Order Code RL33833 The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview January 24, 2007 Elizabeth B. Bazan Legislative Attorney American Law Division Report Documentation Page Form Approved OMB No. 0704-0188 Public reporting burden for the collection of information is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Washington Headquarters Services, Directorate for Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington VA 22202-4302. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to a penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number. 1. REPORT DATE 2. REPORT TYPE 3. DATES COVERED 24 JAN 2007 N/A - 4. TITLE AND SUBTITLE 5a. CONTRACT NUMBER The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign 5b. GRANT NUMBER Intelligence Surveillance Court of Review: An Overview 5c. PROGRAM ELEMENT NUMBER 6. AUTHOR(S) 5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8. PERFORMING ORGANIZATION Congressional Research Service the Library of Congress, 101 REPORT NUMBER Independence Ave SE, Washington, DC 20540-7500 9. SPONSORING/MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSOR/MONITOR’S ACRONYM(S) 11. SPONSOR/MONITOR’S REPORT NUMBER(S) 12. DISTRIBUTION/AVAILABILITY STATEMENT Approved for public release, distribution unlimited 13. SUPPLEMENTARY NOTES The original document contains color images. 14. ABSTRACT 15. SUBJECT TERMS 16. SECURITY CLASSIFICATION OF: 17. LIMITATION OF 18. NUMBER 19a. NAME OF ABSTRACT OF PAGES RESPONSIBLE PERSON a. REPORT b. ABSTRACT c. THIS PAGE SAR 14 unclassified unclassified unclassified Standard Form 298 (Rev. 8-98) Prescribed by ANSI Std Z39-18 The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview Summary The national debate regarding the National Security Agency’s Terrorist Surveillance Program (TSP) focused congressional attention on the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review created by the Foreign Intelligence Surveillance Act. Congressional interest in these courts has been heightened by the January 17, 2007, letter from Attorney General Gonzales to Chairman Leahy and Senator Specter advising them that a Foreign Intelligence Surveillance Court judge had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization,” stating that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, and noting that the President has determined not to reauthorize the TSP when the current authorization expires. This report examines the creation, membership, structure, and jurisdiction of these courts. It will be updated as subsequent events may require. Contents Introduction ......................................................1 Membership and Structure of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review .........4 Jurisdiction of the U.S. Foreign Intelligence Surveillance Court .............6 Electronic Surveillance and Physical Searches .......................6 Pen Registers and Trap and Trace Devices ..........................7 Production of Tangible Things ...................................8 Review of Petitions Challenging Production Orders for Tangible Things or Related Nondisclosure Orders .............................8 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 ...9 Jurisdiction of the Court of Review ... ................................10 U.S. Supreme Court Jurisdiction .....................................11 The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview 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 surveillance1 and physical searches2 to obtain 1 Under subsection 101(f) of FISA, 50 U.S.C. § 1801(f), the term “electronic surveillance” means: (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. The provisions dealing with such electronic surveillance are found in title I of FISA, 50 U.S.C. § 1801 et seq., while the provisions addressing physical searches are located in title III of FISA, 50 U.S.C. § 1821 et seq. 2 Subsection 301(5) of FISA, 50 U.S.C. § 1821(5) defines the term “physical search” to mean: any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of (continued...) CRS-2 foreign intelligence information.3 It also provides a statutory structure for the installation and use of pen registers and trap and trace devices4 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. 2 (...continued) information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) “electronic surveillance”, as defined in section 1801(f) of this title, or (B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 1801(f) of this title. 3 Subsection 101(e) of FISA, 50 U.S.C. § 1801(e), defines “foreign intelligence information” to mean: (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against — (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to — (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. 4 Pen registers and trap and trace devices are addressed in title IV of FISA, 50 U.S.C. § 1841 et seq. Subsection 401(2) of FISA, 50 U.S.C. § 1841(2) defines “pen register” and “trap and trace device” by cross-reference to 18 U.S.C. § 3127. Under 18 U.S.C. § 3127(3), “pen register” is defined to mean: a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business. The term “trap and trace device” is defined under 18 U.S.C. § 3127(4) to mean: a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication. CRS-3 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.5 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.6 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. 5 Section 402 of FISA, 50 U.S.C. § 1842. 6 Section 501 of FISA, 50 U.S.C. § 1861. CRS-4 With limited exceptions,7 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. 