Foreign Intelligence Surveillance Court (FISC)
The Foreign Intelligence Surveillance Court (FISC) was established by Congress in the Foreign Intelligence Surveillance Act (FISA) of 1978. The role of the FISC is to provide judicial oversight of Intelligence Community activities in a classified setting. The FISC is composed of federal judges appointed by the Chief Justice of the U.S. Supreme Court, and its decisions can be reviewed by the Foreign Intelligence Surveillance Court of Review (FISCR) and the Supreme Court. After the FISA Amendments Act of 2008, the FISC has to rule on important and novel Fourth Amendment issues raised by the government's proposed targeting and minimization procedures. Most of the FISC's orders and filings are highly classified, but, after the USA Freedom Act, any significant legal interpretations by the court must be made public.
- Annual Surveillance Report Reveals Upturn in U.S. Persons Call Record Searches, Unmasking: According to the Office of Director National Intelligence 2018 report, the use of information on U.S. persons collected under Foreign Intelligence Surveillance Act increased. The instances in which the NSA "unmasked" - revealed a U.S. person's identity in foreign intelligence data - to another agency grew from 9,529 to 16,721. In 2018, the government also searched domestic call detail records for U.S. persons at five times the rate in 2017, rising from 31,196 to 164,682. Notably, the government notifications to defendants of the use of FISA information in criminal proceedings increased from 7 in 2017 to 14 in 2018. EPIC previously testified before Congress on the need for more public reporting about the use of FISA for domestic surveillance. Several of EPIC's recommendations, including greater detail on government surveillance activities, were incorporated in the USA Freedom Act. (Apr. 30, 2019)
- U.S. Defends Privacy Shield, But Fails to Comply with Privacy Commitments: The Department of Commerce has told the President of the European Parliament that the US is in compliance with the Privacy Shield, a pact that permits US companies to obtain the personal data of Europeans. The statement follows a resolution of Parliament to suspend the international arrangement if the U.S. did not comply in full by September 1. The Parliament cited the Cambridge Analytica data breach, the reauthorization of FISA Section 702 without reform, the failure to stand up the PCLOB, the passage of the CLOUD Act, and the absence of a Privacy Shield ombudsman. The Commerce Department disputed the Parliament's findings but failed to show progress on the issues identified. EPIC highlighted similar problems with data protection in the United States in recent comments to the European Commission. Almost six months have passed since the FTC reopened the investigation of Facebook's compliance with the 2011 consent order, which followed a complaint from EPIC and other consumer privacy organizations. (Sep. 5, 2018) More top news »
Jurisdiction and Structure
The FISC has jurisdiction to hear applications for, and issue orders authorizing, four traditional FISA activities: electronic surveillance, physical searches, pen/trap surveillance, and compelled production of tangible things. In addition, the FISC has jurisdiction to review the government's targeting and minimization procedures related to programmatic surveillance certified under Section 702 of the FISA Amendments Act of 2008.
The FISC was originally composed of seven district judges, from seven circuits, appointed by the Chief Justice of the United States to serve for a maximum of seven years. In 2001, amendments in the USA PATRIOT Act increased the number of judges on the Court to eleven, with three required to live within 20 miles of the District of Columbia. The Chief Justice appoints a Presiding Judge for the court from amongst these eleven judges. The FISC operates out of a secure location in the federal courthouse in Washington, D.C., but can authorize searches or surveillance "anywhere within the United States."
The court's ex parte process is primarily non-adversarial. The target of the order is not given an opportunity to appear at the hearing or informed of the presence of the order. However, the court rules of procedure do allow the electronic service providers and production order recipients to petition to challenge or modify any order.
However, the USA Freedom Act requires designation of at least five people who may serve as amicus curiae: individuals are appointed to inform the court about specific legal or technical issues in certain cases. As of 2016, six such individuals have been designated: Jonathan G. Cedarbaum, John D. Cline, Laura Donohue, Amy Jeffress, Marc Zwillinger, and David S. Kris.In cases involving a novel or significant interpretation of the law, one of the designated amicus curiae “shall” be appointed to assist the court unless the court gives a reason that it would not be appropriate. In other cases, the court “may” appoint an individual or organization to serve as amicus curiae or file an amicus brief. Since the passage of USA Freedom Act, amicus have counseled the Court on questions such as the government’s ability to retain call metadata after the effective date of the Act and the government’s authority to use pen registers when communications content may be collected.
The FISC operations are classified by default due to the sensitive nature of the issues addressed, but the court has become increasingly visible to the public as the Director of National Intelligence has begun publicly releasing FISC opinions and Congress has issued transparency mandates in the USA FREEDOM Act. However, records from FISC hearings are still not typically made available, even to petitioners challenging surveillance orders under the court rules.
FISC historically had discretion to publish its opinions, and in some cases it did so. However, Congress imposed new transparency requirements in the USA Freedom Act, seeking to make the court more publicly accountable. The Director of National Intelligence now must review each FISC order or opinion to determine whether it “includes a significant construction or interpretation of any provision of law.” Any orders that do must be made public “to greatest extent practicable,” although when “necessary to protect national security” it may be permissible for the ODNI to release a “summary of the decision.”
FISC Review of FISA Applications
Traditional FISA investigative tools include: electronic surveillance, physical searches, pen/trap surveillance, and orders compelling production of tangible things (including business records).
In order to conduct electronic surveillance or a physical search, the government must apply to the FISC and show probable cause to believe that the target is a "foreign power" or an "agent of a foreign power." For electronic surveillance, the government must also establish that the facilities are being used by an agent of a foreign power or a foreign power. For physical searches, the government must show that the place to be searched contains "foreign intelligence information" and that it is used, owned, or possessed by an agent of a foreign power or a foreign power. The government must also provide a description of the information sought and the places or facilities that will be searched.
When the FISC grants applications for surveillance it issues a "primary order" finding that all the FISA requirements were met. The FISC also issues a "secondary order" providing that "upon request of the applicant," a specified third party must "furnish the applicant forthwith with all information, facilities, or technical assistance necessary" to accomplish the search "in such a manner as will protect its secrecy and produce a minimum of interference." Assisting third parties, such as telephone and Internet service providers, are compensated for any assistance rendered, and can keep certain records under security procedures adopted by the government.
Authorizations of pen/trap surveillance and collection of tangible things are subject to a lower standard than electronic and physical searches under the FISA, but Congress has prohibited bulk collection under these provisions in the USA Freedom Act. The FISC must authorize pen/trap surveillance, allowing the FBI or others to acquire "routing and addressing information," if the government certifies that the information likely to be obtained is relevant to an "international terrorism or clandestine intelligence activities" investigation or is "foreign intelligence information not concerning a United States person.” Additionally, the USA Freedom Act now also mandates the identification of “a specific selection term to be used as the basis for the use of the pen register or trap and trace device.” This selection term must “specifically identif[y] a person, account, address, or personal device, or any other specific identifier.”
An application by the government for production of tangible things must also be based “a specific selection term.” These applications are split into two types with differing standards. In an application for any record, other than an application for the ongoing production of daily call detail records, the FBI must show that there are “reasonable grounds to believe” what is sought is “relevant” to an investigation to “obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
On the other hand, in the case of an application for ongoing production of daily call detail records, the application must also show:
These call detail orders cannot last longer than 180 days. Additionally, in an application for call records “two hops” from target—call records from people in contact with the identified target—the government must base its request on “session-identifying information or a telephone calling card number identified by the specific selection term” used in its first request. In December of 2015, the FISC ruled that USA Freedom does not require the government to show that these “two hops” call records are relevant to an ongoing investigation.
FISC Review of FAA Section 702 Surveillance
Unlike the four "traditional FISA" surveillance activities, the surveillance programs authorized under Section 702 of the FISA Amendments Act of 2008 do not involve FISC oversight of individual surveillance orders. The Attorney General and the Director of National Intelligence are allowed to "jointly" authorize "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" without adhering to traditional FISA rules. Instead, the FISC reviews the targeting and minimization procedures adopted by the government and determines whether they comport with the statutory restrictions and the Fourth Amendment. The FISC also reviews the "certification" submitted by the government attesting that "a significant purpose of the acquisition is to obtain foreign intelligence information," providing copies of the targeting and minimization procedures, and attesting that acquisition will comply with certain statutory limitations. The statutory limitations on acquisition are that it:
- (1) may not intentionally target any person known at the time of acquisition to be located in the United States;
- (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
- (3) may not intentionally target a United States person reasonably believed to be located outside the United States;
- (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
- (5) shall be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States. 50 U.S.C. § 1881a(b).
On October 3, 2011, the FISC ruled that the NSA "upstream collection" of Internet communications violated the Fourth Amendment and the FISA. Specifically, the targeting and minimization procedures adopted by the NSA were not sufficient to protect the significant number (more than 50,000 per year) of wholly domestic communications obtained via "upstream collection." The FISC also found that NSA minimization rules were insufficient to satisfy the FISA because they were designed to "maximize rather than minimize" retention of non-public information about U.S. persons.
The USA Freedom Act did not include significant changes to Section 702. However, Congress did prohibit introduction or disclosure of evidence obtained under government certifications or procedures found to be “deficient concerning any United States person,” and made clear that such improperly collected information shall not be “used or disclosed” in any other manner by the Federal government.
Review of FISC Decisions
Congress created the Foreign Intelligence Surveillance Court of Review (FISCR) in 1978 to hear appeals from applications denied by FISC. This court is made up of three judges, appointed by the Chief Justice, from U.S. district or appellate courts and serving for seven years. The USA Freedom Act amicus curiae obligations on the FISC apply equally to the FISCR, as do its declassification requirements.
The FISCR has jurisdiction to review the denial of any application under FISA by the FISC. The FISCR’s review of the FISC’s denial of an application for surveillance is limited. After a "motion of the United States" to transmit the FISC’s record, the FISCR may either affirm or reverse the FISC judge's decision. If the FISCR determines that the application was properly denied, it must "provide for the record a written statement of each reason for its decision." Under the USA Freedom Act, the FISC is required to certify for review by the FISCR questions of law in the orders it has issued that affect the “need for uniformity” or where consideration “would serve the interests of justice.” In response, the FISCR may give binding instructions to the FISC or require the FISC send the complete record to the FISCR for it to decide the entire matter itself. Finally, the FISCR can also review the FISC’s decisions on third party challenges to orders under FISA (e.g. an order for an individual to produce tangible things or a connected gag order, and electronic service providers directed to assist the government).
The Supreme Court has statutory jurisdiction to review FISC opinions under certain circumstances. The Court may review on a Writ of Certiorari filed by the United States any decision of the FISCR affirming the denial of a government application to the FISC. Additionally, the FISCR certify “any question of law . . . as to which instructions are desired,” and the Supreme Court may then give binding instructions to the FISCR or require the FISCR send the complete record up and decide the entire matter itself. The Court may also review FISCR decisions on a third party challenges. In reviewing a FISCR decision, the Supreme Court “may” appoint one of the designated amicus curiae or another individual to provide briefing or other assistance.
Opinions of FISC and FISCR
- In re Certified Question of Law, No. 16-01 (FISA Ct. Rev. Apr. 14, 2016) (finding that Section 1842 authorizes, and the Fourth Amendment does not prohibit, the government from collecting all post-cut-through dialed digits under a pen register order so long as it is prohibited from making any affirmative investigative use of PCTDDs that are content)
- In re Application of the Federal Bureau of Investigation for Orders Requiring the Production of Call Detail Records, Memorandum Opinion, No. [REDACTED] (FISA Ct. Dec. 31, 2015) (granting government application for order requiring production of call detail records)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Opinion and Order, No. BR 15-99 (FISA Ct. Nov. 24, 2015) (concluding call metadata acquired under FISA before the USA Freedom Act bulk collection restrictions took effect could be retained and put to limited use by the NSA after the restrictions became effective)
- [REDACTED], Memorandum Opinion and Order, No. [REDACTED] (FISA Ct. Nov. 6, 2015) (discussing NSA failure to comply with FISA Section 702 minimization procedures but approving modified targeting and minimization procedures)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Opinion and Order, No. BR 15-75, 15-01 (FISA Ct. June 29, 2015) (granting Order for Bulk Metadata Collection Under Section 215 for 180-Day Period Prior to Implementation of the USA FREEDOM Act)
- In re [REDACTED] a U.S. Person, Memorandum Opinion, No. PR/TT 15-52 (FISA Ct. June 18, 2015) (denying appointment of an amicus curiae)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Memorandum Opinion, No. BR 15-77, 15-78 (FISA Ct. June 17, 2015) (denying amicus curiae and determining the USA Freedom Act reinstated business records provisions of FISA that had been subject to sunset)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 13-25 (FISA Ct. Aug. 27, 2014) (explaining the decision to issue a production order and finding that the FBI’s application showed reasonable grounds to believe the investigation of a US person was not based solely on First Amendment protected activity)
- In re Orders of this Court Interpreting Section 215 of the Patriot Act, Opinion and Order Directing Declassification of Redacted Opinion, No. MISC 13-02 (FISA Ct. Aug. 7, 2014) (directing the government to prepare and declassify a FISC opinion under FISC Rule 62(a))
- In re Orders of this Court Interpreting Section 215 of the Patriot Act, Opinion and Order Granting Motion for Reconsideration, No. MISC 13-02 (FISA Ct. Aug. 7, 2014) (reinstating Media Freedom and Information Access Clinic to a case on finding the group had Article III standing)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], Memorandum Opinion and Primary Order, No. BR 14-96 (FISA Ct. June 19, 2014) (re-authorizing collection of bulk call metadata by the NSA)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Opinion and Order, No, BR 14-01 (FISA Ct. Mar. 21, 2014) (granting amicus curiae involved in pending district court suits against the NSA leave to correct the FISA court record and ordering the government to explain its failure to notify the Court of preservation orders in those cases implicating call metadata)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Opinion and Order, No. BR 14-01 (FISA Ct. Mar. 20, 2014) (rejecting, based on Smith v. Maryland, a third party’s Fourth Amendment challenge to the Court’s order to produce call metadata in bulk to the NSA)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Opinion and Order, No, BR 14-01 (FISA Ct. Mar. 12, 2014) (permitting the government to temporarily preserve call metadata in contravention of minimization requirements in order to fulfil its civil litigation obligations)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Opinion and Order, No, BR 14-01 (FISA Ct. Mar. 7, 2014) (denying the government’s request to preserve call metadata in contravention of minimization requirements in order to fulfil its civil litigation obligations)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Memorandum Opinion, No. BR 13-158 (FISA Ct. Dec. 18, 2013) (granting the Center for National Security Studies request to file an amicus brief on why FISA does not authorize the bulk collection of call metadata and denying requests for other relief)
- In re Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [REDACTED], Memorandum Opinion and Primary Order, No. BR 13-158 (FISA Ct. Oct. 11, 2013) (granting Order for Bulk Metadata Collection Under Section 215)
- In re Orders of this Court Interpreting Section 215 of the Patriot Act, Opinion and Order, No. MISC. 13-02 (FISA Ct. Sept. 13, 2013) (ordering declassification review only of FISC opinions not subject to ongoing FOIA litigations)
- In re Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [REDACTED], Amended Memorandum Opinion, No. BR 13-109 (FISA Ct. Aug. 29, 2013) (granting Order for Bulk Metadata Collection Under Section 215)
- In re Motion for Consent to Disclosure of Court Records or, in the Alternative, A Determination of the Effect of the Court's Rules on Statutory Access Rights, Opinion and Order, No. 13-01 (FISA Ct. June 12, 2013) (holding that FISC Rules do not prohibit Government disclosure of FISC opinions in District Court FOIA suits)
- [REDACTED], Memorandum Opinion, No. [REDACTED] (FISA Ct. Sept.  2012) (discussing the evolution of “upstream” and the NSA’s measures to prevent criminal misuse of domestic communications acquired through the program in violation of the FISA and the Fourth Amendment)
- [REDACTED] (part 1 and part 2), Memorandum Opinion, No. [REDACTED] (FISA Ct. Nov. 30, 2011) (approving amended minimization procedures adopted after the Oct. 3 Order)
- [REDACTED] (part 1, part 2, part 3, part 4, part 5, part 6, part 7, part 8, and part 9), Memorandum Opinion, No. [REDACTED] (FISA Ct. Oct. 3, 2011) (finding that (1) NSA had substantially misrepresented "upstream collection" of Internet communications; (2) that current targeting and minimization procedures violated the Fourth Amendment; and that (3) current minimization procedures violated the FISA)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things [REDACTED], Supplemental Opinion and Order, No. BR 09-15 (FISA Ct. Nov. 5, 2009) (imposing additional restrictions on telephony metadata querying and directing the Government to provide additional information regarding queries in light of previous noncompliance incidents)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], Order Regarding Further Compliance Incidents, No. BR 09-13 (FISA Ct. Sept. 25, 2009) (ordering a hearing for the Government to brief the FISC on the scope and circumstances of its improper dissemination of telephone metadata)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], Primary Order, No. BR 09-13 (FISA Ct. Sept. 3, 2009) (ordering the production of business records and removing previous reporting requirements imposed due to noncompliance issues)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], Order, No. BR 09-06 (FISA Ct. June 22, 2009) (ordering the NSA to report, on a weekly basis, any dissemination of information from the telephony metadata program outside the NSA in light of noncompliance with previous court orders)
