Surveillance

Georgetown Law’s Comprehensive Foreign Intelligence Law Collection

By Laura Donohue
Monday, June 10, 2019, 2:09 PM

In recognition of the changing role of the Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR); the difficulty finding and searching the more than 70 FISC/FISCR declassified opinions and 270 orders in the public domain; the increasing complexity of the Foreign Intelligence Surveillance Act (FISA); the myriad statutory reporting requirements; and the rapidly expanding treatment of FISA in ordinary, Article III courts, I am delighted to announce the creation of the digital Foreign Intelligence Law Collection.

The role of the FISC has changed since its inception. Congress created the court in 1978 as part of FISA to ascertain—prior to approving domestic, electronic surveillance—whether the government had met its burden of establishing probable cause that a target of foreign intelligence was a foreign power or an agent of a foreign power and that the target was likely to use the facility to be surveilled. In 1994, Congress expanded the court’s remit to include orders for physical search. In 1998, it incorporated pen register and trap-and-trace authorities, as well as the ability to obtain certain business records. In concert with the statutory design, the FISC initially functioned as a warrant-granting body, issuing more than 14,000 orders and just one opinion between 1978 and 2001.

In 2001, however, Congress began making significant changes to FISA. It expanded the government’s power and ushered in an era of bulk and programmatic collection of citizens’ and non-U.S. persons’ data. As technology continued to advance, the government sought novel statutory and doctrinal interpretations, forcing the FISA courts to consider whether government action comported with the law.

Instead of just issuing orders, the FISC and FISCR now routinely rule on critically important First, Fourth and Fifth Amendment questions—the answers to which impact every citizen, every day. Their decisions affect separation of powers, common law and the rule of law. The court examines complex matters of statutory construction. And it monitors how the government wields its power. FISC and FISCR opinions also reveal the extent to which government actions comport with—or violate—court directions and the law.

In reflection of the growing volume and importance of the specialized court’s decisions, judges on the FISC and FISCR, government attorneys submitting applications to the court and appearing before it, the court’s amici, and Article III judges on nonspecialized courts (as well as the clerks and parties before them) regularly cite to FISC and FISCR opinions as precedent.

An important and robust body of law is now emerging from a court that, for decades, has been largely shielded from public inspection.

Even as the role of the FISC and FISCR have changed, ordinary Article III courts are increasingly having to confront FISA-related constitutional and statutory questions—largely as a result of two foundational changes: the (well-known) demise of the so-called “wall” (requiring that foreign intelligence merely be “a significant purpose” for collection under FISA) and the Justice Department’s decision in 2013 to begin informing criminal defendants when information “derived from” FISA is used against them—although keeping classified what “derived from” means.

Despite the increasing importance of the courts’ jurisprudence, FISC and FISCR opinions and orders have not hitherto been easily accessible. Of the 70 in the public domain, less than two dozen are available on the FISC’s website. Some are available only through the Office of the Director of National Intelligence (ODNI) and are not searchable. Still others are available only from individuals who have submitted Freedom of Information Act requests or engaged in litigation with the Justice Department to obtain the materials—and decided to place them online. Neither Westlaw nor Lexis, moreover, carry most of the opinions, even though FISA issues now regularly appear in ordinary Article III courts.

The law, too, has become increasingly complex. Fourteen statutes now constitute FISA. The NSA, FBI, CIA and National Counterterrorism Center have different targeting and minimization procedures (as applicable), which change frequently. And the Justice Department, CIA, ODNI and Defense Department have different guidelines for implementing FISA, which differ in important yet subtle ways from those adopted regarding Executive Order 12333.

Even the formal reports on how FISA is being implemented are difficult to follow: Fifteen separate statutory provisions require specific or annual reporting from the FISC and FISCR, the Administrative Office of the U.S. Courts, the director of national intelligence, the attorney general, the Justice Department’s inspector general, and the NSA inspector general. Dozens of other reports have been issued by the Civil Liberties and Privacy Office at the NSA, the House of Representatives, the Justice Department, the FBI, the Privacy and Civil Liberties Oversight Board, the President’s Review Group, and others.

Congress, moreover, has the responsibility of debating provisions set to sunset (including three provisions on Dec. 15, 2019), and determining the scope of future surveillance authorities, yet much of the information on which an educated discussion could be based is not easily accessible to members, their staff or their constituents.

A similar dearth of information hinders the ability of companies served with FISA orders to evaluate them with the benefit of the court’s jurisprudence and ready access to the scope of the law. It further impacts advocacy organizations, think tanks and scholarship that could shed light on this important area.

The Foreign Intelligence Law Collection is therefore dedicated to ensuring public access to the declassified and redacted opinions, as well as the relevant laws, legislative histories, judicial reports, congressional reports, agency guidelines, declassified and redacted minimization and targeting procedures, and other materials essential to U.S. foreign intelligence collection.

Specifically, the collection includes:

In addition to FISA-related materials, the site incorporates background on other laws and executive orders that round out foreign intelligence law, such as the national security letter statutory provisions and annual reports, and Executive Order 12333 with its associated departmental guidelines.

The digital collection, hosted by the Georgetown University Library, is a resource for anyone with an interest in or need to understand the legal framework for U.S. foreign intelligence collection.

Because many of the dates and filing references in the FISC and FISCR opinions and orders remain redacted, I have assigned each document a Georgetown identification (GID) number, preceded by the court issuing the opinion or order in the following format: GID.C.##### for FISC and GID.CA.##### for FISCR. Each time an opinion or order is released with different material redacted, it is issued a unique identifier. Individual records contain the recommended bibliographic reference for Bluebook and Maroonbook purposes.

All of the FISC opinions and orders are text searchable, as are most of the statutory and regulatory authorities and official reports and correspondence, as well as an annotated bibliography—a selection of particularly thoughtful discussions of matters associated with FISA derived from hundreds of books, articles, blog posts and law reviews.

I will continue to update the collection as new primary and secondary materials become available. If there are any additional materials that you think should be included, please feel free to contact me at [email protected].

Topics: