Page:In re Directives.pdf/3

 [redacted text].

Gregory G. Garre, Acting Solicitor General, with whom Michael B. Mukasey, Attorney General, Mark Filip, Deputy Attorney General, J. Patrick Rowan, Acting Assistant Attorney General, John A. Eisenberg. Office of the Deputy Attorney General, John R. Phillips, Office of Legal Counsel, Sharon Swingle, Civil Division, and Matthew G. Olsen, John C. Demers, Jamil N. Jaffer, Andrew H. Tannenbaum, and Matthew A. Anzaldi, National Security Division, United States Department of Justice, were on brief, for respondent.

Before SELYA, Chief Judge, WINTER and ARNOLD, Senior Circuit Judges.

SELYA, Chief Judge.

This petition for review stems from directives issued to the petitioner [redacted text] pursuant to a now-expired set of amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801–1871 (2007). Among other things, those amendments, known as the Protect America Act of 2007 (PAA), Pub.L. No. 110–55, 121 Stat. 552, authorized the United States to direct communications service providers to assist it in acquiring foreign intelligence when those acquisitions targeted third persons (such as the service provider’s customers) reasonably believed to be located outside the United States. Having received [redacted text] such directives, the petitioner challenged their legality before the Foreign Intelligence Surveillance Court (FISC). When that court found the directives lawful and compelled obedience to them, the petitioner brought this petition for review.

As framed, the petition presents matters of both first impression and constitutional significance. At its most elemental level, the petition requires us to weigh the nation’s security interests against the Fourth Amendment privacy interests of United States persons.

After a careful calibration of this balance and consideration of the myriad of legal issues presented, we affirm the lower court’s determinations that the directives at issue are lawful and that compliance with them is obligatory.

I. THE STATUTORY FRAMEWORK

On August 5, 2007, Congress enacted the PAA, codified in pertinent part at 50 U.S.C. §§ 1805a to 1805c, as a measured expansion of FISA’s scope. Subject to certain conditions, the PAA allowed the government to conduct warrantless foreign intelligence surveillance on targets (including United States persons) “reasonably believed” to be located outside the United States. 50 U.S.C. § 1805b(a). This proviso is of critical importance here.