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. Most of the FISC's orders and filings are highly classified, but several opinions have been published or released with redactions. 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.
- EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records: In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act. (Nov. 18, 2013)
- Supreme Court to Consider EPIC Challenge to NSA Program This Week: The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. EPIC has asked the Court to overturn an order of the Foreign Intelligence Surveillance Court that compelled Verizon to produce all of the telephone records of all of its customers to the NSA. EPIC said that this order clearly exceeded the authority of the surveillance court. The EPIC Petition was distributed to the Justices last week along with briefs by former Church committee members and prominent scholars in information law, federal jurisdiction, and constitutional law, who all urged the Supreme Court to grant the EPIC petition. For more information, see In re EPIC. (Nov. 12, 2013)
- Leahy and Sensenbrenner Introduce USA FREEDOM Act: The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act. (Oct. 29, 2013)
- Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program: The Solicitor General has filed a response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC petitioned the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including privacy and national security scholars, constitutional scholars, federal courts scholars, and members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has said that the telephone records collection program was never authorized by Section 215. For more information, see In re EPIC. (Oct. 14, 2013)
- Senator Leahy Urges FISA Reform at Georgetown Law: Speaking at a conference hosted by the Georgetown University Law Center, the Chairman of the Senate Judiciary Committee called for an end "to the bulk collection of Americans' phone records." Senator Leahy said "the system set up in the 1970s to regulate the surveillance capabilities of our Intelligence Community is no longer working. We must recalibrate." Senator Leahy has introduced bipartisan legislation that would end the telephone record collection program, reduce secret law, and improve the structure of the Foreign Intelligence Surveillance Court. The Senate Judiciary Committee will hold an oversight hearing next week on the Foreign Intelligence Surveillance Act. EPIC has filed a petition with the US Supreme Court, arguing that the bulk collection of telephone toll records is unlawful. For more information, see EPIC - In re EPIC. (Sep. 25, 2013)
- Senators Call for Public Report by IC Inspector General on NSA Surveillance: A bipartisan group of Senators, including the Chairman and Ranking Members of the Senate Judiciary Committee, have called for a full-scale review of the use of surveillance authorities by the intelligence community. The Senators emphasized that the findings and conclusions of this review be made public to "help promote greater oversight, transparency, and public accountability." The requested report would address activities conducted under Section 215 of the USA PATRIOT Act and Section 702 of the FISA, which includes the collection of the telephone call records of hundreds of millions of Americans. Specifically, the report would review the use and implementation of 215 and 702, the applicable minimization procedures, any improper use of the authorities, and examine the effectiveness over the 2010-2013 period. EPIC is currently challenging the order for bulk collection of domestic call records in its Petition for Writ of Mandamus in the U.S. Supreme Court. For more information, see In re EPIC and EPIC: FISA Reform. (Sep. 24, 2013)
- Foreign Intelligence Court Releases Controversial Opinion on Domestic Telephone Records Program: The Foreign Intelligence Surveillance Court (FISC) has released an Opinion, justifying the NSA's telephone record collection program. In the Opinion, Judge Claire Eagan states that "there is no Fourth Amendment impediment to the collection" of all domestic call detail records. Judge Eagan also concluded that all domestic call detail records are "relevant" under Section 215 because "individuals associated with international terrorist organizations use telephonic systems to communicate" and because the government argued that bulk collection is 'necessary to create a historical repository of metadata' in order to identify 'known and unknown operatives. This FISC opinion was issued more than a month after EPIC filed its Mandamus Petition challenging the NSA domestic surveillance in the U.S. Supreme Court. The Eagan opinion has also been criticized by legal scholars. For more information, see In re EPIC. (Sep. 20, 2013)
- EPIC Meets with President's Intelligence Review Group: EPIC President Marc Rotenberg and EPIC Advisory Board Member Steve Aftergood met today with the Review Group on Intelligence and Communication Technology. The President tasked the panel with the responsibility to assess whether the "United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust." EPIC submitted detailed recommendations and included copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. The panel will accept comments from the public until October 4, 2013. Comments are to be sent to firstname.lastname@example.org, which oddly is the domain of the current Director of National Intelligence. (Sep. 9, 2013)
- New Surveillance Reports for Intelligence Community: The Director of National Intelligence has announced that the Intelligence Community will release annually "aggregate information concerning" the use of national security authorities. The reports will include the use of both FISA and National Security Letter legal authorities. EPIC has previously recommended improved reporting of FISA activities, similar to the wiretap reports issued by the Administrative Office of the U.S. Courts. News reports indicate that the Intelligence Community paid Internet companies $394 m in 2011 to provide customer data to the US government. For more information, see EPIC: FISA Reform. (Aug. 30, 2013)
- President Announces Intelligence Review Group, EPIC Presses for FISA Reform: President Obama met this week with the members of a newly formed group of experts to review intelligence and communications technologies. The group consists of computer security advisor Richard Clark, former CIA Director Michael Morell, and legal scholars Geoffrey Stone, Cass Sunstein, and Peter Swire. The White House said the group would advise the President on how "the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure." This week, EPIC contacted each of the review group members to provide important materials regarding the protection of privacy and civil liberties. EPIC sent to the Review Group members copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. For more information, see EPIC: FISA Reform. (Aug. 28, 2013)
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 business records. 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 FISC operations are largely kept secret due to the sensitive nature of the proceedings, and 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 business order recipients to petition to challenge or modify any order. Records from FISC hearings are not revealed, even to petitioners challenging surveillance orders under the court rules. The FISC has discretion to publish its opinions.
FISC Review of FISA Applications
Traditional FISA investigative tools include: electronic surveillance, physical searches, pen/trap surveillance, and orders compelling production of 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 business records are subject to a lower standard than electronic and physical searches under the FISA. 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" investigation or is "foreign intelligence information not concerning a United States person." Similarly, the FISC must grant a government application to compel production of business records or tangible things if there are "reasonable grounds to believe that the tangible things are relevant to an authorized investigation" conducted under Attorney General guidelines and Executive Order 12333.
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) 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.
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. Since 2001, the role of the FISCR has expanded slightly to include: (1) review of FISC orders granting or denying petitions to modify or set aside business record orders; and (2) review of FISC orders issued under Section 702 of the FISA Amendments Act. The FISCR can also consider petitions by the Government or an electronic service provider to review a FISC order on a motion to challenge or enforce a surveillance directive. A judge of the FISCR, or the FISCR as a whole, can also grant a motion to stay a FISC order under review. The FISCR consideration of a FISC order denying an application for electronic surveillance or physical search is quite limited. After a "motion of the united states" to transmit the 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."
The Supreme Court has statutory jurisdiction to review FISC and FISCR opinions under certain circumstances. The Court may review on a Writ of Certiorari filed by the United States: (1) any decision of the FISCR affirming the denial of a government application for electronic surveillance; and any decision of the FISCR reviewing a FISC order under Section 702 of the FISA Amendments Act. The Court may also review on Writ of Certiorari by the Government or a recipient of an order or directive: any decision of the FISCR reviewing a FISC order granting or denying a petition to modify or set aside a business record order. The Court may also review, on Writ of Certiorari by the Government; and any decision of the FISCR reviewing a FISC order on a petition to challenge or enforce a surveillance directive under Section 702. The Supreme Court can issue a stay pending review in such cases.
Opinions of FISC and FISCR
- Amended Memorandum Opinion and Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [REDACTED], BR 13-109 (FISC Aug. 29, 2013) (Granting Order for Bulk Metadata Collection Under Section 215)
- In re Motion for Consent to Disclosure of Court Records or, in the Alternative, A Determination of the Effect of the Court's Rules on Statutory Access Rights, No. 13-01 (FISC June 12, 2013)
- [Redacted], (FISC September  2012) (regarding measures adopted by NSA to prevent criminal misuse of domestic communications acquired through "upstream collection" in violation of the FISA and the Fourth Amendment)
- [Redacted] (part 1 and part 2), (FISC Nov. 30, 2011) (approving amended minimization procedures adopted after the Oct. 3 Order)
- [Redacted] (part 1, part 2, part 3, part 4, part 5, part 6, part 7, part 8, and part 9), (FISC Oct. 3, 2011) (finding that (1) NSA had substantially misrepresented "upstream collection" of Internet communications; (2) that current targeting and minimization procedures violated the Fourth Amendment; and that (3) current minimization procedures violated the FISA)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], BR 09-15 (FISC Nov. 5, 2009) (imposing additional restrictions on telephony metadata querying and directing the Government to provide additional information regarding queries in light of previous noncompliance incidents)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], BR 09-13 (FISC Sept. 25, 2009) (ordering a hearing for the Government to brief the FISC on the scope and circumstances of its improper dissemination of telephone metadata)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], BR 09-13 (FISC Sept. 3, 2009) (ordering the production of business records and removing previous reporting requirements imposed due to noncompliance issues)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], BR 09-06 (FISC June 22, 2009) (ordering the NSA to report, on a weekly basis, any dissemination of information from the telephony metadata program outside the NSA in light of noncompliance with previous court orders)
