In Re Directives Pursuant to SEC. 105b
2008 WL 5501436, 551 F.3d 1004 (2008)
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Rule of Law:
A foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or their agents reasonably believed to be located outside the United States. Such warrantless surveillance is constitutional if it is reasonable, which is determined by balancing the government's national security interest against the intrusion on privacy, considering the totality of the circumstances and the procedural safeguards in place.
Facts:
- In 2007, Congress enacted the Protect America Act of 2007 (PAA), which authorized the Director of National Intelligence (DNI) and the Attorney General (AG) to direct communications service providers to assist in acquiring foreign intelligence without a warrant.
- The PAA allowed for surveillance targeting persons reasonably believed to be located outside the United States.
- Beginning in 2007, the U.S. government issued directives to the petitioner, a communications service provider, compelling it to assist in the warrantless surveillance of certain customers.
- These directives were based on certifications from the DNI and AG, which stated that a significant purpose of the surveillance was to obtain foreign intelligence.
- The certifications also required the government to follow additional internal procedures, including those detailed in Executive Order 12333, before undertaking surveillance.
- The petitioner refused to comply with the government's directives, challenging their legality.
Procedural Posture:
- The U.S. government filed a motion with the Foreign Intelligence Surveillance Court (FISC), a court of first instance, to compel the petitioner's compliance with the surveillance directives.
- The petitioner challenged the legality of the directives before the FISC.
- The FISC ruled that the directives were lawful and granted the government's motion to compel compliance.
- The petitioner, as appellant, filed a petition for review of the FISC's decision with the United States Foreign Intelligence Surveillance Court of Review, the appellate court.
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Issue:
Does warrantless foreign intelligence surveillance conducted pursuant to the Protect America Act of 2007, when targeting persons reasonably believed to be outside the United States, violate the Fourth Amendment's prohibition on unreasonable searches and seizures?
Opinions:
Majority - Selya, Chief Judge
No, the warrantless foreign intelligence surveillance conducted pursuant to the Protect America Act, as applied in this case, does not violate the Fourth Amendment. A foreign intelligence exception to the Fourth Amendment's warrant requirement exists for surveillance directed at foreign powers or their agents outside the U.S. for national security purposes. Such surveillance is permissible if it satisfies the Fourth Amendment's reasonableness requirement, which is determined by balancing the government's interests against the privacy intrusion. Here, the government's interest in national security is of the highest order and outweighs the intrusion on privacy due to the numerous safeguards in place. These safeguards, including targeting and minimization procedures, and an internal probable cause determination by the Attorney General pursuant to Executive Order 12333, are sufficient to make the surveillance reasonable, even without prior judicial review.
Analysis:
This decision is highly significant as it represents the first explicit federal appellate court affirmation of a "foreign intelligence exception" to the Fourth Amendment's warrant requirement. The ruling shifts the constitutional inquiry for this type of surveillance from the Warrant Clause to the more flexible Reasonableness Clause. By approving a program that substitutes internal executive branch safeguards for prior judicial approval, the case provides a constitutional foundation for modern, large-scale foreign intelligence programs. This precedent strengthens the executive branch's authority in national security matters and sets a framework for analyzing the constitutionality of similar surveillance laws.
