Page:In re Directives.pdf/6

 That brings us to the question of whether Congress has provided that a party in the petitioner’s position may bring suit to enforce the rights of others. That question demands an affirmative answer.

The PAA expressly declares that a service provider that has received a directive “may challenge the legality of that directive,” 50 U.S.C. § 1805b(h)(1)(A), and “may file a petition with the Court of Review” for relief from an adverse FISC decision, id. § 1805b(i). There are a variety of ways in which a directive could be unlawful, and the PAA does nothing to circumscribe the types of claims of illegality that can be brought. We think that the language is broad enough to permit a service provider to bring a constitutional challenge to the legality of a directive regardless of whether the provider or one of its customers suffers the infringement that makes the directive unlawful. The short of it is that the PAA grants an aggrieved service provider a right of action and extends that right to encompass claims brought by it on the basis of customers’ rights.

For present purposes, that is game, set, and match. As said, the petitioner’s response to the government’s motion to compel is the functional equivalent of a petition under section 1805b(h)(1)(A). The petitioner’s claim, as a challenge to the constitutionality of the directives, quite clearly constitutes a challenge to their legality. Thus, the petitioner’s Fourth Amendment claim on behalf of its customers falls with­ in the ambit of the statutory provision. It follows inexorably that the petitioner has standing to maintain this litigation.

We turn now to the petitioner’s Fourth Amendment arguments. In the Fourth Amendment context, federal appellate courts review findings of fact for clear error and legal conclusions (including determinations about the ultimate constitutionality of government searches or seizures) de novo. See, e.g., United States v. Martins, 413 F.3d 139, 146 (1st Cir.2005); United States v. Runyan, 290 F.3d 223, 234 (5th Cir.2002). We therefore review de novo the FISC’s conclusion that the surveillances carried out pursuant to the directives are lawful.

The petitioner’s remonstrance has two main branches. First, it asserts that the government, in issuing the directives, had to abide by the requirements attendant to the Warrant Clause of the Fourth Amendment. Second, it argues that even if a foreign intelligence exception to the warrant requirements exists and excuses compliance with the Warrant Clause, the surveillances mandated by the directives are unreasonable and, therefore, violate the Fourth Amendment. The petitioner limits each of its claims to the harm that may be inflicted upon United States persons.

1. The Nature of the Challenge. As a threshold matter, the petitioner asserts that its Fourth Amendment arguments add up to a facial challenge to the PAA. The government contests this characterization, asserting that the petitioner presents only an as-applied challenge. We agree with the government.

A facial challenge asks a court to consider the constitutionality of a statute without factual development centered around a particular application. See, e.g., ''Wash. State Grange v. Wash. State Repub. Party'', — U.S. —, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008). Here, however, there is a particularized record and the statute—the PAA—has been applied to the petitioner in a specific setting. The petitioner’s plaints take account of this setting. So viewed, they go past the question of whether the PAA is valid on its face—a question that would be answered by deciding whether any application of the