Butler: Standing Up to Clapper

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The case was poised to challenge the extent of government surveillance of Americans’ international communications under the Foreign Intelligence Surveillance Act (“FISA”). Brought by the American Civil Liberties Union on behalf of journalists, attorneys, and human rights organizations, the complaint argued that certain provisions of the FISA, authorizing programmatic surveillance of international communications, were unconstitutional. The United States didn’t even bother to dispute the facts: plaintiffs’ work required them to communicate confidentially with international clients, sources, and colleagues—some of whom the government believed to be associated with terrorist organizations—and their discussions, which included foreign intelligence information, were precisely the type likely to be intercepted under the FISA Amendments Act of 2008 (“FAA”). They had also incurred costs to avoid FAA surveillance.Yet their claim would not be heard. On February 26, 2013, the U.S. Supreme Court ruled in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), that the plaintiffs lacked standing to bring their claims. The Court held that the plaintiffs did not satisfy the case-and-controversy requirement of Article III of the United States Constitution because their claims were “too speculative.” The opinion was a blow to those who seek increased transparency and public oversight of the U.S. Intelligence Community—transparency made ever-more necessary by the expansion of secret surveillance activities. If the Clapper plaintiffs lacked standing, it could be nearly impossible to find better-suited plaintiffs to challenge the constitutionality of National Security Agency (“NSA”) surveillance activities and to pursue a litigation solution to intelligence surveillance reform. In retrospect, the Court would have done better to wait until the end of its term in June to issue the opinion.

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Standing Up to Clapper: How to Increase Transparency and Oversight of FISA Surveillance
ALAN BUTLER I.INTRODUCTION .................................................................................................... 56 A. A Brief Overview of Modern FISA Surveillance .......................... 57 B. The Problem: Inadequate Transparency and Public Accountability................................................................................... 63 II.THE INJURIES ALLEGED IN CLAPPER ARE NO LONGER SPECULATIVE, BUT THE COURT MADE IT MORE DIFFICULT TO ESTABLISH ARTICLE III STANDING IN SURVEILLANCE CASES. ..................................................... 67 A. The Court’s Adoption of a New “Certainly Impending” Test, Rather Than the Traditional “Substantial Risk” Test, Will Make It Harder to Challenge Future Unlawful Activities. ................... 69 B. The Harms Alleged in Clapper Are No Longer Speculative. ..... 75 C. The Court’s New “Fairly Traceable” Standard Could Preclude Future Challenges to Government Surveillance. ........................ 78 III. A FRAMEWORK FOR TRANSPARENCY AND PUBLIC OVERSIGHT OF FISA SURVEILLANCE ......................................................................................... 82 A. There Should Be Additional Public Reporting About FISA Activity .............................................................................................. 83 B. The Legal Interpretations of the FISC Should Be Disclosed to the Public. ................................................................................................ 86 C. Any Lawmaking at the FISC Should Be the Result of An Adversarial Process Between the Government and a Public Advocate. ........................................................................................... 88 IV.OVERVIEW OF LEGISLATIVE PROPOSALS FOR FISA REFORM ........................... 91 A. Reforms Proposed During the FAA Reauthorization Process ... 92 B. Current Proposals in the House and Senate ................................. 94

 Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA School of Law; B.A., magna cum laude, Economics, Washington University in St. Louis. I would like to thank David Brody, Julia Horwitz, and the rest of the EPIC staff for advice and support with this article. Also Nicolle Kownacki for her constant support and inspiration.

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INTRODUCTION
I. Introduction

T

he case was poised to challenge the extent of government surveillance of Americans’ international communications under the Foreign Intelligence Surveillance Act (“FISA”). Brought by the American Civil Liberties Union on behalf of journalists, attorneys, and human rights organizations, the complaint argued that certain provisions of the FISA, authorizing programmatic surveillance of international communications, were unconstitutional. The United States didn’t even bother to dispute the facts: plaintiffs’ work required them to communicate confidentially with international clients, sources, and colleagues —some of whom the government believed to be associated with terrorist organizations—and their discussions, which included foreign intelligence information, were precisely the type likely to be intercepted under the FISA Amendments Act of 2008 (“FAA”). They had also incurred costs to avoid FAA surveillance. Yet their claim would not be heard. On February 26, 2013, the U.S. Supreme Court ruled in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), that the plaintiffs lacked standing to bring their claims. The Court held that the plaintiffs did not satisfy the case-and-controversy requirement of Article III of the United States Constitution because their claims were “too speculative.”1 The opinion was a blow to those who seek increased transparency and public oversight of the U.S. Intelligence Community—transparency made ever-more necessary by the expansion of secret surveillance activities. If the Clapper plaintiffs lacked standing, it could be nearly impossible to find better-suited plaintiffs to challenge the constitutionality of National Security Agency ( “NSA”) surveillance activities and to pursue a litigation solution to intelligence surveillance reform. In retrospect, the Court would have done better to wait until the end of its term in June to issue the opinion. A few months after the Court ruled in Clapper, documents published by The Guardian and The Washington Post shed new light on the scope of foreign intelligence surveillance conducted by the NSA. 2 Subsequently, the government acknowledged several programs, approved by the Foreign
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013). See Glenn Greenwald, Revealed: NSA Collecting Phone Records of Millions of Americans Daily, THE GUARDIAN, June 5, 2013, available at 2013 WLNR 13830552; Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program, WASH. POST, June 7, 2013, available at 2013 WLNR 13961423.
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Intelligence Surveillance Court (“FISC”) and implemented by the NSA, to collect international communications data and both domestic and international call detail records.3 The FISC authorizations that the Court had written off as “speculative” were made public for the first time. Public attention shifted and momentum quickly grew for new FISA reforms. In the wake of the Clapper opinion and the NSA leaks, a number of legislative proposals are being considered to reform the FISA and to improve government accountability. While a litigation solution remains possible and should be pursued, legislative reform may more fully address the need for additional oversight and transparency. Ultimately, reforms adopted should include three key components: increased public reporting, mandatory disclosure of FISC opinions, and more adversarial briefing at the FISC. This article considers the recent proposals to increase transparency and oversight of foreign intelligence surveillance conducted by the U.S. Intelligence Community. First, the article will provide a brief overview of the FISA programs at issue. The article will then consider the Court’s standing analysis in Clapper in light of recent disclosures, and discuss its impact on future judicial oversight of surveillance activities. Further, it will describe recent legislative proposals to amend the FISA, improve oversight mechanisms, and require public reporting regarding the privacy impact of FISA surveillance. Finally, the article will outline three key elements necessary to reform the current FISA system and propose additional transparency and oversight procedures necessary to bring surveillance in line with constitutional and legal principles. A. A Brief Overview of Modern FISA Surveillance4 Recent debate about foreign intelligence surveillance relates to two key FISA provisions that were added and amended in the decade following the attacks of September 11, 2001. The first is the business records provision 5 which was established by Congress in the USA PATRIOT Act, Section 215.6

See Robert S. Litt, Gen. Counsel, Office of the Dir. of Nat’l Intelligence, Privacy, Technology and National Security: An Overview of Intelligence Collection 5–8 (July 19, 2013), available at http://www.dni.gov/index.php/newsroom/speeches-and-interviews/195-speechesinterviews-2013/896-privacy-technology-and-national-security-an-overview-of-intelligencecollection?tmpl=component&format=pdf. 4 For a thorough overview of FISA, related statutes, and the history of intelligence community regulation, see DAVID S. KRIS & J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS (2d ed. 2012) [hereinafter 1 KRIS & WILSON]. The structure and history of FISA are well documented elsewhere, so this section only provides a short description of the new relevant sections. 5 50 U.S.C. § 1861 (2006 & Supp. 2011). 6 USA PATRIOT Act of 2001, Pub. L. 107 –56, 115 Stat. 272, 287 (2001) (codified as amended
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The second provision governs the targeting of non-U.S. persons reasonably believed to be outside the United States, which was added by Section 702 of the FAA.7 Both of these provisions expanded the scope of foreign intelligence surveillance that can be conducted within the United States. The FISA was enacted to impose statutory restrictions on domestic intelligence gathering.8 It outlines the Government’s authority to conduct national security investigations both inside the United States and abroad. 9 Within the parameters of the statute, certain intelligence community members are authorized to engage in “electronic surveillance” of foreign agents;10 to conduct physical searches targeting foreign agents; 11 and to use pen/trap12 surveillance or apply for court orders compelling the production of business records in connection with certain national security investigations.13 The FISA did not regulate any intelligence collection abroad until it was amended in 2007 and 2008.14 Most FISA surveillance is authorized by orders of the FISC,15 a special

at 50 U.S.C. §§ 1861–62 (2006)). 7 FISA Amendments Act of 2008, Pub. L. 110–261, 122 Stat. 2436, 2438 (2008) (codified as amended at 50 U.S.C. § 1881a (2006 & Supp. III 2010)). 8 Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 –71 (2006); 1 KRIS & WILSON, supra note 4, § 2:7. While the FISA as originally enacted only authorized orders for electronic surveillance, it was amended in 1994 to allow orders for physical searches and in 1998 to allow orders for pen/trap surveillance and compelling the production of business records. Id. § 4:2. The USA PATRIOT Act amended various provisions of the FISA; since then the FISA has been amended on six occasions. Id. 9 1 KRIS & WILSON, supra note 4, § 4:2. 10 Id. (discussing “foreign powers and agents of foreign powers”). 11 Id. 12 18 U.S.C. § 3127 (3)–(4) (2006). A “pen register” is a device that allows for the recording or decoding of outgoing information, such as dialing and routing information, transmitted by another device or facility. Id. § 3127(3). A “trap-and-trace” device captures incoming signal information, such as dialing and routing information, that is reasonably likely to identify the source of the incoming signal. Id. § 3127(4). 13 1 KRIS & WILSON, supra note 4, § 4:2. 14 The FAA added new provisions to govern surveillance and searches of U.S. persons abroad. See 50 U.S.C. §§ 1881a, 1881b, 1881c (2006 & Supp. 2011); see generally 1 KRIS & WILSON, supra note 4, § 17. Kris and Wilson use “traditional FISA” throughout the text to refer to the version of the statute before the FAA, and its predecessor law, the Protect America Act (“PAA”), Pub. L. No 110-55, 121 Stat. 52 (2007) (repealed 2008), was passed. See id. § 4:2. The PAA was in effect from August 2007 to February 2008. ELIZABETH B. BAZAN, P.L. 110–55, THE PROTECT AMERICA ACT OF 2007: MODIFICATIONS OF THE FOREIGN SURVEILLANCE ACT 1–2, available at http://www.fas.org/sgp/crs/intel/RL34143.pdf. 15 But see 50 U.S.C. § 1805(f) (2006 & Supp. 2011); EDWARD C. LIU, AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) EXTENDED UNTIL JUNE 1, 2015, at 4 (2011), available at http://www.fas.org/sgp/crs/intel/R40138.pdf (distinguishing between FISA orders and National Security Letters).

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court created by Congress in 1978 to provide judicial oversight of electronic surveillance and other intelligence gathering activities. The FISC has jurisdiction under the FISA to authorize electronic surveillance, pen/trap surveillance, physical searches, and orders directing the production of business records.16 The court may only issue orders for electronic surveillance and physical searches upon a showing of probable cause that the target is a “foreign power or agent of a foreign power.”17 However, the FAA broadened the scope of FISC-authorized surveillance by allowing the government to target persons “reasonably believed to be located outside [of] the United States” without establishing probable cause to show they are foreign agents.18 In addition, under the PATRIOT Act, applications for pen register surveillance and business record orders can be used to obtain information for FBI national security investigations. 19 Under the new rules, the FISC “shall enter” orders granting such applications if the information sought is “relevant” to an ongoing investigation of international terrorism.20 In addition to granting new intelligence collection authority, the FAA imposed new rules for collection abroad. 21 The FAA authorizes members of the Intelligence Community to acquire foreign intelligence by targeting persons that they reasonably believe are located outside the United States, without following the traditional FISA rules governing “electronic

1 KRIS & WILSON, supra note 4, § 5:1. See 50 U.S.C. §§ 1805(a)(3)(A), 1824(a)(3)(A) (discussing electronic surveillance and physical search orders respectively). 18 Id. § 1881a(a); see §§ 1881b, 1881c; see also 1 KRIS & WILSON, supra note 4, § 17:3. 19 50 U.S.C. § 1842(a)(1) (“[Those investigations that are] being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order.”); Id. § 1861(a)(1) (discussing the procedure that must be followed by the Federal Bureau of Investigation in making an application to obtain certain business records). 20 Id. § 1842(c)(2)–(d)(1). Both applications can also be used to obtain foreign intelligence informationThe pen/trap surveillance provision requires the applicant to certify that the “information likely to be obtained [from the pen/trap surveillance] is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.” Id. § 1842(c)(2). Thus, a pen/trap order shall be issued if the applicant certifies that it is likely to obtain (1) foreign intelligence not concerning a U.S. person or (2) information relevant to international terrorism or clandestine intelligence. Similar to the pen/trap order, a business record order shall be issued if the applicant certifies that it will likely yield (1) “foreign intelligence information not concerning a United States person” or (2) “to protect against international terrorism or clandestine intelligence activities.” Id. § 1861(a)(1). 21 See FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (2008) (codified as amended at 50 U.S.C. § 1881(a) (2006 & Supp. 2011)).
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surveillance” or “physical search.”22 Instead, the FISC reviews targeting and minimization procedures, adopted by the Attorney General and the Director of National Intelligence pursuant to Section 702, for compliance with the statute and the Fourth Amendment.23 After the FISC approves the targeting and minimization requirements and reviews the government certification to ensure it “contains all the required elements,” the court “shall enter” the order to the government.24 Once the order is granted, the government can issue “[d]irectives” to “electronic communication service provider[s],” such as telephone and Internet companies, requiring their assistance in collecting electronic communications.25 The FAA amendments were the result of an effort by executive and legislative branch officials to “modernize” the FISA.26 This modernization was justified in part by the government’s belief that certain requirements for surveillance and collection unduly restricted the “speed and agility”

