Standing and Intervention. The petitioners are the American Civil Liberties Union (ACLU), the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee (ADC), and the Arab Community Center for Economic and Social Services. None of these is a party to this proceeding, or alleges injury by government action. Nor does any petitioner represent any party, or person claiming injury.

Hence, the petition is also a motion for leave to intervene for the purpose of petitioning for writ of certiorari.

Petitioners do not assert that the FISA grants non-parties standing to sue, appeal or petition for writ of certiorari. Rather, petitioners argue that they should be permitted to intervene, because a reading of the FISA "that would disallow parties other than the government from petitioning for a writ of certiorari would effectively foreclose this Court from reviewing any decision by the Court of Review in favor of the government."

The FISCOR had permitted several groups to participate as amicus curiae.

Petitioners' Argument. The petitioners assert that there are two questions. First, "Does the USA PATRIOT Act ... authorize the government to conduct surveillance under the Foreign Intelligence Surveillance Act ... even where the government's primary purpose is law enforcement rather than foreign intelligence?"

Petitioner's second argument is, "If the Patriot Act authorizes the government to conduct surveillance under FISA even where the government's primary purpose is law enforcement, does FISA as amended by the Patriot Act contravene the First or Fourth Amendment of the United States Constitution?"

Ziad Asali, President of the ADC, stated in a release that "We do not enter into this litigation lightly; we firmly believe that these expanded powers erode the functionality and checks and balances of our judicial system".

Background. This case involves the Foreign Intelligence Surveillance Act (FISA) and the specialized courts that it created, the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCOR). The FISC is now comprised of eleven District Court judges appointed by the Chief Justice of the United States. The FISCOR was comprised of three Appeals Court judges on senior status, Ralph Guy (6th Circuit), Laurence Silberman (DC Circuit), and Edward Leavy (9th Circuit).

The November 18 opinion is the first opinion of the FISCOR. It related to the FISC's Memorandum Opinion of May 17 imposing restrictions upon the federal government's FISA surveillance.

The FISA is codified at 50 U.S.C. §§ 1801-1862. It sets out rules for the collection of information categorized as foreign intelligence surveillance. It is a regime distinct from the "Title III" regime for the issuance of warrants in criminal proceedings. The FISA was enacted in 1978, and has been amended several times since, most recently by the USA PATRIOT Act, which was passed shortly after the terrorist attacks of September 11, 2001.

One notable change enacted in the Patriot Act pertained to the purpose surveillance. Prior to passae of the Patriot Act, the government had to certify that "the purpose" of  the surveillance was to obtain foreign intelligence information. The Patriot Act merely required that foreign intelligence information be a "significant purpose".

Pursuant to the FISA, the government applied to the FISC for a surveillance order for a United States person who the government contends is aiding, abetting, or conspiring with others in international terrorism.

FISC Ruling. The FISC granted the order on May 17, 2002, but also imposed restrictions upon the government. It wrote that "law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division's directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives."

FISCOR Ruling. The FISCOR's opinion of November 18 states that "To ensure the Justice Department followed these strictures the court also fashioned what the government refers to as a ``chaperone requirement´´; that a unit of the Justice Department, the Office of Intelligence Policy and Review (OIPR) (composed of 31 lawyers and 25 support staff), ``be invited´´ to all meetings between the FBI and the Criminal Division involving consultations for the purpose of coordinating efforts ``to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or their agents.´´ If representatives of OIPR are unable to attend such meetings, ``OIPR shall be apprized of the substance of the meetings forthwith in writing so that the Court may be notified at the earliest opportunity.´´"

The FISCOR wrote that the FISC "apparently believes it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. But the court neither refers to any FISA language supporting that view, nor does it reference the Patriot Act amendments, which the government contends specifically altered FISA to make clear that an application could be obtained even if criminal prosecution is the primary counter mechanism."

The FISCOR reversed the FISC's orders to the extent that they imposed conditions upon the government, and remanded the matter to the FISC.

This is the proceeding titled "In re: Sealed Case No. 02-001 Consolidated with 02-002". See also, story titled "FISA Appeals Court Reverses FISA Lower Court", TLJ Daily E-Mail Alert No. 552, November 19, 2002.

This case arises out of the stalking and murder of Amy Boyer by Liam Youens, who located her with information sold to him by Docusearch, a web based information broker. This information included her social security number and work address -- which is where Youens killed her. Amy Boyer's parents are Tim and Helen Remsburg. Helen Remsburg, as administratrix of the estate of Amy Boyer, filed a complaint in U.S. District Court (DNH) against Docusearch Inc. The District Court certified five questions of state law to the New Hampshire court. In the present opinion, the New Hampshire Court answers those questions.

The New Hampshire court held, as a matter of New Hampshire law, that a private investigator or information broker who sells information to a client pertaining to a third party has a cognizable legal duty to that third party with respect to the sale of the information.

