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.

Top News

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 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.

Legal Documents

Opinions of FISC and FISCR

Executive Orders

Rules and Other Documents

FISA Court Orders

FISA Court Orders, By Year

FISAOrders.png
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

Share this page:

Support EPIC

EPIC relies on support from individual donors to pursue our work.

Defend Privacy. Support EPIC.

#Privacy