{"id":5444,"date":"2021-06-28T05:19:59","date_gmt":"2021-06-28T09:19:59","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/nsj\/?p=5444"},"modified":"2021-07-07T08:39:05","modified_gmt":"2021-07-07T12:39:05","slug":"the-evolution-and-jurisprudence-of-the-foreign-intelligence-surveillance-court-and-foreign-intelligence-surveillance-court-of-review","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2021\/06\/the-evolution-and-jurisprudence-of-the-foreign-intelligence-surveillance-court-and-foreign-intelligence-surveillance-court-of-review\/","title":{"rendered":"The Evolution and Jurisprudence of the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review"},"content":{"rendered":"

Laura K. Donohue<\/em><\/strong>[*]<\/a><\/p>\n

[Full text of this Article in PDF is available at\u00a0this link<\/a>]<\/p>\n

<\/a><\/a>I.\u00a0 \u00a0Introduction<\/h1>\n

<\/a><\/p>\n

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to govern domestic electronic intercepts undertaken for foreign intelligence purposes.[1]<\/a> The statute represented the culmination of years of hearings directed to understanding the scope of surveillance programs conducted with little to no oversight that had resulted in the collection of significant amounts of information on U.S. citizens.[2]<\/a> It also reflected the U.S. Supreme Court\u2019s determination that the Fourth Amendment prohibited the government from undertaking surveillance for domestic security purposes absent independent judicial oversight.[3]<\/a><\/p>\n

The statute created two specialized Article III courts: the Foreign Intelligence Surveillance Court (FISC) and the (appellate) Foreign Intelligence Court of Review (FISCR).[4]<\/a> The FISC\u2019s role was to review applications for electronic surveillance to determine whether probable cause existed that the target to be placed under surveillance was a foreign power or an agent of a foreign power, and whether the individual was likely to use the facility to be placed under surveillance, prior to issuing orders.[5]<\/a><\/p>\n

During the first two years that FISA operated, the Department of Justice (DOJ) conducted warrantless physical searches outside of the statutory framing. But in 1980, it adopted a new approach, in which it applied to the FISC for orders to approve nonconsensual physical searches of personal (not real) property.[6]<\/a> In each case, the Justice Department asserted that the search in question would have required a warrant in a law enforcement context.[7]<\/a> The court issued the orders without any accompanying opinions.\u00a0 In October of that year, however, the Presiding Judge of the FISC submitted a memorandum that the Court\u2019s Legal Adviser had prepared, concluding that the FISC had no authority to issue orders approving a physical search or the opening of mail.[8]<\/a><\/p>\n

In 1981, the Justice Department, now under the Reagan Administration, submitted an application to the FISC to issue an order approving physical search of nonresidential premises under the direction and control of a foreign power as well as personal property of agents of a foreign power located on the premises.[9]<\/a> The government simultaneously submitted a memorandum of law explaining that the court lacked jurisdiction over the request.[10]<\/a> Assuming that the court denied the application, if Congress wanted to bring such searches within FISA, it would have to amend the statute. Otherwise, the Executive Branch could proceed on the basis of its own, independent authority. The court, as expected, declined to issue an order approving the application on the grounds that it lacked any statutory, implied, or inherent authority or jurisdiction to issue orders approving for physical search or mail opening.[11]<\/a> The full court concurred in the judgment.[12]<\/a> It did not address the merits of the government\u2019s claim that it had the independent authority to undertake such actions. Although the Senate in 1981 considered amending the statute to take account of physical search, it did not do so.[13]<\/a><\/p>\n

Thirteen years later, the Federal Bureau of Investigation (FBI) arrested Aldrich Hazen Ames, a Central Intelligence Agency counterintelligence officer suspected of being a KGB agent.[14]<\/a> The Attorney General, citing national security, approved a warrantless search of his home outside of either FISA or ordinary criminal provisions. Ames pled guilty before the case went to trial, but the Clinton Administration was sufficiently concerned about the legality of the search as to seek to amend the statute.<\/p>\n

The 1995 Intelligence Authorization Act, accordingly, altered FISA to allow for warrantless, covert physical searches when targeting \u201cpremises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers.\u201d[15]<\/a> For property not under exclusive control of foreign powers, the statute requires an application to the FISC. The requirements parallel those for electronic surveillance, including the probable cause requirements.[16]<\/a> In February 1995, President Bill Clinton issued an Executive Order extending certification authority in support of physical search applications submitted to the FISC to the Secretary of State, Secretary of Defense, and the Director of Central Intelligence, as well as their deputies and the Director of the FBI.[17]<\/a><\/p>\n

Congress subsequently added two more types of foreign intelligence collection to what has come to be known as \u201cTraditional FISA.\u201d In 1998, Congress provided for the first by authorizing the acquisition of pen register and trap and trace (PRTT) data for foreign intelligence or international terrorism investigations.[18]<\/a> In 2001, Congress extended PRTT beyond telephone numbers to empower the government to obtain any \u201cdialing, routing, addressing, or signaling information\u201d identifying the source or end point of a communication\u2014including those that travel via email or through the internet.[19]<\/a> Further changes in 2006 allowed the government to obtain subscriber records relating to past calls, as well as real-time information.[20]<\/a><\/p>\n

