Case: In re Directives to Yahoo Pursuant to Section 105B of the Foreign Intelligence Surveillance Act. [105B(g) 07-01]

07-00001 | Foreign Intelligence Surveillance Court

Filed Date: 2007

Closed Date: 2016

Clearinghouse coding complete

Case Summary

In 2012, leaks by Edward Snowden revealed many details about NSA surveillance programs that had been going on for many years. In the aftermath of those leaks, the government declassified many previously secret details regarding these programs. Among the declassified documents were those in this case, in which the internet company Yahoo!, Inc. attempted to resist surveillance of some of its customers by the NSA, but lost in front of the FISA Court and the FISA Court of Review. Beginning in 2007…

In 2012, leaks by Edward Snowden revealed many details about NSA surveillance programs that had been going on for many years. In the aftermath of those leaks, the government declassified many previously secret details regarding these programs. Among the declassified documents were those in this case, in which the internet company Yahoo!, Inc. attempted to resist surveillance of some of its customers by the NSA, but lost in front of the FISA Court and the FISA Court of Review.

Beginning in 2007, the government issued directives to Yahoo ordering it to assist in warrantless surveillance of certain customers, pursuant to a now-expired set of amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Protect America Act of 2007 (PAA), which authorized the United States to direct communications service providers to assist in acquiring foreign intelligence when those acquisitions targeted third persons reasonably believed to be located outside the United States. Having received the directives, Yahoo challenged their legality before the Foreign Intelligence Surveillance Court (FISC). That court found the directives lawful and compelled obedience.

Yahoo appealed, petitioning for review before the Foreign Intelligence Surveillance Court of Review (FISCR), and moved the FISC for a stay pending appeal. The FISC refused to grant the stay; Yahoo thus began compliance under threat of civil contempt. On August 22, 2008, in its second-ever decision, the FISCR affirmed the motion to compel. In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008). The FISCR issued an order on January 12, 2009, placing under seal all classified information in the matter. Because of that order, none of the documents in the matter were public.

On June 14, 2013, after the 2012 Snowden disclosures, Yahoo filed a motion seeking publication of the FISC's decisions and records. On June 17, 2013, FISC Judge Reggie B. Walton issued a scheduling order for the government's response and Yahoo's reply. On June 25, 2013, the government responded indicating that the public had an interest in disclosure of the information in the motion and the identity of the provider. On June 26, 2013, Judge Walton ordered that Yahoo's motion, response, and the court order of June 17, 2013, no longer be under seal. The government then informed Yahoo that its name and its counsels' identities were no longer classified and could be released.

Afterward, on July 9, 2013, Yahoo moved to disclose additional portions of the court's April 25, 2008 opinion and the parties' legal briefs leading to that opinion. On July 15, 2013, because the government had offered no objection to these additional disclosures, Judge Walton ordered the government to conduct a declassification review of the April 25, 2008 opinion and the legal briefs submitted by parties. The government was required to report by July 29, 2013, with estimated dates when it would complete the review.

In response, on July 29, 2013, the government proposed to conduct a declassification review of (1) the April 25, 2008 opinion by September 12, 2013; (2) the briefs and materials cited in the April 25 opinion by September 27, 2013; and (3) other briefs and materials on a rolling basis. The government's response included an appendix containing a list of documents and associated dates for declassification review. The government provided to the court the first and second portions of the records pursuant to the timeline. The portions were redacted and subject to publication upon the court's review.

On September 30, 2013, Yahoo requested permission to review the government's redacted submissions. Yahoo claimed that, through its involvement in this case, it still had access to many of the documents being redacted. Yahoo thus wanted an opportunity to review the government’s redactions so that Yahoo could object to the redactions, if it deemed objection appropriate. The court, however, never ruled on this motion. Instead, on October 21, 2013, the parties filed a joint motion to allow Yahoo prepublication access to the court documents after declassification by government and submission to the court for review.

On October 22, 2013, Judge Walton granted the joint motion for prepublication access and established a procedure for Yahoo to review and file any motions regarding the release of those documents. But the court issued a stay in reviewing any additional redactions in the meantime government because the FISCR was also engaged in some sort of declassification process. The court wanted to be able to have FISCR’s declassification process "inform [the court’s] examination of declassified materials on the same subject matter." Although the FISCR does not have a public docket, the FISCR’s declassification process resulted in substantial disclosures. On September 11, 2014, Yahoo released over 1,500 pages of documents, while noting in a statement that Yahoo was "still pushing for the FISC to release materials from the 2007-2008 case in the lower court."

