Release of FISC Question of Law & FISCR Opinion
August 22, 2016
Today the Office of the Director of National Intelligence, in consultation with the Department of Justice, is releasing in redacted form a Certification of Question of Law to the Foreign Intelligence Surveillance Court of Review submitted by the Foreign Intelligence Surveillance Court on February 12, 2016, and the FISCR’s April 14, 2016 Opinion in response to the FISC’s Certification of Question of Law. The ODNI is releasing these two documents pursuant to Section 1872 of the Foreign Intelligence Surveillance Act, as amended by the USA FREEDOM Act, and in keeping with the Principles of Intelligence Transparency for the Intelligence Community.
This FISCR opinion confirms the legality of the government’s continued collection of post-cut-through digits (PCTD) using a pen register and trap and trace (PRTT) device, authorized pursuant to Title IV of FISA. Title IV authorizes the government to use a PRTT device to seek and capture dialing, routing, addressing or signaling (DRAS) information. Title IV does not authorize the use of a PRTT device to seek the contents of a communication.
PCTD are digits entered by a caller after a telephone call first connects with its intended recipient (i.e., when the call first “cuts through”). Depending on the circumstances, PCTD can constitute DRAS information (e.g., the telephone number of the intended call recipient, entered in response to prompts by a calling card service). As stated in the FISCR opinion, “[i]n such a situation, in order to discover what number is being called, the investigators must be able to intercept the [PCTD].” PCTD can also, however, comprise content (e.g., bank account numbers entered in response to prompts by a bank for a money transfer). Whether the PCTD information contains content information cannot be determined at the time of its acquisition.
On February 12, 2016, the FISC certified a question of law to the FISCR, pursuant to 50 U.S.C. Section 1803(j), a provision added to FISA by the USA FREEDOM Act in June 2015. Upon receiving the certified question of law, the FISCR appointed an amicus curiae, pursuant to 50 U.S.C. Section 1803(i), to assist the FISCR in consideration of what it deemed a significant interpretation of the law.
After careful consideration of briefing and oral arguments by the government and the appointed amicus curiae, the FISCR issued its opinion, on April 14, 2016, ruling that the government’s position and past practice with respect to PCTD were lawful. Specifically, the FISCR concluded that FISA authorizes and the Fourth Amendment does not prohibit collection of all PCTD obtained with a PRTT device to acquire non-content DRAS information, so long as the government is prohibited from using any incidentally collected content.
The FISC Certification of Question of Law and the FISCR Opinion are below: