The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview
Released: 2007-01-24T00:00:00

Introduction

The Foreign Intelligence Surveillance Act of 1978 (FISA), P.L. 95-511 , 50 U.S.C. § 1801 et seq., as amended, provides a statutory framework for the U.S. government to engage in electronic surveillance and physical searches to obtain foreign intelligence information. It also provides a statutory structure for the installation and use of pen registers and trap and trace devices for use in federal investigations to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. Such an investigation of a U.S. person may not be conducted solely on the basis of activities protected by the First Amendment to the Constitution.

In addition, FISA provides statutory authority for the Director of the Federal Bureau of Investigation (FBI) or his designee to seek a U.S. Foreign Intelligence Surveillance Court (FISC) order authorizing the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. Again, such an investigation of a U.S. person may not conducted solely on the basis of First Amendment-protected activities. A production order for tangible things may be accompanied by a nondisclosure order. Under Section 501(d) of FISA, 50 U.S.C. § 1861(d), no person shall disclose to any other person that the FBI has sought or obtained tangible things pursuant to an order under this section, other than to those persons to whom disclosure is necessary to comply with such order, an attorney to obtain legal advice or assistance with respect to the production of things in response to the order, or other persons as permitted by the Director of the FBI or the designee of the Director. A person to whom a disclosure is made is also subject to the nondisclosure requirements. Any person making or intending to make a disclosure to a person to whom disclosure is necessary to comply with the order or to whom disclosure is permitted by the Director of the FBI or his designee must, at the request of the Director or his designee, identify the person to whom disclosure is to be or has been made.

With limited exceptions, electronic surveillance and physical searches may be conducted under FISA pursuant to court orders issued by a judge of the FISC, and pen registers and trap and trace devices may be installed and used pursuant to the order of a FISC judge or a U.S. Magistrate Judge authorized to act in that judge's behalf. In all instances in which the production of any tangible thing is required under FISA, an order from a FISC judge or a U.S. Magistrate Judge authorized to act in the judge's behalf must be obtained. Appeals from the denial of applications for FISC orders approving electronic surveillance, physical search, or production of tangible things may be made by the U.S. government to the U.S. Foreign Intelligence Court of Review (Court of Review). If the denial of an application is upheld by the Court of Review, a petition for certiorari may be filed to the U.S. Supreme Court.

This report discusses the creation and structure of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Court of Review and their respective jurisdictions.

Membership and Structure of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review

Section 103 of the Foreign Intelligence Surveillance Act, as amended, 50 U.S.C. § 1803, establishes the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review. The FISC is composed of 11 U.S. district court judges publicly designated by the Chief Justice of the United States from seven circuits, at least three of whom must reside within 20 miles of the District of Columbia. The Chief Justice publicly designates one of the FISC judges to be presiding judge.

Although there is a procedure for the publication of FISC opinions, such publication is extremely rare. Only one opinion has been published since the court's inception in 1978, In re All Matters Submitted to the Foreign Intelligence Surveillance Court , 218 F. Supp. 2d 611 (U.S. Foreign Intell. Surveil. Ct. 2002). Under Foreign Intelligence Surveillance Court Rule 5(c),

[o]n request by a Judge, the Presiding Judge, after consulting with other Judges of the Court, may direct that an Opinion be published. Before publications, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor).

Three of the FISC judges who reside within 20 miles of the District of Columbia, or, if all of those judges are unavailable, other FISC judges designated by the presiding judge of the FISC, comprise a petition review pool that has jurisdiction to review petitions filed pursuant to subsection 501(f)(1) of FISA, 50 U.S.C. § 1861(f)(1), to challenge a production order for tangible things in a foreign intelligence, international terrorism, or clandestine intelligence activities investigation under section 501 of FISA, or a nondisclosure order imposed in connection with such a production order.

The Court of Review is composed of three judges publicly designated by the Chief Justice from the United States district courts or courts of appeals. The Chief Justice also publicly designates one of the three judges as the presiding judge of the court. Only one opinion has been published by the Court of Review, In re Sealed Case , 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002), which is the first opinion the court has issued.

Each FISC and Court of Review judge serves for a maximum of seven years and is not eligible for redesignation.

Jurisdiction of the U.S. Foreign Intelligence Surveillance Court

Electronic Surveillance and Physical Searches

The FISC has jurisdiction to hear applications for and to grant court orders approving electronic surveillance or physical searches anywhere in the United States to obtain foreign intelligence information under FISA. No FISC judge may hear an application for electronic surveillance or a physical search under FISA that has been denied previously by another FISC judge. In general, such applications are either granted, granted as modified, or denied. If a FISC judge denies an application for an order authorizing electronic surveillance under FISA, such judge shall provide immediately for the record a written statement of each reason for his or her decision and, on motion of the United States, the record shall be transmitted, under seal, to the Court of Review. Proceedings in the FISC, conducted pursuant to procedures adopted under subsection 103(f)(1) of FISA, 50 U.S.C. § 1803(f)(1), and proceedings of the Court of Review, are to be conducted as expeditiously as possible. The record of such proceedings, including applications made and orders granted, must be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.

