Legal Definitions - Foreign Intelligence Surveillance Court of Review

The Foreign Intelligence Surveillance Court of Review (often referred to as the FISCR) is a specialized federal appellate court in the United States. Its primary role is to review appeals from decisions made by the Foreign Intelligence Surveillance Court (FISC).

The FISC is responsible for overseeing requests for surveillance warrants against foreign powers and agents of foreign powers suspected of espionage or terrorism within the United States. When the FISC denies a government agency's request for a surveillance warrant, or imposes conditions on such a warrant that the government believes are unlawful or too restrictive, the government can appeal that decision to the Foreign Intelligence Surveillance Court of Review. This court acts as a check on the FISC's decisions, ensuring that intelligence gathering activities comply with the Foreign Intelligence Surveillance Act (FISA) while also protecting national security interests.

Here are some examples of how the Foreign Intelligence Surveillance Court of Review might operate:

• Example 1: Appealing a Warrant Denial

  Imagine the Federal Bureau of Investigation (FBI) applies to the Foreign Intelligence Surveillance Court (FISC) for a warrant to conduct electronic surveillance on an individual suspected of being a foreign intelligence agent. The FISC reviews the application but ultimately denies the warrant, concluding that the FBI has not provided sufficient probable cause to justify the surveillance under the Foreign Intelligence Surveillance Act (FISA). Believing that the denial was based on an incorrect interpretation of the law or an insufficient appreciation of the intelligence, the U.S. government, through the Department of Justice, can appeal this denial to the Foreign Intelligence Surveillance Court of Review. The FISCR would then review the FISC's decision to determine if it was legally sound.

• Example 2: Challenging Restrictive Conditions on Surveillance

  Suppose the National Security Agency (NSA) seeks a warrant from the FISC to collect certain foreign intelligence data using a new, complex technological method. The FISC approves the warrant but imposes very strict conditions on how the data can be collected, stored, and analyzed, particularly concerning any incidental collection of U.S. persons' communications. The NSA believes these conditions are overly burdensome and will significantly impede its ability to gather critical foreign intelligence, arguing they go beyond what FISA requires. In this scenario, the government could appeal these specific conditions to the Foreign Intelligence Surveillance Court of Review, asking the appellate court to modify or remove the restrictions.

• Example 3: Dispute Over Data Sharing Protocols

  Consider a situation where the Central Intelligence Agency (CIA) obtains a surveillance warrant from the FISC. The FISC's order includes specific protocols for how the collected intelligence, especially any data pertaining to U.S. citizens or residents, must be handled and shared with other intelligence agencies. The CIA argues that these protocols are too restrictive and prevent timely and effective sharing of vital intelligence with other agencies that need it for national security purposes. The government could then bring an appeal to the Foreign Intelligence Surveillance Court of Review, seeking a ruling that would allow for more flexible or broader sharing of the intelligence, provided it adheres to legal safeguards.