It stated that "The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person’s personal information to a client. And we so hold. This is especially true when, as in this case, the investigator does not know the client or the client’s purpose in seeking the information."

The court also held that if a private investigator or information broker obtains a person's social security number from a credit reporting agency as a part of a credit header without the person's knowledge or permission and sells the social security number to a client, then the individual whose social security number was sold has a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information.

The court concluded that "while a SSN must be disclosed in certain circumstances, a person may reasonably expect that the number will remain private".

However, the court held that when a private investigator or information broker obtains a person's work address by means of a pretextual telephone call and sells the work address to a client, the individual whose work address was deceitfully obtained does not have a cause of action for intrusion upon her seclusion against the private investigator or information broker for damages caused by the sale of the information.

The court reasoned that "where a person's work address is readily observable by members of the public, the address cannot be private and no intrusion upon seclusion action can be maintained".

Also, the court held that if a private investigator or information broker obtains a social security number from a credit reporting agency as a part of a credit header, or a work address by means of a pretextual telephone call, and then sells the information, the individual whose social security number or work address was sold does not have a cause of action for commercial appropriation against the private investigator or information broker for damages caused by the sale of the information.

The court also held that if a private investigator or information broker obtains a person's work address by means of a pretextual telephone call, and then sells the information, then the private investigator or information broker is liable under N.H. Rev. Stat. Ann. § 358-A to the person it deceived for damages caused by the sale of the information.

POSTPONED. 10:00 AM. BellSouth Ch/CEO Duane Ackerman will speak about the future of the telecommunications industry. For more information, contact Bill McCloskey at 202 463-4129. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

POSTPONED. 11:15 AM - 2:00 PM. Secretary of the Treasury John Snow will speak at a joint National Chamber Foundation and Policy Insiders luncheon. See, notice. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

? 12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Role of In House Counsel". For more information, contact Yaron Dori at ydori@hhlaw.com or Ryan Wallach at rwallach@willkie.com. Location: Conference Room of Willkie Farr & Gallagher, 1875 K St., NW.

? 12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be FCC antitrust merger reviews. The speakers will include Jim Bird (head of the Federal Communications Commission's (FCC) Office of General Counsel's (OGC) Transactional Team) and Jim Barker (Latham & Watkins). For more information, contact Lauren Kravetz at 202 418-7944 or lkravetz@fcc.gov. Location: FCC, Room 4-B516.

This Event is On. 1:00 PM. Deputy Secretary of Commerce Sam Bodman will to speak to a convention of over 350 aspiring engineers from middle schools on the importance of science and technology. Location: Capitol Hill Hyatt Regency.

DEADLINE EXTENDED ONE DAY. Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the exemption of certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, pursuant to 17 U.S.C. § 1201. See, CO summary of this proceeding, notice in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 - 63582, and comments already filed.

10:00 AM - 12:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet. A notice in the Federal Register states that the purpose of this meeting is "to begin preparations for the meeting of the ITU Telecommunications Development Advisory Group, which will take place March 19-21, 2003 in Geneva, Switzerland", and/or "to prepare for the 2003 meeting of the Telecommunications Development Advisory Group (TDAG)". The notice also states requirements for admission. See, Federal Register, February 6, 2003, Vol. 68, at Page 6250. Location: State Department.

9:00 - 11:30 AM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Interoperability Subcommittee will meet at the FCC. Location: FCC, 445 12th Street, SW.

12:30 - 3:00 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Technology Subcommittee will meet. Location: FCC, 445 12th Street, SW.

3:00 - 5:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Implementation Subcommittee will meet. Location: FCC, 445 12th Street, SW.

5:00 PM. Extended deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the exemption of certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, pursuant to 17 U.S.C. § 1201. See, CO summary of this proceeding, notice in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 - 63582, and comments already filed.

9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will meet. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Page 3252. Location: FCC, 445 12th Street, SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. § 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.

3:00 PM. The Federal Communications Commission's (FCC) Federal State Joint Conference on Accounting Issues will hold a public meeting. See, FCC notice [MS Word]. Location: FCC, Commission Meeting Room (Room TW-C305), at 445 12th Street, SW.

Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the state uniform commercial code exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at §101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. §103 of the Act provides that the provisions of section 101 shall not apply to "the Uniform Commercial Code, as in effect in any State, other than sections 1-107 and 1-206 and Articles 2 and 2A". The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. § 7001, et seq. The exceptions are codified at 15 U.S.C. § 7003. See, notice in the Federal Register, December 24, 2002, Vol. 67, No. 247, at Pages 78421 - 78423.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Rice v. FCC, No. 01-1474. Judges Ginsburg, Sentelle and Randolph will preside. Location: 333 Constitution Ave., NW.

12:15 PM. The FCBA's Cable Practice Committee will host brown bag lunch. The speakers will be House Commerce Committee counsel. RSVP to Wendy Parish at wendy@fcba.org. Location: NCTA, 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.