In re Certified Question of Law

858 F.3d 591 (2016)

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In re Certified Question of Law

United States Foreign Intelligence Surveillance Court of Review
858 F.3d 591 (2016)

  • Written by Sharon Feldman, JD

Facts

A United States Foreign Intelligence Surveillance Court (FISC) judge issued an order authorizing the government to use pen-register/trap-and-trace (PR/TT) devices on a cellular telephone number in an investigation of clandestine intelligence activities. The order authorized the recording and decoding of all post-cut-through digits (PCTDs)—numbers dialed after a telephone call is connected. The FISC certified to the United States Foreign Intelligence Surveillance Court of Review the question whether a Foreign Intelligence Surveillance Act (FISA) order could authorize the government to obtain all PCTDs, subject to a prohibition on the investigative use of any contents acquired, if there was no reasonably available technology that would permit the collection of only non-content PCTDs or permit the government, upon receiving the information, to discard PCTDs that were content while retaining those that were not. The certified question required the court to consider whether the statute authorized the interception of PCTDs and, if it did, whether it contravened the Fourth Amendment.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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