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January 20, 2009, Alert No. 1,885.
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Foreign Intelligence Surveillance Court of Review Upholds Warrantless Surveillance Under FISA Against 4th Amendment Challenge

1/15. The U.S. Foreign Intelligence Surveillance Court of Review (FISCR) belatedly released a heavy redacted copy [29 pages in PDF] of its August 22, 2008, opinion in case with a redacted caption regarding the authority of the executive branch to conduct warrantless surveillance under the Foreign Intelligence Surveillance Act (FISA).

The FISCR held that "a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States".

It also held that national security need only be a "significant" purpose -- not the "primary" purpose.

Statutory and Procedural Background. The case concerns government surveillance pursuant to the Foreign Intelligence Surveillance Act (FISA). Moreover, it pertains to sections of the FISA that were in effect briefly from late 2007 through early 2008.

In August of 2007, the 110th Congress enacted, and President Bush signed, S 1927 [LOC | WW], the "Protect America Act of 2007" (PAA). As extended, it expired on February 16, 2008. However, directives issued by the government under the PAA prior to February 16, 2008, remained in effect.

The 110th Congress passed, and President Bush signed on July 10, 2008, HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". It is now Public Law No. 110-261.

The just released opinion states that in 2007 "the government issued directives to the petitioner commanding it to assist in warrantless surveillance of certain customers ..."

With redactions, little information is disclosed. The opinion states that the government issued "directives" to an undisclosed "communications service provider" (CSP). This CSP "refused to comply with the directives". This CSP challenged the directives by filing a "petition" in the Foreign Intelligence Surveillance Court (FISC).

The FISCR's opinion states that the FISC "found the directives lawful and compelled obedience to them". The FISC issued an "opinion validating the directives and granting the motion to compel". The FISCR opinion also refers to this as a "decision". However, it does not state that the FISC entered a "judgment"; nor does it state that it affirmed a "judgment". The FISC denied the CSP's motion for a "stay pending appeal".

The CSP brought the present "petition for review". The FISCR opinion states that it "affirm[ed]".

Standing. The opinion addresses the obvious threshhold question of standing to sue. The FISCR suspended ordinary principles of standing, and held that the CSP has standing to litigate the claims of its customers.

This is a 4th Amendment challenge. This amendment gives rights to "the people" who are subjected to "searches and seizures". This means the CSPs' customers, not the CSPs. Yet, no persons who were subjected to "searches and seizures" as a result to the directives at issue were a party to either the FISC or FISCR proceedings. Indeed, these people are not afforded notice, an opportunity to be heard, or a cause of action.

The FISCR opinion does not address the 5th Amendment due process right of people to litigate their 4th Amendment rights.

There is also the matter of injury. People subjected to searches and seizures have an injury for the purpose of standing analysis. The CSPs suffer no injury as a result of surveillance. Hypothetically, they might be fined for failure to comply with a Department of Justice (DOJ) directive. However, in the present case, there was no contempt order, no fine, no imprisonment, and no actual injury.

Service providers have little incentive to challenge surveillance orders. It is not their privacy that is diminished. On the other hand, various benefits flow from compliance, such as payment from the government. There are also various reciprocal interests. For example, while the DOJ seeks cooperation in surveillance from CSPs, the CSP's seek cooperation from the DOJ in reviews of mergers and single firm conduct.

The PAA provided the CSPs a cause of action. The FISCR inferred from this a Congressional grant of standing.

However, the standing requirement derives from Article III of the Constitution. The Congress cannot amend by statute Article III or any other provision of the Constitution.

This opinion stretches principles of standing beyond recognition. Perhaps the FISCR did so because the Congress had already disregarded the 4th and 5th Amendment rights of surveiled people. To have held that CSPs lack standing would have removed even the appearance that the FISA directives review process comports with Constitutional rights.

4th Amendment search and seizure law develops as a result of legal challenges asserted by the persons targeted by government surveillance, usually in criminal prosecutions. The FISA surveillance and judicial review process eliminates this source of legal challenges. The people who have standing have no cause of action. Hence, there are very few FISCR opinions. It has disclosed only two since enactment of the FISA in 1978.

Depriving affected persons of any meaningful opportunity to challenge FISA based surveillance of their communications, and transferring any cause of action to CSPs, and conferring artificial standing upon them, is just one manifestation of a larger trend in the law related to electronic surveillance.

New information and communications technologies are being developed that send and receive voice communications, e-mail, and data, store data, and log and save information about internet usage. As a result, the government's sources are increasingly becoming third parties, rather than the people to whom traditional 4th Amendment rights attach.

