Case: In re Electronic Surveillance and Physical Search of Foreign Powers and Agents of Foreign Powers

This case relates to electronic surveillance conducted by the federal government pursuant to Title I of the Foreign Intelligence Surveillance Act (FISA). On October 2, 2008, the government filed a motion to amend the FBI Standard Electronic Surveillance and Physical Search Minimization Procedures. The proposed amendments authorized the National Counterterrorism Center (NCTC) to access information obtained pursuant to FISA in the FBI's Automated Case Support (ACS) database, as long as the NCTC only accesses cases likely connected to terrorism or counterterrorism. The NCTC would also be able to disseminate that information with the FBI's approval, subject to certain minimization procedures—i.e., procedures to prevent private information about U.S. persons from becoming public or being misused.

On October 8, 2008, Judge Colleen Kollar-Kotelly of the United States Foreign Intelligence Surveillance Court granted the government’s motion. She held that providing FISA information to the NCTC was consistent with FISA, including section 1801, because allowing the NCTC to access this information was “consistent with the need of the United States to obtain, produce and disseminate foreign intelligence information.” One potential problem the court raised is that the FBI's ACS database had some information unrelated to foreign intelligence, and it was not possible to separate the different types of information. FISA has different restrictions on how the government can use information that is not about foreign intelligence. However, the NCTC said it would not use any of that information, and the court concluded that the FBI could share the information with the NCTC because that did not count as "disseminating" it under FISA. Therefore, the court approved the amendments.

This case is presumed closed.