- In re Production of Tangible Things, BR 08-13 (FISC Mar. 2, 2009) (ordering NSA to seek court approval to query the telephone metadata on a case-by-case basis in light of noncompliance with previous court orders)
- Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009, (FISC Jan. 28, 2009)
- In re Production of Tangible Things From [Redacted], BR 08-13 (FISC Dec. 12, 2008) (holding that production of bulk telephony metadata records under Section 215 is not inconsistent with 18 U.S.C. Sections 2702 and 2703)
- In re Proceedings Required by Section 702(i) of the FISA Amendments Act of 2008 (FISC Aug. 27, 2008)
- , 551 F.3d 1004 (Foreign Intel. Surv. Ct. Rev. 2008)
- In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISC 2007) (Memorandum Opinion on Motion by ACLU for Release of Court Records)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], BR 06-05 (FISC May 24, 2006) (order approving Government request for authorization to collect bulk telephony metadata under Section 215)
- In re Sealed Case, 310 F.3d 717 (Foreign Intel. Surv. Ct. Rev. 2002)
- In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (FISC 2002) (abrogated by In re Sealed Case)
- In re Application of United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property (FISC June 11, 1981), reprinted in S. Rep. No. 97-280.
- Executive Order 12958, April 20, 1995 (Controls FISC Security Measures)
- Executive Order 13292, March 25, 2003 (Amendment to Executive Order 12958)
- Executive Order 13526, December 29, 2009, and Amendment, January 8, 2010 (New Security Measures, under FISC 2010 Proposed Rules of Procedure)
Rules and Other Documents
- U.S. Foreign Intelligence Surveillance Court Public Filings
- 2010 Proposed FISC Rules and Procedures, Current
- 2006 FISC Rules and Procedures, Effective 2006-2010
- Foreign Intelligence Surveillance Court Annual Reports (compiled by FAS)
National Security Letters Issued, By Year
For more information, including exact numbers and sources, please refer to EPIC's FISA Court Orders Chart
- U.S. Courts, The Foreign Intelligence Surveillance Court and the Court of Review
- Government keeps secrets hush, hush, Dana Hedgpeth (September 14, 2010)
- Intelligence Surveillance Court Could Become Less Secret, Ellen Nakishima and Spencer S. Hsu (September 13, 2010)
- More on the FISC Rules of Procedure, Gregory S. McNeal (September 10, 2010)
- The FISA Court Sends a Message to the Executive Branch, Mark Ambinder (September 9, 2010)
- New FISC Rules of Procedure, Gregory S. McNeal (September 7, 2010)
- How to Conduct Surveillance of Terror Suspects, Daniel Gallington (September 6, 2010)
- FISA Court Proposes New Rules, Steven Aftergood (September 2, 2010)
- Surveillance Court Quietly Moving, Del Quentin Wilber (March 2, 2009)
- Secret Surveillance Continues to Increase. The Foreign Intelligence Surveillance Act Report reveals that the government made 2,072 secret surveillance requests in 2005, a record high and 18 percent more than 2004. None of the requests were denied by the Foreign Intelligence Surveillance Court, the secretive body that issues the warrants. In contrast, the Department of Justice reports (pdf) that law enforcement agencies across the country were authorized to conduct 1,773 wiretaps, which are issued under a more stringent standard. The report on secret wiretap warrants also indicated that the government issued 9,254 National Security Letters during 2005. These letters can be used to obtain information about individuals without the government applying for a court-reviewed warrant. (May 2, 2006)
- American Bar Association Says Unlawful Surveillance Should Stop. A new report (pdf) from the American Bar Association calls on the President to abide by constitutional checks and balances, and to end electronic surveillance inside the United States that does not comply with the Foreign Intelligence Surveillance Act. The Association overwhelmingly supported the report, which also urged the Congress to undertake comprehensive investigations. (Feb. 15, 2006)
- Electronic Surveillance at an All-Time High in 2004. The Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that there were 1758 applications for secret surveillance in 2004, an all-time high. None of the applications for secret surveillance warrants were denied. In 2004, as in 2003, more secret surveillance warrants were granted than federal wiretap warrants, which have more stringent standards. A report on federal wiretap warrants in 2004 reveals that state and federal courts authorized 1,710 interceptions in 2004, an increase of 19 percent over 2003 and more than in any previous year. Federal officials made an all-time high 730 intercept applications in 2004, a 26 percent increase over 2003. (Apr. 29, 2005)