7 In the case of FISA electronic surveillance, those exceptions may be found in sections 102 (electronic surveillance for foreign intelligence purposes of certain types of foreign powers, as defined under section 101(a)(1), (2), and (3), 50 U.S.C. §§ 1801(a)(1), (2), and (3), upon Attorney General certification), 105(f) (emergency authorization by the Attorney General for up to 72 hours, if specified criteria are met, while an application for a FISC order is pursued), and 111 of FISA (authority electronic surveillance without a court order for up to 15 calendar days following a congressional declaration of war), 50 U.S.C. §§ 1802, 1805(f) and 1811, respectively. The exceptions to the requirement for a court order for FISA physical searches may be found at sections 302 (physical searches for foreign intelligence purposes with respect to certain types of foreign powers, as defined under section 101(a)(1), (2), and (3), 50 U.S.C. §§ 1801(a)(1), (2), and (3), upon Attorney General certification), 304(e) (emergency authorization by the Attorney General for up to 72 hours, if specified criteria are met, while an application for a FISC order is pursued) and 309 (authority for physical searches for up to 15 calendar days following a congressional declaration of war) of FISA, 50 U.S.C. §§ 1822, 1824(e), and 1829, respectively. The exceptions with respect to FISA pen registers and trap and trace devices may be found at sections 403 (emergency authorization by the Attorney General for up to 48 hours, if specified criteria are met, while an application for a FISC order is pursued) and 404 (authority for installation and use of pen registers and trap and trace devices for up to 15 calendar days following a congressional declaration of war) of FISA, 50 U.S.C. §§ 1843 and 1844, respectively. A “foreign power,” as defined in subsection (a)(1), (2), or (3), 50 U.S.C. §§ 1801(a)(1), (2), or (3), means “(1) a foreign government or any component thereof, whether or not recognized by the United States;” “(2) a faction of a foreign nation or nations, not substantially composed of United States persons;” or “(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.” CRS-5 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.8 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.9 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.10 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.11 8 Subsection 103(a) of FISA, 50 U.S.C. § 1803(a). 9 Subsection 103(e)(1) of FISA, 50 U.S.C. § 1803(e)(1). Under subsection 103(f)(2) of FISA, 50 U.S.C. § 1803(f)(2), within sixty days after March 9, 2006, the FISC was directed to adopt and, consistent with the protection of national security, publish procedures for the review of petitions filed pursuant to subsection 501(f)(1) of FISA, 50 U.S.C. § 1861(f)(1) the petition review pool. Subsection 501(f)(2) requires that such procedures provide that review of a petition shall be conducted in camera and also provide for the designation of an acting presiding judge of the panel. 10 Subsection 103(b) of FISA, 50 U.S.C. § 1803(b). 11 Subsection 103(d) of FISA, 50 U.S.C. § 1803(d). CRS-6 Jurisdiction of the U.S. Foreign Intelligence Surveillance Court Electronic Surveillance and Physical Searches The FISC has jurisdiction to hear applications12 for and to grant court orders approving electronic surveillance or physical searches anywhere in the United States to obtain foreign intelligence information under FISA.13 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.14 In general, such applications are either granted, granted as modified, or denied.15 If a FISC judge denies an application for an order authorizing electronic surveillance under FISA,16 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),17 and 12 The requirements for an application for a court order authorizing electronic surveillance under FISA are set out in section 104 of FISA, 50 U.S.C. § 104. The requirements for an application authorizing a physical search under FISA are set out in section 303 of FISA, 50 U.S.C. § 1823. 13 Subsection 103(a) of FISA, 50 U.S.C. § 1803(a) (electronic surveillance); subsection 302(c) of FISA, 50 U.S.C. § 1822(c) (physical searches). 14 Id. 15 The number of applications for electronic surveillance and physical searches under FISA granted, modified, and denied each year are reported to the Congress and to the Administrative Office in reports which are publicly available at [http://www.usdoj.gov/ ag/readingroom/ag_foia1.htm], listed under “Annual Foreign Intelligence Surveillance Act Reports.” Annual reporting of electronic surveillance information is required by the congressional oversight requirements of sections 107 of FISA, 50 U.S.C. § 1807. There is no precisely parallel reporting requirement in FISA regarding physical searches, pen registers and trap and trace devices, or production of tangible things. Section 306 of FISA, 50 U.S.C. § 1826, requires such reports to on a semi-annual rather than an annual basis on physical searches. There are more detailed semi-annual congressional reporting requirements placed upon the Attorney General with respect to electronic surveillances, section 108 of FISA, 50 U.S.C. § 1808; physical searches, section 306 of FISA, 50 U.S.C. § 1826; and pen registers and trap and trace devices, section 406 of FISA, 50 U.S.C. § 1846; and annual reporting requirements with respect to production of tangible things, section 502 of FISA, 50 U.S.C. § 1862. Additional reporting requirements were added by the Intelligence Reform and Terrorism Prevention Act, P.L. 108-458, and codified as a new section 601 of FISA, 50 U.S.C. § 1871. 16 The requirements for issuance of a FISC order granting an application for electronic surveillance under FISA are set out in section 105 of FISA, 50 U.S.C. § 1805, while the requirements for issuance of a FISC order granting an application for a physical search under FISA are set out in section 304 of FISA, 50 U.S.C. § 1824. 17 Id. Under subsection 103(f)(1), 50 U.S.C. § 1803(f)(1), the FISC and the Court of Review may establish such rules and procedures, and take such actions, as are reasonably necessary to administer their responsibilities under FISA. Subsection 103(f)(2), 50 U.S.C. § (continued...)