Filed Date: 2016
Closed Date: 2016
Clearinghouse coding complete
For the Civil Rights Litigation Clearinghouse collection of Foreign Intelligence Surveillance Act (FISA) matters, see our special collection.
On January 21, 2016, the government submitted an application to the Foreign Intelligence Surveillance Court (FISC) to install pen register and trap and trace (PR/TT) devices on a certain cell phone pursuant to FISA. Pen registers are surveillance devices that capture the phone numbers dialed on outgoing telephone calls; trap and trace devices capture the numbers identifying incoming calls. The government's application also sought to "record and decode all post-cut-through digits." Post-cut-through digits are numbers dialed after a call has been connected (i.e., "cut through")—for example, if an individual calls her bank and then, per the bank's request, dials in the digits of her account number, she would be inputting post-cut-through digits.
FISC Judge Thomas F. Hogan approved the application. He included, however, a caveat—the government was not permitted to "make any affirmative investigative use of post-cut-through digits . . . that do not constitute call dialing, routing, addressing, or signaling information, unless separately authorized by this Court." Judge Hogan noted that this decision was consistent with historical FISC practice: "Since 2006, FISC judges have issued PR/TT orders . . . that . . . authorize acquisition of all post-cut-through digits, while generally prohibiting use of those digits that are not dialing, routing, addressing, or signaling . . . information."
Although Judge Hogan approved the application, on February 21, 2016, Judge Hogan issued an order certifying the question to the Foreign Intelligence Surveillance Court of Review (FISCR). Judge Hogan noted that, to date, the FISC had not issued an opinion regarding whether collection of post-cut-through digits was permitted under FISA—instead, the FISC simply adopted the government's argument that the collection of such digits was permitted. He observed, however, that no other court in the country (other than the FISC) had authorized the collection of post-cut-through digits under a PR/TT order. Other courts had reasoned that the definitions of PR/TT devices excludes any device that acquires the contents of calls; post-cut-through digits, however, can sometimes be part of the contents of a call (such as in the bank phone call discussed above), and the government claimed that there was no way to distinguish content and noncontent digits. Judge Hogan was thus concerned about the weight of contrary authority against the FISC's historical practice.
As Judge Hogan noted, the FISC had never fully considered the merits of this issue. But the USA FREEDOM Act, which was passed on June 2, 2015, provided the FISC with two new options: (1) the FISC could appoint an amicus curiae to assist the FISC on an issue that "presents a novel or significant interpretation of the law" and (2) the FISC could certify a question of law to the FISCR. Judge Hogan reasoned that appointing an amicus was not appropriate because of the urgent nature of the PR/TT application. But he concluded that, given the disagreement between the FISC and other courts, certification of the question to the FISCR was warranted.
On April 14, 2016, the FISCR, in a per curiam opinion from FISCR Judges William C. Bryson, Jose A. Cabranes, and Richard C. Tallman, concluded that courts could issue a PR/TT order authorizing the collection of post-cut-through digits. The court also held that collection of such digits did not violate the Fourth Amendment, even if the government incidentally collected digits that made up a call's content. In re Certified Question of Law, 858 F.3d 591 (FISA Ct. Rev. 2016).
John He (8/5/2017)
Hogan, Timothy Sylvester (Ohio)
Hogan, Timothy Sylvester (Ohio)
Last updated May 11, 2022, 8 p.m.Docket sheet not available via the Clearinghouse.
State / Territory: District of Columbia
Filing Date: 2016
Closing Date: 2016
Case Ongoing: No
National Security Division of the U.S. Department of Justice
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Special Case Type(s):
Prevailing Party: Plaintiff
Source of Relief:
Content of Injunction: