The Evolution and Jurisprudence of The Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review

Abstract

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the court’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III court; the effort to understand the existing statutory language in light of new and emerging technologies; the tension among constitutional rights, the need for information, and the implications of increasingly broad surveillance programs; and the court’s growing role in conducting oversight and having to respond to Executive Branch errors, noncompliance, and misrepresentations. This Article details these tensions in light of the courts’ jurisprudence, noting the areas where we are likely to continue to see concerns in the implementation of the Foreign Intelligence Surveillance Act going forward.

Keywords: Fourth Amendment, First Amendment, Technology, Section 215, Section 702, USA PATRIOT Act, FAA, FISA, FISA Amendments Act, FISC, FISCR, Foreign Intelligence Surveillance Court, Foreign Intelligence Surveillance Court of Review, Horowitz, Crossfire Hurricane, significant purpose, national security, st