The U.S. Foreign Intelligence Surveillance Court (FISC) is a specialized federal court in Washington, D.C. that Congress created in 1978 when it enacted the Foreign Intelligence Surveillance Act (FISA). The FISC’s primary role is to review executive branch (“government”) applications for authorization to employ various means of obtaining foreign intelligence, principally when they are conducted in the United States or otherwise directed at Americans.
The FISC is composed of 11 federal district judges who are designated by the Chief Justice of the United States for this part-time assignment. As such, each FISC judge has been nominated by the President and confirmed by the Senate to serve as a district judge. Because service on the FISC involves regular access to Top Secret/Sensitive Compartmented Information, judges also undergo an updated background investigation before being designated to serve on the FISC. Each of the judges currently on the FISC has more than ten years of experience as a federal district judge and several of them serve or have served as the chief judges of their respective district courts.
Judges serve on the FISC for a maximum of seven years. Their terms are staggered, so that in a typical year one or two judges reach the end of their terms and another one or two are newly designated to the FISC. By statute, the judges must be drawn from at least seven of the United States judicial circuits, so that the FISC benefits from the experience of judges from around the country. At least three of the judges must reside in the Washington, D.C. area, which ensures that a judge will be available to handle emergency applications or other matters in which the statute specifies a tight deadline.
As other federal courts have recognized, the FISC is an Article III federal court.1
FISA sets out requirements for each type of government application provided for in the statute. The FISC reviews each application to determine whether it meets the applicable factual and legal requirements and should be approved. The types of government applications include:
- Applications for electronic surveillance (Title I of FISA) and physical search (Title III), in which the government must demonstrate to the satisfaction of the judge that there is probable cause to believe that the target is a foreign power – defined to include foreign governments and related entities, as well as international terrorist groups – or an agent of such a foreign power. Applications for electronic surveillance and/or physical search constitute the large majority of FISC cases.
- Applications under Section 704 of FISA (codified at 50 U.S.C. § 1881c) to target U.S. persons who are outside of the United States to acquire foreign intelligence information, which are subject to a similar probable-cause requirement.
- Applications for use of pen/register trap-and-trace devices (Title IV) and third-party production of certain types of business records (Title V) in support of FBI foreign intelligence investigations.
- Applications under Section 702 of FISA (codified at 50 U.S.C. § 1881a) for authorization to target non-U.S. persons located abroad for acquisition of foreign intelligence information with the assistance of electronic communication service providers. In this discussion, “Section 702 applications” refers to certification(s) made by the Attorney General and the Director of National Intelligence, as well as targeting, minimization, and querying procedures that govern how intelligence agencies target such non-United States persons abroad for acquisition and how they query and otherwise work with the information obtained. The Court reviews the certification(s) and procedures to determine whether they are consistent with statutory and Fourth Amendment requirements, but does not rule on each proposed target.
The FISC considers these applications in non-public proceedings that are conducted ex parte, meaning the government is the only party (though, as discussed below, the Court can receive the views of independent legal and technical experts). This ex parte format is the same way that federal magistrate judges consider search warrant applications in support of ordinary criminal investigations, and that district judges consider “Title III” wiretap applications. In all these types of matters, closed proceedings are necessary to avoid alerting the subjects of investigations to an imminent surveillance or search.
FISC proceedings on the above-described types of government applications must be closed for the further reason that they involve classified information. However, Congress receives copies of significant FISC opinions and the government conducts a declassification review of such opinions for release to the public.
Each week, one of the 11 FISC judges is on duty in Washington. Most of the Court’s work is handled in the course of such a duty week. This mode of operation is congruent with the Court’s statutory obligation to conduct its proceedings “as expeditiously as possible.” 50 U.S.C. § 1803(c).
Due to the weekly rotation of duty judges, it is likely that, over time, multiple judges will review applications for targets that the government seeks to monitor for an extended period. Duty judges review renewal applications with the same care as applications to initiate surveillance of a target, notwithstanding prior approvals by their colleagues. For example, during 2020-2022, more renewal applications were denied in full by judges who had not reviewed a prior application for the target at issue than by judges who had done so; the same is true of partial denials over the same period.
There are some especially complex matters, such as Section 702 applications, that are handled outside of this duty-week framework because they cannot be effectively adjudicated within a single week. Such matters are identified in various ways. For example, the government might at the outset identify a case as not suited for resolution in one week. It may be necessary for the Court to extend its consideration of a case beyond one week in other circumstances, e.g., to allow sufficient time for the government to respond to factual questions from the Court or for an amicus curiae (“friend of the Court”) to provide assistance.
The following description applies to the Court’s consideration of its ordinary weekly docket.
The government submits a draft (“proposed”) application to the FISC in advance of submitting the final application. The proposed application includes one or more drafts of the order(s) for the judge to sign to approve the application. Often the government requests multiple orders that are directed to communication service providers or other private parties that are in a position to assist the government in conducting a surveillance or search. For simplicity, the following discussion will refer to one “order” by which the FISC grants an application.
Under FISC Rule of Procedure 9(a), the government is required in non-emergency cases to submit proposed applications at least seven days before it seeks to have the matter ruled on by the Court. To forestall the possibility of “judge shopping,” the Court’s staff does not disclose to the government the identity of the duty judge for a given week until the close of business on the preceding Friday, i.e., after the government is required to have submitted the proposed applications to be considered during that duty week.
One of the attorneys on the Court’s staff – who are commonly called “legal advisors” – reviews the proposed application and evaluates whether it meets statutory requirements. As part of this evaluation, the legal advisor will often have one or more verbal conversations with the government to seek additional information and/or discuss any concerns. The legal advisor also assesses whether to recommend that the duty judge hold a hearing, appoint an amicus curiae, or require the government to include additional information in the application. The legal advisor then prepares a written analysis of the application for the duty judge, which identifies any weaknesses or concerns and discusses recommendations that the legal advisor might have.
The judge then reviews the proposed application, together with the legal advisor’s written analysis, and determines how to proceed. The judge may indicate an intent to:
- approve the application without a hearing;
- require additional information about the application;
- appoint one or more amici curiae;
- hold a hearing, which may take place before or after submission of a final application;
- consider imposing conditions on the approval of the application; and/or
- deny part or all of the application.
Based on the judge’s determination, the government may provide the court with additional information, request a hearing, postpone submission of the final application, withdraw the application, and/or submit a final application – with or without modifications. Typically (but not always), the government supplements or revises the final application, if doing so is necessary to address any concerns of the judge.
The FISC may hold a hearing in various circumstances, such as when a judge requires additional information or the government requests one to make arguments before the judge. Hearings are attended, at a minimum, by the Department of Justice attorney who prepared the application and a fact witness from the agency on whose behalf the application is made, as well as the FISC legal advisor assisting the judge in that matter and staff of the Clerk of Court’s office.
The types of additional information obtained from the government in the above-described process include, but are not limited to:
- facts to justify the government's belief that its application meets the legal requirements for the type of authority it is seeking; e.g., for an electronic surveillance application, the government might provide additional information to establish probable cause to believe that the target is a foreign power or an agent of a foreign power or is using or about to use a particular “facility” (such as a particular communication device);
- facts about the nature and volume of information that will be acquired and how the government intends to implement statutorily required minimization procedures; and
- information about any previous failure to fully comply with a Court order or Court-approved procedures and how the noncompliance can be remedied.
If the government files a final application, and the judge decides to grant it, the judge may still make changes to the government's proposed order, or issue a totally redrafted order, to address any remaining concerns. The judge may choose, for example, to authorize surveillance for a shorter duration than requested by the government or to issue a supplemental order imposing on the government special reporting or minimization requirements. If the judge denies the government’s final application, he or she will prepare a statement of reasons for doing so. In some cases, as mentioned above, the government will decide not to submit a final application, or to withdraw one that has been submitted, after learning that the judge does not intend to approve it.
In addition to the certification(s) and targeting, minimization, and querying procedures, the government typically submits supporting affidavits and a memorandum that highlights any special issues and identifies any changes that have been made relative to the prior application. The government typically files proposed Section 702 applications approximately one month before filing a final application. Proposed Section 702 applications are reviewed by multiple legal advisors. At the direction of the Presiding Judge or a judge to whom the case has been assigned by the Presiding Judge, the legal advisors may meet with the government to obtain additional information or convey on the judge’s behalf any concerns about a proposed application. Following these interactions, the government usually files a final Section 702 application, which may have been modified in view of any concerns raised by the judge. The judge may hold a hearing after submission of a proposed application or a final one. If an amicus curiae has been appointed, the Court receives briefing from the amicus, who would also typically participate in any hearing in the matter.
The law requires the Court to complete its review of the final application within 30 days of its submission; however, the Court can extend this period for good cause in a manner consistent with national security. The Court has done so, for example, to allow time for an amicus to provide assistance.
If the judge finds that the application is consistent with statutory and Fourth Amendment requirements, the judge enters an order approving the application. If the judge makes a contrary finding, he or she will issue an order directing the government to either correct any deficiency identified by the Court within 30 days or cease, or not begin, implementation of the authorization at issue (in which circumstance, the government can elect which of those paths to choose). Simultaneously with issuing either type of order, the judge must provide a written statement of reasons.
FISC review of Section 702 applications is typically complex and rigorous and usually takes from several weeks up to a number of months. Since 2015, the FISC’s disposition of Section 702 applications has always involved substantive modification, and twice involved findings of deficiency under statutory and Fourth Amendment requirements. Many of the FISC opinions related to Section 702 applications have been declassified by the government and are available to the public.
