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Foreign Intelligence Surveillance Court (FISC)

The Foreign Intelligence Surveillance Court (FISC) was established by Congress in the Foreign Intelligence Surveillance Act (FISA) of 1978. The role of the FISC is to provide judicial oversight of Intelligence Community activities in a classified setting. The FISC is composed of federal judges appointed by the Chief Justice of the U.S. Supreme Court, and its decisions can be reviewed by the Foreign Intelligence Surveillance Court of Review (FISCR) and the Supreme Court. After the FISA Amendments Act of 2008, the FISC has to rule on important and novel Fourth Amendment issues raised by the government's proposed targeting and minimization procedures. Most of the FISC's orders and filings are highly classified, but, after the USA Freedom Act, any significant legal interpretations by the court must be made public.

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Overview of the FISC

Jurisdiction and Structure

The FISC has jurisdiction to hear applications for, and issue orders authorizing, four traditional FISA activities: electronic surveillance, physical searches, pen/trap surveillance, and compelled production of tangible things. In addition, the FISC has jurisdiction to review the government's targeting and minimization procedures related to programmatic surveillance certified under Section 702 of the FISA Amendments Act of 2008.

The FISC was originally composed of seven district judges, from seven circuits, appointed by the Chief Justice of the United States to serve for a maximum of seven years. In 2001, amendments in the USA PATRIOT Act increased the number of judges on the Court to eleven, with three required to live within 20 miles of the District of Columbia. The Chief Justice appoints a Presiding Judge for the court from amongst these eleven judges. The FISC operates out of a secure location in the federal courthouse in Washington, D.C., but can authorize searches or surveillance "anywhere within the United States."

The court's ex parte process is primarily non-adversarial. The target of the order is not given an opportunity to appear at the hearing or informed of the presence of the order. However, the court rules of procedure do allow the electronic service providers and production order recipients to petition to challenge or modify any order.

However, the USA Freedom Act requires designation of at least five people who may serve as amicus curiae: individuals are appointed to inform the court about specific legal or technical issues in certain cases. As of 2016, six such individuals have been designated: Jonathan G. Cedarbaum, John D. Cline, Laura Donohue, Amy Jeffress, Marc Zwillinger, and David S. Kris.In cases involving a novel or significant interpretation of the law, one of the designated amicus curiae “shall” be appointed to assist the court unless the court gives a reason that it would not be appropriate. In other cases, the court “may” appoint an individual or organization to serve as amicus curiae or file an amicus brief. Since the passage of USA Freedom Act, amicus have counseled the Court on questions such as the government’s ability to retain call metadata after the effective date of the Act and the government’s authority to use pen registers when communications content may be collected.

The FISC operations are classified by default due to the sensitive nature of the issues addressed, but the court has become increasingly visible to the public as the Director of National Intelligence has begun publicly releasing FISC opinions and Congress has issued transparency mandates in the USA FREEDOM Act. However, records from FISC hearings are still not typically made available, even to petitioners challenging surveillance orders under the court rules.

FISC historically had discretion to publish its opinions, and in some cases it did so. However, Congress imposed new transparency requirements in the USA Freedom Act, seeking to make the court more publicly accountable. The Director of National Intelligence now must review each FISC order or opinion to determine whether it “includes a significant construction or interpretation of any provision of law.” Any orders that do must be made public “to greatest extent practicable,” although when “necessary to protect national security” it may be permissible for the ODNI to release a “summary of the decision.”

FISC Review of FISA Applications

Traditional FISA investigative tools include: electronic surveillance, physical searches, pen/trap surveillance, and orders compelling production of tangible things (including business records).

In order to conduct electronic surveillance or a physical search, the government must apply to the FISC and show probable cause to believe that the target is a "foreign power" or an "agent of a foreign power." For electronic surveillance, the government must also establish that the facilities are being used by an agent of a foreign power or a foreign power. For physical searches, the government must show that the place to be searched contains "foreign intelligence information" and that it is used, owned, or possessed by an agent of a foreign power or a foreign power. The government must also provide a description of the information sought and the places or facilities that will be searched.

When the FISC grants applications for surveillance it issues a "primary order" finding that all the FISA requirements were met. The FISC also issues a "secondary order" providing that "upon request of the applicant," a specified third party must "furnish the applicant forthwith with all information, facilities, or technical assistance necessary" to accomplish the search "in such a manner as will protect its secrecy and produce a minimum of interference." Assisting third parties, such as telephone and Internet service providers, are compensated for any assistance rendered, and can keep certain records under security procedures adopted by the government.

