On January 15, 2009, the Foreign Intelligence Surveillance Court of Review (FISCR) released a public, redacted version of an August 2008 opinion rejecting a constitutional challenge brought by an unidentified communications service provider to the Protect America Act (PAA).  

The PAA (passed by Congress in 2007 after controversy erupted over the warrantless surveillance program conducted by the National Security Agency under President Bush) authorized the Executive Branch to wiretap communications involving persons reasonably believed to be outside of the United States without first obtaining a warrant.  

In what is believed to be only the second opinion the FISCR has published since it was established more than 30 years ago, the ruling supports the power of the Executive Branch to wiretap communications for foreign intelligence purposes without prior judicial review.  

This case arose in 2007 when a communications service provider refused to comply with government-issued directives ordering that it assist in the warrantless surveillance of certain customers. The provider challenged the validity of the directives before the Foreign Intelligence Surveillance Court (FISC), and when the FISC found the directives lawful and compelled compliance, the provider brought a petition for review by the FISCR.  

The provider argued that the government had to abide by the Warrant Clause of the Fourth Amendment in issuing the directives and, even if a foreign intelligence exception to the warrant requirement did exist to excuse compliance with the Warrant Clause, the surveillance mandated by the directive was unreasonable and therefore in violation of the Fourth Amendment.  

In rejecting the provider's challenge, the FISCR found that (i) “a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the [United States]”; and

(ii) the government’s pre-surveillance privacy safeguards and procedures were adequate to meet the Fourth Amendment’s ban on unreasonable searches, particularly in light of the compelling national security interest in the requested surveillance.  

In validating the government’s authority to collect foreign intelligence without a warrant:

  • the opinion bolsters the former administration’s assertions that the executive branch has the power to act without specific judicial approval in conducting surveillance over suspected foreign communications, even if involving U.S. citizens; and  
  • despite the fact that the FISCR reviewed the PAA, which has since expired, the opinion lends legal support to the constitutionality of the recently enacted FISA Amendments Act, which provides additional protective safeguards to those contained under the PAA. (The PAA expired in February 2008, and in July 2008, Congress enacted an updated surveillance law which also granted liability protection to communications service providers that took part in the government’s warrantless wiretapping program after the September 11, 2001 attacks.)