1 KRIS & WILSON, supra note 4, §17:3. The FAA allows the government to engage in the “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a). Th ere are five restrictions on the acquisition authorized by Section 702: (1) [it] may not intentionally target any person known at the time of acquisition to be located in the United States; (2) [it] may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) [it] may not intentionally target a United States person reasonably believed to be located outside the United States; (4) [it] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) [it] shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. Id. § 1881a(b)(1)–(5); see also 1 KRIS & WILSON, supra note 4, § 17:5. 23 50 U.S.C. § 1881a(i). The targeting procedures must be “reasonably designed” to “ensure that an[y] acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States” and to “prevent the intentional acquisition” of communications “known at the time of the acquisition” to be purely domestic. Id. §§ 1881a(i)(2)(B)(i)–(ii). Additionally, the minimization procedures must be consistent with the definition used for FISA electronic surveillance or physical searches. Id. § 1881a(e); see id. § 1801(h) (defining minimization procedures regarding electronic surveillance); id. § 1821(4) (defining minimization procedures regarding physical searches); see generally 1 KRIS & WILSON, supra note 4, §§ 9:1, 9:3, 9:10–11. 24 50 U.S.C. § 1881a(i)(3)(A). 25 Id. § 1881a(h)(1). Moreover, if an electronic communication service provider fails to comply with the court order, sanctions may be imposed. See id. § 1881a(h)(5)(D) (“Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.”). 26 See generally 1 KRIS & WILSON, supra note 4, §§ 16:1–16:18.
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needed to fight post-9/11 threats.27 In this modernization debate, the question arose whether the government should rely on internal executive branch procedures to ensure adequate oversight of intelligence gathering, or should be required to provide individualized evidence to the FISC before conducting electronic surveillance. At the time the FAA was passed, the Bush administration claimed that the amendments were a necessary response to changing technology, specifically the shift from satellite to fiber optic transmission of international communications.28 Yet, as Kris and Wilson demonstrate in their leading treatise, a review of telecommunications history shows that claim to have been greatly exaggerated. 29 Still, changing technologies used to transmit emails and one-end domestic and international wire communications presented new challenges to the application of FISA’s provisions governing “electronic surveillance.”30 Email and other electronic

27 See Terry Frieden, Administration Defends NSA Eavesdropping to Congress, CNN (Dec. 23, 2005, 10:51 AM), http://www.cnn.com/2005/POLITICS/12/23/justice.nsa/index.html. 28 See Time Change–FISA for the 21st Century: Hearing Before the Sen. Comm. on the Judiciary , 109th Cong. (2006) (statement of Gen. Michael V. Hayden, Dir. of the Central Intelligence Agency), available at http://www.judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da1197 d33&wit_id=e655f9e2809e5476862f735da1197d33-1-1 (“When the [FISA] was passed, almost all local calls were on a wire and almost all long haul communications were in the air. In an age of cell phones and fiber optic cables, that has been reversed . . . with powerful and unintended consequences for how NSA can lawful[ly] acquire a signal.”); see also Letter from Lieutenant Gen. Keith B. Alexander, U.S. Army, Dir., Nat’l Sec. Agency, to Sen. Arlen Specter, Chairman, Comm. on the Judiciary, U.S. Sen. 1 (Dec. 19, 2006), available at http://www.fas.org/irp/congress/2006_hr/alexander-qfr.pdf (“When FISA was enacted into law in 1978, almost all transoceanic communications into and out of the United States were carried by satellite . . . [and therefore] intentionally omitted from the scope of FISA . . . .”); The Foreign Intelligence Surveillance Act: Hearing Before the H. Permanent Select Comm. on Intelligence , 110th Cong. 4 (Sept. 6, 2007) (statement of Kenneth L. Wainstein, Assistant Att’y Gen., Nat’l Sec. Div., Dep’t of Justice), available at http://www.justice.gov/opa/documents/preparedunclassified-statement090607.pdf; Modernizing The Foreign Intelligence Surveillance Act: Hearing Before the S. Select Comm. on Intelligence, 110th Cong. 3 (May 1, 2007) (statement of J. Michael McConnell, Dir. Of Nat’l Intelligence), available at http://www.intelligence.senate.gov/070501/mcconnell.pdf. 29 See 1 KRIS & WILSON, supra note 4, § 16:4. 30 See id. §§ 16:5–16:6. Kris and Wilson argue that based on the legislative record regarding the definition of “electronic surveillance,” the FISA “clearly left the government free to monitor international communications, including communications to or from Americans, using radio surveillance of microwave satellite signals, or wire surveillance of transoceanic cables on foreign soil or offshore, as long as it did not target any particular, known American who was located in the United States.” Id. § 16:5. But this created an odd dynamic because the second part of the “electronic surveillance” definition includes all wire surveillance taking place in the United States of communications “to or from” a person located in the United States. Id. Thus, acquisition of a U.S. person’s international communications within the United

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communications present special difficulties because many international messages are stored in, or transmitted through, facilities in the United States.31 As a result, the government attempted to expand its surveillance authority: first with unilateral executive action,32 then judicial authorization,33 and finally through legislation with the PAA34 and its successor the FAA.35 The FISA Business Records provision, though it was added much earlier than the FAA sections, expanded FISA to permit a very different type of investigative activity—compelled disclosure of business records— and was intended to be much narrower in scope than its use in post-9/11 practice. Prior to the addition of the business records provision in 1998, the government could only obtain documents and tangible items through FISA physical searches or certain records by issuing national security letters (“NSLs”).36 The 1998 amendment provided limited authority for the FBI to obtain business records from “common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities. ”37 The authority was “limited to obtaining information regarding a specific person . . . [under investigation] about whom the FBI had individualized suspicion.”38 In 2001, the Business Records provision was amended by Section 215 of the USA PATRIOT Act to expand the category of tangible things obtainable, remove the restriction to specific entities, eliminate the required factual showing that the records pertain to a foreign power or agent of a foreign power, and alter the types of investigations under which the government could apply for an order.39 The current version of the statute, as amended by the USA PATRIOT Improvement and Reauthorization Act

States was regulated by the FISA, but acquisition of the same communications offshore (via transoceanic cables) was not. Id. 31 See id. § 16:6. 32 1 KRIS & WILSON, supra note 4, § 16:8. 33 Id. §§ 16:9–13. 34 Id. §§ 16:14–18. 35 Id. §§ 16:14–18. 36 Id. § 19:1. The FISA was amended in 1994, allowing the FISC to authorize warrantless physical searches. OFFICE OF THE INSPECTOR GEN., A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION’S USE OF SECTION 215 ORDERS FOR BUSINESS RECORDS 6 (2007) [hereinafter 2007 OIG SECTION 215 REPORT], available at http://www.justice.gov/oig/special/s0703a/final.pdf. The physical search provision requires a probable cause showing. See 50 U.S.C. § 1822(a)(1)–(3) (2006). 37 2007 OIG SECTION 215 REPORT, supra note 36, at 6. 38 Id. 39 See USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. §§ 1861-62 (2006)).

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of 2005,40 requires that the government establish “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . .”41 B. The Problem: Inadequate Transparency and Public Accountability As new details have emerged about the FBI and NSA ’s domestic intelligence-gathering practices, it has become clear that the current system does not provide enough transparency to ensure public oversight and trust.42 There are three main problems with the current system: the development of a secret body of constitutional and statutory law by the FISC, structural limitations on judicial review of FISA surveillance, and rules inhibiting Congress’ ability to facilitate public oversight. As a result, important questions about the scope and nature of surveillance remain unanswered, and in many cases, there is not even enough information to know which questions to ask. Over the last decade, the FISC began developing a secret body of law governing FISA surveillance and addressing important constitutional and statutory issues that should be made public.43 This shift occurred after the Government began to expand foreign intelligence surveillance beyond the

40 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (2006). 41 50 U.S.C. § 1861(b)(2)(A). 42 See Justin Elliot, What NSA Transparency Looks Like, WASH. POST, Aug. 20, 2013, available at 2013 WLNR 20923901 (“[M]embers of Congress can read the unredacted version of the semiannual reports, but only in a special secure room. They cannot take notes or publicly discuss what they read.”). 43 Eric Lichtblau, In Secret, Court Vastly Broadens Powers of N.S.A., N.Y. TIMES, July 7, 2013, available at 2013 WLNR 17698710. The first published opinion of the FISC appeared in 1981. See In re Matter of the Application of the United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property (FISA Ct. 1981), reprinted in S. REP. NO. 97-280 at 16–19 (1981), available at www.intelligence.senate.gov/pdfs97th/97280.pdf. There were no further published opinions released until 2002 when the FISC and the Foreign Intelligence Court of Review addressed the implementation of USA PATRIOT Act amendments, which were intended to facilitate increased information sharing between law enforcement and intelligence agencies. See In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 623–25 (FISA Ct. 2002); In re Sealed Case, 310 F.3d 717, 745–46 (FISA Ct. Rev. 2002); see also 1 KRIS & WILSON, supra note 4, § 10:11. Since then, only three published FISC opinions have been released. See In re Directives [redacted text] Pursuant to Section 105B of Foreign Intelligence Act, 551 F.3d 1004, 1016 (FISA Ct. 2008) (rejecting challenge by Yahoo! to directives issued under the Protect America Act); In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008, No. MISC 08-01 (FISA Ct. 2008), available at www.fas.org/irp/agency/doj/fisa/fisc082708.pdf; In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 485–86 (FISA Ct. 2007) (denying motion by ACLU for the court’s release of certain orders and government applications concerning a surveillance program previously conducted without FISC approval by the NSA).

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scope of individualized FISA warrants. 44 With the enactment of the FAA, Congress introduced a new role for the FISC: approval of government surveillance programs based on general targeting and minimization procedures.45 Under Section 702 of the FAA, the FISC judge reviewing the government application and procedures must determine whether the targeting and minimization procedures are “consistent with the requirements of [the statute] and with the Fourth Amendment.”46 As a result, the FISC now regularly assesses “broad constitutional questions” and establishes “important judicial precedents, with almost no public scrutiny.”47 The secrecy of these important opinions is a flaw in the system and prevents public oversight of developing national security law. Congress plays an important role in the intelligence oversight process as well, but its oversight of FISA activity authorized under Section 702 and Section 215 is severely limited by procedural rules imposed by the Department of Justice (“DOJ”) and inadequate public reporting. The law requires that the Attorney General keep the Senate Select Committee on Intelligence,48 the House Permanent Select Committee on Intelligence,49 and the Senate Judiciary Committee “fully inform[ed]” concerning the Government’s use of FISA.50 However, reports sent from the DOJ to the

44 See 1 KRIS & WILSON, supra note 4, § 16:9 (“A little more than a year after the New York Times story, the government appeared to find a judicial solution to the problem of FISA modernization, advancing a new and expansive interpretation of the statute that at least one judge accepted.”). According to then Attorney General Alberto Gonzales, in January 2007, the FISC “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.” Letter from Alberto Gonzales, Att’y Gen. of the United States, to Members of Congress (Jan. 17, 2007), reprinted in 153 CONG. REC. S646 (daily ed. Jan. 17, 2007). 45 See PRIVACY AND CIVIL LIBERTIES ADVISORY BD., WORKSHOP REGARDING SURVEILLANCE PROGRAMS OPERATING PURSUANT TO SECTION 215 OF THE USA PATRIOT ACT AND SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 36 (July 9, 2013) [hereinafter PRIVACY AND CIVIL LIBERTIES ADVISORY BD.], available at http://www.pclob.gov/All%20Documents /July%209,%202013%20Workshop%20Transcript.pdf. 46 50 U.S.C. § 1881a(i)(3)(A). 47 Lichtblau, supra note 43. 48 The Senate Intelligence Committee, or SSCI, was established by S. Res. 400, 94th Cong., 122 CONG. REC. 14,673 (1976) (enacted). 49 The House Intelligence Committee, or HPSCI, was established by H.R. Res. 658, 95th Cong., 123 CONG. REC. 22,932 (1977) (enacted). 50 50 U.S.C. § 1808(a) (discussing the Attorney General’s congressional reporting requirements as to electronic surveillance); id. § 1826(a) (discussing the Attorney General’s Congressional reporting requirements as to physical surveillance); id. § 1846(a) (discussing the Attorney General’s congressional reporting requirements as to pen/trap surveillance); id. § 1862(a) (discussing the Attorney General’s congressional reporting requirements as to tangible

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House and Senate Intelligence Committees impose strict rules on the dissemination of the government’s legal interpretation of these programs. 51 For example, the detailed reports on the use of Section 215 were only available in Intelligence Committee offices for a “limited time period,” no photocopies or notes could be taken out of the room, and only certain congressional staff members were allowed to attend. 52 Similar rules likely apply to the Attorney General’s reports on significant FISA legal interpretations53 and the use of Section 702 authorities.54 Public reports regarding the extent of FISA surveillance activity give a bare minimum of information, including only the number of applications for electronic surveillance, the number granted, modified, or denied,55 and the same information regarding requests for orders compelling production of business records.56 Unlike the Wiretap Reports issued by the Administrative Office of the U.S. Courts, which provide a comprehensive overview of the cost, duration, and effectiveness of surveillance in criminal investigations,57 the FISA reports do not provide sufficient detail.58 As a result, Members of Congress and the public do not have the information

things). The House Judiciary Committee must also be kept fully informed with respect to the use of pen/trap surveillance. Id. § 1846 (a). 51 See, e.g., Letter from Ronald Weich, Assistant Att’y Gen., to Hon. Silvestre Reyes, Chairman, Permanent Select Comm. on Intelligence, U.S. House of Representatives (Dec. 14, 2009), available at http://www.fas.org/irp/news/2013/07/2009_bulk.pdf; Letter from Ronald Weich, Assistant Att’y Gen., to Hon. Diane Feinstein, Chairman & Hon. Saxby Chambliss, Vice Chairman, Select Comm. on Intelligence, U.S. Senate (Feb. 2, 2011), available at

http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB436/docs/EBB-032.pdf.
52 See Letter from Ronald Weich, Assistant Att’y Gen., to Hon. Silvestre Reyes, Chairman, Permanent Select Comm. on Intelligence, U.S. House of Representatives (Dec. 14, 2009), available at http:www.fas.org/irp/news/2013/07/2009_bulk.pdf. These documents were made available “only to Members of Congress (and cleared [SSCI,] HPSCI, Judiciary Committee, and leadership staff), . . . .” Id. 53 See 50 U.S.C. § 1871(a)(4). 54 See id. § 1881f(b). 55 Id. § 1807. 56 Id. § 1862(c)(1)–(2). 57 18 U.S.C. § 2519(3) (2006 & Supp. 2011); see also ADMIN. OFFICE OF THE U.S. COURTS, WIRETAP REPORT 2012 (2013), available at http://www.uscourts.gov/Statistics/WiretapReports/wiretap-report-2012.aspx. 58 These reports do not indicate the use of pen/trap surveillance or the extent of Section 702 surveillance. See 1 KRIS & WILSON, supra note 4, § 13:4. The presiding Judge of the FISC has acknowledged that the reports do not adequately reflect the application and modification process at the FISC. See Letter from Hon. Reggie B. Walton, Presiding Judge, Foreign Intelligence Surveillance Court, to Hon. Patrick J. Leahy, Chairman, Senate Judiciary Comm., at 3 (July 29, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/honorablepatrick-leahy.pdf.

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they need to evaluate the efficacy and legality of these programs. 59 The problem of secret law is exacerbated by the limited judicial review of important constitutional and statutory issues related to modern FISA surveillance. As one former FISA judge recently noted, the role of judges is not to make policy, it is to “review policy determinations for compliance with statutory law”—but such review must be done in the context “of [the] adversar[ial] process.”60 The FISA does not currently provide for adversarial hearings in the FISC, even when presented with complex and novel issues.61 And unlike warrants and other ex parte orders issued in criminal cases, judicial review of FISA activity is not guaranteed in criminal prosecutions or other subsequent proceedings.62 Even when the government provides notice of the use of FISA-derived evidence in criminal cases, it has not specified whether such surveillance was accomplished pursuant to Section 702 authorized directives. 63 As a result, the traditional means of obtaining judicial review of the ultimate
59 See Letter from Sen. Ron Wyden, to Hon. James R. Clapper, Jr., U.S. Dir. of Nat’l Intelligence (July 26, 2012), available at http://irregulartimes.com/wpcontent/uploads/2012/07/LettertoClapperJuly272012.pdf; Jim Sensenbrenner, How Secrecy Erodes Democracy, POLITICO (July 22, 2013, 11:12 PM), http://www.politico.com/story/2013/07/how-secrecy-erodes-democracy-94568.html. 60 PRIVACY AND CIVIL LIBERTIES ADVISORY BD., supra note 45. 61 See James G. Carr, A Better Secret Court, N.Y. TIMES, July 22, 2013, available at 2013 WLNR 17900732. The only non-government parties that can appear before the court are those with permitted motions or recipients of court orders under Section 215, or government directives issued pursuant to Section 702. See Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. Br 13-109 (FISC Oct. 9, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/br13-09-order131009.pdf (finding that a letter submitted by the Center for National Security Studies did not satisfy the requirements of FISC Rule 6); Letter from Hon. Reggie B. Walton, Presiding Judge, Foreign Intelligence Surveillance Court, to Hon. Patrick J. Leahy, Chairman, Senate Judiciary Comm. (July 29, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/honorablepatrick-leahy.pdf. 62 The government must notify an “aggrieved person” of its intent to use FISA information in a civil, criminal, or administrative proceeding if that information was obtained in or derived from a FISA electronic surveillance, physical search, or pen/trap surveillance (collectively “FISA activity”). 50 U.S.C. § 1806(c) (2006) (discussing electronic surveillance notification requirements); id. § 1825(d) (discussing physical search notification requirements); id. § 1845(c) (discussing pen/trap surveillance notification requirements). But see Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. TIMES, October 17, 2013, at A3, available at 2013 WLNR 26042347 (describing a debate that “stretched through June and July” 2013 between the Solicitor General and the national security lawyers at the Department of Justice over whether and when criminal defendants could be notified that FAA-derived evidence had been used against them). 63 See Savage, supra note 62;Michael Tarm, Lawyer to Seek Clarity on U.S. Surveillance, ASSOCIATED PRESS, (July 30, 2013, 5:25 PM), available at http://bigstory.ap.org/article/lawyerseek-clarity-us-surveillance.

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constitutional question regarding modern FISA surveillance is unavailable. The Supreme Court has also made it more difficult to assert a constitutional challenge in a civil case based on Section 702 activities.64 II. The Injuries Alleged in Clapper Are No Longer Speculative, But the Court Made It More Difficult to Establish Article III Standing in Surveillance Cases. A group of plaintiffs led by Amnesty International challenged the FAA in a federal district court the same day it was enacted. 65 Amnesty sought: (1) a declaration that Section 702 was unconstitutional under “the Fourth Amendment, the First Amendment, Article III, and separation-of-powers principles and (2) a permanent injunction against use of ” Section 702.66 After both parties filed for summary judgment, the District Court ruled that plaintiffs had not established standing, as required by Article III, to bring their facial challenge of the FAA. 67 Despite plaintiffs’ assertions that their work involved engaging in sensitive and privileged conversations with individuals that the government believed were associated with terrorist organizations, sometimes exchanging foreign intelligence information, the court found that they had not made a reasonable showing that they were “subject to the challenged statute.”68 The court also rejected plaintiffs’ argument that costs incurred protecting the confidentiality of their communications provided an additional injury because the costs were based on an unreasonable fear of surveillance.69 On appeal, the Second Circuit reversed the holding that plaintiffs’ reasonable fears of future surveillance, and costs incurred to avoid surveillance were sufficient to show an injury and satisfy the Article III standing requirement.70 The Government’s petition for rehearing en banc was denied.71 The Supreme Court granted certiorari to review the case,72 but some Court-watchers were not particularly excited to discuss the broader

64 65 66 67 68 69 70 71 72

See Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138, 1147–48 (2013). Id. at 1145–46. Id. at 1146. Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633, 635 (S.D.N.Y. 2009). Id. at 642, 650. Id. at 652–53. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 122 (2d Cir. 2011). Amnesty Int’l USA v. Clapper, 667 F.3d 163, 164 (2d Cir. 2011). Clapper v. Amnesty Int’l USA, 132 S. Ct. 2431, 2431 (2012).

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implications of a “standing case.”73 Though on its face Clapper was a standing case, its implications were significant: for the first time, the Court had the power to allow a federal court to consider the constitutionality of one-end domestic communications surveillance under Section 702 of the FAA. If Amnesty International and the other plaintiffs did not have standing in Clapper, judicial review of the FAA might be nearly out of reach. The Clapper plaintiffs would not get their day in court. The Supreme Court, ruling 5:4, found that the plaintiffs lacked Article III standing because they failed to show an “injury in fact.”74 The plaintiffs had argued that: (1) there was an “objectively reasonable likelihood that their communications [would] be acquired under [Section 702] at some point in the future”; and (2) “they [were] suffering present injury because the risk of [Section 702]-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications.”75 Justice Samuel Alito, writing for the majority, found that neither of plaintiffs ’ theories could establish injury in fact as required by Article III.76 He concluded that plaintiffs’ arguments “rest[ed] on their highly speculative fear” that their communications would be obtained by the government pursuant to Section 702.77 The Court also emphasized that even if plaintiffs could show that their communications had been or would be collected, they would still have to establish that the collection was “fairly traceable” to Section 702.78 Justice Breyer disagreed in a dissent joined by Justices Kagan, Sotomayor, and Ginsberg.79 Justice Breyer argued that both the structure of Section 702 and the nature of plaintiffs’ communications activities, “along with commonsense inferences,” established a “high likelihood” that some of plaintiffs’ communications would be intercepted.80 He also noted that an Article III injury need not be “certain” because courts frequently issue injunctive and declaratory relief to prevent harm that is “reasonably likely or highly likely . . . to take place.”81

73 See, e.g., Lyle Denniston, Narrow Review of Global Wiretaps, SCOTUSBLOG (May 21, 2012, 11:29 AM), http://www.scotusblog.com/2012/05/narrow-review-of-global-wiretaps (offering a cursory discussion of the standing issue raised in Clapper). 74 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013). 75 Id. 76 Id. 77 Id. at 1148. 78 Id. at 1143. 79 Id. at 1155 (Breyer, J., dissenting). 80 Clapper, 133 S. Ct. at 1157–59. 81 Id. at 1160.

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The lasting impact of Clapper on government surveillance cases is still undetermined, but the majority’s focus on the “speculative” nature of the claims will provide an opportunity for future challengers to distinguish their cases. The Court’s “fairly traceable” analysis, and its discussion of the proof required to demonstrate that harm is “certainly impending” undoubtedly will impact future privacy litigation. However, the question remains whether any traditional legal challenge to the FAA can ever survive.82 This necessitates a close examination of the Clapper standing analysis. A. The Court’s Adoption of a New “Certainly Impending” Test, Rather Than the Traditional “Substantial Risk” Test, Will Make It Harder to Challenge Future Unlawful Activities. In Clapper, the Court raised the bar for challengers of government surveillance by applying a stricter version of the existing Article III standing test, requiring that the plaintiffs show their injury “is certainly impending.”83 However, the Court simultaneously acknowledged that there is a “substantial risk” standard, and found that “respondents f[e]ll short of even that standard, in light of the attenuated chain of inferences necessary to find harm here.”84 The Court’s attempt to modify the preenforcement review test established for Fourth Amendment violations in City of Los Angeles v. Lyons was the result of a mistaken analogy to Laird v. Tatum;85 it should not be extended beyond the narrow facts presented in Clapper.

82 See Orin Kerr, Is the Supreme Court Likely to Rule on FISA Section 702? , LAWFAREBLOG (Oct 29, 2013, 7:00 AM), http://www.lawfareblog.com/2013/10/is-the-supreme-court-likely-to-rule/; see also Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari, In re Elec. Privacy Info. Ctr., No. 13-58 (U.S. July 8, 2013), 2013 WL 3484365; Complaint at 1–2, Am. Civil Liberties Union v. Clapper, No. 1:13CV03994 (S.D.N.Y. Jun. 11, 2013), 2013 WL 2492595; Complaint at 1–2, First Unitarian Church of L.A. v. Nat’l Sec. Agency, No. 3:13CV03287 (N.D. Cal. Jul. 16, 2013), 2013 WL 3678094. 83 See Clapper, 133 S. Ct. at 1150 & n.5. 84 Id. at 1150 n.5 (internal quotation marks omitted). Here the Court acknowledges that certainty is not the test for future injury based on Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2754–55 (2010). See also, e.g., Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (quoting Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)) (internal quotation marks omitted) (discussing that Article III standing requires a “realistic danger” of “direct injury” resulting from a statute’s enforcement); Blum v. Yaretsky, 457 U.S. 991 , 1000–01 (1982); Babbitt, 442 U.S. at 298 (“A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”). 85 Compare City of Los Angeles. v. Lyons, 461 U.S. 95, 101 –02 (1983) (noting that a plaintiff must show actual or immediate injury to have standing), with Laird v. Tatum, 408 U.S. 1, 13 (1972) (acknowledging the principle that in order to have standing, the plaintiff must show actual or immediate injury).

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In Lujan v. Defenders of Wildlife, the Court made clear that Article III requires plaintiffs to demonstrate an “irreducible constitutional minimum of standing” to bring suit: (1) an injury in fact that is both “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical ”; (2) a causal connection making the injury fairly traceable to the acts of the defendant, rather than the result of the independent action of some third party; and (3) a showing that it is likely, not speculative, that the injury will be redressed by a decision favorable to the plaintiff.86 This standard is rooted in the Article III limitation on federal court jurisdiction to “actual cases or controversies,”87 even if it has a relatively recent vintage. 88 However, the standing inquiry must be analyzed in the context of the claim and the relief sought.89 Many of the Court’s recent standing decisions arise in the context of claims for injunctive and declaratory relief for administrative law violations of environmental statutes. 90 In these cases, as in Lujan, the standing requirement is more difficult to satisfy because “the plaintiff is not himself the object of the government action or inaction he challenges.”91 In contrast with these “public” suits, a Fourth Amendment violation is an individualized harm, 92 and the Court has long recognized a

86 504 U.S. 555, 560-61 (1992) (citations omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)) (internal quotation marks omitted). 87 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (internal quotation marks omitted). 88 The injury-in-fact, causation, and redressability requirements were “unknown to our law until the 1970s.” Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 168 (1992). In fact, standing was not even referred to by the Supreme Court until 1944, and was only mentioned in eight cases before 1965. Id. at 169. No court referred to the injury-in-fact requirement until the Supreme Court in Barlow v. Collins. See 397 U.S. 159, 163 (1970) (“[P]etitioners allege that they suffer injury in fact from the operation of the amended regulation.”). 89 See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). 90 See Sunstein, supra note 89, at 179–94 (discussing three distinct “phases” in the development of standing doctrine beginning with its initial appearance in the New Deal period); see also Barry Boyer & Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Law, 34 BUFF. L. REV. 833, 847–48 (1985) (cataloging a significant growth in environmental citizen suits in the early 1980s); Sean Connelly, Congressional Authority to Expand the Class of Persons With Standing to Seek Judicial Review of Agency Rulemaking, 39 ADMIN. L. REV. 139, 147–53 (1987); William A. Fletcher, The Structure of Standing, 98 YALE L. J. 221, 249 (1988); Cass R. Sunstein, Standing and the Privitization of Public Law, 88 COLUM. L. REV. 1432, 1441–42 (1988); Stephen L. Winter, The Metaphor of Standing and the Problem of Self Governance, 40 STAN. L. REV. 1371, 1381, 1491 (1988). 91 Lujan, 504 U.S. at 562. 92 See Rakas v. Illinois, 439 U.S. 128, 133–35 (1978) (discussing third-party standing under the Fourth Amendment).

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private right of action and other remedies to vindicate that interest. 93 The issue is complicated in surveillance cases by the fact that such activity is conducted in secret and plaintiffs typically lack direct evidence at the outset that they were subject to surveillance.94 But the Court is familiar with such uncertainty in the context of claims for injunctive relief. In City of Los Angeles v. Lyons, the plaintiff brought a complaint for damages, injunction, and declaratory relief based on an unlawful “chokehold” used on him by a Los Angeles police officer.95 The Court considered whether Lyons could seek injunctive relief based on the prior incident and held that he failed to show a “likelihood of substantial and immediate irreparable injury” necessary to have standing to bring the injunction claim.96 In finding that a future injury was not likely, the Court reasoned that Lyons would have to allege a “realistic threat from the future application” of the policy in order to establish Article III standing.97 In a case decided only a few days after Lyons, the Court found that another plaintiff could establish standing to enjoin a California criminal statute based on a “credible threat” of future application.98 Rather than following the Lyons realistic threat test to evaluate standing to seek a Fourth Amendment injunction, the Court in Clapper instead asked whether the alleged unlawful surveillance was “certainly

93 See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971) (holding that plaintiff stated a federal cause of action upon which money damages are recoverable for warrantless search and arrest in violation of the Fourth Amendment); Simmons v. United States, 390 U.S. 377, 389–90 (1968) (discussing the personal nature of Fourth Amendment rights); Bell v. Hood, 327 U.S. 678, 683 –85 (1946) (determining that when federally protected rights are violated and a federal statute gives a general right to sue, federal courts may use any available remedy to grant necessary relief including damages and injunctions). 94 See, e.g., Riggs v. City of Albuquerque, 916 F.2d 582, 586 –87 (10th Cir. 1990) (discussing the plaintiff’s difficulty in stating a claim with specificity without having access to the surveillance evidence); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1377–78 (D.C. Cir. 1984) (holding that in a surveillance case the plaintiffs did not meet the standing requirements because they failed to show an injury-in-fact); Halkin v. Helms, 690 F.2d 977, 998–99 (D.C. Cir. 1982) (holding that plaintiffs do not have standing if they cannot prove that their communications were surveilled and intercepted); Scott Michelman, Who Can Sue Over Government Surveillance?, 57 UCLA L. REV. 71, 71 (2009). 95 461 U.S. 95, 97 (1983) (internal quotation marks omitted). 96 Id. at 111 (quoting O’Shea v. Littleton, 414 U.S. 488, 502 (1974)) (internal quotation marks omitted). 97 Id. at 106 n.7. As the Court noted, an allegation that he was likely to be choked again would require “either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.” Id. at 106. 98 Kolender v. Lawson, 461 U.S. 352, 355 n.3 (1983) (internal quotation marks omitted).