Authorizations of pen/trap surveillance and collection of tangible things are subject to a lower standard than electronic and physical searches under the FISA, but Congress has prohibited bulk collection under these provisions in the USA Freedom Act. The FISC must authorize pen/trap surveillance, allowing the FBI or others to acquire "routing and addressing information," if the government certifies that the information likely to be obtained is relevant to an "international terrorism or clandestine intelligence activities" investigation or is "foreign intelligence information not concerning a United States person.” Additionally, the USA Freedom Act now also mandates the identification of “a specific selection term to be used as the basis for the use of the pen register or trap and trace device.” This selection term must “specifically identif[y] a person, account, address, or personal device, or any other specific identifier.”

An application by the government for production of tangible things must also be based “a specific selection term.” These applications are split into two types with differing standards. In an application for any record, other than an application for the ongoing production of daily call detail records, the FBI must show that there are “reasonable grounds to believe” what is sought is “relevant” to an investigation to “obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

On the other hand, in the case of an application for ongoing production of daily call detail records, the application must also show:

  • (1) “reasonable grounds to believe” these records are “relevant” to an investigation to protect against international terrorism, and
  • (2) “reasonable, articulable suspicion” that the selection term is “associated with a foreign power” or an “agent of a foreign power” engaged in or preparing to engage in for international terrorism.
    • 50 U.S.C. § 1861(b)(2)(C).

    These call detail orders cannot last longer than 180 days. Additionally, in an application for call records “two hops” from target—call records from people in contact with the identified target—the government must base its request on “session-identifying information or a telephone calling card number identified by the specific selection term” used in its first request. In December of 2015, the FISC ruled that USA Freedom does not require the government to show that these “two hops” call records are relevant to an ongoing investigation.

    FISC Review of FAA Section 702 Surveillance

    Unlike the four "traditional FISA" surveillance activities, the surveillance programs authorized under Section 702 of the FISA Amendments Act of 2008 do not involve FISC oversight of individual surveillance orders. The Attorney General and the Director of National Intelligence are allowed to "jointly" authorize "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" without adhering to traditional FISA rules. Instead, the FISC reviews the targeting and minimization procedures adopted by the government and determines whether they comport with the statutory restrictions and the Fourth Amendment. The FISC also reviews the "certification" submitted by the government attesting that "a significant purpose of the acquisition is to obtain foreign intelligence information," providing copies of the targeting and minimization procedures, and attesting that acquisition will comply with certain statutory limitations. The statutory limitations on acquisition are that it:

    • (1) may not intentionally target any person known at the time of acquisition to be located in the United States;
    • (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
    • (3) may not intentionally target a United States person reasonably believed to be located outside the United States;
    • (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
    • (5) shall be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States.
      • 50 U.S.C. § 1881a(b).

    On October 3, 2011, the FISC ruled that the NSA "upstream collection" of Internet communications violated the Fourth Amendment and the FISA. Specifically, the targeting and minimization procedures adopted by the NSA were not sufficient to protect the significant number (more than 50,000 per year) of wholly domestic communications obtained via "upstream collection." The FISC also found that NSA minimization rules were insufficient to satisfy the FISA because they were designed to "maximize rather than minimize" retention of non-public information about U.S. persons.

    The USA Freedom Act did not include significant changes to Section 702. However, Congress did prohibit introduction or disclosure of evidence obtained under government certifications or procedures found to be “deficient concerning any United States person,” and made clear that such improperly collected information shall not be “used or disclosed” in any other manner by the Federal government.

    Review of FISC Decisions

    Congress created the Foreign Intelligence Surveillance Court of Review (FISCR) in 1978 to hear appeals from applications denied by FISC. This court is made up of three judges, appointed by the Chief Justice, from U.S. district or appellate courts and serving for seven years. The USA Freedom Act amicus curiae obligations on the FISC apply equally to the FISCR, as do its declassification requirements.