The second additional type of collection stemmed from the 1995 Oklahoma City bombing. During the investigation, it was unclear whether the FBI had the authority to obtain business records related to a Ryder truck and a storage locker in Arizona that Timothy McVeigh, the Oklahoma City bomber, had rented. So in 1998, Congress expanded FISA to allow the government to obtain records from \u201ca common carrier, public accommodation facility, physical storage facility, or vehicle rental facility.\u201d[21]<\/a> The Director of the FBI, or a designated high-ranking official, had to state that the records are sought for an \u201cinvestigation to gather foreign intelligence information for . . . international terrorism.\u201d[22]<\/a> The application also had to include \u201cspecific and articulable facts\u201d as to why the person to whom the records pertain are a foreign power or an agent thereof[23]<\/a> (these last two requirements no longer apply).<\/p>\n

Under Traditional FISA, from 1978 to 2001, the FISC essentially functioned as a warrant-granting body, issuing more than 14,000 orders and just one public opinion.[24]<\/a> Applications were sealed and procedures conducted in camera<\/em> and ex parte<\/em>.[25]<\/a> No additional opinions\u2014and no orders\u2014ever saw light of day. The Oklahoma City-derived provision, for its part, saw little use: between 1998 and 2001, the FBI only obtained one FISA order for business records. But following the attacks of 9\/11, that all changed.<\/p>\n

The 2001 USA PATRIOT Act altered FISA in several ways: in addition to amending PRTT, it introduced temporary provisions to allow for roving wiretaps; changed the duration of certain orders; increased the number of judges; and amended the definition of \u201celectronic surveillance.\u201d[26]<\/a> By far, the most significant alterations though were the expansion of the business records provision in Section 215 to incorporate requests for any<\/em> tangible goods, as well as the insertion of the word \u201csignificant\u201d into the purpose for which FISA\u2019s electronic intercepts could be sought.[27]<\/a> The latter, together with a provision that authorized coordination between intelligence and law enforcement\u2014and a prominent case that came before the FISCR in 2002\u2014brought down the wall that had previously existed within the Department of Justice between foreign intelligence collection and criminal investigations.[28]<\/a> In 2004, Congress further amended the statute to incorporate temporary \u201clone wolf\u201d powers, permitting the surveillance of non-U.S. persons engaged in international terrorism, without requiring evidence linking those persons to an identifiable foreign power or terrorist organization.[29]<\/a><\/p>\n

Despite Congress\u2019s explicit direction in 1978 that FISA be the sole means for conducting domestic surveillance for foreign intelligence purposes, following 9\/11, the Bush Administration instituted a program entirely outside the FISA framework. STELLARWIND intercepted the contents of certain domestic and international telephone calls and Internet communications, as well as telephony and Internet metadata. Starting in 2004 with Jack Goldsmith\u2019s arrival at the Office of Legal Counsel, the Justice Department began to try to shoehorn some of the existing intelligence collection into the FISA framing. The statute, though, had been designed to ensure that surveillance could only be undertaken with particular targets in mind. Even with the USA PATRIOT Act changes, it took creative legal interpretations to find a way to bring parts of the program within FISA.[30]<\/a><\/p>\n

The ill-fitting nature of bulk collection programs in the existing statutory framing prompted further statutory revision and ushered in what is colloquially referred to as \u201cmodernized FISA.\u201d The 2008 FISA Amendments Act (FAA) added a new provision (Section 704), which provided for the acquisition of the communications of U.S. persons located outside the United States\u2014a category that previously fell within the guidelines set by Executive Order 12333. Simultaneously, two other provisions liberalized the FISA rules for targeting individuals outside the United States, with Section 702 providing for the domestic collection for non-U.S. persons, and Section 703 for U.S. persons, reasonably believed to be outside the United States.[31]<\/a> The statute empowered the Attorney General and the Director of National Intelligence to jointly authorize (without court approval), for up to one year, the targets of such intercepts.[32]<\/a><\/p>\n

These changes significantly altered the courts\u2019 role. Instead of just issuing orders targeted at particular individuals inside the U.S., the FISC and FISCR now monitor programmatic collection of international electronic communications.[33]<\/a> The courts tackle questions related to jurisdiction, separation of powers, and the rule of law. They wrestle with how to understand new technologies in light of old statutory language, and they engage in complex analysis to apply the fourteen statutes that now constitute FISA.[34]<\/a> The courts routinely confront difficult First, Fourth, and Fifth Amendment questions that impact the lives of every person in the United States, as well as certain individuals overseas.[35]<\/a> And they have to police an Executive that makes technical errors, fails to comply with court orders, omits critical information, and makes misrepresentations to the court.[36]<\/a> Instead of just issuing orders approving applications, the FISC routinely issues opinions, which the Executive Branch, amici<\/em>, non-specialized Article III judges (and their clerks and parties before them), cite to as precedent.[37]<\/a> This is not the role that Congress envisioned for the FISC\/FISCR in 1978.<\/p>\n

An important and<\/a>\u00a0robust body of law is now emerging from a court that, for decades, has been largely shielded from public inspection. As shown in Figures 1 and 2, nearly ninety declassified FISC\/FISCR opinions and 290 orders are now in the public domain, as are hundreds of FISC\/FISCR filings.[38]<\/a><\/p>\n

