In March, the Supreme Court issued its decision in Federal Bureau of Investigation v. Fazaga, No. 20-828, holding that the state secrets privilege—and its dismissal remedy—applies to cases that may also be subject to the judicial review procedures set forth in the Foreign Intelligence Surveillance Act (“FISA”).  In so holding, the Court reversed the Ninth Circuit’s 2020 ruling that FISA displaces the state secrets privilege in cases involving electronic surveillance.

The state secrets privilege is “a Government privilege against court-ordered disclosure of state and military secrets,” Op. at 2, and under certain circumstances, it may require a court to dismiss claims that implicate national security issues animating the assertion of the privilege.  FISA’s judicial review procedure, on the other hand, creates a mechanism for a court to review in camera and ex parte materials related to surveillance conducted pursuant to FISA, and determine whether such surveillance was “lawfully authorized and conducted.”  50 U.S.C. § 1806(f).  The key issue in Fazaga concerned the interplay of these two mechanisms for addressing litigation implicating sensitive issues of national security.

In Fazaga, Respondents filed suit against the FBI, alleging that it conducted illegal surveillance over a Muslim community in California.  The Government moved to dismiss their complaint, arguing in part that the state secrets privilege requires dismissal of most of Respondents’ claims.  The District Court granted the Government’s motion, concluding that litigating the relevant claims “would require or unjustifiably risk disclosure of secret and classified information.”  884 F. Supp. 2d 1022, 1028-29 (CD Cal. 2012).  On appeal, the Ninth Circuit reversed, holding “Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance.”  965 F. 3d 1015, 1052 (2020).  The Circuit partially based its holding on the conclusion that FISA’s judicial review procedure, § 1806(f), “speak[s] quite directly to the question otherwise answered by the dismissal remedy sometimes required by the common law state secrets privilege,” which is “animated by the same concerns” as, and “triggered” by a similar process to, the state secrets privilege.  Id. at 1045.  The Government sought certiorari, which the Supreme Court granted “to decide whether § 1806(f) displaces the state secrets privilege.”  Op. at 7.

The Court’s unanimous decision, authored by Justice Alito, concluded that the review procedure created by FISA does not displace the state secrets privilege, for two reasons:  First, the “absence of any statutory reference to the state secrets privilege [in § 1806(f)] is strong evidence that the availability of the privilege is not altered in any way,” and “the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language.”  Id. at 9.  Second, contrary to the holding of the Ninth Circuit, “nothing about the operation of [§ 1806(f)] is at all incompatible with the state secrets privilege.”  Id.  They are invoked in different cases, “require courts to conduct different inquiries,” “authorize courts to award different forms of relief,” and “direct the parties and the courts to follow different procedures.”  Id. at 10.  For example, the FISA procedure asks whether the surveillance at issue was conducted lawfully, whereas the state secrets privilege asks whether disclosure of necessary evidence would “harm national-security interests.”  Id. at 11.  The privilege may require dismissal of certain claims, whereas § 1806(f) provides no such remedy.  Similarly, the FISA procedure allows in camera, ex parte review of surveillance materials, but the state secrets privilege may preclude such review all together.

The Court emphasized that its “decision addresses only the narrow question of whether § 1806(f) displaces the state secrets privilege.”  Id. at 13.  It did not consider whether § 1806(f) actually applies to the underlying action—the question that the parties focused on in their arguments before the Court—nor did it decide “whether the Government’s evidence is privileged or whether the District Court was correct to dismiss [R]espondents’ claims on the pleadings.”  Id.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the…

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the U.S. Congress, and other federal and state regulators on a proactive basis, she has experience helping clients respond to informal investigations and enforcement actions, including by self-regulatory bodies such as the Digital Advertising Alliance and Children’s Advertising Review Unit.

Ms. Tonsager’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, behavioral advertising, e-mail marketing, artificial intelligence the processing of “big data” in the Internet of Things, spectrum policy, online accessibility, compulsory copyright licensing, telecommunications and new technologies.

Ms. Tonsager also conducts privacy and data security diligence in complex corporate transactions and negotiates agreements with third-party service providers to ensure that robust protections are in place to avoid unauthorized access, use, or disclosure of customer data and other types of confidential information. She regularly assists clients in developing clear privacy disclosures and policies―including website and mobile app disclosures, terms of use, and internal social media and privacy-by-design programs.

Photo of Chloe Goodwin Chloe Goodwin

Chloe Goodwin is a litigator and regulatory attorney focused on privacy and technology issues. She represents several leading technology companies in litigation and compliance matters relating to electronic surveillance, law enforcement access to digital evidence, cybersecurity, and data privacy.