- In re Production of Tangible Things From [REDACTED], Order, No. BR 08-13 (FISA Ct. Mar. 2, 2009) (ordering NSA to seek court approval to query the telephone metadata on a case-by-case basis in light of noncompliance with previous court orders)
- In re Production of Tangible Things From [REDACTED], Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009, No. BR 08-13 (FISA Ct. Jan. 28, 2009) (requiring the government to file a brief explaining its unauthorized “querying” of collected call metadata)
- In re Production of Tangible Things From [Redacted], Supplemental Opinion, No. BR 08-13 (FISA Ct. Dec. 12, 2008) (holding that production of bulk telephony metadata records under Section 215 is not inconsistent with 18 U.S.C. Sections 2702 and 2703)
- In re Proceedings Required by Section 702(i) of the FISA Amendments Act of 2008, Memorandum Opinion, No. MISC 08-01 (FISA Ct. Aug. 27, 2008) (denying requests by the ACLU to release of FISC records about NSA surveillance and to participate in court proceedings required under Section 702 of FAA to authorize surveillance)
- In re Directives [REDACTED] Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. Aug. 22, 2008) (affirming the FISC determination that the directive for a communications service provider to assist the government in data acquisition was lawful under the Fourth Amendment)
- In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007) (memorandum opinion on motion by ACLU for release of court records)
- In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [REDACTED], Order, No. BR 06-05 (FISA Ct. May 24, 2006) (order approving Government request for authorization to collect bulk telephony metadata under Section 215)
- In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002) (substantially invalidating the FISC’s restrictions on coordination between intelligence and law enforcement under FISA)
- In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (FISA Ct. 2002) (restricting coordination between intelligence and law enforcement officers under FISA, abrogated by In re Sealed case)
- In re Application of United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property, Memorandum of Law, No. 81[REDACTED] (FISA Ct. June 11, 1981), reprinted in S. Rep. No. 97-280 (holding the FISC had no jurisdiction, under statute or the Constitution, to review physical searches conducted for foreign intelligence purposes)
- Executive Order 13526, December 29, 2009, and Correction, January 8, 2010 (new security measures, under FISC 2010 Proposed Rules of Procedure)
- Executive Order 13292, March 25, 2003 (amendment to Executive Order 12958)
- Executive Order 12958, April 27, 1995 (controls FISC security measures)
Rules and Other Documents
- U.S. Foreign Intelligence Surveillance Court Public Filings
- Rules of Procedure, U.S. Foreign Intelligence Surveillance Court, Current
- 2006 FISC Rules and Procedures, Effective 2006-2010
- Foreign Intelligence Surveillance Court Annual Reports (compiled by FAS)
National Security Letters Issued, By Year
For more information, including exact numbers and sources, please refer to EPIC's FISA Court Orders Chart
- U.S. Courts, The Foreign Intelligence Surveillance Court and the Court of Review
- The Changing Composition of the Foreign Intelligence Surveillance Court and What if Anything to Do About It , Russell Wheeler, Lawfare Research Paper Series, Vol. 2, No. 2, (June 3, 2014).
- Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? Ex Parte Proceedings and the FISC Win Rate, Conor Clarke, 66 Stan. L. Rev. Online 125 (February 28, 2014)
- Government keeps secrets hush, hush, Dana Hedgpeth (September 14, 2010)
- Intelligence Surveillance Court Could Become Less Secret, Ellen Nakishima and Spencer S. Hsu (September 13, 2010)
- More on the FISC Rules of Procedure, Gregory S. McNeal (September 10, 2010)
- The FISA Court Sends a Message to the Executive Branch, Mark Ambinder (September 9, 2010)
- New FISC Rules of Procedure, Gregory S. McNeal (September 7, 2010)
- How to Conduct Surveillance of Terror Suspects, Daniel Gallington (September 6, 2010)
- FISA Court Proposes New Rules, Steven Aftergood (September 2, 2010)
- Surveillance Court Quietly Moving, Del Quentin Wilber (March 2, 2009)
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