Previously Classified FISC\/FISCR Opinions<\/strong><\/p>\n

by month of declassification and release<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
Month<\/strong><\/td>\nPre-2013<\/strong><\/td>\n2013<\/strong><\/td>\n2014<\/strong><\/td>\n2015<\/strong><\/td>\n2016<\/strong><\/td>\n2017<\/strong><\/td>\n2018<\/strong><\/td>\n2019<\/strong><\/td>\n2020<\/strong><\/td>\n<\/tr>\n
<\/td>\n6<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
January<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n1<\/td>\n6<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
February<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/tr>\n
March<\/td>\n<\/td>\n<\/td>\n<\/td>\n2<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/td>\n2<\/td>\n<\/tr>\n
April<\/td>\n<\/td>\n<\/td>\n7<\/td>\n<\/td>\n3<\/td>\n2<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/tr>\n
May<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
June<\/td>\n<\/td>\n<\/td>\n1<\/td>\n1<\/td>\n<\/td>\n12<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
July<\/td>\n<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
August<\/td>\n<\/td>\n3<\/td>\n3<\/td>\n<\/td>\n1<\/td>\n<\/td>\n7<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
September<\/td>\n<\/td>\n3<\/td>\n4<\/td>\n1<\/td>\n<\/td>\n1<\/td>\n<\/td>\n<\/td>\n6<\/td>\n<\/tr>\n
October<\/td>\n<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n3<\/td>\n<\/td>\n<\/tr>\n
November<\/td>\n<\/td>\n2<\/td>\n<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/tr>\n
December<\/td>\n<\/td>\n<\/td>\n2<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
Total<\/strong><\/td>\n6<\/td>\n9<\/td>\n17<\/td>\n6<\/td>\n4<\/td>\n18<\/td>\n14<\/td>\n3<\/td>\n11<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Figure 1<\/em><\/p>\n

Previously Classified FISC\/FISCR Orders<\/strong><\/p>\n

by month of declassification and release<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
Month<\/strong><\/td>\nPre-2013<\/strong><\/td>\n2013<\/strong><\/td>\n2014<\/strong><\/td>\n2015<\/strong><\/td>\n2016<\/strong><\/td>\n2017<\/strong><\/td>\n2018<\/strong><\/td>\n2019<\/strong><\/td>\n2020<\/strong><\/td>\n<\/tr>\n
<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
January<\/td>\n<\/td>\n<\/td>\n24<\/td>\n<\/td>\n<\/td>\n2<\/td>\n12<\/td>\n<\/td>\n4<\/td>\n<\/tr>\n
February<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/td>\n1<\/td>\n<\/td>\n1<\/td>\n<\/td>\n6<\/td>\n<\/tr>\n
March<\/td>\n<\/td>\n<\/td>\n1<\/td>\n4<\/td>\n1<\/td>\n4<\/td>\n<\/td>\n<\/td>\n5<\/td>\n<\/tr>\n
April<\/td>\n<\/td>\n<\/td>\n51<\/td>\n<\/td>\n16<\/td>\n5<\/td>\n<\/td>\n1<\/td>\n4<\/td>\n<\/tr>\n
May<\/td>\n<\/td>\n<\/td>\n2<\/td>\n<\/td>\n<\/td>\n2<\/td>\n2<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
June<\/td>\n<\/td>\n<\/td>\n3<\/td>\n2<\/td>\n<\/td>\n18<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/tr>\n
July<\/td>\n<\/td>\n1<\/td>\n3<\/td>\n2<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n2<\/td>\n<\/tr>\n
August<\/td>\n<\/td>\n2<\/td>\n7<\/td>\n1<\/td>\n1<\/td>\n<\/td>\n28<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
September<\/td>\n<\/td>\n8<\/td>\n11<\/td>\n2<\/td>\n<\/td>\n14<\/td>\n<\/td>\n<\/td>\n5<\/td>\n<\/tr>\n
October<\/td>\n<\/td>\n3<\/td>\n1<\/td>\n1<\/td>\n<\/td>\n1<\/td>\n<\/td>\n3<\/td>\n1<\/td>\n<\/tr>\n
November<\/td>\n<\/td>\n2<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n1<\/td>\n<\/tr>\n
December<\/td>\n<\/td>\n<\/td>\n8<\/td>\n1<\/td>\n<\/td>\n<\/td>\n<\/td>\n3<\/td>\n1<\/td>\n<\/tr>\n
Total<\/strong><\/td>\n1<\/td>\n16<\/td>\n113<\/td>\n13<\/td>\n19<\/td>\n46<\/td>\n43<\/td>\n7<\/td>\n30<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Figure 2<\/em><\/p>\n

The timing and pattern of the declassification of the courts\u2019 opinions and orders illustrate the suddenness with which the courts have found themselves in the public eye.<\/p>\n

It would be hard to overstate the importance of the documents leaked by Edward Snowden in June 2013 in driving this phenomenon. They took the study of foreign intelligence from a niche, classified legal specialization to a matter of public discourse. By the end of the year, nine new opinions and sixteen orders had been formally declassified and released by the government, in sharp contrast to just six opinions and one order that had been released over the previous 35 years of the statute\u2019s existence. Similarly, from zero public filings prior to June 2013, within five months of the Snowden leaks, the FISC\u2019s public docket had exploded.[39]<\/a> These filings put the courts in the position of having to determine a range of difficult questions, including under what conditions its opinions would be made public. Like some of the other roles assumed by the court, this was not a function envisioned by Congress in 1978.<\/p>\n

