Page:In re Directives.pdf/9

 with the warrant requirement would introduce an element of delay, thus frustrating the government’s ability to collect information in a timely manner. [redacted text]

For these reasons, we hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists 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.

3. Reasonableness. This holding does not grant the government carte blanche; even though the foreign intelligence exception applies in a given case, governmental action intruding on individual privacy interests must comport with the Fourth Amendment’s reasonableness requirement. See United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Thus, the question here reduces to whether the PAA, as applied through the directives, constitutes a sufficiently reasonable exercise of governmental power to satisfy the Fourth Amendment.

We begin with bedrock. The Fourth Amendment protects the right “to be secure … against unreasonable searches and seizures.” U.S. Const. amend. IV. To determine the reasonableness of a particular governmental action, an inquiring court must consider the totality of the circumstances. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); Tennessee v. Garner, 471 U.S. 1, 8–9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). This mode of approach takes into account the nature of the government intrusion and how the intrusion is implemented. See Garner, 471 U.S. at 8, 105 S.Ct. 1694; Place, 462 U.S. at 703, 103 S.Ct. 2637. The more important the government’s interest, the greater the intrusion that may be constitutionally tolerated. See, e.g., Michigan v. Summers, 452 U.S. 692, 701–05, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).

The totality of the circumstances model requires the court to balance the interests at stake. See Samson, 547 U.S. at 848, 126 S.Ct. 2193; United States v. Knights, 534 U.S. 112, 118–19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). If the protections that are in place for individual privacy interests are sufficient in light of the governmental interest at stake, the constitutional scales will tilt in favor of upholding the government’s actions. If, however, those protections are insufficient to alleviate the risks of government error and abuse, the scales will tip toward a finding of unconstitutionality.

Here, the relevant governmental interest—the interest in national security—is of the highest order of magnitude. See Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981); In re Sealed Case, 310 F.3d at 746. Consequently, we must determine whether the protections afforded to the privacy rights of targeted persons are reasonable in light of this important interest.

At the outset, we dispose of two straw men—arguments based on a misreading of our prior decision in Sealed Case. First, the petitioner notes that we found relevant six factors contributing to the protection of individual privacy in the face of a governmental intrusion for national security purposes. See In re Sealed Case, 310 F.3d at 737–41 (contemplating prior judicial review, presence or absence of probable cause, particularity, necessity, duration and minimization). On that exiguous basis, it reasons that our decision there requires a more rigorous standard for gauging reasonableness.

This is a mistaken judgment. In Sealed Case, we did not formulate a rigid six-factor test for reasonableness. That would