University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re [redacted], a U.S. Person NS-DC-0140
Docket / Court PR-TT 15-52 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Case Summary
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 ... read more >
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. 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. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On June 16, 2015, the government submitted an application to the FISC to install pen register and trap and trace (PR/TT) devices on a certain cell phone pursuant to the 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.

This authorization sought retroactive approval for a PR/TT warrant; the Assistant Attorney General for National Security granted the application on June 11, 2015 under the Emergency Authorization provision in FISA, 50 U.S.C. 1843. In this case, the government was not seeking prospective use of the warrant, because the FBI had already terminated its use of the Emergency Authorization. However, in order to use the information gleaned from the PR/TT warrant, the government needed to file an application with the FISC within seven days of the grant of Emergency Authorization, which the FISC would either grant or deny at the close of this seven-day period.

This application also asked the FISC to appoint an amicus curiae for this particular PR/TT warrant. The government argued that its use of two redacted search terms constituted "specific selection terms" under 50 U.S.C. 1841(4), which was a provision added to FISA by the then-newly passed USA FREEDOM Act. The government stated that the FISC is allowed to appoint amici for this purpose under section 1803(1)(i) of the FISA.

Judge James Boasberg released an opinion denying the motion for appointment of an amicus curiae on June 18, 2015. He said that, while this was a novel interpretation of the FISA, he wrote that locating eligible amici, a requirement of the FISC for appointing amici under section 1803(i)(1) of the FISA, would be difficult, because the USA FREEDOM Act was only two weeks old, and there would effectively be no experts on this particular provision. Judge Boasberg also explored the possibility of appointing amici outside of this process under Section 1803(i)(2)(B) of the FISA, but said this too would be impossible, because the FISC needed to make a decision in two days in keeping with Emergency Authorization protocol. While the application for authorization was filed in a timely manner, he noted that two days was not enough time to appoint an amicus and have that person write a meaningful brief.

The outcome of this PR/TT warrant Emergency Authorization was not publicly released. Given that it had to be granted or denied within days of the court's decision not to appoint an amicus, the case is presumed to be closed.

Ellen Aldin - 10/29/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Special Case Type
Warrant or subpoena application
Causes of Action FISA Title IV order (pen register/trap-and-trace), 50 U.S.C. ยงยง 1841-1846
Plaintiff Description Plaintiff is the Federal Bureau of Investigation, seeking authorization of a pen register/tap and trace (PR/TT) warrant
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Unknown
Public Int. Lawyer Yes
Nature of Relief Unknown
Source of Relief Unknown
Filed 06/16/2015
Case Closing Year 2015
Case Ongoing No
Court Docket(s)
No docket sheet currently in the collection
General Documents
FISC
07/18/2015
Memorandum Opinion
NS-DC-0140-0001.pdf | Detail
Source: Foreign Intelligence Surveillance Court
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Judges Boasberg, James Emanuel (FISC, D.D.C.) show/hide docs
NS-DC-0140-0001

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