The FISC's stay remained in effect for a little over a year. On October 24, 2014, Yahoo moved to lift the stay after the FISCR had completed its own declassification process. On November 5, 2014, FISC Judge Thomas F. Hogan granted the motion, lifting the stay and requiring the government to resume its redaction and declassification process. On November 18, 2014, the government provided the court with a proposed schedule for continued declassification review. The government, however, contended that it did not need to further review any documents FISCR had already examined. Yahoo, however, disagreed, and filed a response on December 18, 2014, arguing that FISCR had only reviewed already-redacted documents during its declassification review, and so the government should be required to conduct another declassification review of the unredacted documents. The court agreed with Yahoo and, on December 23, 2014, ordered the government to conduct a declassification review of the unredacted versions.

On January 7, 2015, the government filed a response in which it claimed that it had actually already conducted a review of the unredacted versions. The government estimated that it would be able to provide the newly redacted documents on January 30. The government met this deadline; on January 30, 2015, the government provided the court with the proposed redactions. On March 4, 2015, the government notified the FISC that it had found two additional documents that could be disclosed.

On February 5, 2016, Judge Hogan issued an order notifying the government that it had questions about the proposed redactions; the questions themselves, however, remain classified. On March 4, 2016, the government filed a response (which also remains classified), but apparently reconsidered the scope of the redactions proposed on January 30, 2015. On March 14, 2016, the court issued an order requiring the government provided new proposed redactions by April 11, 2016, and set forth a proposed schedule for Yahoo to respond to those redactions. Accordingly, on April 11, 2016, the government submitted the new redactions; Yahoo did not file any response. On April 27, 2016, Judge Hogan ordered that the redacted documents be unsealed.

On May 9, 2016, Yahoo released the unsealed documents along with a statement:

We believe significant value exists in making these documents available to the public to promote informed discussion about the relationship between privacy, due process and intelligence gathering. They also demonstrate the importance of hard-fought reforms to surveillance law, like the addition of a "special advocate" in the FISC, achieved with passage of the USA Freedom Act.
The unsealed documents from both the 2014 and 2016 disclosures can be found below.

Summary Authors

Elizabeth Homan (1/30/2014)

Jessica Kincaid (6/5/2014)

John He (7/19/2017)

People


Judge(s)

Arnold, Morris Sheppard (Arkansas)

Bates, John D. (District of Columbia)

Hogan, Thomas Francis (District of Columbia)

Kollar-Kotelly, Colleen (District of Columbia)

Selya, Bruce Marshall (Rhode Island)

Walton, Reggie B. (District of Columbia)

Winter, Ralph K. Jr. (Connecticut)

Attorneys(s) for Plaintiff

Reno, Janet (District of Columbia)

Attorneys(s) for Defendant

Alexander, Keith B (District of Columbia)

Baker, James A. (District of Columbia)

Judge(s)

Arnold, Morris Sheppard (Arkansas)

Bates, John D. (District of Columbia)

Hogan, Thomas Francis (District of Columbia)

Kollar-Kotelly, Colleen (District of Columbia)

Selya, Bruce Marshall (Rhode Island)

Walton, Reggie B. (District of Columbia)

Winter, Ralph K. Jr. (Connecticut)

Attorneys(s) for Plaintiff

Reno, Janet (District of Columbia)

Attorneys(s) for Defendant

Alexander, Keith B (District of Columbia)

Baker, James A. (District of Columbia)

Carlin, John P. (District of Columbia)

Connors, John J (District of Columbia)

Demers, John C. (District of Columbia)

Eisenberg, John A. (District of Columbia)

Evans, Stuart J. (District of Columbia)

Filip, Mark R. (Illinois)

Fischbach, Jonathan (District of Columbia)

Garre, Gregory G. (District of Columbia)

Gauhar, Tashina (District of Columbia)

Mueller, Robert S. III (California)

Mukasey, Michael B. (New York)

Olsen, Matthew G. (District of Columbia)

Patterson, Nicholas J. (District of Columbia)

Rowan, J. Patrick (District of Columbia)

Sanz-Rexach, Gabriel (District of Columbia)

Smith, Jeffrey Michael (District of Columbia)

Wiegmann, J. Bradford (District of Columbia)

Other Attorney(s)

Sommer, Jacob A. (District of Columbia)

Zwillinger, Marc J. (District of Columbia)

Documents in the Clearinghouse

Document

07-00001

Docket

In Re to Yahoo Inc. Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

May 15, 2008

May 15, 2008

Docket

07-00001

Docket

April 28, 2016

April 28, 2016

Docket

07-00001

FBI Standard Physical Search Minimization Procedures [Search of a US Person Agent of a Foreign Power]

In re Directives to Yahoo Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

Jan. 20, 1995

Jan. 20, 1995

Pleading / Motion / Brief

Standard [FBI] Physical Search Minimization Procedures

In the Matter of the Application of the United States for an Order Authorizing Physical Search of a Non-United States Person Agent of a Foreign Power

Jan. 20, 1995

Jan. 20, 1995

Pleading / Motion / Brief

07-00001

FBI Standard Minimization Procedures for Electronic Surveillance of a Non-US Person Agent of a Foreign Power

In re Directives to Yahoo Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

Sept. 17, 1997

Sept. 17, 1997

Pleading / Motion / Brief

Standard Minimization Procedures for Electronic Surveillance of a United States Person Agent of a Foreign Power

In the Matter of the Application of the United States for an Order Authorizing Electronic Surveillance of a United States Person Agent of a Foreign Power

Sept. 17, 1997

Sept. 17, 1997

Pleading / Motion / Brief

07-00001

Amendments to FBI Standard Minimization Procedures

In re Amendment to the Federal Bureau of Investigation's Standard Minimization Procedures for Electronic Surveillance and Physical Search

Sept. 26, 2006

Sept. 26, 2006

Pleading / Motion / Brief

07-00001

Submission of Amendment to Standard Minimization Procedures

In re Directives to Yahoo Inc. Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

Sept. 29, 2006

Sept. 29, 2006

Pleading / Motion / Brief

07-00001

CIA Minimization Procedures for Information From FISA Electronic Surveillance Conducted by NSA

In re Directives to Yahoo Inc. Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

Dec. 13, 2006

Dec. 13, 2006

Discovery Material/FOIA Release

07-00001

Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency (NSA)

In re Directives to Yahoo Inc. Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

Dec. 13, 2006

Dec. 13, 2006

Pleading / Motion / Brief

Resources

Docket

Last updated May 30, 2022, 3:22 a.m.

ECF Number Description Date Link Date / Link

Court's March14, 2016 Order (Declassified Redacted Version) 07-01 Response-8.pdf

April 28, 2016

April 28, 2016

105B(g) 07-01 Order 105B(g) 07-01.pdf 105B(g) 07-01 The United 105B(g)

April 27, 2016

April 27, 2016

States' Response to the Court's March 14, 2016 Order 07-01 Response.pdf 105B(g)

April 12, 2016

April 12, 2016

Order (March 14, 2016) 07-01 Order.pdf YAHOO! INC.'S 105B(g)

March 14, 2016

March 14, 2016

UNCLASSIFIED MOTION FOR A STATUS CONFERENCE 07-01 Motion-8.pdf 105B(g)

Feb. 5, 2016

Feb. 5, 2016

Order (February 05, 2016) 07-01 Order- 9.pdf IN RE: DIRECTIVES PURSUANT TO 105B(g)

Feb. 5, 2016

Feb. 5, 2016

SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 07-01 Notice-1.pdf THE UNITED STATES' 105B(g)

March 4, 2015

March 4, 2015

RESPONSE TO THE COURT'S DECEMBER 23, 2014 ORDER 07-01 Order- 8.pdf

Jan. 30, 2015

Jan. 30, 2015

RESPONSE TO THE COURT'S DECEMBER 23, 2014 ORDER 07-01 Response-7.pdf ORDER REGARDING 105B(g)

Jan. 7, 2015

Jan. 7, 2015

SCOPE OF DECLASSIFICATION REVIEW 07-01 Order- 7.pdf ORDER REGARDING 105B(g)