4th Amendment. 4th Amendment to the Constitution provides, in full, that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The petitioning CSP's pleadings, briefs, and oral arguments are all secret. The public record of the CSP's arguments exists only in the FISCR's summary.

The opinion states that the petitioning CSP "asserts that the government, in issuing the directives, had to abide by the requirements attendant to the Warrant Clause of the Fourth Amendment" and that "even if the foreign intelligence exception to the warrant requirements exists and excuses compliance with the Warrant Clause, the surveillances mandates by the directives are unreasonable and, therefore, violate the Fourth Amendment".

The FISCR first held that this is an "as applied" challenge, rather than a "facial challenge" to the statute.

Most significantly, the FISCR held that there is "a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States".

This goes beyond any prior Supreme Court holding.

The FISCR added that foreign intelligence surveillance need not even be the "primary purpose" of the challenged directive. A "significant purpose" suffices.

The FISCR provided the rationale that imposing a warrant requirement would "impede the vital national security interests that are at stake". It added that "the warrant requirement would add an element of delay".

The FISCR did not address the possibility of limiting the exception to the 4th Amendment warrant requirement to surveillance conducted during the limited time that a warrant is being sought.

The FISCR added that there still remains a "reasonableness" limitation on warrantless surveillance. This, it wrote, requires a weighing of the government's interest, the nature of the government intrusion and the privacy interests of the surveiled people.

The FISCR wrote that "the interest in national security ... is of the highest order of magnitude". In contrast, the CSP provided "no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse".

The FISCR then offered a lengthy, but heavily redacted, analysis of government procedures, safeguards, and minimization.

Finally, the FISCR offered these concluding remarks. "Our government is tasked with protecting an interest of utmost significance to the nation -- the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary's duty is to hold that delicate balance steady and true.

It added that "we caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts."

One footnote may be notable: "The petitioner has not charge that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice."

Case Information. This case has a redacted title. It number is FISCR No. 08-01. It is a petition for review of the U.S. Foreign Intelligence Surveillance Court, Judge Reggie Walton presiding.

Judge Bruce Selya wrote the opinion of this body, in which Judges Ralph Winter and Morris Arnold joined.

The opinion does not disclose who represented the CSP.

Composition of the FISCR. The FISCR has only three members. See, 50 U.S.C. 1803. Currently, it is thoroughly Republican.

Judge Selya is a senior status Judge of the U.S. Court of Appeals for the 1st Circuit, and Chief Judge of the FISCR. Former President Reagan appointed him to the Court of Appeals. Former Chief Justice William Rehnquist appointed him to the FISCR in 2004. Rehnquist served in the Department of Justice during the administration of former President Nixon. He was appointed to the Supreme Court by Nixon, and elevated to Chief Justice by Reagan.

Judge Winter is a senior status Judge of the U.S. Court of Appeals for the 2nd Circuit. He was appointed to the Court of Appeals by former President Reagan. Former Chief Justice Rehnquist appointed him to the FISCR in 2003.

Judge Arnold is a senior status Judge of the U.S. Court of Appeals for the 8th Circuit. He was appointed to the U.S. District Court by former President Reagan, and to the Court of Appeals by the first President Bush. He was appointed to FISCR in 2008 by Chief Justice John Roberts.

DOJ Reaction. A DOJ spokesman stated in a release that the DOJ "is pleased".

He added that "The case involved a challenge by a private party to directives that were issued under the Protect America Act and that required the party to assist the Government in conducting foreign intelligence surveillance against targets reasonably believed to be located outside the United States. The Court of Review upheld the lawfulness of the directives, concluding that the surveillance at issue fell within the foreign intelligence exception to the warrant requirement and was otherwise reasonable under the Fourth Amendment."

He also stated that "The Court issued a classified version of its opinion in August 2008 and subsequently requested publication of an unclassified version. Today, after a careful classification review process, the Court published the unclassified version of its opinion. The Court of Review's decision marks the second ruling published by the Court since it was established more than 30 years ago."

In This Issue

This issue contains the following items:
  Foreign Intelligence Surveillance Court of Review Upholds Warrantless Surveillance Under FISA Against 4th Amendment Challenge
  House Commerce Committee to Mark Up Bill to Delay DTV Transition

House Commerce Committee to Mark Up Bill to Delay DTV Transition

1/16. The House Commerce Committee (HCC) announced that it will meet on Wednesday, January 21, 2009, to mark up HR __ [PDF], the "Digital Television Transition Extension Act of 2009".

This bill would delay the DTV transition date from February 17 until June 12, 2009.

The Federal Communications Commission (FCC) has already auctioned spectrum to be recovered as a result of this transition. This was FCC Auction No. 73, also known as the 700 MHz auction. See also, stories titled "FCC Closes 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008, and "FCC Releases Details of 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,735, March 24, 2008.

