## Facts

- The government sought an order authorizing electronic surveillance of a U.S. person under the Foreign Intelligence Surveillance Act (FISA) based on probable cause that the target was an agent of a foreign power.
- The Foreign Intelligence Surveillance Court (FISC) granted the application but imposed additional coordination limits between intelligence personnel and criminal prosecutors, effectively recreating a barrier separating intelligence and law-enforcement functions.
- The limitations included prohibiting law-enforcement officials from recommending initiation or expansion of FISA surveillances, restricting the Criminal Division from directing or controlling FISA use, and requiring an intelligence-office presence at certain coordination meetings.
- The government appealed only the FISC-imposed restrictions, not the underlying authorization; the appellate court treated the restrictions as a constructive denial for jurisdictional purposes.
- The appeal followed statutory amendments enacted in 2001 that changed FISA’s certification requirement from “the purpose” to “a significant purpose” being foreign-intelligence collection and authorized consultation with law enforcement to coordinate investigations and protection against specified foreign threats.

## Issues

1. Whether FISA, as amended, permits surveillance when foreign-intelligence collection is a significant purpose even if criminal enforcement objectives are also substantial.
2. Whether FISA requires, or permits a court to impose, a rigid barrier limiting coordination between intelligence officials and criminal prosecutors beyond the statute’s text.
3. Whether the amended FISA framework, including the “significant purpose” standard and increased coordination, satisfies the Fourth Amendment.

## Decision

- The court reversed the FISC’s additional requirements and limitations and remanded for further proceedings consistent with its opinion.
- It held that the amended statute allows FISA surveillance when foreign intelligence is a significant purpose and that the statute affirmatively contemplates coordination with law enforcement.
- It concluded the FISC’s restrictions were not required by FISA and exceeded the FISC’s authority insofar as they effectively reinstated a primary-purpose constraint and imposed extra-statutory coordination rules.
- It rejected constitutional challenges and held that the amended FISA scheme is reasonable under the Fourth Amendment.

## Legal Principles

- Under the amended certification standard, FISA surveillance is permissible when foreign-intelligence collection is a significant purpose; the statute does not require foreign intelligence to be the primary purpose.
- Statutory language authorizing consultation with law enforcement supports information sharing and coordinated efforts; courts may not impose a categorical “wall” contrary to the statute’s structure and text.
- The Fourth Amendment inquiry focuses on the reasonableness of the foreign-intelligence search regime as a whole, including judicial approval, probable-cause findings tied to foreign-power agency, and minimization and oversight safeguards.
- The Constitution does not require that foreign-intelligence surveillance be conducted only when criminal prosecution is not contemplated, nor does it mandate strict separation between intelligence and criminal investigations.

## Conclusion

The court held that amended FISA permits surveillance when foreign intelligence is a significant purpose and that increased coordination with prosecutors is statutorily authorized; it invalidated the FISC’s extra-statutory coordination restrictions and upheld the amended framework as reasonable under the Fourth Amendment.


In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002)