Cite as 551 F.3d 1004 (Foreign Int.Surv.Ct.Rev. 2008)
be at odds with the totality of the circumstances test that must guide an analysis in the precincts patrolled by the Fourth Amendment. We merely indicated that the six enumerated factors were relevant under the circumstances of that case.
Second, the petitioner asserts that our Sealed Case decision stands for the proposition that, in order to gain constitutional approval, the PAA procedures must contain protections equivalent to the three principal warrant requirements: prior judicial review, probable cause, and particularity. That is incorrect. What we said there—and reiterate today—is that the more a set of procedures resembles those associated with the traditional warrant requirements, the more easily it can be determined that those procedures are within constitutional bounds. See id. at 737, 742. We therefore decline the petitioner’s invitation to reincorporate into the foreign intelligence exception the same warrant requirements that we already have held inapplicable.
Having placed Sealed Case into perspective, we turn to the petitioner’s contention that the totality of the circumstances demands a finding of unreasonableness here. That contention boils down to the idea that the protections afforded under the PAA are insufficiently analogous to the protections deemed adequate in Sealed Case because the PAA lacks (i) a particularity requirement, (ii) a prior judicial review requirement for determining probable cause that a target is a foreign power or an agent of a foreign power, and (iii) any plausible proxies for the omitted protections. For good measure, the petitioner suggests that the PAA’s lack of either a necessity requirement or a reasonable durational limit diminishes the overall reasonableness of surveillances conducted pursuant thereto.
The government rejoins that the PAA, as applied here, constitutes reasonable governmental action. It emphasizes both the protections spelled out in the PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 § 2.5, and [redacted text] procedures [redacted text] outlined in an affidavit supporting the certifications.
The record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case. Thus, assessing the intrusions at issue in light of the governmental interest at stake and the panoply of protections that are in place, we discern no principled basis for invalidating the PAA as applied here. In the pages that follow, we explain our reasoning.
The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted text] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.
The [redacted text] procedures [redacted text] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted text] Although the PAA itself does not mandate a showing of particularity, see 50 U.S.C. § 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity show-
