Generally, parties to litigation have the prerogative of seeking the assistance of the court, through the issuance of a court order to produce documents or records or information, to facilitate the discovery process in litigation. A court order may also issue to provide injunctive relief, and at the conclusion of a case, a court order may include the judgment of the court or a jury regarding who won the case and what remedies will be provided.
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.
- 18 U.S.C. §2518(3)(the order may be issued “if the judge determines on the basis of the facts submitted by the application that — (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in [18 U.S.C. §2516]; (b) there is probable cause for belief that particular communications concerning that offense will be obtained . . . (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlike to succeed if tried or to be too dangerous; [and] (d) . . . there is probable cause for belief that the facilities from which, or the place where the . . . communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense . . .”).
- 18 U.S.C. §3123(a); see also 18 U.S.C. §2703(d)(e-mail records may be disclosed pursuant to a court order when the government “offers specific and articulable facts showing . . . reasonable grounds to believe that the . . . records . . . are relevant and material to an ongoing criminal investigation”).
- 18 U.S.C. §2518(5).
- 42 U.S.C. §290dd-2.
- 18 U.S.C. §2518(9)(d)(notice of wiretapping under the federal wiretap statute must be given within 90 days of termination of the tap unless postponed by the court).
- 18 U.S.C. §2705 not only permits the court to delay notification of the subject whose e-mail records have been disclosed to the government but empowers the court to forbid the e-mail service provider from tipping off the subject.
- See, e.g., the federal wiretap statute (18 U.S.C. §2518(10)(suppression of evidence), §2520 (civil damages).