Pen Registers and Trap and Trace Devices

Either a FISC judge or a U.S. Magistrate Judge publicly designated by the Chief Justice to act on behalf of such judge may hear applications for and grant orders approving installation and use of pen registers and trap and trace devices for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution.

Production of Tangible Things

As in the case of pen registers and trap and trace devices, either a FISC judge or a U.S. Magistrate Judge publicly designated by the Chief Justice to act on behalf of such judge may hear applications for and grant orders approving production of any tangible thing for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.

Review of Petitions Challenging Production Orders for Tangible Things or Related Nondisclosure Orders

A person who receives a production order may challenge that order by filing a petition with the petition review pool created by section 103(e) of FISA, 50 U.S.C. § 1803(e). The recipient of a production order must wait at least a year before challenging the nondisclosure order imposed in connection with that production order by filing a petition with the petition review pool to modify or set aside the nondisclosure order. If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order must wait at least another year before filing another such petition with respect to such nondisclosure order. Any production or nondisclosure order not explicitly modified or set aside remains in full effect.

Judicial proceedings under this subsection are conducted under the Procedures for Review of Petitions filed pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, as Amended, and are to be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, are maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence. All petitions under this subsection are filed under seal. In any proceedings under this subsection, the court shall, upon request of the government, review ex parte and in camera any government submission, or portions thereof, that may include classified information.

Motions to suppress information obtained by or derived from electronic surveillance, physical search, or pen registers or trap and trace devices under FISA are heard by U.S. district courts

The procedure for challenging production or nondisclosure orders before the petition review pool of the FISC contrasts with that applicable to motions to suppress information obtained through or derived from electronic surveillance, physical search, or the installation and use of a pen register or trap and trace device under FISA, which a federal, state, or local government intends to use or disclose in a trial or other official proceeding. If a federal, state, or local government intends to use or disclose information obtained by or derived from a FISC order authorizing electronic surveillance, a physical search, or the use of a pen register or trap and trace device, any challenges to the use or disclosure of that information must be made in the U.S. district court in which the motion or request is made, or, if the motion or request is made before another federal, state, or local authority, in the United States district court in the same district as that authority. Such challenges may include motions to suppress made under FISA by an "aggrieved person" against whom such information is intended to be used or disclosed; and any motion or request made by an aggrieved person pursuant to any other statute or rule of the United States or any state before any court or other authority of the United States or any state to discover or obtain applications or orders or other materials relating to FISA electronic surveillance, physical search, or use of a pen register or trap and trace device or to discover, obtain, or suppress evidence or information obtained or derived from the use of such investigative techniques under FISA.

Similar, but not identical, to the proceedings before the petition review panel regarding production orders or nondisclosure orders, the U.S. district court proceedings addressing motions to suppress information obtained by or derived from a FISA electronic surveillance, physical search, or pen register or trap and trace device, or seeking to discover or obtain related materials may be considered ex parte and in camera if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States.

If the United States district court determines that the electronic surveillance, physical search, or installation and use of the pen register or trap and trace device in regard to the aggrieved person was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence that was unlawfully obtained or derived therefrom or otherwise grant the motion of the aggrieved person. If the court determines that the electronic surveillance, physical search, or installation and use of a pen register or trap and trace device was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.

Orders granting such motions or requests, decisions that a FISA electronic surveillance, physical search, or installation and use of a pen register or trap and trace device was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating thereto shall be final orders and binding upon all courts of the United States and the several states except a United States Court of Appeals or the Supreme Court.

Jurisdiction of the Court of Review

The government may seek review of a denial of an application for a court order under FISA authorizing electronic surveillance, physical search, or production of any tangible thing before the Court of Review. If the denial is upheld by the Court of Review, the government may seek U.S. Supreme Court review of the decision by a petition for certiorari.

In addition, the Court of Review has jurisdiction over petitions for review of a decision under section 501(f)(2) of FISA, 50 U.S.C. § 1861(f)(2), to affirm, modify, or set aside a production order or nondisclosure order filed by the government or any person receiving such an order. Upon the request of the government, any order setting aside a nondisclosure order shall be stayed pending such review.

The Court of Review shall provide for the record a written statement of the reasons for its decision and, on petition by the government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

U.S. Supreme Court Jurisdiction

The U.S. Supreme Court has jurisdiction, on a petition for certiorari, to review decisions of the Court of Review affirming a denial of an application for an order authorizing electronic surveillance, physical searches, production orders, or nondisclosure orders under FISA.