As the FISC\/FISCR have been forced to wrestle with difficult constitutional and statutory questions, non-specialized Article III courts increasingly have had to take account of their jurisprudence. In part this also has to do with changed conditions regarding standing. In Clapper v. Amnesty International<\/em>, the Solicitor General represented to the Supreme Court that the Justice Department would inform criminal defendants if FISA-derived information was used against them.[40]<\/a> It was not until a New York Times<\/em> article revealed in 2013 that the government was not in the practice of doing so, however, that the policy changed.[41]<\/a> The definition of \u201cderived from\u201d remains classified. Nevertheless, an increasing number of defendants are being informed that evidence against them derives from FISA. Simultaneously, dozens of Freedom of Information Act (FOIA) suits over the past decade have sought access to FISC opinions and orders.[42]<\/a> A number have been successful in contributing to the material in the public domain.[43]<\/a><\/p>\n

There are now more than 180 FISA-related cases in regular Article III courts\u2014approximately twice the total number of FISC\/FISCR cases that have been made publicly available by the courts, Office of the Director National Intelligence (ODNI), or FOIA litigation.[44]<\/a> The specialized Article III courts (FISC\/FISCR) and the non-specialized, geographic Article III courts (i.e., District Courts and Courts of Appeal) are increasingly in dialogue as the caselaw evolves, making it all the more important to address the scope of FISC\/FISCR jurisprudence.<\/p>\n

This Article suggests that the bulk of the issues that come before the courts derive from four key areas. Each can be explained by tensions inherent in the FISC\/FISCR current role and the structure developed by Congress in 1978. Understanding these areas can help to clarify questions before the courts by placing them in their broader context and provide a framework for how to think about any future legislative changes. The goal is to ensure a deeper theoretical grasp of the role of the courts in foreign intelligence law.<\/p>\n

The first area of tension arises from the courts\u2019 statutory jurisdiction, Article III status, and the specialized nature of the cases that they consider. Somewhat surprisingly, there is almost no attention paid in the Federal Courts scholarship to the role of specialized Article III entities in contrast to non-specialized, geographic courts\u2014much less their distinction from the myriad other types of federal courts in existence.[45]<\/a> Yet the associated questions are foundational and particularly important for the FISC\/FISCR. Separation of powers, issues related to the standing of third parties and the public, the scope of the courts\u2019 subject-matter jurisdiction, and the relationship between specialized and non-specialized courts have all played a central role in the courts\u2019 jurisprudence. The cases also reveal efforts by the Executive to classify judicial opinions that reveal Executive Branch malfeasance\u2014raising further concern about efforts by Article II to undermine the constitutional powers and responsibilities of an Article III entity.<\/p>\n

The second cluster finds root in the tension between new technologies and old statutory language\u2014i.e., text drafted with very different technologies in mind. Here, the FISC has repeatedly had to return to questions about what<\/em>, precisely, constitutes \u201celectronic surveillance,\u201d how to understand \u201celectronic communications,\u201d and what is included in the definition of a \u201cfacility.\u201d So, too, has it wrestled with the line between intercepts and searches in the mobile digital world. Distinguishing between \u201ccontent\u201d versus \u201cnon-content\u201d in relation to PRTT, and how to handle technologies like the use of post-cut-through-dialed-digits provide just a few examples. Further issues arise in relation to business records, bulk collection, and Section 702 acquisition.<\/p>\n

The third cluster centers on constitutional rights, wherein the tension between secrecy (as statutorily required or as demanded by the Executive Branch), surveillance, and individual rights comes to the fore. The courts have had to wrestle here with matters related to the First Amendment right of access that derives from the right to petition the government, as well as, to a lesser extent, associational rights. Equally important have been Fourth Amendment concerns\u2014particularly in relation to third party data and the reasonableness requirement. The Fifth Amendment has appeared around the edges in the context of due process protections.<\/p>\n

The fourth and final cluster centers on process and compliance, where tension marks the frontier between public and private accountability. Innumerable instances of noncompliance, coupled with blatant misrepresentations to the court, have put the FISC in the position of having to conduct ongoing oversight of the intelligence community. Irregularities in regard to special as well as standard minimization procedures (SMPs), targeting, and querying procedures have repeatedly presented. The court has had to address inaccurate, materially omitted, erroneous, and false statements. Some opinions further call attention to the problem of overcollection and what could be termed the \u201cdata dilemma\u201d: i.e., what to do with information obtained outside statutory or judicial restrictions.<\/p>\n

Having examined each of these areas, the Article concludes by underscoring some of the trends that we are now seeing, as well as areas where we might expect to see more concentration in the future, based on the structural pressures.<\/p>\n

\n

[*]<\/a> Professor of Law, Anne Fleming Research Professor, and Director, Center on National Security and the Law, Georgetown Law. All FISC\/FISCR opinions and orders cited in the Article have been declassified and released. They are available at the Foreign Intelligence Law Collection, which was built by the author, Jeremy McCabe, and Leah Prescott, and is hosted by Georgetown Law Library at https:\/\/repository.library.georgetown.edu\/handle\/10822\/1052698 [https:\/\/perma.cc\/68BH-AWZS]. I am grateful to Jeremy McCabe, at the Georgetown Law Library, for his help in cite checking the Article and to Judge James E. Boasberg for his comments on an earlier draft.<\/span><\/p>\n

[1]<\/a> Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C.A. \u00a7\u00a7 1801\u201385c (West)).<\/p>\n

