Court order

Generally, parties to litigation have the prerogative of seeking the assistance of the court, through the issuance of an court order to produce documents or records or information, to facilitate the discovery process in litigation.

In the context of government access to the kinds of information that might be desired for national security programs two types of specific court orders, the standards for which are outlined in statutes, are particularly relevant: (1) a court ordered electronic surveillance order under the federal wiretap statute, and (2) a surveillance order under the Foreign Intelligence Surveillance Act (FISA). The first may be issued by any federal court, provided the statutory procedures are complied with, including approval by senior federal officials. The second may only be issued by the FISA court. The suspicion threshold varies according to the situation. For example, the federal wiretap statute uses a “probable cause plus” standard, while the court order authorizing installation of a pen register and trap and trace device calls for a finding that the “investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”

The breadth of access varies from statute to statute as well. Often, the standard of suspicion required for issuance of the order coupled with the type of information sought will define the range of access. In some instances, however, Congress has imposed further limitations. Under the federal wiretap statute, for instance, the authority under the court order terminates as soon as the objectives for which the order was sought have been realized. As noted above, “court order” statutes sometimes limit the manner in which officers may use or disclose such evidence. A few statutes expect court orders to be issued following an adversarial hearing; in others the subject of the records receives notice only after the fact; and in still others there are special provisions for extended postponement of notice under some circumstances.

The statute that creates the special court order procedure may indicate the grounds and procedure, if any, under which the subject of a record may seek to bar law enforcement access or use. Some may require prior notice. Where the order is issued and access granted prior to notice, the subject may be limited to the exclusion of evidence or civil remedies to the extent that the application, order, execution of the order, or use of the information fail to meet the requirements of the statute. See, e.g., the federal wiretap statute (18 U.S.C. §2518(10)(suppression of evidence), §2520 (civil damages).