    The FISCR has jurisdiction to review the denial of any application under FISA by the FISC. The FISCR’s review of the FISC’s denial of an application for surveillance is limited. After a "motion of the United States" to transmit the FISC’s record, the FISCR may either affirm or reverse the FISC judge's decision. If the FISCR determines that the application was properly denied, it must "provide for the record a written statement of each reason for its decision." Under the USA Freedom Act, the FISC is required to certify for review by the FISCR questions of law in the orders it has issued that affect the “need for uniformity” or where consideration “would serve the interests of justice.” In response, the FISCR may give binding instructions to the FISC or require the FISC send the complete record to the FISCR for it to decide the entire matter itself. Finally, the FISCR can also review the FISC’s decisions on third party challenges to orders under FISA (e.g. an order for an individual to produce tangible things or a connected gag order, and electronic service providers directed to assist the government).

    The Supreme Court has statutory jurisdiction to review FISC opinions under certain circumstances. The Court may review on a Writ of Certiorari filed by the United States any decision of the FISCR affirming the denial of a government application to the FISC. Additionally, the FISCR certify “any question of law . . . as to which instructions are desired,” and the Supreme Court may then give binding instructions to the FISCR or require the FISCR send the complete record up and decide the entire matter itself. The Court may also review FISCR decisions on a third party challenges. In reviewing a FISCR decision, the Supreme Court “may” appoint one of the designated amicus curiae or another individual to provide briefing or other assistance.

    The FISC Amicus Process

    The USA FREEDOM Act of 2015 established a process for appointing independent amici curiae (“friends of the court”) for orders before the FISC that “present[] a novel or significant interpretation of the law,” unless the court finds that an appointment is not appropriate. Notably, amici input is confined to legal issues; it does not extend to the impacts of proposed surveillance on privacy and civil liberties. FISA courts must designate at least five people to serve as amici, and they may also appoint an individual or organization as amicus “in any instance as such court deems appropriate or, upon motion, permit an individual or organization leave to file an amicus curiae brief.” These amici do not need to be attorneys, but must possess “expertise in privacy and civil liberties, intelligence collection, communications technology,” or a related area. Designated or appointed amici may have access to classified information only if they are eligible for access to it, effectively requiring that amici have security clearances.

    Amici serve an important role in the FISA courts. The FISC and FISCR consider FISA applications in secret in the interest of protecting national security, and from their creation in 1978 until the passage of the FREEDOM Act, the courts mainly heard from government attorneys presenting their applications in ex parte proceedings. Prior to the FREEDOM Act, the amicus process required obtaining security clearances on a case-by-case basis, making it cumbersome and rarely utilized. Following the Snowden leaks of the summer of 2013, the FREEDOM Act sought to provide additional safeguards to assure the increasingly-critical public that FISA review was accurate and skeptical of government applications. For instance, the Act specified that one of the duties of appointed amici is to provide “legal arguments that advance the protection of individual privacy and civil liberties,” among others.

    The amici role adopted in 2015 nevertheless proved to be lacking in a few ways. It was a “watered-down” version of a different bill proposed by Senator Leahy, which had instead required attorney-amici, appointed in consultation with the PCLOB, who could assist the FISCR in deciding whether their review of a question of law was warranted, and who could request the FISCR to appoint technical and subject matter experts. It also departed significantly from a more active “special advocate,” envisioned by earlier versions, who would be “drawn from a standing pool of private lawyers” and would specifically advocate for the public’s privacy and civil liberties in opposition to the government. It left the appointment of amici entirely to the discretion of FISA court judges, which many saw as “leav[ing] the status quo virtually unchanged.” Appointed amici also could not pursue appellate review of final decisions. Unlike the unadopted special advocate, the adopted amicus process did not:

  • Include an unconditional right to participate in at least some cases;
  • Provide amici full access to information related to matters they participate in;
  • Empower amici to represent U.S. persons subject to surveillance orders; or
  • Allow amici to petition FISC to certify a question of law to the FISCR for appellate review (and from the FISCR to the Supreme Court).

    • In 2017, Congress extended the FISA Amendments Act of 2008 (which includes Section 702) for six more years. The FISA Reauthorization Act provided amici compensation but did not otherwise change the role. As of May 14, 2020, the FISC had only appointed amici about sixteen times since the 2015 Act passed. The FISA courts had not appointed an amicus in any case involving an individual surveillance application.

    Legal Documents

    Opinions of FISC and FISCR

    Executive Orders

    Rules and Other Documents

    FISA Court Orders

    FISA Court Orders, By Year

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    National Security Letters Issued, By Year

    NSLOrders.png

    For more information, including exact numbers and sources, please refer to EPIC's FISA Court Orders Chart

    Resources

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