Foreign Intelligence Surveillance Court in the United States

The Foreign Intelligence Surveillance Court was created by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)). It was originally comprised of seven district judges from seven circuits named by the Chief Justice of the United States to serve a maximum of 7 years.

In 2001, the U.S.A. Patriot Act (section 208) amended the Foreign Intelligence Surveillance Act to increase the number of FIS Court judges from seven to eleven, “of whom no fewer than 3 shall reside within 20 miles of the District of Columbia.”

Yahoo Litigation

According to the Yahoo brief:

Documents released on September 11, 2014 as a result of litigation brought by Yahoo show how the court charged with assessing government intelligence surveillance requests secretly applied a broad exception to the Fourth Amendment to authorize sweeping surveillance of digital records without a warrant. The Foreign Intelligence Surveillance Court opined that this exception to the Fourth Amendment permits programmatic surveillance of many individuals – including Americans – with no connection to a crime or terrorism.

Jurisdiction Over The Denial Of Any Application Made Under Chapter 36 of Title 50 of the U.S. Code

This Foreign Intelligence Surveillance Court has jurisdiction over “any application made under this chapter.” 50 U.S. C. § 1803(b) (emphasis added). See also In reSealed Case, 310 F.3d 717,
721 (For. Intel. Surv. Ct. 2002). Congress authorized motions to compel and review of directives in 50 U.S.C. § 1805b, which is part of the same chapter as the jurisdictional provision contained in 50 U.S.C. § 1803(b). Neither FISA nor the Foreign Intelligence Surveillance Court Rules of Procedure, which apply to all proceedings before the Foreign Intelligence Surveillance Court, define what constitutes an “application,” but Rule 8 of the Foreign Intelligence Surveillance Court Rules of Procedure, entitled “Form of Applications for Court Order,” does not limit “applications” to any particular type of court order.

The ordinary meaning of application is “a formal request to an authority” (THE OXFORD DICTIONARY OF ENGLISH, revised edition). That meaning, coupled with § 1803(c)’s broad
jurisdictional provision, supports the conclusion that “application” encompasses requests made of the court under all sections of Chapter 36. This interpretation would not render 50 U.S.C. § 1805b(i) superfluous, because § 1805b(i) provides additional timing requirements not present under§ 1803(b) for review of directives on a direct petition.

Answer from the U.S. Government:

Contrary to Yahoo’s suggestion, this Court does not have jurisdiction to review the Foreign Intelligence Surveillance Court’s order pursuant to 50 U.S.C. § l803(b). (…) That section confers jurisdiction “to review the denial of any application made under this Act,” i.e., the denial of an application by the Government for judicial authorization to conduct surveillance under provisions such as § 1804(a). No “application”- a term not used in § 1805B-has been made in this case, much less denied. Due process principles also have no bearing on the jurisdictional question.

Apart from the fact that there is no constitutional right to appeal even a criminal conviction, see, e.g., Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 402-403 (2001 ), and that Yahoo has no constitutional right to challenge an alleged violation ofthird parties’ Fourth Amendment rights, see infra pp. 53-56, there is no constitutional impediment to requiring a litigant to use a specific and exclusive review process. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 216-218 (1994).

Yahoo reply was, among others, that after “acknowledging the Foreign Intelligence Surveillance Court’s jurisdiction to hear this appeal, the Government argues, without reference to any specific set of factors, that the decision of the FISC should be upheld because the surveillance at issue is “reasonable.”