Making Sense of FISA’s Complex Judicial Review Requirements

One narrative that’s been repeated in recent reporting regarding the government’s surveillance programs is that FISA does not provide adversarial judicial review procedures.  According to this narrative, all questions regarding the legality of government surveillance under FISA are handled by the surveillance court in ex parte proceedings—that is, with only government lawyers arguing their side—which include none of the adversarial processes that lend fairness to traditional judicial review.

Unless I’m missing something—which is possible, given the complexity of the statutory framework—that narrative is only half true. To be sure, at least some of the procedures described in Section 1881 of FISA are ex parte, i.e., non-adversarial procedures involving only the government lawyers and the reviewing judge.  And the question of when and whether a particular surveilled individual (or a class thereof) can challenge the government’s surveillance programs under FISA or other laws is yet unsettled (see my pervious post on one aspect of that topic here).

However, other provisions of FISA appear to give at least one set of actors—electronic communications service providers—the right to challenge government surveillance conduct before the FISC, and to appeal that court’s ruling all the way to the Supreme Court of the United States.

How these challenges work in practice is hard to say.  But FISA Section 1881(h) gives communications providers (presumably, Google, Facebook, and others) the right to petition for judicial review of government requests for information under FISA, and to pursue their challenge all the way to the Supreme Court—including on the grounds that the government request violates the Fourth Amendment (or is “otherwise unlawful”).  Here are some of the relevant provisions:

(4) Challenging of directives

(A) Authority to challenge

An electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition to modify or set aside such directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.
(C) Standards for review

A judge considering a petition filed under subparagraph (A) may grant such petition only if the judge finds that the directive does not meet the requirements of this section, or is otherwise unlawful.
(6) Appeal

(A) Appeal to the Court of Review

The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition with the Foreign Intelligence Surveillance Court of Review for review of a decision issued pursuant to paragraph (4) or (5). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this subparagraph.
(B) Certiorari to the Supreme Court

The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision

Again, it is unclear how these provisions are applied in practice.  Typically, however, a “petition” for review of government conduct includes an adversarial process, with the “petitioner” briefing the court on its interpretation of the law and the facts, and the government responding.  Taken on their face, then, these provisions of FISA would permit at least one group of actors to pursue some type of adversarial challenge to important aspects of government surveillance programs. If recent reports regarding secret FISC opinions are any indication, it may be that Google, Facebook, or some other communication company have already argued FISA cases before the FISC—and indeed, perhaps even petitioned for certiorari before the Supreme Court.

That is not to say that these provisions of FISA provide the full measure of the adversarial process that we are used to seeing in other contexts.  They likely do not.  Moreover, it is not at all clear that communications providers can serve as an effective proxy for the protection of their customers’ legal rights.  The question of whether these provisions are fair or sufficient is further complicated by the fact that the surveillance court’s proceedings and its interpretation of FISA are shrouded in secrecy.  However, FISA (on its face, at least) does seem provide some adversarial procedures, and those should be taken into account in the public debate regarding government surveillance programs.

(Note that the question of whether and when the targets of surveillance can challenge the government’s secret surveillance programs in court is more complex, but it is by no means settled one way or another.  That question turns in part on the proper interpretation of another FISA provision, Section 1806(f), whose precise application is the subject of an ongoing case filed by EFF and currently before the Northern District of California (I discussed that provision in a pervious post).).

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