The annual FISA statistics provided by the Attorney General generally have reflected only denials or modifications of final applications and have not addressed cases in which the government revised its final submission to conform to the judge’s intended disposition or withheld an application from final submission after a judge indicated that it will not be approved. Nonetheless, these statistics suggest that in recent years FISC judges have issued denials or modifications for FISA applications more frequently than district judges around the country have done so for criminal Title III wiretap applications.
In contrast, the annual reports of the Director of the Administrative Office of the United States Courts (AO) have captured actions from the proposed application stage forward, and therefore better reflect the scope and consequences of the FISC’s work. For example, the AO reported that in 2022, out of 324 applications for electronic surveillance and/or physical search orders, the FISC “denied” 23 orders in full or in part, and “substantially modified” an additional 80. In most of these instances, the government declined to submit an application requesting the previously-sought relief, or otherwise incorporated the judge’s proposed modifications into the final application. These “denials” and “substantial modifications” do not include matters in which a judge granted the requested order without modification, but only after the government materially supplemented the factual proffer, either at a hearing, by revisions included in the final application or in a supplemental declaration. Such supplementation occurs regularly.
A 2015 amendment to FISA permitted the Presiding Judges of the FISC and the Foreign Intelligence Surveillance Court of Review (FISCR) to designate individuals with relevant expertise to a pool of potential amici curiae to stand ready to assist the FISA Courts in appropriate cases. A number of individuals have been designated to this pool, each of whom has undergone a background investigation and been found eligible for access to classified information. Some of the individuals so appointed have expertise in the law related to government surveillance and others have technological expertise that may help judges evaluate information proffered in particular cases or understand proposed means for the government to acquire intelligence.
Some FISA matters involve a novel or significant question of law or a complex question involving the use of technology, such that the Court may opt to appoint one or more amici from members of the pool to assist the Court in understanding those questions. Specifically, if an application “presents a novel or significant interpretation of the law,” an amicus is to be appointed unless the Court finds that doing so is not appropriate. If a novel or significant interpretation of the law is not presented, the Court may still appoint an amicus if the Court deems it appropriate. Because amicus participation can result in prolonging the Court’s review of an application, the effect of such delay can be a key factor in deciding whether it is appropriate to appoint an amicus. Indeed, the statute specifies that amicus appointments must be consistent with the Court’s obligation to conduct its proceedings as expeditiously as possible.
Section 702 applications often present issues for which it is appropriate to appoint amici. In contrast, most other FISA applications do not present such issues, but rather involve settled law and known technologies. In those cases, the judge’s chief task is to evaluate case-specific facts and circumstances in order to determine whether required findings can be made, e.g., whether there is probable cause to believe that an individual target is an agent of a foreign power.
In some circumstances, nongovernmental parties may litigate the lawfulness of FISA orders or directives to provide information or assistance to the government. For example:
- A private company or individual that has been served with a directive to assist in acquiring information under Section 702 may petition the FISC to modify or set aside the directive. Conversely, the government may petition the FISC to compel the recipient to comply with the directive.
- If a private party that has been served with a FISC order does not comply with it, FISC Rule of Procedure 19 permits the government to file a motion to show cause why that party should not be held in contempt and sanctioned accordingly. In responding to the government’s petition, the private party has the opportunity to show cause for the noncompliance or argue that the order should not be enforced as issued.
The following are notable examples of adversarial litigation before the FISC:
- In 2007, Yahoo! Inc. refused to comply with directives issued by the government under provisions of FISA that have been replaced by Section 702. The government filed a motion with the FISC to compel compliance. The Court ordered and received briefing from both parties and granted the government’s motion in 2008. The FISCR affirmed the FISC’s decision later that year.
- In 2022, a private party that had received a Section 702 directive filed a petition with the FISC to modify or set aside the directive. (Although the fact of this proceeding has been declassified, the name of the petitioner has not been.) After receiving briefing from the parties and conducting a hearing, the FISC granted the petition and modified the directive. The FISCR affirmed the FISC’s decision in 2023.
See United States v. Muhtorov, 20 F.4th 558, 606-18 (10th Cir. 2021) (when ruling on Section 702 applications, the FISC adjudicates a case or controversy under Article III), cert. denied, 143 S. Ct. 246 (2022); In re Sealed Case, 310 F.3d 717, 731-32 (FISCR 2002) (per curiam) (FISC is subject to “the constitutional bounds that restrict an Article III court” regarding deployment of Executive Branch personnel and resources); United States v. Cavanaugh, 807 F.2d 787, 791-92 (9th Cir. 1987) (FISC judges retain their Article III status, notwithstanding their limited terms of service on the FISC); In re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) (rejecting argument that FISC was “not a proper Article III court”), aff’d, 788 F.2d 566 (9th Cir. 1986); United States v. Megahey, 563 F. Supp. 1180, 1196-97 (E.D.N.Y. 1982) (FISC comports with Article III requirements).