases from July 1, 2013, to Sept. 30, 2013. Walton said that, pending further study, that three-month span appears to be typical. He added the caveat that the data reflects generally informal communications between the court and the requesting agencies, making it a “judgment call” as to whether a modification is “substantial” or caused solely by the court’s intervention.

In the earlier letter, posted on the court’s website, Walton took issue with press interpretations of statistics supplied by the Justice Department to Congress that the secret court’s approval rate of requests exceeds 99 percent.

“These statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication a judge would not approve them,” Walton wrote.

Both letters came in response to questions by Leahy and Grassley about the level of court scrutiny given government requests for authorization to collect surveillance data.

FISA Court

The panel is sometimes called the FISA court after the 1978 law that authorized it, the Foreign Intelligence Surveillance Act.

Walton’s letters show that the court “is not a rubber stamp for government surveillance requests,” Leahy said in an e-mailed statement. “However, it is clear that FISA court judges are now tackling significant constitutional issues and have assumed a regulatory role not envisioned when the court was created.”

Walton’s responses and a review of the National Security Agency’s surveillance activities by the intelligence community inspector general “will be helpful to members as they provide oversight” of the court and the NSA, Beth Levine, a spokeswoman for Grassley, said in an e-mailed statement.

The information provided by Walton, while welcome, “shouldn’t reassure anyone who’s worried about the scope of the government’s surveillance activities,” Jameel Jaffer, the director of the American Civil Liberties Union’s Center for Democracy, said in an e-mail.

The court can’t amend surveillance laws, and documents made public in recent months “show that the FISA court has generally interpreted those laws in the broadest possible way,” Jaffer said.

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