8
FBI v. FAZAGA
Opinion of the Court
of respondents’ claims pursuant to that privilege. In respondents’ view, the attempt to leverage a claim of privilege
into a dismissal constitutes a “use” of FISA information
against them. See Brief for Respondents 35–38; Tr. of Oral
Arg. 71–73. Second, respondents note that §1806(f ) applies
when an “aggrieved person” makes “any motion or request”
to “discover or obtain” electronic-surveillance evidence, and
they say that their complaint’s request for an injunction ordering the Government to “destroy or return any information gathered through the unlawful surveillance program” triggered that provision. App. 146; see also Brief for
Respondents 39–40. 5 That prayer for relief, they maintain,
constituted a “request” to “discover or obtain” the information.
The Government disagrees with both of these theories. It
argues that the assertion of the state secrets privilege did
not constitute a “use” of “information obtained or derived
from an electronic surveillance.” On the contrary, the Government contends, the assertion of the privilege represented an attempt to prevent the use of that information.
Reply Brief for Petitioners 2–3. In addition, the Government maintains that respondents never filed a “ ‘motion or
request . . . to discover [or] obtain’ ” information derived
from or materials relating to FISA surveillance because
their complaint’s prayer for relief did not constitute a “ ‘motion or request.’ ” Id., at 5.
We need not resolve this dispute about the meaning of
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5 The Circuits disagree about the correct interpretation of §1806(f ).
Compare Wikimedia Foundation v. NSA, 14 F. 4th 276, 294 (CA4 2021)
(“[W]e conclude that §1806(f ) is relevant only when a litigant challenges
the admissibility of the government's surveillance evidence”), with 965
F. 3d 1015, 1052 (CA9 2020) (“§1806(f ) procedures are to be used when
any aggrieved person affirmatively challenges, in any civil case, the legality of electronic surveillance or its use in litigation, whether the challenge is under FISA itself, the Constitution, or any other law”).
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