This bill further provides that the FCC "shall postpone the commencement and the expiration of the terms of the licenses for the recovered analog spectrum".

This bill also contains provisions regarding the DTV converter box coupon program.

This meeting is scheduled for 1:30 PM on January 21 in Room 2123 of the Rayburn Building.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, January 20

Inauguration Day.

The House will meet for the inauguration of President Obama. See, Rep. Hoyer's schedule for week of January 19.

The Senate will meet at 3:00 PM for morning business.

Wednesday, January 21

The House will meet at 12:00 NOON. It may resume consideration of HR 384 [LOC | WW], the "TARP Reform and Accountability Act". See, Rep. Hoyer's schedule for week of January 19.

10:00 AM. The Senate Finance Committee (SFC) will meet to consider the nomination of Timothy Geithner to be Secretary of the Treasury. See, notice. Location: Room 215, Dirksen Building.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Diversity and Young Lawyers Committees will host a brown bag lunch titled "Work/Life Balance". For more information, RSVP to Jessica Gonzalez at jg433 at law dot georgetown dot edu or Elizabeth Goldin at EGoldin at wileyrein dot com. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

1:30 PM. The House Commerce Committee will hold a business meeting to mark up HR __ [PDF], the "Digital Television Transition Extension Act of 2009". Location: Room 2123, Rayburn Building.

Thursday, January 22

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of January 19.

9:30 AM. The Senate Foreign Relations Committee (SFRC) will hold an executive business meeting. See, notice. It will then hold a hearing on the nomination of James Steinberg to be Deputy Secretary of State. See, notice. Location: Room 419, Dirksen Building.

10:00 AM. The House Commerce Committee (HCC) will hold a business meeting to mark up sections of a spending bill that fall within the jurisdiction of the HCC. Title IV [PDF] of HR 598 is titled the "Health Information Technology for Economic and Clinical Health Act". See also, provisions [PDF] related to broadband mapping and broadband deployment grants. Location: Room 2123, Rayburn Building.

10:00 AM. The House Ways and Means Committee (HWMC) will meet to mark up HR 598. Location: Room 1100, Longworth Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding creating a new replacement digital television translator service that will permit full service television stations to continue to provide service to viewers within their coverage area who have lost service as a result of those stations' digital transition. The FCC adopted this item on December 22, 2008, and released the text [14 pages in PDF] on December 23, 2009. It is FCC 08-278 in MB Docket No. 08-253. See, notice in the Federal Register, January 2, 2009, Vol. 74, No. 1, at Pages 61-67.

Friday, January 23

Rep. Hoyer's schedule for week of January 19 states that no votes are expected in the House.

12:30 PM. Sen. Mitch McConnell (R-KY) will give a speech. Location: Ballroom, National Press Club, 13th floor, 529 14th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration [PDF] filed on December 1, 2008 by Cohen Dippell & Everist regarding the FCC's Second Report and Order and Second Further Notice of Proposed Rulemaking [PDF] in its proceeding titled "In the Matter of An Inquiry Into the Commission's Policies and Rules Regarding AM Radio Service Directional Antenna Performance Verification". The FCC adopted this item on September 24, 2008, and released the text on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, notice in the Federal Register, January 8, 2009, Vol. 74, No. 5, at Page 810.

Monday, January 26

10:00 AM - 1:00 PM. The New America Foundation (NAF) will host an event to present communications policy recommendations. The speakers will include Federal Communications Commission (FCC) Commissioner Jonathan Adelstein, Sascha Meinrath (NAF), Gene Kimmelman (Consumers Union), Marvin Ammori (Univ. of Nebraska), Richard Taylor (Penn. State Univ.), Sharon Strover (Univ. of Texas), Heather Hudson (Univ. of San Francisco), Jon Peha (FCC), Rob Frieden (Penn. State Univ.), Ellen Goodman (Rutgers law school), Kathryn Montgomery (American Univ.), and Amit Schejter (Penn. State Univ.). This event is titled "And Communications for All". See, notice. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "The Copyright Act and Statutory Licensing: Yesterday, Today, and Tomorrow". The price to attend is $135. See, notice and registration page. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

Tuesday, January 27

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Health IT: Protecting Americans' Privacy in the Digital Age". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

10:00 - 11:30 AM. The American Enterprise Institute will host a discussion of the book [Amazon] titled "Life Without Lawyers: Liberating Americans from Too Much Law". The speakers will be Philip Howard (Covington & Burling), Jeffrey Rosen (George Washington University law school), Dick Thornburgh (K&L Gates), Judge Stephen Williams (U.S. Court of Appeals (DCCir)), and Chris DeMuth (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

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