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impending.”99 The certainly impending standard was discussed at length in Lujan100 and Whitmore v. Arkansas,101 which both involved an indeterminate future action by the plaintiffs. In both cases, the Court found that the alleged harms were not “imminent”—in Lujan because the plaintiffs had no definite plans to travel to the affected sites102 and in Whitmore because the plaintiff had no plan or ability to seek additional habeas corpus relief.103 In fact, the Clapper opinion is the only instance where the Court has discussed the “certainly impending” standard in the context of a Fourth Amendment challenge.104 The Court did not explain the departure from its previous test, but instead focused on the plaintiffs’ reliance on an impermissible, “highly speculative fear” based on a chain of causation similar to those rejected in earlier cases.105 The Court indicated that it was applying a more stringent test106 in Clapper, and justified it by noting that the Court has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.”107 In Laird v. Tatum, the Court considered a First Amendment challenge brought to enjoin an Army intelligence-gathering program related to “civil disturbances.”108 The claims in Laird were dismissed because plaintiffs alleged their speech was “chilled” without even attempting to establish

99 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n.2 (1992)) (internal quotation marks omitted). 100 504 U.S. 555, 562–66 (1992). 101 495 U.S. 149, 156–60 (1990). 102 504 U.S. at 563–64. 103 495 U.S. at 156–57. 104 A Westlaw search for “certainly /3 impending and (Fourth /s Amendment)” returned only one Supreme Court result (Clapper) and only three relevant appellate opinions: Clapper, Marcavage v. City of New York, and Hedges v. Obama which is discussed infra notes 119–127 and accompanying text. 105 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013) (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) and Whitmore v. Arkansas, 495 U.S. 149, 157 –60 (1990)). 106 In a footnote, the Court acknowledged its line of cases applying a different test for future injury. Clapper, at 1151 n.5 (citing Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2754–55 (2010); Pennell v. City of San Jose, 485 U.S. 1, 8 (1988); Blum v. Yaretsky, 457 U.S. 991, 1000–01 (1982); and Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). 107 Clapper, 133 S. Ct. at 1147. Here the Court refers to a line of specific cases: United States v. Richardson, 418 U.S. 166, 171 (1974) (denying standing to challenge CIA expenditures); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974) (denying standing to challenge the Armed Forces Reserve membership of Members of Congress); and Laird v. Tatum, 408 U.S. 1, 11–16 (1972) (denying standing to challenge Army intelligence-gathering program based solely on First Amendment “chill”). 108 See 408 U.S. at 7.

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future government action against them “as a definitely foreseeable event . . . .”109 A similar outcome was reached in United Presbyterian Church in U.S.A. v. Reagan, a decision written by then-appellate judge Antonin Scalia involving a generalized challenge to Executive Order 12333 without any specific connection to the plaintiffs.110 Neither case considered the likelihood of future harm because plaintiffs failed to introduce any evidence supporting it, but courts in other cases indicated that the “credible threat” test would apply to claims of future injury.111 As Justice Breyer argued in his dissenting opinion, courts frequently consider claims for injunctive or declaratory relief to prevent future activities that are “reasonably likely or highly likely, but not absolutely certain.”112 The “certainly impending” phrase has been used by the Court to consider “when, not whether, an alleged injury would occur.”113 In fact, in previous cases the Court judged imminence as a “reasonable probability,” “substantial risk,” “realistic threat,” or sufficient “likelihood” of future injury.114 The Court distinguished these cases in Clapper by focusing on the

See id. at 10. See 738 F.2d 1375, 1378, 1380–81 (D.C. Cir. 1984); see also Halkin v. Helms, 690 F.2d 977, 1001–03 (D.C. Cir. 1982) (involving a generalized challenge to Executive Order 12333). 111 See Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 529 (9th Cir. 1989) (finding that churches sufficiently alleged First Amendment injury from surveillance by INS agents and remanding for consideration of whether a “credible threat” existed as to future injury). 112 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1160 (2013) (Breyer, J., dissenting). 113 Id. 114 Id. at 1160–61; see Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (“[P]laintiff . . . must demonstrate a realistic danger of sustaining a direct injury . . . .”); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[I]t is the plaintiff’s burden to establish standing by demonstrating that . . . the defendant’s allegedly wrongful behavior will likely occur or continue . . . .”). Justice Breyer also refers to numerous other cases in discussing the “certainly impending” phrase, including:
109 110

Monsanto Co. v. Geertson Seed Farms, 561 U.S. ––––, ––––, 130 S.Ct. 2743, 2754–2755, 177 L.Ed.2d 461 (2010) (“ ‘ “reasonable probability” ’ ” and “substantial risk”); Davis, 554 U.S. at 734, 128 S.Ct. 2759 (“realistic and impending threat of direct injury”); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (“genuine threat of enforcement”); Department of Commerce v. United States House of Representatives, 525 U.S. 316, 333, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) ( “substantially likely” (internal quotation marks omitted)); Clinton v. City of New York, 524 U.S. 417, 432, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) ( “sufficient likelihood of economic injury”); Pennell v. San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (“realistic danger” (internal quotatio n marks omitted)); Blum v. Yaretsky, 457 U.S. 991, 1001, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (“quite realistic” threat); Bryant v. Yellen, 447 U.S. 352, 367–368, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980) (“likely”); Buckley v. Valeo,

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steps required to conduct FAA-authorized surveillance: application for and granting of Section 702 authority, issuance of surveillance directives, and targeting of particular communications. 115 As a result, the imminent injury analysis is unlikely to have a major impact outside the FISA-surveillance context. Lower courts will likely make use of the “substantial risk” or “credible threat” tests, which the Court acknowledged in footnote five, when considering future pre-enforcement challenges.116 The Second Circuit recently adopted this view in Hedges v. Obama,117 a challenge to a provision of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”)118 authorizing detention of certain persons by the military pursuant to the Authorization for the Use of Military Force. 119 The court addressed claims brought by the non-citizen plaintiffs based on their “actual fear of detention under Section 1021” and costs incurred as a result of this fear.120 Specifically, the court considered the sufficiency of these fears and costs to establish standing to bring a permanent injunction claim against NDAA-authorized detention.121 The court acknowledged Clapper, mentioning the “certainly impending” standard, identified the “substantial risk” standard, and quickly moved on to analyze the standing question under Babbitt v. United Farm Workers National Union122 and subsequent pre-enforcement review standards that set a “low threshold.”123 Still the court held that the non-citizen plaintiffs failed to establish “a basis for concluding that enforcement against them is even remotely likely.”124 However, the court did note that the enforcement of a criminal statute is different than the application of the President’s statutory and constitutional national security powers.125

424 U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam ) (“reasonable probability”). Clapper, 133 S. Ct. at 1161. 115 See Clapper, 133 S. Ct. at 1148. 116 Id. at 1150 n.5. 117 See 724 F.3d 170, 195–98 (2d Cir. 2013). 118 National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112–81, § 1021, 125 Stat. 1298, 1562 (2011) (codified at 10 U.S.C. § 801 note (2012)). 119 See Authorization for Use of Military Force, Pub. L. No. 107 –40, 115 Stat. 224 (2001), (codified at 50 U.S.C. § 1541 note (2006)). 120 Hedges, 724 F.3d at 195. 121 Id. 122 See 442 U.S. 289, 299 & n.11 (1979). 123 See Hedges, 724 F.3d at 195–96 (discussing Clapper v. Amnesty Intl’l USA, 133 S. Ct. 1138 (2013) and various other standing analyses used by the Court). 124 Id. at 202. 125 Id. at 200–03 & nn.183–84. The Court explicitly avoided answering “whether, in light of the foregoing considerations, the preenforcement Babbitt line of cases is inapplicable

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Given the Court’s “certainly impending” analysis in Clapper, lower courts will closely scrutinize any claims seeking to enjoin future surveillance. But outside of the surveillance context, lower courts will likely apply the “substantial risk” and “credible threat” standards from Monsanto126 and Lyons.127 Plaintiffs have standing to challenge FISA surveillance given recent revelations that show the certainty of many of the causal links the Court found speculative in Clapper.128 However, the bar to obtain injunctive relief has been raised, and declaratory judgments present additional hurdles under the Redressability Doctrine.129 B. The Harms Alleged in Clapper Are No Longer Speculative. At the time the Court decided Clapper, it viewed the alleged harms as part of a long and speculative causal chain. The new disclosures of NSA surveillance procedures reveal that the plaintiffs’ claims were far from speculative—they precisely described the scope of the programs challenged. Specifically, the NSA Inspector General Report on the Warrantless Wiretapping Program makes clear that the scope of directives is sufficiently broad to capture plaintiffs’ future communications with reasonable certainty. In Justice Alito’s view, the plaintiffs’ claims in Clapper were based on a “highly speculative fear” that: (1) the Government would target communications of non-U.S. persons with whom the plaintiffs communicated; (2) it would do so pursuant to Section 702; (3) it would actually succeed in intercepting the communications; (4) the plaintiffs would be parties to the intercepted communications; and (5) the FISC would approve the Section 702 surveillance program used. .130 Documents released in June 2013 have shed new light on the NSA
altogether and whether plaintiffs must satisfy the Clapper ‘certainly impending’ standard to prevail.” Id. at 201 n.4. 126 See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2747 (2013) (“A substantial risk of gene flow injures respondents in several ways that are sufficiently concrete to satisfy the injury-in-fact prong . . . .”). 127 See City of Los Angeles v. Lyons, 461 U.S. 95, 105 –06 (1983) (holding that Lyons did not submit sufficient evidence to demonstrate a credible threat of future injury). 128 See, e.g., Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari at 19 – 38, In re Electronic Privacy Information Center, No. 13-58 (U.S. July 8, 2013), 2013 WL 3484365; Complaint for Declaratory and Injunctive Relief at 6–10, ACLU v. Clapper, No. 1:13CV03994 (S.D.N.Y. June 11, 2013); Complaint at 1, 2, 8–9, First Unitarian Church of L.A. v. Nat’l Sec. Agency (N.D. Cal. July 16, 2013) (No. 13-cv-3287). 129 See Mayfield v. United States, 599 F.3d 964, 971–72 (9th Cir. 2010) (finding plaintiff lacked standing to seek declaratory relief against unlawful FISA surveillance, even where he had shown a likely injury-in-fact, because such relief would not redress the ongoing harm caused by maintenance of derivative materials by the government). 130 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013).

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surveillance programs at issue in Clapper, and these revelations clearly support the plaintiffs’ theory of injury and standing. One document establishing the scope of surveillance under Section 702 and its predecessor is the NSA Inspector General’s (“NSA-IG”) report on the President’s Surveillance Program (“PSP”).131 Under the PSP, as it was initially implemented in late 2001, the NSA collected telephone and Internet communications where there was “probable cause to believe that one of the communicants was in Afghanistan or that one communicant was engaged in or preparing for acts of international terrorism. ”132 Since then, the specific terms in the authorization have periodically changed. 133 From the inception of the PSP to its transition in 2007, “approximately 37,664 telephony and Internet selectors were tasked for PSP-authorized content collection . . . .”134 Of those selectors, 8% (roughly 3,000) were U.S. targets. 135 Furthermore, the NSA-IG report makes clear that the agency was capable of intercepting domestic-to-foreign telephone and Internet communications. For telephone communications, the managers sent “collection tasking instructions to private sector companies,” and for Internet communications, the managers sent the “instructions directly to equipment installed at company-controlled locations.”136 Most international telephone calls are routed through a small number of “chokepoints” in the switching system.137 The NSA determined that it could gain access to 81% of international calls into and out of the United States by making arrangements with three corporate partners. 138 In addition, the United States’ position as a major Internet communications hub means that it handles a substantial portion of global Internet traffic. 139 By February 2007, the authorities for these collection programs had expired
131 See generally OFFICE OF THE INSPECTOR GEN. OF THE DEP’T OF DEF. ET AL., (U) UNCLASSIFIED REPORT ON THE PRESIDENT’S SURVEILLANCE PROGRAM (2009), available at www.justice.gov/oig/special/s0907.pdf. 132 OFFICE OF THE INSPECTOR GEN., ST-09-0002, WORKING DRAFT 9 (2009), available at http://apps.washingtonpost.com/g/page/world/national-security-agency-inspector-generaldraft-report/277/ [hereinafter OFFICE OF INSPECTOR GENERAL]. 133 Id. For example, after 2002 Afghanistan was no longer specifically identified. Id. 134 Id. at 18. 135 Id. 136 Id. at 20. 137 Id. at 31. 138 OFFICE OF THE INSPECTOR GEN., supra note 133, at 31. 139 Id. at 32. As the NSA-IG report notes, in 2002 the worldwide international bandwidth was roughly 290 Gbps, of which only 2.5 Gbps “was between two regions that did not include the United States.” Id. However, the percentage of international Internet traffic passing through U.S. hubs has decreased over the past ten years as Europe has emerged as a major hub. Todd Lindeman, A Connected World, WASH. POST (July 6, 2013), available at http://apps.washingtonpost.com/g/page/business/a-connected-world/305/.

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and new authorization was obtained from the FISC under business records orders,140 foreign and domestic collection orders,141 and pen register and trap-and-trace orders.142 The NSA-IG report makes clear that three of the links in the “chain of possibilities” described by Justice Alito have certainly been satisfied: (1) that the Government will invoke Section 702; (2) that the FISC will approve surveillance procedures under Section 702; and (3) that the Government will succeed in intercepting respondents’ communications.143 The NSA-IG report made clear that the NSA has sought FISA-authorization under Section 702 to obtain one-end domestic communications related to international terrorism.144 The report also indicated that the Section 702 surveillance programs and procedures have been approved by the FISC, and are re-authorized on an ongoing basis.145 Finally, the NSA-IG report established that the vast majority of international telephone and Internet communications pass through certain “chokepoints” in the United States and, as a result, the NSA has access to these communications.146 The remaining “links” in the causal chain are whether the Clapper plaintiffs had sufficiently alleged that communications with their foreign contacts would be targeted and intercepted under Section 702 authority. The NSA-IG report makes clear that nearly 40,000 “selectors” were used to target foreign communications in the six-year period before the PAA was passed, and there was no indication that the targeting of these communications was limited in time.147 In addition, the documents revealed that the agency uses telephony metadata records to identify surveillance targets through a process called “contact chaining.” Reviewing the contacts of known or suspected terrorists, as well as the contacts-oftheir-contacts, and potentially the contacts-of-their-contacts’-contacts, the NSA analysts then identify targets whose communications are collected pursuant to Section 702.148 These new details support the conclusion Justice Breyer reached in his
140 OFFICE OF THE INSPECTOR GEN., supra note 133, at 44–45; see also 50 U.S.C. § 1861 (2006) (discussing the FISA business records provision). 141 OFFICE OF THE INSPECTOR GEN., supra note 133, at 45–47 (“[The order] was temporarily replaced by the Protect American Act in August 2007 and then permanently replaced by the FISA Amendments Act in July 2008.”); 50 U.S.C. § 1881a (2006 & Supp. V 2012). 142 OFFICE OF THE INSPECTOR GEN., supra note 133, at 42; see also 50 U.S.C. §§ 1842–1846 (2006) (providing FISA pen registers and trap-and-trace devices authority). 143 See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013). 144 See OFFICE OF THE INSPECTOR GEN., supra note 133, at 36. 145 Id. at 9, 44. 146 Id. at 31. 147 See id. at 19. 148 Id. at 15–18.

