858 F.3d 591
FISA Ct.2016Background
- FISC approved a FISA §1842 pen-register/trap-and-trace order for a U.S.-based suspect of clandestine foreign intelligence activity; the order authorized recording/decoding of all post-cut-through digits but barred affirmative investigative use of any non-DRAS content.
- “Post-cut-through digits” are digits dialed after a call is connected; they can contain either dialing/routing/addressing/signaling (DRAS) information or content (e.g., PINs, account numbers).
- With current technology, pen-register devices cannot reliably separate DRAS from content in post-cut-through digits before decoding; prior FISC practice had authorized collection with minimization and non-use limits.
- Some district courts in criminal contexts have held post-cut-through digits cannot be collected under the pen/trap statutes because of the risk of capturing content.
- The government argued FISA permits collection of post-cut-through digits when no reasonably available technology can segregate content, subject to minimization and non-use rules; the FISC certified the legal question to the FISCR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 18 U.S.C. §3127(3)’s proviso ("shall not include contents") forbids any authorized collection of post-cut-through digits that might incidentally contain content | Prohibit any collection of post-cut-through digits if there is any risk of content capture; literal proviso bars authorization | Statute read with §3121(c) shows Congress intended minimization via "reasonably available" technology, not an absolute ban | Court: §3127 read with §3121(c) permits authorization of post-cut-through digits so long as reasonably available technology is used to minimize content and any content captured is barred from investigative use |
| Whether FISA (50 U.S.C. §1842) authorizes such orders for foreign-intel investigations | FISC (and some courts) should not authorize when content risk exists; criminal statutes show different treatment | FISA incorporates pen/trap definitions and allows minimization; national-security context supports authorization without absolute ban | Court: FISA authorizes such FISC orders with minimization and non-use conditions |
| Whether the Fourth Amendment requires a probable-cause warrant for this surveillance because of incidental content collection | Incidental content capture makes the intrusion significant; probable-cause should apply | Foreign-intelligence context permits different balancing; warrant requirement can be a poor proxy for reasonableness in national-security surveillance | Court: No per se probable-cause warrant required; Fourth Amendment reasonableness governs and, on these facts, surveillance without a warrant is reasonable |
| Whether the particular order struck a reasonable balance between privacy and security | Argue privacy intrusion is substantial because content may be collected | Government stresses national-security urgency, investigative necessity of post-cut-through digits, minimization, and judicial supervision | Court: On the record, the order reasonably balanced interests; factors (national-security interest, narrow/targeted collection, incidental nature, minimization, non-use, FISC oversight) support reasonableness |
Key Cases Cited
- Smith v. Maryland, 442 U.S. 735 (pen-register monitoring of dialed numbers is not a Fourth Amendment search)
- Katz v. United States, 389 U.S. 347 (Fourth Amendment "reasonable expectation of privacy" framework; national-security caveat noted)
- Berger v. New York, 388 U.S. 41 (probable-cause warrant requirement for wiretaps)
- In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISCR) (recognized foreign-intelligence exception to probable-cause warrant requirement and reasonableness balancing)
- United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.) (recognized foreign-intelligence needs can justify warrantless surveillance in certain cases)
- Warshak v. United States, 490 F.3d 455 (6th Cir.) (discussed probable-cause requirement for compelled disclosure of email content)
- Andresen v. Maryland, 427 U.S. 463 (incidental review of seized documents permissible; minimization principle)
- Scott v. United States, 436 U.S. 128 (minimization requirement in wiretap law)