FISCR: There is a foreign intelligence exception to the warrant requirement going back to the 1970’s

There is a foreign intelligence exception to the warrant requirement going back to the 1970’s. Moreover, the trap and trace here only gathers numbers not content, and that’s reasonable under the Fourth Amendment. In re Certified Question of Law, 2016 U.S. App. LEXIS 17744 (F.I.S.C.R. April 14, 2016) (released Sept. 30, 2016) (opinion referring question):

Consistent with this counsel, in the decade following Keith, a number of federal appeals courts recognized a “foreign intelligence” exception to the warrant requirement. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-16 (4th Cir. 1980); United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593, 604-06 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973). But see Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (en banc) (plurality opinion) (suggesting, in dictum, that no such exception exists).¹⁰

10. The dictum in Zweibon was not joined by a majority of the court. As the D.C. Circuit has recognized in subsequent cases, the Zweibon court barred “warrantless electronic surveillance of persons not suspected of collaboration with foreign interests adverse to this country,” but “there was no opinion of the court on the question of warrantless electronic surveillance of collaborators or suspected collaborators of foreign interests.” Halperin v. Helms, 690 F.2d 977, 1000 n.82 (D.C. Cir. 1982); see also Ellsberg v. Mitchell, 709 F.2d 31, 66 n.63 (D.C. Cir. 1983); United States v. Belfzeld, 692 F.2d 141, 145 (D.C. Cir. 1983); Chagnon v. Bell, 642 F.2d 1248, 1259 (D.C. Cir. 1980).

Truong is illustrative. In that case, the FBI became aware that David Truong, a Vietnamese citizen living in the United States, was obtaining classified papers from a source within the federal government and endeavoring to send them to Vietnamese officials in Paris. 629 F.2d at 911-12. With the approval of the Attorney General, but no judicial warrant, Truong’s phone was tapped and his apartment “bugged.” Id. at 912. He challenged the admission at trial of evidence obtained through this warrantless surveillance, but the district court admitted much of it, and the Fourth Circuit affirmed. The appeals court observed that, in the area of foreign intelligence, the needs of the executive are particularly “compelling,” and that a warrant requirement would cripple the government’s ability to counter threats from abroad with the needed “stealth, speed, and secrecy.” Id. at 913. Accordingly, it held that a search may be constitutionally reasonable, notwithstanding the absence of prior judicial authorization, when “the object of the search or the surveillance is a foreign power, its agent or its collaborators,” and “the search is conducted primarily for foreign intelligence reasons.” Id. at 915 (emphasis supplied) (internal quotation marks omitted).

More recently, this court both acknowledged the existence of a foreign-intelligence exception to the warrant requirement and explained its doctrinal underpinnings. See In re Directives, 551 F.3d at 1010-12. In In re Directives, we noted that in so-called “special needs” cases, the Supreme Court has “excused compliance with the Warrant Clause when the purpose behind the government action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose.” Id. at 1010. The government may, for instance, engage in certain warrantless intrusions when it acts as educator; blind adherence to the Warrant Clause in the public schools “would unduly interfere with the maintenance of the swift and informal disciplinary procedures that are needed, and … undercut the substantial need of teachers and administrators for freedom to maintain order.” Vernonia Sch. Dist. 47J, 515 U.S. at 653. So too may it maintain sobriety checkpoints at which vehicles are stopped (and drivers thereby seized) without suspicion, in the interest of curbing the harms occasioned by drunk driving. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450-51 (1990).

We recognized in In re Directives that when the government engages in foreign intelligence surveillance—no less than when it acts to maintain discipline in the schools or operates sobriety checkpoints—its needs go beyond “any garden-variety law enforcement objective,” and its objectives would be seriously hampered by the requirement of a warrant. In re Directives, 551 F.3d at 1011. Collecting foreign intelligence with an eye toward safeguarding the nation’s security serves an interest—a “particularly intense” interest—different from the government’s interest in the workaday enforcement of the criminal law. And if the government were constrained to obtain a warrant before undertaking any foreign intelligence gathering that constituted a search, its “ability to collect time-sensitive information” would be “hinder[ed]” and “the vital national security interests at stake” impeded. Id. We thus held that the Fourth Amendment does not require a probable-cause warrant “when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” Id. at 1012.