- 2003 Surveillance Report: Secret Warrants Surpass Standard Warrants. The 2003 Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that the Foreign Intelligence Surveillance Court granted 1724 applications for secret surveillance last year, more than in any previous year. The report shows that 2003 was the first year ever that more secret surveillance warrants were granted than federal wiretap warrants, which are issued only under a more stringent legal standard. The PATRIOT Act significantly expanded the government's authority to make use of secret surveillance, including in circumstances where part of the investigation is unrelated to an intelligence investigation. The report also reveals that a small number of applications for secret surveillance were denied in 2003 for the first time ever. For more information, see EPIC's FISA statistics page. (May 6, 2004)
- FISA Wiretaps At All-Time High. According to the 2002 FISA Annual Report from the Attorney General, "All 1228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved." In 2001, 934 applications were approved. See EPIC's FISA statistics page. (May 1, 2003)
- Surveillance Oversight Act Introduced. Members of the Senate Judiciary Committee have introduced the Domestic Security Oversight Act (pdf). The bill would increase the public reporting requirements of the Department of Justice on its implementation of the Foreign Intelligence Surveillance Act. The American Bar Association has also urged (pdf) better public reporting regarding the FISA. An interim report by the bill sponsors (pdf) on the FBI's use of the FISA details major problems with its implementation. (Feb. 25, 2003)
- American Bar Association Urges FISA Oversight. The American Bar Association has adopted a resolution calling on Congress to conduct oversight of the Foreign Intelligence Surveillance Act to ensure that government investigations do not violate Constitutional protections. The ABA also urged Congress to require annual reports for FISA investigations, comparable to those required by the federal wiretap act. The ABA action follows a controversial decision by the Foreign Intelligence Court of Review. (Feb. 11, 2003)
- Secret Appeals Court Permits Broader Electronic Surveillance. The secretive Foreign Intelligence Surveillance Court of Review today issued an opinion (pdf) granting the executive branch broader surveillance authority in foreign intelligence cases. The opinion, which overturned the lower court's determination, was the first issued by the Court of Review since FISA's inception in 1978. The case involves an unprecedented decision made public in August which revealed a pattern of FBI misrepresentations to a secret surveillance court. For more information, see the ACLU's press release on the decision. (Nov. 18, 2002)
- Memo Reveals FBI Wiretap Violations. A recently disclosed FBI memo reveals that agents illegally videotaped suspects, intercepted e-mails without court permission, recorded the wrong phone conversations, and allowed electronic surveillance operations to run beyond their legal deadline, during sensitive terrorism investigations. The mistakes referenced in the internal memo are different than those delineated and criticized in May by the Foreign Intelligence Surveillance Court. The existence of the memo was first revealed in documents EPIC obtained in a FOIA lawsuit. (Oct. 10, 2002)
- Rights Groups File Brief With Secret Appeals Court. EPIC has joined with a coalition of civil liberties groups to urge a secret appeals court to reject a government bid for broadly expanded powers to conduct "national security" surveillance on U.S. citizens. In an amicus brief (pdf) filed with the Foreign Intelligence Surveillance Court of Review, the groups said that expanding such powers would jeopardize fundamental constitutional interests. The case involves an unprecedented decision made public last month which revealed a pattern of FBI misrepresentations to a secret surveillance court (see below). (Sep. 20, 2002)
- FISA Court Chastises DOJ, FBI. In a published opinion (also available in pdf), the secretive Foreign Intelligence Surveillance Act (FISA) Court sharply criticized the DOJ and FBI for providing the tribunal misleading information in 75 cases. The Court limited the request of the DOJ to share intelligence information for criminal prosecutions. The Court said that DOJ substituted relaxed foreign intelligence gathering wiretapping procedures to evade higher requirements for standard criminal investigations: "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances" The Court continues to say that this may be because "the government is unable to meet the substantive requirements of these law enforcement tools..." (Aug. 23, 2002)