In re Directives **Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

January 15, 2009

* In re Directives ** Pursuant to Section 105B of the Foreign Intelligence Surveillance Act (Foreign Intelligence Surveillance Court of Review) (Aug. 22, 2008)

An opinion from the Foreign Intelligence Surveillance Court of Review from August 22, 2008 has been made public.  The opinion, by Chief Judge Selya and Judges Winter and Arnold, is posted here:

http://www.uscourts.gov/newsroom/2009/FISCR_Opinion.pdf?WT.cg_n=FISCROpinion_WhatsNew_homepage

In brief, the opinion upholds the constitutionality of directives issued to an unnamed telecom company pursuant to the temporary FISA reform legislation known as the Protect America Act (Pub. L. No. 110-55).  The PAA had, among other things, authorized orders compelling communications service providers to assist with the acquisition of foreign intelligence  where the target was a person reasonably believed to be outside the United States, subject to a joint determination by the DNI and AG that the acquisition satisfied certain criteria (including minimization procedures).  A recipient of such orders had challenged them in the FISA court and lost, precipitating this unsuccessful appeal.

In brief, the new opinion concludes:

1. A telecom company receiving such a directive has standing to invoke customer’s Fourth Amendment rights.

2. There is a “foreign intelligence” exception to the Fourth Amendment warrant requirement.  The first FISCOR decision (In re Sealed Case) had suggested as much, without making that conclusion necessary to its holding.  This time the holding is express.  The panel explained that the foreign intelligence scenario has the characteristics of a “special needs” scenario in which no warrant is required.

3. The foreign intelligence exception is not limited to scenarios in which foreign intelligence collection constitutes the “primary purpose” of the acquisition.  See In re Sealed Case.  The key question is whether the “programmatic purpose” of the acquisition goes “beyond ordinary crime control.”  The panel also notes that compelling the government to obtain a warrant “would hinder the government’s ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake.”

4. The Fourth Amendment does still require a search to be reasonable, but that standard is met here.  The panel emphasized the existence of a variety of safeguards in the procedures employed by the government.  Due to redactions, however, I won’t try to summarize the particulars.  Suffice to say that the panel emphasized elements of particularity, probable cause, and minimization in the procedures actually employed by the government in this case (the panel determined that the case presented an as-applied rather than a facial challenge).

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