Judges who serve on the FISA court, approving the government’s collection of phone metadata, have bought Verizon stock in the last year. Although the justices have financial involvement in the company, it is not considered a conflict of interest.
Under the Foreign Intelligence Surveillance Act (FISA), the National Security Agency and other members of the country’s intelligence community must request approval from a top-secret court (the FISA court) to be able to legally place an individual under electronic surveillance. They must show that there is probable cause that the targets “are or may be” aligned with a terrorist organization with the purpose of carrying out acts of terrorism against the United States. The authorizations to conduct surveillance must be renewed by FISA every 90 days.
Many of those requests involve Americans who use Verizon.
In January, Verizon Communications became the first American company of its kind to publish information about the number of requests for user data it received last year from federal investigators and law enforcement agencies.
Verizon’s so-called transparency report revealed that local, state, and federal law enforcement agencies in the United States requested customer information no fewer than 320,000 times during the last calendar year.
In June, the Office of the Director of National Intelligence released a report listing how many information requests and other surveillance-related activities were performed by the government in 2013. the court granted 1,768 FISA orders, as well as 131 Pen Register or Trap and Trace orders, affecting over 90,000 targets ‒ meaning individuals, businesses, or foreign powers.
According to Vice News, which filed a Freedom of Information Act request for the data, several of the judges who approve the surveillance authorizations have owned Verizon stock in the last year.
“On May 28 last year, Judge James Zagel, a FISA Court member since 2008, purchased stock in Verizon,” Vice’s Lee Fang wrote. “In June of this year, Zagel signed off on a government request to the FISA Court to renew the ongoing metadata collection program.”
Another judge, Susan Wright, purchased Verizon stock valued at $15,000 or less on October 22, 2013, while Judge Dennis Saylor has owned Verizon stock, and last year collected a dividend of less than $1,000.
Vice noted that government ethics disclosures only reveal investment amounts within a range, not a specific value.
Ethics laws require federal judges to recuse themselves from “any proceeding in which his impartiality might reasonably be questioned,” including having “a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
The US Code also says, “A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.”
But FISA Court judges who own Verizon stock and don’t disqualify themselves from these requests are not breaking the law.
“FISA proceedings are ex parte, meaning Verizon isn't even a party for the NSA requests,” Fang wrote. “However, telecom companies certainly have a stake in how they comply with government orders, and some ethicists say judges would be well served if they simply steer clear of these types of investments.”
But just because it’s not against the law doesn’t mean that judges should be buying stock in companies whose values might be affected by their rulings, critics argue.
“State privileges being abused to make money? In Washington DC? It is almost like a lack of transparency creates opportunities for corruption,” DSWright at Firedoglake wrote. “If any group of people should be trying with all their power to stay above reproach it should be those clandestinely deciding the fate of Americans’ privacy.”
FISA Court judges owning stakes in telecommunications companies isn’t a new phenomenon. Gawker reported in September that all of the 11 members of the secretive court ‒ as well as the three additional members of the FISA Court of Review ‒ had some sort of conflict of interest in their annual financial disclosures.
“Most current FISC judges do not directly own stock in telecommunications companies, and those that do tend to own stock in large companies like AT&T and Verizon, whose massive customer bases make for both fairly solid investments and obvious targets of governmental surveillance,” Gawker’s J.K. Trotter wrote. “But smaller companies popped up in some disclosures, too.”
Gawker’s report covered stock purchased before the telecom giant was named in the document leaks by former NSA contractor Edward Snowden. That could make the subsequent buying of Verizon stock more insidious because it is no longer an “obvious target” of government surveillance; rather it is the only named collaborator so far.