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.
- Senator Leahy Calls for FISA Reforms: The Senate Judiciary Committee held a hearing on the FISA Amendments Act, a law that grants the government broad surveillance powers over Internet communications. The Act, commonly referred to as "Section 702,: is the basis for the NSA’s “PRISM” program. EPIC testified before the House Judiciary Committee in 2012 on the need to limit the scope of Section 702 surveillance and to improve transparency of the Foreign Intelligence Surveillance Court. US and EU NGOs have since called for the end of the section 702. This week Senator Patrick Leahy (D-VT) stated that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry." (May. 13, 2016)
- Intelligence Court Skeptical of Some FISA Applications: The Department of Justice has published the 2015 FISA report, which summarizes the use of the Foreign Intelligence Surveillance Act. The report also details the number of applications rejected or modified by the FISA Court (FISC). Overall, the Government’s applications for FISA warrants has declined since 2003 but there was a slight uptick this year with 1,456 orders granted. A significant number of orders were modified by the FISC. The FISC modified 80 orders and the Government even withdrew one application. Prior to the USA FREEDOM Act, which limited bulk collection under section 215, the FISC modified many of those orders. (May. 3, 2016) More top news »
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
- In re Certified Question of Law, No. 16-01 (FISC R. 2016) (finding that Section 1842 authorizes, and the Fourth Amendment does not prohibit, the government from collecting all post-cut-through dialed digits under a pen register order so long as it is prohibited from making any affirmative investigative use of PCTDDs that are content)
- In re Application of the Federal Bureau of Investigation for Orders Requiring the Production of Call Detail Records, Memorandum Opinion, Docket No. [REDACTED] (FISC Dec. 31, 2015) (granting government application for order requiring production of call detail records)
- [REDACTED] Memorandum Opinion and Order, Docket No. [REDACTED] (FISC Nov. 6, 2015) (discussing NSA failure to comply with 702 minimization procedures but approving modified targeting and minimization procedures)
- In re [REDACTED] a U.S. Person, Memorandum Opinion, PR/TT 15-52 (FISC June 18, 2015) (denying appointment of an amicus curiae)
- Opinion and Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, BR 15-75 (FISC June 29, 2015) (Granting Order for Bulk Metadata Collection Under Section 215 for 180-Day Period Prior to Implementation of the USA FREEDOM Act)
- Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, BR 15-77, 15-78 (FISC June 17, 2015)
- 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 13-158 (FISC Oct. 11, 2013) (Granting Order for Bulk Metadata Collection Under Section 215)
- 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)
- In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 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
- The Changing Composition of the Foreign Intelligence Surveillance Court and What if Anything to Do About It , Russell Wheeler, Lawfare Research Paper Series, Vol. 2, No. 2, (June 3, 2014).
- Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? Ex Parte Proceedings and the FISC Win Rate, Conor Clarke, 66 Stan. L. Rev. Online 125 (February 28, 2014)
- 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)
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Communications Law and Policy
Jerry Kang and Alan Butler