Part I — Improving the Foreign Intelligence Surveillance Court

By Capt Steven Arango, NSI Visiting Fellow

Benjamin Franklin once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” This quote may seem quaint, even outdated, but its sentiment is more important today than ever. In an ever-evolving world where threats lurk around each corner, behind each keyboard, and inside each phone, the difference between life and death could be one key stroke. The difference between liberty and tyranny is just as slim, but trading liberty for safety erodes both. At times, the United States government has been accused of eroding civil liberties in pursuit of protecting its citizens. To understand these accusations, one must understand the tools the government currently uses to pursue safety and what reforms may be necessary to properly balance national security interests with civil liberties. Enter the United States Foreign Intelligence Surveillance Court (FISC).

FISC is little-known and little-discussed by those outside the D.C. metro area or national security arena. FISC was established by Congress to oversee requests for electronic surveillance warrants for foreign intelligence.[1] Over the years, FISC’s role has expanded to reviewing several new types of investigative requests, including: physical searches, pen registers/trap and trace surveillance, and the ability to compel physical items. What makes this court unique though is not only its scope, but its actors — the only party to appear in front of FISC are attorneys, generally from the Department of Justice, who represent the United States of America (the Government).

Procedures at FISC are cyclical. The Government will submit an application to the court and staff will then assist judges with reviewing applications.[2] Generally, staff will speak with the submitting party to continually raise issues and refine an application. Staff will then prepare a memo for the presiding judge, who will then review this information, formulate an opinion on the application, and decide whether a hearing is necessary. Staff will then alert the Government about the judge’s opinion on the application and whether more information is necessary. The Government can either amend the application, submit a final application, or withdraw the application. The judge will then issue a ruling regarding the application — most opinions remain classified.[3] If FISC denies the Government’s request, the Government can then appeal to the Foreign Intelligence Surveillance Court of Review (FISCR).[4] Notably, FISCR does not hear appeals to stop collection, only to allow collection.

Not all FISC applications are the same. Under Section 702 of the Foreign Intelligence Surveillance Act, the Government can submit applications to the Court, requesting to create programmatic surveillance collection programs. When the Government uses programmatic surveillance, it captures “all communications going through particular nodes”, such as a specific email address. While this collection must target non-U.S. citizens outside the United States, it often gathers communications on U.S. citizens as well, commonly referred to as “incidental collection”.[5] The information captured is not insignificant — electronic communications can display the most sensitive details of someone’s life, including where they are and where they will be. Once FISC approves a surveillance program, it can last for a year until a new request must be made. In other words, FISC’s role is to “oversee the programmatic procedures, not individual applications for, or specific instances of, surveillance.”

After an application is approved, the Government is required to file a notice to FISC should the Government or someone operating under the order not “comply with the Court’s authorization or approval or with applicable law.” The Government must outline how have rectified or plan to rectify the issue, and how it plans to deal with information illegally obtained. If, after Court review, the issue needs to be further addressed, FISC will issue an order to correct any issues that have not properly been resolved. Moreover, FISC can also direct the Government to cease its surveillance — this occurs, according to the Court, “less frequently”.

To be sure, there is no evidence that collections on Americans has ever been intentional. The Government has even implemented “minimization procedures” to protect Americans from improper collection.[6] However, every available FISC opinion regarding Section 702 shows non-compliance with Section 702, and only one party can challenge these orders: companies (think Yahoo!, Google, and Apple). The reason: FISC’s orders are directed at these companies, not at individuals. Although companies have incentives to protect their client’s information, they also have incentives to comply with these orders. In fact, no company has ever appealed an order to the Foreign Intelligence Surveillance Court of Review (FISCR).

Part II of this article will explore the different remedies to the issues outlined in Part I.

The views expressed in this article are those of the author and do not necessarily represent the views of the U.S. Marine Corps, Department of the Navy, Department of Defense, or the U.S. Government.

Captain Steven Arango is a Judge Advocate in the Marine Corps and serves as a prosecutor at Marine Corps Base Quantico. While serving as a prosecutor in the Marine Corps, he was hand-selected as a Regional Affairs Officer for Latin America. Prior to his time on active duty, Steven worked for the U.S. House of Representatives, the Department of Defense in the Office of General Counsel, International Affairs, and served as a federal law clerk for U.S. District Judge Fernando Rodriguez, who presides on the Southern Border. Steven is also a co-founder and board member of Law Clerks for Diversity.

[1] Andrew Nolan & Richard M. Thompson II, Cong. Rsch. Serv., R43362, Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes 1194–1195 (2014).

[2] Emily Berman, The Two Faces of the Foreign Intelligence Surveillance Court, 91 Ind. L.J. 1191, 1197 (2016).

[3] In re Release of Court Records, 526 F. Supp. 2d 484, 488 (FISA Ct. 2007).

[4] Andrew Nolan & Richard M. Thompson II, Cong. Rsch. Serv., R43362, Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes 1194–1195 (2014).

[5] Simon Chin, Introducing Independence to the Foreign Intelligence Surveillance Court, 131 Yale L.J. 655, 702–703 (2021); Stephen I. Vladeck & Jennifer Daskal, “Incidental” Foreign Intelligence Surveillance and the Fourth Amendment 103 (2017).

[6] Stephen I. Vladeck & Jennifer Daskal, “Incidental” Foreign Intelligence Surveillance and the Fourth Amendment 103 (2017).