The Latest FISC Opinion: A Summary

On February 19, 2013, the Foreign Intelligence Surveillance Court granted an order for the production of certain tangible things, applied for by the FBI pursuant to 50 U.S.C. § 1861, and issued an opinion explaining its decision to grant the order. A key issue with the order is whether the investigation to which it relates is “not conducted solely upon the basis the activities protected by the First Amendment,” as required by statute. Judge John D. Bates concludes the investigation is not; the order thus complies with FISA. A heavily redacted facts section reveals simply that the FBI sought an order requiring the production of certain tangible things in connection to an investigation, “to protect against international terrorism,” of a United States person. Under 50 U.S.C. § 1861, the FBI may apply to the FISC for “an order requiring the production of . . . tangible things” that are related to an investigation of a United States person, so long as the investigation’s purpose is to “protect against international terrorism or clandestine intelligence activities,” and “provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.” Judge Bates first dispenses quickly with the issues (1) whether “the records sought are relevant to the investigation” and (2) whether “the investigation is one to protect against international terrorism,” finding that both requirements are met here. Just why, however, we don’t know: the reasoning as to these two points is entirely redacted. He then turns to the crux of the opinion, “whether the application shows reasonable grounds to believe that the investigation . . . is not being conducted solely upon the basis of activities protected by the first amendment.” At first blush, the application seems deficient on this point. The conduct and speech attributed to the United States person under investigation here, all of which are redacted, “seem[] to fall well short of the sort of incitement to imminent violence or ‘true threat’ that would take it outside the protection of the First Amendment,” and even the government seems to have acknowledged the possibility that the speech at issue is protected. However, the FISC reads § 1861 to “permit[] the consideration of . . . related conduct”---rather than “only the activities of the subject of the investigation”---in determining whether the investigation complies with the First Amendment (emphasis added). That is, an investigation of a United States person can be “not conducted solely on the basis of activities protected by the First Amendment” even if the United States person’s conduct and speech all seem to fall under the First Amendment. This is key to Judge Bates's ruling. Conduct related to the United States person under investigation that is not protected by the First Amendment may serve as “reasonable grounds to believe” that the investigation is not being “conducted solely on the basis” of constitutionally protected activities. Here, Judge Bates explains, the redacted related activities do just that. All the statutory requirements thus having been met, FISC grants the order.