[2]<\/a> See e.g.<\/em>, Intelligence Activities: S. Res. 21: Hearing Before the S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the United States, <\/em>94th Cong., vol. 5, at\u00a0 1 (1975); 124 Cong. Rec. 34,845 (1978) (statement of Sen. Kennedy); S. Rep. No. 94-755 (1976) (the Church Committee reports, divided into six books); The Unexpurgated Pike Report: Report of the House Select Committee on Intelligence, 1976 (Gregory Andrade Diamond ed., 1992), https:\/\/archive.org\/details\/PikeCommitteeReportFull\/page\/n103\/mode\/2up [https:\/\/perma.cc\/3ZCJ-UWJ3]; Laura K. Donohue, Bulk Metadata Collection: Statutory and Constitutional Considerations<\/em>, 37 Harv. J.L. & Pub. Pol\u2019y 757, 767\u201383 (discussing the history leading to heightened protections afforded to domestic collection of U.S. citizens’ information) (2014).<\/p>\n

[3]<\/a> See <\/em>United States v. U.S. Dist. Ct., 407 U.S. 297, 317\u201322 (1972) (finding government\u2019s security concerns did not justify departure from requirement of judicial approval prior to a search or surveillance).<\/p>\n

[4]<\/a> 50 U.S.C.A. \u00a7 1803(a)\u2013(b); see also<\/em> In re<\/em> Ops. & Ords. of this Ct. Addressing Bulk Collection of Data Under the Foreign Intel. Surveillance Act, No. Misc. 13-08, GID.C.00127, at 6 (FISA Ct. Jan. 25, 2017) (Collyer, J.); In re <\/em>Sealed Case, 310 F.3d 717, 731, GID.CA.00001, at 731 (FISA Ct. Rev. 2002) (per curiam); United States v. Cavanaugh, 807 F.2d 787, 792 (9th Cir. 1987); In re <\/em>Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985), aff\u2019d<\/em>, 788 F.2d 566 (9th Cir. 1986).<\/p>\n

[5]<\/a> 50 U.S.C.A. \u00a7 1805(a); 124 Cong. Rec. 35,389 (statement of Sen. Mathias).<\/p>\n

[6]<\/a> S. Rep. No. 97-280 (1981), at 3.<\/p>\n

[7]<\/a> Id.<\/em><\/p>\n

[8]<\/a> Letter from Hon. George L. Hart, Jr., presiding judge, U.S. Foreign Intelligence Surveillance Court, Oct. 31, 1980, cited in S. Rep. No. 97-280 (1981), at 3, n. 3.<\/p>\n

[9]<\/a> S. Rep. No. 97-280 (1981), at 4.<\/p>\n

[10]<\/a> Id.<\/em><\/p>\n

[11]<\/a> In re <\/em>Application of the United States for an Ord. Authorizing the Physical Search of Nonresidential Premises and Pers. Prop., at 16-19 GID.C.00001 (FISA Ct. June 11, 1981) (Hart, J.), reprinted in<\/em> S. Rep. No. 97-280 (1981).<\/p>\n

[12]<\/a> Id.<\/em><\/p>\n

[13]<\/a> S. Rep. No. 97-280 (1981), at 8. It continued to keep the matter under advisement. See<\/em> S. Rep. No. 98-660 (1984), at 24.<\/p>\n

[14]<\/a> See <\/em>Complaint, United States v. Ames, No. 94-cr-00166 (E.D. Va. Feb. 21, 1994), https:\/\/cryptome.org\/jya\/ames.htm [https:\/\/perma.cc\/KP6U-VR69].<\/p>\n

[15]<\/a> Intelligence Authorization Act for Fiscal Year 1995, Pub L. No. 103-359, sec. 807(a)(3), \u00a7 302(a)(1)(A)(i), 108 Stat. 3423, 3444 (1994) (codified at 50 U.S.C.A. \u00a7 1822(a)(1)(A)(i)). There must be no substantial likelihood that the facilities targeted are the property of a U.S. person. Id.<\/em> \u00a7 1822(a)(1)(A)(ii).<\/p>\n

[16]<\/a>Id.<\/em> \u00a7 1823.<\/p>\n

[17]<\/a> Exec. Order No. 12,949, 60 Fed. Reg. 8169 (Feb. 9, 1995).<\/p>\n

[18]<\/a> Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105-272, \u00a7\u00a7 601\u201302, 112 Stat. 2396, 2404\u201312 (1998) (codified as amended at 50 U.S.C.A. \u00a7\u00a7 1841\u201346, 1861\u201364). Previously, although the Government could request (and the court could issue) orders authorizing pen register and trap and trace devices (PRTT), it could only do so by going through the application procedures that enabled the government to obtain electronic content. See<\/em> Donohue, supra<\/em> note 2, at 793.<\/p>\n

[19]<\/a> USA PATRIOT ACT of 2001, Pub. L. No. 107-56, \u00a7 216, 115 Stat. 272, 290 (codified as amended at 18 U.S.C.A. \u00a7 3127).<\/p>\n

[20]<\/a> USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, \u00a7 128(a), 120 Stat. 192, 228 (2006) (codified at 50 U.S.C.A. \u00a7 1842(d)).<\/p>\n

[21]<\/a> Intelligence Authorization Act for Fiscal Year 1999 sec. 602, \u00a7 502, 112 Stat. at 2411.<\/p>\n