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dissenting opinion in Clapper: based on common sense inferences and the circumstances described in the complaint, there is a “very high likelihood” that the Government will intercept at least some of the communications described.149 This is because “the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described.”150 Specifically, the Government’s prior FISA surveillance of individuals regularly contacted by the plaintiffs indicates that the Government has an interest in those individuals and would likely target the communications of their close contacts. 151 In this context, it is probable that the plaintiffs’ conversations with contacts of suspected terrorists about issues related to terrorist activity would be intercepted under a Section 702 surveillance program. As a result, the plaintiffs could likely establish an injury-in-fact even under the Clapper standard. C. The Court’s New “Fairly Traceable” Standard Could Preclude Future Challenges to Government Surveillance. The portion of the Court’s standing analysis in Clapper pertaining to the “fairly traceable” prong could prove more troubling in the long run than the imminent injury analysis. Justice Alito, writing for the Court, concluded that even if the plaintiffs could show their communications had been intercepted, they would still lack standing because they failed to show that the injury was “fairly traceable” to Section 702.152 The Court reasoned this was so because the Government “has numerous other methods of conducting surveillance, none of which [plaintiffs] were challenging.”153 This argument implies that whenever Government surveillance154 could possibly be authorized by multiple statutory authorities, or accomplished through some other means, plaintiffs would have to prove that the challenged statute would be used in their case. But the issue of overlapping or undisclosed statutory surveillance authority is not unique to the FISA. This fairly traceable requirement, if strictly construed, would prevent any prospective challenge to Government surveillance and any challenge brought where the precise authority upon which the Government relies is not made public. Such an expansive reading of the fairly traceable requirement would be unwise, but the Court’s reasoning in Clapper is broad indeed. This conclusion puts the onus on the plaintiffs to disprove every other possible means of conducting

149 150 151 152 153 154

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1157 (2013) (Breyer, J., dissenting). Id. at 1158. See id. at 1157–59. Id. at 1149. Id. Or any other action for that matter. See id.

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the challenged action. According to the Court, the plaintiffs in Clapper failed to show that the interception of their communications was fairly traceable to Section 702 because the Government could have theoretically conducted some surveillance under older FISA provisions “so long as it satisfie[d] applicable requirements . . . .”155 But the statutory example cited, 50 U.S.C. § 1805, requires that the Government establish probable cause to believe that the target is a foreign power or an agent of a foreign power. 156 There is limited overlap between Section 702 and 50 U.S.C. § 1805 because the FAA was enacted precisely to expand the scope of communications that could be intercepted pursuant to the FISA.157 In addition, the Court noted that the Government might also attempt to obtain the communications “from the intelligence services of foreign nations.”158 The Court even gave some credence to the Government’s claim that it can conduct certain “human and technical surveillance programs” governed by Executive Order 12333.159 However, all of these examples are purely speculative, and the Court did not point to any evidence that showed the communications referenced in the complaint would, or could, be obtained other than pursuant to Section 702.160

Clapper, 133 S. Ct. at 1149. 50 U.S.C. § 1805 (2006); see Clapper, 133 S. Ct. at 1149. 157 See 1 KRIS & WILSON, supra note 4, § 16:16 (“For non-U.S. person targets, there is no probable-cause requirement; the only thing that matters is the government’s reasonable belief about) the target’s location.”). Though, as Kris and Wilson note, the FAA limited the Government’s authority to conduct surveillance on U.S. persons located abroad. Id. Such “foreign-to-foreign wire and radio communications were simply outside the statute’s scope” under the traditional FISA. Id. However, the FAA clearly expanded the Government’s authority to intercept foreign-to-foreign e-mail communications from storage inside the United States. Id. In general, the FAA expanded the Government’s authority to collect foreignto-foreign communications in situations where the surveillance occurs in the United States. Id. 158 Clapper, 133 S. Ct. at 1149. Such a program was recently described based on documents from the NSA leaks. See Barton Gellman & Ashkan Soltani, NSA Infiltrates Links to Yahoo, Google Data Centers Worldwide, Snowden Documents Say , WASH. POST (Oct. 30, 2013), http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoogoogle-data-centers-worldwide-snowden-documents-say/2013/10/30/e51d661e-4166-11e38b74-d89d714ca4dd_story.html. 159 Clapper, 133 S. Ct. at 1149; see also Matthew M. Aid, The CIA’s New Black Bag is Digital, FOREIGN POLICY (July 17, 2013), http://www.foreignpolicy.com/articles/2013/07/16/the_cias_new_black_bag_is_digital_nsa_co operation (describing such “black bag” operations conducted by the CIA abroad to gain access to electronic data). 160 In a recently declassified FISC opinion, Judge Bates found that “NSA acquires more than two hundred fifty million Internet communications each year pursuant to Section 702.” [Redacted], 2011 WL 10945618, at *9 (FISC, Oct. 3, 2011). Judge Bates also found that “NSA’s collection of Internet communications directly from Internet service providers” accounts for
155 156

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The Court’s new “fairly traceable” standard could prove difficult to apply and nearly impossible to satisfy, as shown by the lack of evidence supporting the Court’s “alternative” statutory authorities. Government surveillance activities are commonly authorized under multiple statutory schemes, any of which could apply depending on the specific circumstances involved. For example, communications can be intercepted pursuant to the Wiretap Act,161 collected under the Electronic Communications Privacy Act (“ECPA”),162 or obtained with FISA authority, but each of these can only be used in certain limited circumstances. A Wiretap Act authorization may only be obtained by certain government agents who apply to a state or federal judge, and only for the purpose of obtaining evidence of certain federal felonies. 163 Wire and electronic communications stored by service providers can be obtained by government agents pursuant to a federal warrant based on probable cause to believe evidence of a crime will be discovered.164 The FBI can also conduct electronic surveillance of communications in the United States pursuant to a FISC order. There might even be communications that could simultaneously be obtained under all of the above-listed authorities.165 Even so, this theoretical possibility should not bar review of the constitutionality of these surveillance authorities. The fairly traceable prong of standing was articulated in Lujan v. Defenders of Wildlife166 but has its roots in Warth v. Seldin,167 a 1970s case

“approximately 91% of the Internet communications acquired by NSA each year under Section 702.” Id. at *25. 161 See 18 U.S.C. § 2511 (2006) (prohibiting, generally, interception of “wire, oral, or electronic communications,” except pursuant to a court order based on probable cause to believe that a crime has been or is being committed). 162 A governmental entity may require disclosure of certain wire or electronic communications by a service provider pursuant to a warrant issued under the Federal Rules of Criminal Procedure. Id. § 2703. Under ECPA, these stored communications can be obtained without a warrant after 180 days. Id. However, at least one court has held that obtaining the contents of electronic communications without a warrant violates the Fourth Amendment. United States v. Warshak, 631 F.3d 266, 282 (6th Cir. 2010). 163 18 U.S.C. § 2518. 164 See id. § 2703; see also FED. R. CRIM. P. 41. 165 An example of this “perfect storm” of surveillance could be a suspected terrorist whose communications are being monitored by the FBI as the suspect leaves an electronic voicemail for a co-conspirator who is the subject of a federal wiretap for some recent crime. 166 504 U.S. 555, 590 (1992) (Blackmun, J., dissenting) (In his dissent, Justice Blackmun articulated the fairly traceable prong of standing: “[t]o ensure the presence of a ‘case’ or ‘controversy,’ this Court has held that Article III requires, as an irreducible minimum, that a plaintiff allege (1) an injury that is (2) ‘fairly traceable to the defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed by the requested relief.’”). 167 See 422 U.S. 490, 509–10 (1975).

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involving a zoning ordinance challenge.168 This new requirement was a reaction to the problem presented in public law where “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else . . . .”169 Thus the fairly traceable requirement is mostly irrelevant in a case like Clapper, where the challenged action is the Government’s interception of the plaintiff’s communications. Rather than limiting its jurisdiction to “cases or controversies”170 and avoiding the possibility that the alleged injury will result from the “independent action of some third party,”171 the Court in Clapper insisted that the plaintiffs bore the burden of proving the precise statutory authority by which the injurious Government conduct will be authorized. Such a high burden is unjustifiable in the context of a surveillance challenge because the plaintiffs must already satisfy the exacting injury-infact requirement and show that their alleged injuries are concrete, particularized, and imminent.172 Injunctive relief would prevent the exact Government action that causes the plaintiffs’ injuries: interception of oneend domestic communications pursuant to Section 702. The question that remains, however, is whether any legal challenge to the FISA can ever survive.173 In the meantime, focus must also include whether Congress will modify the FISA in a way that enables public oversight and transparency.

Id.; See also Mary Kathryn Nagle, Tracing the Origins of Fairly Traceable: The Black Hole of Private Climate Change Litigation, 85 TUL. L. REV. 477, 486–94 (2010) (noting that the Court first introduced the concept of an “injury-in-fact” requirement in Association of Data Processing Service Organizations, Inc. v. Champ, but that it was not conceived as an Article III requirement until Schlesinger v. Reservists Committee To Stop the War ). The consideration of causation was “cemented” in standing jurisprudence by Justice Powell in Simon v. Eastern Kentucky Welfare Rights Organization, where the plaintiffs were able to establish injury-in-fact but not causation. Id. at 491. 169 Lujan, 504 U.S. at 562; see also Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1460 (1988) (“The recent cases might be understood as an effort to narrow the judicial role in actions brought by statutory beneficiaries––often having numerous members––to compel government action against private parties.”). 170 U.S. CONST. art. III, § 2, cl. 1. 171 Simon v. E. Ky., Welfare Rights Org., 426 U.S. 26, 42 (1976). 172 See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). 173 See, e.g., Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari at 1, In re Elec. Privacy Info. Ctr., No. 13-58 (U.S. July 8, 2013), 2013 WL 3484365; Complaint at 1, 4, Am. Civil Liberties Union v. Clapper, (S.D.N.Y. June 11, 2013) (No. 1:13CV03994), 2013 WL 2492595; Complaint at 1, 19, First Unitarian Church of L.A. v. Nat’l Sec. Agency, (N.D. Cal. July 16, 2013) (No. 3:13CV03287), 2013 WL 3678094.
168

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III. A Framework for Transparency and Public Oversight of FISA Surveillance The Supreme Court’s decision in Clapper will limit judicial oversight of FISA surveillance in the future. In light of the new standing limitation and recent disclosures about FBI and NSA surveillance programs, it is necessary to reform the current FISA structure to enable greater transparency and oversight, and to improve judicial review. There are also a number of proposals to reduce or eliminate surveillance authorities previously granted under the Patriot Act or the FAA,174 but this section will focus on the reforms necessary to improve the current public oversight process. Federal courts will continue to review challenges to current surveillance activities, and recent disclosures have reinvigorated many of these challenges.175 But, regardless of the outcomes of particular cases, the public needs access to more information about FISA processes, including the presence and effectiveness of any privacy and civil liberties protections. There are fundamental questions about the legal scope of foreign intelligence surveillance under the FISA and under the Constitution. 176 The rule of law requires that these questions be answerable, but the Supreme Court’s decision in Clapper highlights how difficult it is to obtain such review in the current system. Many of the proposals submitted in Congress would aid this process, but FISA reform must be comprehensive and have three key components: (1) additional public reporting on the scope of FISA surveillance; (2) mandatory public disclosure of FISC decisions; and (3)

174 The USA FREEDOM Act, introduced by former House Judiciary Chairman James Sensenbrenner, H.R. 3361, and Senate Judiciary Chairman Patrick Leahy, S. 1599, would end bulk collection of telephone records under Section 215 and prohibit intelligence analysts from searching for U.S. person communications within Section 702-acquired data. §§ 101, 301. In contrast, Senator Feinstein and Senator Chambliss, Chairwoman and Ranking Member of the Senate Select Committee on Intelligence, introduced the FISA Improvements Act of 2013, S. 1631, which would explicitly authorize the bulk collection program under Section 215, but would require additional transparency and auditing of queries by intelligence analysts. §§ 2, 6. 175 See, e.g., Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari at 1, In re Elec. Privacy Info. Ctr., No. 13-58 (U.S. July 8, 2013), 2013 WL 3484365; Complaint at 1, 4, Am. Civil Liberties Union v. Clapper, No. 1:13CV03994 (S.D.N.Y. Jun. 11, 2013), 2013 WL 2492595; Complaint at 1, 19, First Unitarian Church of L.A. v. Nat’l Sec. Agency, No. 3:13CV03287 (N.D. Cal. July 16, 2013), 2013 WL 3678094. 176 See United States v. United States Dist. Ct. for the E. Dist. of Mich., 407 U.S. 297, 314 –15 (1972); Mayfield v. United States, 599 F.3d 964, 968 (9th Cir. 2010); In re Sealed Case, 310 F.3d 717, 727 (FISA Ct. Rev. 2002). See also William C. Banks, The Death of FISA, 91 MINN. L. REV. 1209, 1220–21 (2007).

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adversarial briefing in the FISC.177 A. There Should Be Additional Public Reporting About FISA Activity. The information provided in the Attorney General’s annual FISA letter, as required by statute,178 is inadequate to inform the public about the scope and effectiveness of foreign intelligence surveillance programs. The need for additional public reporting has been recognized since shortly after the passage of the USA PATRIOT Act. For example, the American Bar Association urged Congress in 2003 to conduct regular oversight and to create an annual public report on FISA investigations similar to the annual wiretap report prepared by the Administrative Office of the United States Courts.179 A comprehensive statistical report is necessary to ensure that FISA authorities are used effectively and efficiently, and to ensure that the system adequately protects the privacy of U.S. persons. In contrast with the annual FISA letter—which only includes the number of “orders and extensions either granted, modified, or denied ” for electronic surveillance and production of business records or tangible things—the Wiretap Report provides essential details about the execution and efficiency of law enforcement surveillance.180 The wiretap reports include a detailed overview of the cost, duration, and effectiveness of investigative surveillance. They also provide a statistical breakdown of law enforcement activities based on the type of crime investigated 181 and the types of communications intercepted.182 This data provides a basis to evaluate the effectiveness of wiretap authority, to measure its cost, and to understand the impact of surveillance on innocent individuals. These detailed public reports ensure that law enforcement resources are used appropriately and efficiently while protecting important privacy interests. The information contained in the current annual Attorney General

177 EPIC has previously emphasized the need for additional public reporting and disclosure of FISC opinions. FISA Amendment Acts of 2008: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the Comm. on the Judiciary of the House of Representatives , 112th Cong. 27–37 (2012) (statement of Marc Rotenberg, Executive Director, EPIC); MARC ROTENBERG ET AL., ELECTRONIC PRIVACY INFORMATION CENTER, COMMENTS OF THE ELECTRONIC PRIVACY INFORMATION CENTER TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT “PROPOSED AMENDED FISC RULES,” 1, 4–5, 9 (2010), available at https://epic.org/privacy/terrorism/fisa/EPIC%20Comments_FISC%202010%20Proposed%20Ru les.pdf. 178 50 U.S.C. § 1807 (2006). 179 AM. BAR ASS’N, ABA RESOLUTION (Feb. 10, 2003), available at http://epic.org/privacy/terrorism/fisa/aba_res_021003.html. 180 18 U.S.C. § 2519 (2006). 181 Id. § 2519(1)(e). 182 Id. § 2519(1)(g).

