statute passed constitutional muster, see, e.g., id.—and ask instead whether this specific application offends the Constitution. As such, the petitioner’s challenge falls outside the normal circumference of a facial challenge.
This makes perfect sense. Where, as here, a statute has been implemented in a defined context, an inquiring court may only consider the statute’s constitutionality in that context; the court may not speculate about the validity of the law as it might be applied in different ways or on different facts. See Nat’l Endow. for the Arts v. Finley, 524 U.S. 569, 584, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998); see also Yazoo & Miss. Valley R.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 220, 33 S.Ct. 40, 57 L.Ed. 193 (1912) (explaining that how a court may apply a statute to other cases and how far parts of the statute may be sustained on other facts “are matters upon which [a reviewing court] need not speculate”).
We therefore deem the petitioner’s challenge an as-applied challenge and limit our analysis accordingly. This means that, to succeed, the petitioner must prove more than a theoretical risk that the PAA could on certain facts yield unconstitutional applications. Instead, it must persuade us that the PAA is unconstitutional as implemented here.
2. The Foreign Intelligence Exception. The recurrent theme permeating the petitioner’s arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment’s Warrant Clause.[1] The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.
While the Sealed Case court avoided an express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant requirements were met, the statute could survive on reasonableness grounds, see 310 F.3d at 741–42, we believe that the FISC’s reading of that decision is plausible.
The petitioner argues correctly that the Supreme Court has not explicitly recognized such an exception; indeed, the Court reserved that question in United States v. United States District Court (Keith), 407 U.S. 297, 308–09, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). But the Court has recognized a comparable exception, outside the foreign intelligence context, in so-called “special needs” cases. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding drug testing of high-school athletes and explaining that the exception to the warrant requirement applied “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement[s] impracticable” (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987))); Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 620, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding regulations instituting drug and alcohol testing of railroad workers for safety rea-
- ↑ The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