[22]<\/a> Id.<\/em><\/p>\n

[23]<\/a> Id.<\/em> Just two months before the Oklahoma City attack, President William J. Clinton issued Executive Order 12,949, which expanded the use of FISA for physical searches. See<\/em> Exec. Order No. 12,949, 60 Fed. Reg. 8169 (Feb. 9, 1995).<\/p>\n

[24]<\/a> FISA Annual Reports to Congress, 1979\u20132002, Foreign Intelligence Surveillance Act<\/em>, Fed\u2019n Am. Scientists,\u00a0 https:\/\/fas.org\/irp\/agency\/doj\/fisa\/ [https:\/\/perma.cc\/Z4QH-73A3] (last updated July 28, 2020); In re<\/em> Application of the United States for an Order Authorizing the Physical Search of Nonresidential Premises and Pers. Prop., GID.C.00001 (FISA Ct. June 11, 1981) (Hart, J.), reprinted in<\/em> S. Rep. No. 97-280, at 16-19 (1981).<\/p>\n

[25]<\/a> In re <\/em>Motion for Release of Ct. Recs., 526 F. Supp. 2d 484, 488 n.12, GID.C.00021, at 6 n.12 (FISA Ct. 2007) (Bates, J.). The law provides special protections for U.S. persons, who can only be considered an \u201cagent of a foreign power\u201d when the government has evidence of some level of criminality on a par with criminal law. 50 U.S.C.A. \u00a7 1801(b)(2); see also<\/em> Donohue, supra <\/em>note 2, at 789\u201390. Even then, further minimization procedures apply. 50 U.S.C.A. \u00a7 1801(h)(2). Where special non-judicial procedures targeting non-US persons are used, the Attorney General can only authorize collection where there is \u201cno substantial likelihood\u201d that citizens\u2019 communications will be obtained or that the search will involve the \u201cpremises, information, material, or property of a\u201d U.S. person. 50 U.S.C.A. \u00a7 1822(a)(1)(A)(ii). In the event that a citizen\u2019s communications or property are<\/em> involved, the government must obtain a court order within 72 hours before the information or property in question can be \u201cdisclosed, disseminated, or used for any purpose.\u201d 50 U.S.C.A. \u00a7 1801(h)(4) (electronic surveillance); id.<\/em> \u00a7 1821(4)(D) (physical search).<\/p>\n

[26]<\/a> USA PATRIOT ACT of 2001, Pub. L. No. 107-56, \u00a7\u00a7 206\u201308, 214, 504, 1003, 115 Stat. 272, 282-83, 286-87, 291, 364\u201365, 392 (\u00a7\u00a7 206 (roving wiretaps), 207 (duration of orders for non-US persons), 208 (expanding FISC to 11 judges), 214 (amending PRTT), 504 (authorizing coordination), 1003 (amending the definition)).<\/p>\n

[27]<\/a> Id. <\/em>\u00a7\u00a7 215, 218, 115 Stat. at 287\u201388, 291.<\/p>\n

[28]<\/a> In re <\/em>Sealed Case, 310 F.3d 717, GID.CA.00001 (FISA Ct. Rev. 2002) (per curiam).<\/p>\n

[29]<\/a> Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, \u00a7 6001, 118 Stat. 3638, 3742.<\/p>\n

[30]<\/a> See generally<\/em> Laura K. Donohue, The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age (2016).<\/p>\n

[31]<\/a> FISA Amendments Act of 2008, Pub. L. No. 110-261, \u00a7\u00a7 702\u201304, 122 Stat. 2436, 2438\u201357 (codified as amended at 50 U.S.C.A. \u00a7\u00a7 1881a\u2013c (West)).<\/p>\n

[32]<\/a> Certain restrictions apply. See id.<\/em><\/p>\n

[33]<\/a> The courts also became enmeshed in considering bulk collection of domestic and international communications, until subsequent statutory changes prohibited such collection for telephony metadata. See<\/em> Donohue, Bulk Metadata Collection<\/em>, supra<\/em> note 2.<\/p>\n

[34]<\/a> See, e.g.<\/em>, Supplemental Opinion, In re<\/em> Prod. of Tangible Things, No. BR 08-13, GID.C.00033 (FISA Ct. Dec. 12, 2008) (Walton, J.).<\/p>\n

[35]<\/a> See, e.g.<\/em>, In re <\/em>Proc. Required by Section 702(i) of the FISA Amends. Act of 2008, No. Misc 08-01, GID.C.00028, 2008 WL 9487946 (FISA Ct. Aug. 27, 2008) (McLaughlin, J.) (First and Fourth Amendments); Opinion on Motion for Disclosure of Prior Decisions, [REDACTED], No. [REDACTED], GID.C.00112 (FISA Ct. 2014) (Collyer, J.) (Fifth Amendment); Memorandum, In re <\/em>Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [REDACTED], No. BR 13-158, GID.C.00086 (FISA Ct. Oct. 11, 2013) (McLaughlin, J.) (First and Fourth Amendments); In re Sealed Case<\/em>, 310 F.3d 717, GID.CA.00001 (Fourth Amendment).<\/p>\n

[36]<\/a> See, e.g<\/em>., Supplemental Opinion and Order, In re<\/em> Application of the FBI for an Ord. Requiring the Prod. of Tangible Things [REDACTED], No. BR 09-15, GID.C.00048, at 3\u20134 (FISA Ct. Nov. 5, 2009) (Walton, J.) (NSA sent query results to email list of 189 analysts, \u201conly 53 of whom had received the required training\u201d); [REDACTED], No. [REDACTED], GID.C.00073, at 15\u201318, 78\u201380, 2011 WL 10945618, at *5\u20136, *28 (FISA Ct. Oct. 3, 2011) (Bates, J.)\u00a0(NSA misled Court, violating FISA and the Fourth Amendment); Memorandum Opinion, [REDACTED], No. [REDACTED], GID.C.00092, at 3, 18, 100\u201305 (FISA Ct.) (Bates, J.) (\u201cNSA exceeded the scope of authorized acquisition continuously during the more than [REDACTED] years of acquisition\u201d; FBI, CIA, and NCTC \u201caccessed unminimized U.S. person information\u201d; NSA disseminated \u201creports containing U.S. person information\u201d; government requested permission to violate law); Memorandum Opinion, [REDACTED], No. [REDACTED], GID.C.00078, at 26\u201327 (FISA Ct. Sept. 25, 2012) (NSA misrepresented upstream collection, acquiring U.S. person domestic communications).<\/p>\n

[37]<\/a> For FISC\/FISCR reference to prior opinions as precedent, see, e.g., In re <\/em>Directives to Yahoo! Inc. Pursuant to Sec. 105B of Foreign Intel. Surveillance Act, 551 F.3d 1004, 1010, GID.CA.00002, at 13, 15 (FISA Ct. Rev. 2008) (Selya, J.); Memorandum, In re <\/em>Application of the FBI, No. BR 13-158, GID.C.00086, at 4\u20135 (analyzing Judge Eagan\u2019s constitutional analysis in the context of the Supreme Court\u2019s recent decision in United States v. Jones<\/em>); see also<\/em> Memorandum Opinion, [REDACTED], No. [REDACTED], GID.C.00092, at 6, 74\u201375; Memorandum Opinion, In re <\/em>Application of the FBI for an Ord. Requiring the Prod. of Tangible Things from [REDACTED], No. BR 14-96, GID.C.00103, at 2\u20133 (FISA Ct. June 19, 2014) (Zagel, J.); Amended Memorandum Opinion, In re <\/em>Application of the FBI for an Ord. Requiring Prod. of Tangible Things from [REDACTED], No. BR 13-109, GID.C.00083, at 19\u201320 (FISA Ct. Aug. 29, 2013) (Eagan, J.). For similar references by the U.S. Department of Justice, see, e.g., Defendants\u2019 Memorandum of Law in Opposition to Plaintiffs\u2019 Motion for a Preliminary Injunction at 16, Am. C.L. Union v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013), aff\u2019d in part, vacated in part, remanded<\/em>, 785 F.3d 787 (2d Cir. 2015), 2013 WL 5744828\u00a0(\u201c[S]ince May 2006, fourteen separate judges of the FISC have concluded on thirty-four occasions that the FBI satisfied this requirement, finding \u2018reasonable grounds to believe\u2019 that the telephony metadata .\u00a0.\u00a0.\u00a0\u2018are relevant to authorized investigations.\u2019\u201d) (citation and quotation omitted); United States\u2019 Legal Brief to the En Banc Court in Response to the Court\u2019s Order of March 22, 2017 at 1, In re<\/em> Ops. & Ords. of this Ct. Addressing Bulk Collection of Data Under the Foreign Intel. Surveillance Act, No. Misc. 13-08 (FISA Ct. Apr. 17, 2017), https:\/\/repository.library.georgetown.edu\/bitstream\/handle\/10822\/1056062\/Misc%252013-08%2520United%2520States%2527%2520Legal%2520Brief%2520to%2520the%2520En%2520Banc%2520Court.pdf [https:\/\/perma.cc\/WKA5-CT8P ] (\u201cIt is well-settled that there is no First Amendment public right of access to the proceedings, records, and rulings of this Court,\u201d citing to four FISC opinions and orders in support.)<\/p>\n

[38]<\/a> More than two decades after its 1981 opinion, the Court issued two opinions. In re Sealed Case<\/em>, 310 F.3d\u00a0717, GID.CA.00001; In re <\/em>All Matters Submitted to Foreign Intel. Surveillance Ct., 218 F. Supp. 2d 611, GID.C.00002 (FISA Ct. 2002), rev\u2019d<\/em> by <\/em>In re Sealed Case<\/em>, 310 F.3d 717, GID.CA.00001. It published two more opinions between 2007 and 2008. In re <\/em>Directives to Yahoo!, Inc Pursuant to Sec. 105B of Foreign Intel. Surveillance Act, 551 F.3d\u00a01004, GID.CA.00002 (FISA Ct. Rev. 2008) (Selya, J.); In re <\/em>Motion for Release of Ct. Recs., 526 F. Supp.\u00a02d 484, GID.C.00021 (FISA Ct. 2007) (Bates, J.).<\/p>\n