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FISA letters is incomplete and unhelpful. The annual FISA letter contains no information about pen/trap surveillance or the use of FAA-authorized directives.183 According to the current Presiding Judge of the FISC, the annual FISA letter does not even contain enough detail to accurately reflect the application and review process before the court. 184 When asked directly by Senator Wyden to estimate the impact of the FAA on U.S. persons, Director of National Intelligence (“DNI”) James R. Clapper responded that “a meaningful and accurate unclassified response . . . is not possible.”185 Instead, the DNI provided a classified response and indicated that there are regular internal executive branch compliance assessments and classified Congressional briefings to ensure oversight. 186 But none of these assessments or reports have been made public, and as a result public debate about the controversial scope of surveillance under Section 215 and Section 702 has been stifled. Legislators have proposed a number of reforms that would include additional public reporting about FISA activities. Many of the reform bills introduced in the 113th Congress require additional reports by the Attorney General or Inspectors General of the Department of Justice or other Intelligence Community components. 187 Other bills provide for

1 KRIS & WILSON, supra note 4, § 13:4. See Letter from Hon. Reggie B. Walton, Presiding Judge, Foreign Intelligence Surveillance Court, to Hon. Patrick J. Leahy, Chairman, Senate Judiciary Comm. (July 29, 2013), available at http://www.leahy.senate.gov/download/honorable-patrick-j-leahy (“These statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.”). 185 Letter from James R. Clapper, Director of National Intelligence, to Hon. Ron Wyden, United States Senate 2 (Aug. 24, 2012), available at http://www.wyden.senate.gov/download/clapper-response-to-questions-from-26-bipartisansenators. 186 See id. The FAA requires detailed reports be submitted on a semi-annual basis by the Attorney General and the DNI. See 50 U.S.C. § 1881f (2006 & Supp. 2012). The FAA also requires the Attorney General and DNI to assess compliance with the targeting and minimization procedures. 50 U.S.C. § 1881a(c)(1). The FAA also requires annual assessments from the Inspector General of each Intelligence Community that acquires foreign intelligence information as authorized under Section 702. 187 See generally USA FREEDOM Act, H.R. 3361, 113th Cong. §§ 102, 202, 504 (2013) (requiring an audit of Intelligence Community (“IC”) use of the business records, pen register, and national security letter provisions by the DOJ Inspector General (“IG”) and an intelligence assessment by the IC-IG for the period of 2010–2013); id. § 306 (requiring the IC-IG to submit a public review of guidelines developed by the IC for targeting and acquisition procedures); FISA Improvements Act of 2013, S. 1631, 113th Cong. § 11 (2013) (requiring the head of each IC element to conduct a review of surveillance procedures every five years); id. § 12 (requiring an annual review by the Privacy and Civil Liberties Oversight Board of the FISA-authorized collection by NSA); FISA Accountability and Privacy Protection Act of 2013, S. 1215, 113th
183 184

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additional statistical reports regarding FISA collection, including numbers of previously unreported orders and estimates of the impact on U.S. persons.188 However, not all of these reports are required to be unclassified or otherwise made public.189 So far none of the proposals would require reports as detailed as the annual Wiretap Reports. In part, this is because national security investigations do not have the same metrics as criminal investigations (charges, convictions, etc.). But some of the proposals do

Cong. § 9 (2013) (requiring that the Attorney General submit an annual unclassified report on the use of FISA authorities and their impact on the privacy of U.S. persons); id. § 10 (requiring privacy audits by DOJ-IG and intelligence assessments by IC-IG for 2010-2013 including business record orders, pen/trap surveillance, and national security letters); id. § 12 (amending Section 702 to include mandatory IC-IG compliance reports with an unclassified summary of findings and conclusions); LIBERT-E Act, H.R. 2399, 113th Cong. § 4 (2013) (requiring a public report by the DOJ-IG and IC-IGs on the impact of Section 215 and Section 702 acquisitions on the communications of U.S. persons); Surveillance State Repeal Act, H.R. 2818, 113th Cong. § 8 (2013) (requiring annual compliance reports by the Government Accountability Office (“GAO”)). 188 See, e.g., USA FREEDOM Act, H.R. 3361, 113th Cong. § 602 (2013) (amending requirements of the annual FISA surveillance report to Congress to include reports about business records obtained under Section 215, and directives issued under Section 702); id. § 601 (allowing electronic service providers to submit periodic transparency reports regarding FISA surveillance orders); FISA Improvements Act of 2013, S. 1631, 113th Cong. § 2 (2013) (requiring automated reporting of Section 702 surveillance statistics to Congress by the Director of National Intelligence); Surveillance Transparency Act of 2013, S. 1452, 113th Cong. § 2 (2013) (requiring semiannual reports of Section 215 and Section 702 surveillance in addition to pen register orders including: number of orders issued; good faith estimates of individuals affected; U.S. persons affected; and the volume of electronic and wire communications and metadata collected, and how much was reviewed by federal agents); Telephone Surveillance Accountability Act of 2013, H.R. 2684, 113th Cong. § 3 (2013) (requiring the FBI Director to submit a monthly report to the intelligence committees describing each search of telephony metadata required pursuant to Section 215); Restore Our Privacy Act, S. 1168, 113th Cong. § 3 (2013) (creating semiannual reports to Congress and the public on Section 215 orders, including the number of applications and the number granted, modified, or denied, as well as a description of the purpose and analysis of effectiveness); USA PATRIOT Act Sunset Extension Act of 2011, S. 193, 112th Cong. § 8 (2011) (mandating public reports on requests for NSLs including aggregate total requests relating to: a U.S. person, a non-U.S. person, a person subject to an authorized investigation or someone linked to such a person, and a person not known to be the subject of an authorized investigation or linked to such a person). 189 The USA FREEDOM Act calls for assessments by the Inspector General of the Intelligence Community to conduct “intelligence assessments” of each FISA authority for the period of 2010–2013 including an assessment of “the importance of information received.” H.R. 3361 §§ 102, 202, 306, and 504. The Telephone Surveillance Accountability Act of 2013 would only require a report by the FBI Director to the intelligence committees. H.R. 2684 § 3(d). However, the Surveillance Transparency Act of 2013, S. 1452 § 3, and the Government Surveillance Transparency Act of 2013, H.R. 2736 § 2, would also allow entities that receive FISA orders or directives to disclose aggregate data about such orders.

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require an analysis by the inspectors general or the attorney general of the use and effectiveness of FISA authorities.190 One question raised in both Clapper and recent congressional debates is the impact of FAA-authorized surveillance on the private communications of U.S. persons. Any revised public reporting standard must address this important issue and provide declassified details about the impact, the privacy protections in place, and any violations of the privacy rules. Without these details, the public will be unable to adequately assess the efficacy of the program and the sufficiency of government privacy protections. Unlike previous reauthorization cycles, the expiring FISA provisions should be closely scrutinized when their current sunsets expire in 2015 and 2017.191 B. The Legal Interpretations of the FISC Should Be Disclosed to the Public. The failure to publish FISC opinions over the last ten years is the root of the current loss of public confidence in the Administration ’s use of foreign intelligence authorities.192 The court’s legal analysis and conclusions, as opposed to the operational details of surveillance activities, are part of the law that cannot properly develop without public oversight. Promulgation of the law is a central requirement of democracy; the failure to promulgate results in a “fail[ure] to make law.”193 Both the FISC and the

S. 1168 § 3; S. 193 § 10. See, e.g., FISA Amendments Act Reauthorization Act of 2012, Pub. L. No. 112-238, § 2, 126 Stat. 1631 (2012); 50 U.S.C. § 1861 note (Supp. V 2011). 192 See Timothy Harrison, Privacy is Dying: Government Snooping Sparks Protection Strategies; Draws Fire from Islanders Security at a Cost, STATEN ISLAND ADVANCE, July 21, 2013 at A01, available at 2013 WLNR 17886971 (reporting on the public reaction after the Snowden incident, where fifty-five percent of people felt he was a whistleblower and not a traitor, and the shift in public attitude over the last three years with respect to NSA programs); Karl Rove: Privacy Concerns Face Generation Gap, FOXNEWS (Aug. 21, 2013), video.foxnews.com/v/2621435766001/karl-rove-privacy-concerns-face-generation-gap/ (discussing the drop in the President’s approval rating after the NSA issue broke and the generational polling results on the Snowden incident); Greg Sargent, The Morning Plum: Time to Declassify Those FISA Court Opinions, Mr. President, WASH. POST (June 19, 2013), available at 2013 WLNR 14967831 (arguing for more transparency in the FISA court decisions, especially since sixty-five percent of Americans want Congress to hold public hearing on the NSA programs). 193 LON L. FULLER, THE MORALITY OF LAW 33, 43–44 (1964). Constitutional and common law doctrines dating back to the Magna Carta are predicated on the notion that in order that “a law may be obeyed, it is necessary that it should be known: that it may be known, it is necessary that it be promulgated.” 1 JEREMY BENTHAM, Of Promulgation of the Laws, and Promulgation of the Reasons Thereof, in
190 191

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Attorney General bear the responsibility to promote public understanding of the FISA process and what it encompasses. This is especially true where the court attempts to strike some balance between national security and civil liberties concerns.194 Secret law undermines our system of checks and balances by disabling the democratic oversight by which the public governs its government.195 A number of current proposals would increase transparency and facilitate public oversight of FISA authorities.196 Most of these proposals require that the Attorney General submit declassified versions, or summaries, of significant FISC opinions that are already submitted to the Intelligence Committees in classified form under 50 U.S.C. § 1871(c). Senator Blumenthal’s proposal is significantly broader because it would require disclosure of any decision with a “significant construction or interpretation of law.”197 It would also provide for an adversarial party at the FISC, the Special Advocate, and would require disclosure of any FISC opinion appealed by the Advocate and any FISCR opinion issued on appeal.198 It would also empower the Special Advocate to petition the FISC or the Foreign Intelligence Surveillance Court of Review (“ FISCR”) for release of any document, which the court can order even over the objection of the Attorney General.199 The FISC has recently made clear that its rules do not prohibit the

THE WORKS OF JEREMY BENTHAM 157, 157 (John Bowring ed., London, Simpkin, Marshall & Co. 1843). 194 See Hamdi v. Rumsfeld, 542 U.S. 507, 578 (2004) (Scalia, J., dissenting) (“If civil rights are to be curtailed during wartime, it must be done openly and democratically . . . .”). 195 See generally Brief of Amici Curiae Elec. Privacy Info. Ctr. and Seven Open Gov. Orgs. in Support of Appellants and Urging Reversal, N.Y. Times v. United States Dep’t of Justice (2d Cir. Apr. 22, 2013) (No. 13-0422), 2013 WL 1791133. 196 LIBERT-E Act, H.R. 2399, 113th Cong. § 3 (2013) (mandating that the Attorney General provide Congress with all FISC documents sent to the intelligence committees pursuant to 50 U.S.C. § 1871(c) and provide the public with decisions or unclassified summaries or reports); Ending Secret Law Act, H.R. 2475, 113th Cong. §§ 3–4 (2013) (amending Section 216 and Section 702 to require publication of opinions submitted to the intelligence committees pursuant to Section 1871(c)); FISA Court in the Sunshine Act, H.R. 2440, 113th Cong. § 3 (2013); FISA Court Accountability Act, H.R. 2586, 113th Cong. § 3 (2013); FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 6 (2013) (“The Attorney General shall publicly disclose all decisions issued by the FISA Court . . . that include a significant construction or interpretation of law; (2) any decision of the FISA Court appealed by the Special Advocate . . . and (3) any FISA Court of Review decision that is issued after an appeal by the Special Advocate.”). 197 FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 6(a) (2013). 198 See id. §§ 3(b), 6(a)(2)–(3). The USA FREEDOM Act contains a similar proposal. See H.R. 3361, 113th Cong. § 401 (2013). 199 See S. 1467 § 6(f); H.R. 3361 § 401.

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Government’s disclosure of prior opinions,200 but it has so far been reluctant to publish more than a handful.201 After the NSA leaks during the summer of 2013, several FISC opinions were released by the Director of National Intelligence.202 The problem is that no current rule or law requires either the FISC or the Attorney General to publish significant FISC opinions, and until such a rule exists both will be hesitant to take responsibility for redacting properly classified details to facilitate public dissemination. Even top administration officials have acknowledged that we have an overclassification problem,203 and clearly there is more work to do to make legal interpretations and authorities public. The current proposals represent a strong step in the right direction because they include mandatory declassification of FISC legal interpretations (or summaries thereof) and set clear timelines for publication release by the Attorney General. The USA FREEDOM Act and Senator Blumenthal ’s bill would go even further by providing for a petition from the Special Advocate directly to the FISC or FISCR for release of court documents. 204 C. Any Lawmaking at the FISC Should Be the Result of an Adversarial Process Between the Government and a Public Advocate. The recent revelations about the extent and nature of FISA surveillance have highlighted the important and unreviewed body of constitutional and statutory law being developed by the FISC. 205 Unlike other ex parte proceedings, the FISC reviews of applications submitted under Section 702 require extensive analysis and create precedent for the court. 206 But this

200 See In re Motion for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court’s Rules on Statutory Access Rights, No. Misc. 13–01 (FISA Ct. 2013). 201 See FISA CT. R. P. 62 (“The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published. Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published.”). But see In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 497 (FISA Ct. 2007) (denying ACLU’s motion to release certain FISC documents). 202 These FISC opinions were made available by the DNI on its new website, “IC o n the Record.” IC on the Record, OFFICE OF THE DIR. OF NAT’L INTELLIGENCE, http://icontherecord.tumblr.com/ (last visited Nov. 19, 2013). 203 See The Over-Classification and Psuedo-Classification: Part I, II, and III: Hearing Before the Subcomm. on Intelligence, Info. Sharing, & Terrorism Risk Assessment of the Comm. on Homeland Sec. H.R., 110th Cong. 5–6 (2007) (statement of Dir. J. William Leonard, Info. Sec. Oversight Office, Nat’l Archives & Records Admin.). 204 See FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 6(a) (2013). 205 See Eric Lichtblau, In Secret, Court Vastly Broadens Powers of N.S.A., N.Y. TIMES, July 7, 2013, at A1, available at 2013 WLNR 16443833. 206 Id.

