Case: Order Amending the Rules of Procedure for the Court [FISCR Docket 18-02]

The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Furthermore, each application requires the approval of the Attorney General, which the statute defines as "the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28."

Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. The Foreign Intelligence Surveillance Court of Review (FISCR) was also established under FISA. The FISCR is comprised of three federal district court or appeals court judges who are designated by the Chief Justice of the United States for seven-year terms. The FISCR was established to review the decisions of the FISC; usually, the FISCR reviews denials of applications for FISA warrants by the FISC since the government is frequently the sole party before the FISC. Other parties aside from the government may submit briefs as amici curiae if they are made aware of proceedings in the FISC and/or FISCR.

For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

In February 2018, the FISCR proposed amendments to its Rules of Procedure. The proposed amendments were targeted towards Rule 15(d)(2), which outlines requirements for the format and length of amicus curiae briefs. Under the 2016 Rules, Rule 15(d)(2) stated: "An amicus curiae brief must meet the requirements of Rule 9(c) and Federal Rules of Appellate Procedure 29(d) and 32(a)." The amendment proposed to revise the rule to: "An amicus curiae brief must meet the requirements of Rule 9(c) and Federal Rules of Appellate Procedure 29(a)(5) and 32(a), except that a brief filed by a Court-appointed amicus is subject to the maximum length restrictions of Federal Rule of Appellate Procedure 32(a)(7), and not Federal Rule of Appellate Procedure 29(a)(5)."

The change from referring to Federal Rules of Appellate Procedure Rule 29(d) to 29(a)(5) was necessary due to the Federal Rules of Appellate Procedure deleting Rule 29(d), which dealt with the length of amicus briefs, and putting the same provision as 29(a)(5) under the 2017 revision of the Federal Rules of Appellate Procedure. Rule 29(a)(5) states: "(5) Length. Except by the court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief."

Federal Rules of Appellate Procedure Rule 32(a)(7), which details length restrictions for briefs generally reads:

(A) Page Limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B).

(B) Type-Volume Limitation.

(i) A principal brief is acceptable if it:

• contains no more than 13,000 words; or

• uses a monospaced face and contains no more than 1,300 lines of text.

(ii) A reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32(a)(7)(B)(i).