FISC Opinion on the USA FREEDOM Act and Sunsets

The Foreign Intelligence Surveilance Court's memorandum opinion was signed on Wednesday. On first glance, Judge Dennis Saylor's conclusion seemingly was that the USA FREEDOM Act reinstated and at the same time amended FISA's business records provision as it existed on June 1—thereby permitting continued collection under that authority. As best I can tell, the idea was to iron out a quite conseqential wrinkle, itself caused by the timing of the USA FREEDOM Act's passage and the sunset of key business records language.

The provision in question, as readers likely know, had expired on June 1, before the USA FREEDOM Act's enactment a day afterwards; more importantly, pursuant to FISA, the business records provision also had, by operation of law, by then reverted to language that Congress had long ago revised in October 2001, under the USA PATRIOT ACT. Together with the timing of the new statute's entry into force, this feature lead to understandable confusion, and some quite important practical questions, given that the relevant USA FREEDOM Act language had addressed itself to the more recent and quite different iteration of the business records provision only, and not to the pre-October 2001 version. Thus the FISC opinion which, on first glance, appears to make the odd, amended-a-lapsed-statute problem go away.

Two other notes: One, the Court contemplated, but ultimately passed on, the appointment of amicus, notwithstanding the legal issue's evident significance and the USA FREEDOM Act's new appointment mechanism. Second, the underlying facts here—that is, precisely what the government asked for and what the court approved—tremain quite unclear. According to the opinion, the scope and nature of the application associated with it remains classified.