[39]<\/a> Four days after the first articles appeared in The<\/em> Guardian<\/em> and Washington Post<\/em>, for instance, on June 10, 2013 the ACLU and Yale Media Freedom Information Access Clinic (MFIAC) filed a motion to obtain all FISC opinions evaluating the meaning, scope, and constitutionality of bulk collection. Four days later, Yahoo! moved under FISC Rule 62(a) to request the Court to order publication of an opinion from 2008, which had been appealed to FISCR and referenced in In re <\/em>Directives, 551 F.3d 1004, GID.CA.00002. On June 19, Microsoft requested permission to disclose the aggregate information related to FISC orders with which it had been served. Google, Facebook, and LinkedIn soon filed parallel requests. On June 28, sixteen members of the U.S. House of Representatives filed an amicus brief in support of the ACLU\/MFIAC motion\u2014a move followed on July 8 by the First Amendment Coalition, the Center for Democracy and Technology, the Electronic Frontier Foundation, and on July 15 by a formidable media conglomerate: the Reporters\u2019 Committee, ABC News, the Associated Press, Bloomberg News, Dow Jones, the Los Angeles Times<\/em>, National Public Radio, Reuters, the New Yorker<\/em>, Newsweek<\/em>, the Washington Post<\/em>, and others. By mid-November 2013, further motions for judicial records had been filed by the Center for National Security Studies and ProPublica. For further discussion, see discussion in Part II.E, Standing, infra<\/em>.<\/p>\n

[40]<\/a> See <\/em>Clapper v. Amnesty Int\u2019l, 568 U.S. 398, 421\u201322 (2013).<\/p>\n

[41]<\/a> See<\/em> Nina Totenberg, Government Takes a U-Turn on Warrantless Wiretaps<\/em>, NPR (Oct. 23, 2013), https:\/\/www.npr.org\/2013\/10\/23\/240163063\/government-changes-policy-on-warrantless-wiretap-defendants [https:\/\/perma.cc\/ZBA2-THYX]; Eric Schmidt et al., Administration Says Mining Data Is Crucial to Fight Terrorism<\/em>, N.Y. Times (June 7, 2013), https:\/\/www.nytimes.com\/2013\/06\/08\/us\/mining-of-data-is-called-crucial-to-fight-terror.html?module=inline [https:\/\/perma.cc\/TH3B-G3CY]; Adam Liptak, A Secret Surveillance Program Proves Challengeable in Theory Only<\/em>, N.Y. Times (July 15, 2013), https:\/\/www.nytimes.com\/2013\/07\/16\/us\/double-secret-surveillance.html [https:\/\/perma.cc\/PLH6-JADQ]; Charlie Savage, Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence<\/em>, N.Y. Times (Oct. 26, 2013), https:\/\/www.nytimes.com\/2013\/10\/27\/us\/federal-prosecutors-in-a-policy-shift-cite-warrantless-wiretaps-as-evidence.html [https:\/\/perma.cc\/B9MB-HPQJ].<\/p>\n

[42]<\/a> See, e.g.,<\/em> ACLU v. ODNI, Not Reported in F.Supp.2d, 2011 WL 5563520 (Nov. 15, 2011); New York Times Co. v. U.S. Dep\u2019t of Justice, 872 F.Supp.2d 309 (S.D.N.Y. 2012); Elec. Frontier Found. v. Dep\u2019t of Justice, 892 F.Supp.2d 95 (D.D.C. 2012); Elec. Frontier Found. v. Dep\u2019t of Justice, U.S. Ct. of Appeals for D.C., 739 F.3d 1, Jan. 3, 2014; cert. denied Elec. Frontier Found. v. Dep\u2019t of Justice, 135 S.Ct. 356 (2014); Elec.\u00a0Privacy Info. Ctr. v. DOJ<\/em>, No. 13cv1961, 2016 WL 447426 (D.D.C. Feb. 4, 2016).<\/p>\n

[43]<\/a> See, e.g.<\/em>, ACLU v. ODNI, Not Reported in F.Supp.2d, 2011 WL 5563520 (Nov. 15, 2011); Elec. Frontier Found. v. DOJ, No.: 4:11-cv-05221-YGR, 2014 WL 3945646 (N.D. Cal. Aug. 11, 2014).<\/p>\n

[44]<\/a> Despite the increasing importance of the courts\u2019 jurisprudence, FISC\/FISCR opinions and orders have not hitherto been easily accessible. Less than two dozen declassified and redacted opinions are available on the court\u2019s web site. Some opinions are only available through the Office of the Director of National Intelligence (ODNI). Others are only available from individuals who have submitted Freedom of Information Act requests or engaged in litigation with the Department of Justice to obtain the materials\u2014and decided to place them online. Neither Westlaw nor Lexis, moreover, carry most of the opinions, despite FISA issues regularly now appearing in ordinary Article III courts. No site has all of the declassified and redacted court filings available. Accordingly, Jeremy McCabe, Leah Prescott, and I have created a text-searchable database at Georgetown Law Library with all of the formally released (and often redacted) FISC\/FISCR opinions and orders, along with all of the publicly available guidelines. Foreign Intelligence Law Collection<\/em>, Digital Geo., https:\/\/repository.library.georgetown.edu\/handle\/10822\/1052698 [https:\/\/perma.cc\/NQ4B-CQYN] (last updated Mar. 17, 2021).<\/p>\n

[45]<\/a> For scholarship on the distinction between Article III specialized and geographic courts, as well as the full panoply of federal courts, see Laura K. Donahue & Jeremy M. McCabe, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)\/I(8)(3), and Art. II(1)<\/em>, 71 Cath. U. L. Rev. ___ (forthcoming 2021).<\/p>\n

<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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