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lawmaking process only works when the judges hear both sides of the argument. In addition, the Fourth Amendment issues and technical details of surveillance tactics are very complex, and FISC judges cannot adequately evaluate the various interests without in-depth briefing on both sides. Any FISC reform should address this problem by providing for a “Special Advocate” to the court, who would operate with a security clearance and argue in opposition to the Department of Justice on important legal questions regarding FISA and the Constitution. The FISC is developing complex legal interpretations under a provision of the FAA that requires the FISC to find that the “targeting and minimization procedures” adopted by the Government are “consistent with . . . the fourth amendment to the Constitution . . . .”207 But these decisions are necessarily complex and difficult to make in the abstract context of a Section 702 application because Fourth Amendment analysis is necessarily fact-based.208 In the American judicial system, facts are developed through an adversarial process.209 The government has an interest in arguing in favor of the surveillance applications that it submits to the FISC; a Department of Justice lawyer’s role is not to present the judges with reasons why the application might be denied or modified. There is currently no advocate on the other side of these complex and novel issues judged by the FISC. And while recipients of FISA-authorized surveillance orders and directives can file challenges under certain circumstances,210 they cannot review the classified opinions or government briefs and do not have the necessary opportunity or incentive to develop fact-based constitutional arguments. The difficulty in having an adversarial process at the FISC is that the materials presented by the government are highly classified. However,
50 U.S.C. § 1881a(i)(3)(A) (2006 & Supp. V 2011). See Orin Kerr, The Limits of Fourth Amendment Injunctions, 7 J. TELECOMM. & HIGH TECH L. 127, 129–33 (2009) (discussing the fact-specific nature of Fourth Amendment issues, which makes it difficult to craft injunctive relief). See generally Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 HARV. L. REV. 476, 478–82 (2011) (presenting an overarching theory to explain the fact-specific development of Fourth Amendment doctrine). 209 See Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447, 495 (2009) (“[T]he adversarial system itself is widely acknowledged to be a fundamental feature of the American adjudicatory process.”); William B. Rubenstein, A Transactional Model of Adjudication, 89 GEO. L.J. 371, 371 (2001) (“The traditional premise of American civil adjudication is that ours is an adversary system . . . .”). This concept is not unique to American civil law. The promotor (commonly referred to as the ‘devil’s advocate’) was tasked first by Pope Clement XI in the eighteenth century to introduce an element of the adversarial process into Catholic canonization. JUSTICE, SECRET EVIDENCE ¶ 321 (2009) (citing THE ENCYCLOPAEDIA OF CHRISTIANITY 380 (Heiner Grote in Fahlbusch, ed, 2009)), available at http://www.justice.org.uk/data/files/resources/33/Secret-Evidence-10-June-2009.pdf. 210 See 50 U.S.C. § 1861(f)(2)(A) (2006); 50 U.S.C. § 1881a(h)(4); FISA C T. R.P. 6.
207 208

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classified proceedings have become more prevalent over the past ten years in the United States211 as well as in the United Kingdom.212 The use of specially appointed, security-cleared attorneys to challenge government legal arguments in national security cases has been in place for more than a decade in the United Kingdom.213 The use of such a “Special Advocate” would be appropriate in the FISA context where FISC judges are asked to make novel and significant legal determinations regarding important constitutional rights. Two former FISC judges,214 and other prominent legal scholars,215 have proposed adding such an adversarial position to ensure that legal developments at the FISC do not suffer from unbalanced advocacy.216 Senator Blumenthal then introduced a comprehensive proposal cosponsored by fifteen other Senators, 217 which would create an Office of the

211 See Note, Secret Evidence in the War on Terror, 118 HARV. L. REV. 1962, 1962 (2005) (discussing the use of special security-cleared counsel in military tribunals). 212 See generally JUSTICE, SECRET EVIDENCE ¶¶ 316–66 (2009) (outlining history of special advocates in the United Kingdom immigration system). The Canadian Parliament passed legislation in 2008 to provide for special advocates to represent certain defendants in national security sensitive immigration cases. Id. at ¶¶ 360–62. For another example of an internal special advocate program see Dep’t of Justice, Canada, Special Advocates Program (Apr. 30, 2013), http://www.justice.gc.ca/eng/fund-fina/jsp-sjp/sa-es.html (providing an overview of Canada’s use of special advocates). 213 JUSTICE, SECRET EVIDENCE ¶ 348. 214 See James G. Carr, Op-Ed, A Better Secret Court, N.Y. TIMES, July 23, 2013, at A21, available at 2013 WLNR 17940511; Charlie Savage, Nation Will Gain by Discussing Surveillance, Expert Tells Privacy Board, N.Y. TIMES, July 10, 2013, at A16, available at 2013 WLNR 1670425 (describing Judge Robertson’s comments at a Privacy and Civil Liberties Oversight Board workshop). 215 See Orin Kerr, A Proposal to Reform FISA Court Decisionmaking, THE VOLOKH CONSPIRACY (July 8, 2013, 1:12 AM), http://www.volokh.com/2013/07/08/a-proposal-to-reform-fisa-courtdecisionmaking/ (arguing that the role of special advocate should be given to the “Oversight Section of the National Security Division of DOJ”); Steven Vladeck, Making FISC More Adversarial: A Brief Response to Orin Kerr, LAWFARE (July 8, 2013, 11:46 PM), http://www.lawfareblog.com/2013/07/making-fisc-more-adversarial-a-brief-response-to-orinkerr/ (arguing that special advocates should be “private security-cleared lawyers, not government employees, who do not have specific ethical obligations to individual clients, but who are nevertheless tasked with the responsibility to serve as adversaries in secret litigation commenced by the government.”). 216 At least one report has raised possible constitutional issues with the Special Advocate proposal. See ANDREW NOLAN ET AL., CONG. RESEARCH. SERV., INTRODUCING A PUBLIC ADVOCATE INTO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT’S COURTS: SELECT LEGAL ISSUES 28–29 (2013), available at http://justsecurity.org/wp-content/uploads/2013/10/CRSReport-FISC-Public-Advocate-Oct.-25-2013.pdf. 217 FISA Court Reform Act of 2013, S. 1467, 113th Cong. (2013) (sponsoring senators include Senators Murray, Wyden, Udall of Colorado, Merkley, Udall of New Mexico, Gillibrand, Coons, Whitehouse, Tester, Franken, Baldwin, Heinrich, Markey, Hirono, and Schatz).

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Special Advocate as an independent establishment within the executive branch.218 That proposal has since been incorporated into the USA FREEDOM Act.219 This citizen’s advocate would argue against expansive government interpretations of national security authorities while also increasing transparency and facilitating more robust public reporting. Under the Blumenthal proposal, the Special Advocate would review all FISA applications and filings and have the authority to appeal or otherwise challenge rulings of the FISC.220 The Special Advocate would also have the authority to request declassification and publication of FISC opinions and documents, or trigger mandatory disclosure whenever he or she files an appeal.221 Additionally, the Special Advocate would be responsible for filing a report with Congress every year, evaluating the effectiveness of the FISA process and suggesting any necessary legislative changes. 222 The Special Advocate would promote transparency and reporting while providing a much-needed balance to the constitutional and statutory arguments made before the FISC. IV. Overview of Legislative Proposals for FISA Reform Congress has recently considered reforming the FISA in several different ways. There were proposals offered by prominent members of the House and Senate last year during the FAA reauthorization process. However, the FAA reauthorization ultimately passed without amendment on December 28, 2012.223 The Supreme Court then ruled in Clapper that a group of plaintiffs did not have standing to challenge certain provisions of the FAA on constitutional and statutory grounds. 224 Then, in June, the scope of these new NSA surveillance programs was revealed in a series of unauthorized leaks. The administration publicly acknowledged the programs authorized under Section 215 and Section 702, and Congress reengaged on the issue of FISA reform. Now there are a number of reform

5 U.S.C. § 104 (2012) (defining independent establishment); S. 1467 § 3(a). H.R. 3361, 113th Cong. § 401 (2013). 220 S. 1467 § 3(d)(1). 221 Id. § 6(f). 222 Id. § 7. 223 See FISA Amendments Reauthorization Act of 2012, Pub. L. No. 112-238, 126 Stat. 1631 (2012). The enacted version of the bill was introduced as House Bill 5949, 112th Cong. (2012). There was a parallel Senate Bill, the FAA Sunsets Extension Act of 2012, that was reported out of the Judiciary Committee with an amendment from Senator Leahy. See S. 3276, 112th Cong. (2012). But rather than consider that bill, the House Resolution was laid before the Senate by unanimous consent on December 27, 2012, and was passed by a vote of 73:23 on December 28, 2012. See LIBRARY OF CONG., Bill Summary & Status, THOMAS, http://thomas.loc.gov/cgibin/bdquery/z?d112:HR05949:@@@S (last visited Nov. 19, 2013). 224 133 S. Ct. 1138, 1155 (2013).
218 219

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proposals pending in the House and Senate. A. Reforms Proposed During the FAA Reauthorization Process While the Supreme Court was considering Clapper, the FAA reauthorization process was already underway in Congress. The new FISA sections were designed to sunset on December 31, 2012, and the Obama Administration made clear early in 2012 that reauthorizing the FAA was a top priority.225 The initial proposal in spring 2012 was to extend the FAA sunsets until 2017 without any amendments.226 However, by June 2012 the process came to a halt when Senator Ron Wyden (D-Or) placed a procedural hold on the five-year extension.227 Amendments were submitted in the Judiciary and Intelligence Committees of both the House and Senate, but only the Senate Judiciary Committee adopted an amendment to the extension proposal. The House bill passed on September 12, 2012,228 but the issue was not debated on the Senate floor until December 27, 2012.229 Several amendments were proposed on the Senate floor, but all were defeated and the bill ultimately passed without amendment.230 The following is a brief overview of the amendments considered in the House and Senate. The amendments introduced by Senator Patrick Leahy (D-Vt) were the most comprehensive,231 but they were ultimately abandoned when the Senate chose to consider the House bill. The amendment would have required a mandatory review of “the procedures and guidelines[232] developed by the intelligence community to implement [Section 702], with
225 Letter from James R. Clapper, Dir. of Nat’l Intelligence, to Hon. Harry Reid, Majority Leader, United States Sen. et al. (Feb. 8, 2012), available at http://www.fas.org/irp/news/2012/02/dni020812.pdf (“Reauthorizing this authority is the top legislative priority of the Intelligence Community.”). 226 See S. REP. NO. 112-174 (2012). 227 Press Release, Wyden Places Hold on FISA Amendments Act Extension (June 11, 2012), available at http://www.wyden.senate.gov/news/press-releases/wyden-places-hold-on-fisaamendments-act-extension. Senators Wyden and Udall had already expressed their dissenting views in the Senate Intelligence Committee report. S. REP. NO. 112-174, at 10–12 (discussing minority views of Senators Wyden and Udall). 228 See 158 CONG. REC. H5,890-901 (daily ed. Sept. 12, 2012) (illustrating the Act was debated and passed with a vote of 301 to 118). 229 See 158 CONG. REC. S8,386-425, S8,427-28 (daily ed. Dec. 27, 2012); see also 158 CONG. REC. S8,455–62 (daily ed. Dec. 28, 2012). 230 158 CONG. REC. S8,461 (daily ed. Dec. 27, 2012). 231 See 158 CONG. REC. S8,407-08 (daily ed. Dec. 27, 2012) (discussing proposal of amendment number 3437 by Senator Leahy); see also FAA Sunsets Extension Act of 2012, S. 3276, 112th Cong. (2012) (appearing as reported to the Senate by Senator Leahy, Chairman, Committee on the Judiciary, with an amendment). 232 See 50 U.S.C. § 1881a (2006 & Supp. V 2011).

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respect to the protection of the privacy rights of United States persons . . . .”233 The Leahy amendment would have required the Attorney General to provide a summary of the findings and conclusions from the mandatory report to be made public.234 An amendment proposed by Senators Wyden and Udall in the Intelligence Committee235 and an amendment proposed by Representative Jackson Lee236 in the House Judiciary Committee sought to require additional oversight reports. Their respective amendments required the Inspectors General of the Department of Justice and Intelligence Community to produce a report on the implementation of the FAA. Senators Wyden, Udall, Lee, and Durbin also proposed an amendment requiring additional reporting focused on the impact of the FAA on the privacy of U.S. persons.237 Representative Schakowsky proposed an amendment238 in the House Intelligence Committee that took a different approach: instead of requiring additional reporting, it called for the creation of unclassified versions of the numerous assessments and review reports already created by the Intelligence Community under FISA.239 A number of amendments in the Senate sought to reinforce and clarify the Fourth Amendment’s scope of protection. Senators Wyden and Udall introduced an amendment to reinforce that the government is prohibited from acquiring or searching the contents of the communications of U.S.

158 CONG. REC. S8,408 (daily ed. Dec. 27, 2012) (discussing § 3 of proposed amendment number 3437 by Senator Leahy). 234 Id. at S8,407-08. 235 S. REP. NO. 112-174, at 12–13 (2012). See also id. at 5 (“By a vote of 2 ayes to 13 noes, the [Intelligence] Committee rejected an amendment offered by Senator Wyden and Senator Udall, to require a report by the Inspector General of the Department of Justice and the Inspector General of the Intelligence Community on the implementation of the amendments made by the FISA Amendments Act of 2008.”). 236 See H. R. REP. NO. 112-645, pt. 1, at 7–8 (2012) (“An amendment by Ms. Jackson Lee to require a report by the Inspector General of the Department of Justice and the Inspector General of that Intelligence Community on the implementation of the amendments made by the FISA Amendments Act of 2008. Defeated, 11–20.”). 237 See 158 CONG. REC. S8,455-56 (daily ed. Dec. 28, 2012) (“Purpose: To require a report on the impact of the FISA Amendments Act of 2008 on the privacy of the people of the United States.”). This amendment received the most support but was ultimately rejected 43–52. Id. at S8,460. 238 See H. R. REP. NO. 112-645, pt. 2, at 5 (2012) (“Ms. Schakowsky offered an amendment that would amend the form of the assessments of procedures targeting certain persons located outside the United States. The amendment was not agreed to by a record vote of 15 noes and 2 ayes.”). 239 See id. at 10 (describing the second proposed amendment).
233

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persons without a search warrant.240 Senator Lee proposed to amend FISA to explicitly state that the government could not search U.S. citizen’s communications collected under Section 702 without a search warrant.241 Senator Rand Paul introduced an amendment to extend Fourth Amendment protections to information held by third parties. 242 Other amendments sought to improve transparency by enabling access to the opinions and analysis of the FISC. Representatives Nadler and Scott proposed an amendment requiring the declassification of FISC decisions that included significant construction or interpretation of Section 702.243 Representative Scott presented an amendment requiring release of an unclassified version of the assessments and reviews required under Section 702(l).244 During the Senate floor debate over the FISA Amendments Reauthorization Act of 2013, Senator Merkley proposed an amendment to disclose the decisions, orders, or opinions of the FISC that include significant legal interpretations of Section 215 and Section 702.245 B. Current Proposals in the House and Senate Recent disclosures about the scope of FISA surveillance activity authorized under Section 215 and Section 702 have led to official responses from the Intelligence Community, hearings in both the House and Senate,

240 S. REP. NO. 112-174, at 13–14 (2012); see also id. at 5 (“By a vote of 2 ayes to 13 noes, the [Intelligence] Committee rejected an amendment offered by Senator Wyden and Senator Udall, concerning prohibitions on acquisition of or searching contents of communications of United States persons.”). 241 See S. REP. NO. 112-229, at 10 (2012) (“Senator Lee offered an amendment to require the Government to obtain a warrant before querying the content of communications collected under the FISA Amendments Act with the purpose of finding a United States person’s communications. The amendment was rejected by a roll call vote.”). Representative Zoe Lofgren presented a similar proposal in her dissenting views in the House Judiciary Committee report, but her amendment was unfiled. H.R. REP. NO. 112-645, pt. 1, at 21–23 (2012) (discussing additional views of Representative Lofgren). 242 158 CONG. REC. S8,407 (daily ed. Dec. 27, 2012) (discussing proposal of amendment number 3436 by Senator Paul). 243 See H.R. REP. NO. 112-645, pt. 1, at 6 (2012) (“An amendment by Mr. Nadler to require the Attorney General to make publicly available a declassified summary of every decision, order, or opinion of the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes a significant construction or interpretation of Section 702 of the Foreign Intelligence Surveillance Act of 1978 [sic]. Defeated 14–17.”). 244 See H.R. REP. NO. 112-645, pt. 1, at 7 (2012) (“ An Amendment by Mr. Scott to amend Section 702(l) of the Foreign Intelligence Surveillance Act of 2008 to require that each assessment or review under paragraph 1, 2 or 3 shall be published in unclassified form but may have a classified annex. Defeated, 10–19.”). 245 158 CONG. REC. S8,397-98 (daily ed. Dec. 27, 2012) (discussing proposal of amendment number 3435 by Senator Merkley).

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as well as introduction of a number of FISA reform proposals by legislative members. These new bills primarily focus on increasing the transparency of the FISA process to ensure that public oversight can function as intended. Many of the proposals include provisions similar to those introduced as amendments during the 2012 FISA reauthorization process. Senator Leahy and Representative Sensenbrenner have introduced a comprehensive set of transparency and oversight reforms in their USA FREEDOM Act.246 A number of other requirements were added to the bill covering various aspects of intelligence gathering. The bill requires reporting on National Security Letters. Specifically, that unclassified reports on NSLs include aggregate number of requests relating to US persons, non-US persons, persons subject to national security investigation, persons linked to a subject of a national security investigation, and persons not subject to an investigation or linked to a subject of an investigation. 247 The bill requires a yearly report from the Attorney General on FISA, summarizing its use and impact on privacy of U.S. persons. 248 The bill also requires extensive audits of Government use of Section 215, NSLs, pen register orders, and Section 702 directives. 249 The audits for requests of tangible things, NSLs, and pen register orders include an examination by the Inspector General of the DOJ who assesses any associated minimization procedures for their effectiveness in protecting the constitutional rights of U.S. persons.250 The audit for pen register orders also includes an examination of their effectiveness and importance in intelligence gathering, among other things.251 In addition to the DOJ IG audits, the USA FREEDOM Act requires the IGs from the various intelligence components that use the described techniques to do their own audits. The non-DOJ IGs must assess the importance of the activity to intelligence gathering, examine any minimization procedures for adequacy in protecting the constitutional rights of U.S. persons, and describe any noteworthy facts or circumstances surrounding the use of the various intelligence gathering techniques. 252 Additionally, the IGs must examine in what manner the information was collected, retained, analyzed, and disseminated by the intelligence community.253 All of the audits must be submitted to the Senate Judiciary

246 247 248 249 250 251 252 253

USA FREEDOM Act, H.R. 3361, S. 1599, 113th Cong. § 1 (2013). Id. § 603. Id. § 602. See id. §§ 102 (“Section 215”), 202 (“pen register”), 306 (“Section 702”), and 504 (“NSLs”). Id. Id. H.R. 3361 § 305. Id.

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and Select Committee on Intelligence as well as the House Permanent Select Committee on Intelligence and Judiciary Committee. All of the DOJ IG reports must be unclassified, but may contain a classified annex. 254 Senators Feinstein and Chambliss subsequently introduced a competing bill, the FISA Improvements Act of 2013, which includes a more modest reform proposal supported by the Senate Intelligence Committee.255 The bill would codify the current bulk metadata collection program under Section 215, along with many of the limitations imposed on the NSA by the FISC, and would require extensive recording and auditing of metadata queries.256 The bill would amend the Section 215 reporting requirements to include details about the “number of unique selectors” used to query the database, the “aggregate number of queries,” the “aggregate number of investigative leads developed as a direct result of any query, ” and the “aggregate number of warrants or court orders . . . in response to applications . . . containing information produced by such queries. ”257 The bill would also consolidate all the various FISA reporting requirements into one section requiring a semiannual report of the Attorney General, including an unclassified annual summary to be provided to the public. 258 The Feinstein-Chambliss bill would also require periodic reviews of foreign intelligence acquisition, retention, and dissemination procedures by the heads of the IC elements.259 It would also require an annual report from the DNI on any violations of law or executive order by IC personnel.260 Further, the bill includes additional oversight responsibilities for the Privacy and Civil Liberties Oversight Board, which would review all FISA applications involving “a novel or significant interpretation of law,” and conduct discretionary assessments and an annual review of NSA collection under the FISA.261 The Feinstein-Chambliss bill would provide increased reporting and public oversight, although in a slightly different form than the Leahy-Sensenbrenner bill. Senator Merkley introduced a bill, similar to his amendment proposed in 2012, entitled the Ending Secret Law Act. 262 A House counterpart to this

254 255 256 257 258 259 260 261 262

Id. FISA Improvements Act of 2013, S. 1631, 113th Cong. § 1 (2013). Id. § 2. Id. Id. § 5. Id. § 11. Id. § 10. S. 1632 § 12. Ending Secret Law Act, S. 1130, 113th Cong. (2013).

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bill was introduced by Representative Schiff. 263 Both bills focus on greater disclosures of the significant decisions made by the FISC with respect to Section 215 and Section 702. Specifically, the bills apply to all FISC decisions, prior and going forward, that are or were required to be submitted to committees of Congress under 50 U.S.C. § 601(c).264 The section requires the Attorney General to submit “copies of all decisions (not including orders) or opinions of the Foreign Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review that include significant construction or interpretation of the [FISA].”265 The Merkley/Schiff bills call for three different levels of public disclosure of FISC decisions. The first is to declassify a FISC decision in its entirety.266 If the Attorney General determines that a decision cannot be declassified then an unclassified summary of the decision must be released.267 Finally, if the Attorney General determines that a decision cannot be declassified and an unclassified summary cannot be made available to the public then “an unclassified report on the status of the internal deliberations and process regarding the declassification by personnel of Executive branch of such decisions ” must be made public.268 The unclassified report must include an estimate of the number of decisions to be declassified and an estimate of the number to remain classified.269 There are also a number of new bills proposed that introduce reforms not considered during the 2012 reauthorization debates. Senator Bernie Sanders introduced a bill focused on expanding the reporting requirements for § 502 of FISA and narrowing its usage strictly to the FBI. 270 The Sanders bill would also require a judge to enter a finding that the FBI “presented specific and articulable facts” that each tangible thing sought is relevant to an authorized investigation.271 The bill would require reporting on a semiannual basis to the entire Congress, in contrast to the current statutory requirement of reporting only to select committees.272 The reports would
263 Ending Secret Law Act, H.R. 2475, 113th Cong. (2013). Rep. Shelia Jackson Lee also introduced a very similar bill in the House with a different title. See FISA Court in the Sunshine Act of 2013, H.R. 2440, 113th Cong. (2013). 264 S. 1130. § 4. 265 50 U.S.C. § 1871(a)(5) (2006). 266 See S. 1130 § 4(a)(i)(1)–(2). 267 Id. § 4(a)(i)(3). 268 Id. § 4(a)(i)(4). 269 Id. 270 Restore Our Privacy Act, S. 1168, 113th Cong. § 2(3)–(3) (2013). 271 Id. § 2(1)-(3); see also LIBERT-E Act, H.R. 2399, 113th Cong. § 2 (2013); S. 1182, 113th Cong. § 1(a) (2013). 272 50 U.S.C. § 1862 (2006).

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include the total number of applications submitted under Section 215, as well as a breakdown of the applications granted, modified, or denied in the preceding six months.273 The bill would also require that the Attorney General provide a description of each application for tangible things, and analyze the effectiveness of those granted or modified applications in protecting against terrorism.274 The Senate Judiciary Committee held a hearing in July to get answers from NSA, FBI, and DOJ officials about the scope of FISA surveillance and the need for reforms.275 Subsequently, a group of Senators introduced two new proposals to modify the structure of the FISC. Senators Wyden and Udall, joined by Senator Blumenthal, introduced the FISA Court Reform Act276 and the FISA Judge Selection Reform Act277 to improve judicial oversight. Senator Leahy and Representative Sensenbrenner later included the Special Advocate proposal in their USA FREEDOM Act. 278 The FISA Court Reform Act contains a mandatory declassification requirement for significant FISC decisions, and proposes the creation of an “Office of the Special Advocate” empowered “to argue in the FISA courts on behalf of the right to privacy and other individual rights of the American people. ”279 The Special Advocate would be required to submit an annual report to Congress outlining his or her activities, an assessment for effectiveness, and any proposals for legislative adjustment. 280 The FISA Judicial Selection Reform Act would amend the FISA to provide for two additional FISC judges; require that judges be appointed from each judicial circuit as recommended by the chief judge; and require approval of FISCR appointments by five Associate Justices of the Supreme Court. 281
S. 1168, § 3(a)(1)–(2). Id. § 3(b)–(c). 275 See Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs Before the S. Comm. on the Judiciary , 113th Cong. (2013) (statements of Hon. James Cole, Dept. of Justice, John C. Inglis, Nat’l Sec. Agency & Sean M. Joyce, Fed . Bureau of Investigation). 276 Press Release, Office of Sen. Richard Blumenthal, Blumenthal Unveils Major Legislation to Reform FISA Courts (Aug. 1, 2013), available at http://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-unveils-majorlegislation-to-reform-fisa-courts. 277 Id. 278 USA FREEDOM Act, H.R. 3361, 113th Cong. § 401 (2013). 279 Press Release, Office of Sen. Richard Blumenthal, Blumenthal Unveils Major Legislation to Reform FISA Courts (Aug. 1, 2013), available at http://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-unveils-majorlegislation-to-reform-fisa-courts. 280 FISA Court Reform Act of 2013, S. 1467, 113th Cong. § 7 (2013). 281 See FISA Judge Selection Reform Act of 2013, S. 1460, 113th Cong. § 3 (2013). The House of Representatives also set forth proposals to amend the FISC judge selection process allowing
273 274

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Former FISC judges282 and prominent legal scholars have already endorsed the idea of a public FISA “advocate .”283 The Special Advocate would be part of an independent-executive establishment: recommended by the Privacy and Civil Liberties Oversight Board and appointed by the presiding judge of the FISCR.284 The Special Advocate would play an essential role in overseeing the FISA process by reviewing FISA applications and decisions of the FISC and FISCR; participating at the FISC if appointed or granted leave; requesting reconsideration of FISC decisions; appealing FISC or FISCR decisions; and participating in appeals.285 The Special Advocate would also have the authority to file motions with, and facilitate amicus curiae participation at, the FISC. 286 The FISA Court Reform Act also includes mandatory disclosure provisions for significant decisions of the FISC and FISCR. 287 This includes any FISC decision appealed by the Special Advocate and any FISCR opinion issued on such an appeal. 288 Disclosure would include the legal questions addressed and their resolution; the general context of the matter; the interpretation of any statute, constitutional provision, or other legal authority relied upon; and an indication of whether the decision departed from any prior FISC or FISCR opinion.289 The Special Advocate would also have the authority to petition the FISC or FISCR for public disclosure of decisions, documents, or other relevant classified material.290 The Attorney General would have authority to oppose the petition, but ultimately the

for presidential appointment and senate confirmation of FISA judges as well as designation of FISA judges by members of the House of Representatives and the Senate. See Presidential Appointment of FISA Court Judges Act, H.R. 2761, 113th Cong. (2013); FISA Court Accountability Act, H.R. 2586, 113th Cong. (2013). 282 James G. Carr, A Better Secret Court, N.Y. TIMES, July 23, 2013, at A21, available at 2013 WLNR 17940511; Sam Pfeifle, First PCLOB Meeting’s Ideas for USA PATRIOT ACT; FISA Improvements May Affect Interaction with Private Industry, PRIVACY ADVISOR (July 10, 2013), https://www.privacyassociation.org/publications/first_pclob_meetings_ideas_for_usa_patriot _act_fisa_improvements_may_affect. 283 See Orin Kerr, A Proposal to Reform FISA Court Decisionmaking , VOLOKH CONSPIRACY (July 8, 2013, 1:12 AM), http://www.volokh.com/2013/07/08/a-proposal-to-reform-fisa-courtdecisionmaking/; Steve Vladeck, Making FISC More Adversarial: A Brief Response to Orin Kerr, LAWFARE (July 8, 2013, 11:46 PM), http://www.lawfareblog.com/2013/07/making-fisc-moreadversarial-a-brief-response-to-orin-kerr/. 284 S. 1467 § 3. 285 Id. § 3(d). 286 Id. § 4(c). The bill would also require the FISCR to accept amicus briefs in all mandatory reviews initiated by an appeal of the Special Advocate. Id. § 5(a)(5). 287 Id. § 6. 288 S. 1467 § 6. 289 Id. § 6(b). 290 Id. § 6(f).

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decision to declassify the material would be made by the FISC or FISCR. 291 In contrast with the Blumenthal proposal, the FISA Improvements Act of 2013, introduced by Senators Feinstein and Chambliss, would provide for additional participation of outside attorneys by providing the FISC discretion to appoint amicus curiae to “assist the court in the consideration of a covered application.”292 This would not provide a significant change to the current system, since the FISC and FISA Court of Review have previously accepted briefs of amicus curiae.293 While it may be useful for Congress to encourage the FISC to seek out the views of amici, it would not provide a strong and consistent adversarial voice in the same way as the Special Advocate.

CONCLUSION
The Supreme Court in Clapper imposed a new burden for litigants seeking to challenge secret government surveillance. However, the recent public debate over the NSA’s surveillance programs has undercut many of the Court’s assumptions in Clapper, and future plaintiffs may be able to establish standing given the right facts. Still, legislative reform is necessary to ensure greater transparency and accountability for the activities of the Intelligence Community. Any reform proposal should include three main elements: improved statistical reporting of FISA surveillance, mandatory disclosure of FISC opinions, and rules permitting adversarial briefing in the FISC. Various congressional proposals have emerged since the NSA leaks, and a large bipartisan coalition appears to agree on many of the key reform elements. The FISA reform landscape has certainly changed since the stifled, last-minute debates at the end of 2012.

291 292 293

Id. § 6(f). FISA Improvements Act of 2013, S. 1631, 113th Cong. § 4 (2013). See, e.g., In re Sealed Case, 310 F.3d 717, 719–20 (FISA Ct. Rev. 2002).

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