Jan. 5, 2015

Jan. 5, 2015

SCOPE OF DECLASSIFICATION REVIEW 07-01 Order- 7.pdf YAHOO! INC.'S RESPONSE TO THE UNITED STATES' 105B(g)

Dec. 23, 2014

Dec. 23, 2014

SUPPLEMENTAL RESPONSE TO THE COURT'S NOVEMBER 5, 2014 ORDER 07-01 Response-6.pdf THE UNITED STATES' SUPPLEMENTAL 105B(g)

Dec. 18, 2014

Dec. 18, 2014

RESPONSE TO THE COURT'S NOVEMBER 5, 2014 ORDER 07-01 Response-5.pdf THE UNITED STATES' 105B(g)

Dec. 12, 2014

Dec. 12, 2014

RESPONSE TO THE COURT'S NOVEMBER 5, 2014 ORDER 07-01 Response-4.pdf

Nov. 18, 2014

Nov. 18, 2014

Order 07-01 Order- 6.pdf YAHOO! INC.'S UNCLASSIFIED 105B(g)

Nov. 5, 2014

Nov. 5, 2014

MOTION TO LIFT THE STAY AND FOR A SCHEDULING ORDER 07-01 Scheduling Order-1.pdf YAHOO! INC.'S UNCLASSIFIED MOTION UNDER FISC RULE 62 TO ALLOW PRE- 105B(g)

Nov. 5, 2014

Nov. 5, 2014

PUBLICATION REVIEW OF DOCUMENTS PRODUCED IN RESPONSE TO THIS COURT'S JULY 15, 2013 ORDER 07-01 Motion-3.pdf THE UNITED STATES' REPONSE TO PROVIDER'S MOTION UNDER FISC 105B(g)

April 15, 2014

April 15, 2014

RULE 62 FOR PUBLICATION OF THIS COURT'S DECISION AND OTHER RECORDS 07-01 Motion-2.pdf 105B(g)

April 15, 2014

April 15, 2014

ORDER 07-01 Order- 4.pdf THE UNITED STATES' 105B(g)

April 15, 2014

April 15, 2014

RESPONSE TO THIS COURT'S JULY 15, 2013 ORDER 07-01 Response-1.pdf 105B(g)

April 15, 2014

April 15, 2014

MOTION FOR STAY OF PROCEEDINGS DUE TO 07-01 Motion-4.pdf

April 15, 2014

April 15, 2014

ORDER 07-01 Order- 2.pdf THE UNITED STATES' 105B(g)

April 15, 2014

April 15, 2014

SECOND RESPONSE TO THIS COURT'S JULY 15, 2013 ORDER 07-01 Response-2.pdf PROVIDER'S UNCLASSIFIED MOTION UNDER FISC 105B(g)

April 15, 2014

April 15, 2014

RULE 62 FOR PUBLICATION OF THIS COURT'S DECISION AND OTHER RECORDS 07-01 Motion-1.pdf 105B(g)

April 15, 2014

April 15, 2014

ORDER 07-01 Order- 5.pdf REPLY IN SUPPORT OF 105B(g)

April 15, 2014

April 15, 2014

YAHOO! INC.'S MOTION UNDER FISC RULE 62 07-01 Reply- 1.pdf THE UNITED STATES' 105B(g)

April 15, 2014

April 15, 2014

THIRD RESPONSE TO THIS COURT'S JULY 15, 2013 ORDER 07-01 Response-3.pdf 105B(g)

April 15, 2014

April 15, 2014

ORDER 07-01 Order- 1.pdf JOINT MOTION TO PROVIDE YAHOO WITH 105B(g)

April 15, 2014

April 15, 2014

LIMITED PRE-PUBLICATION ACCESS TO COURT DOCUMENTS 07-01 Motion-6.pdf

April 15, 2014

April 15, 2014

ORDER 07-01 Order- 3.pdf

April 15, 2014

April 15, 2014

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act—Internet Metadata

Foreign Intelligence Surveillance Court

Foreign Intelligence Surveillance Act—Foreign Targeting (702, 703, 704)

Key Dates

Filing Date: 2007

Closing Date: 2016

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff, a communications service provider (Yahoo!) whose identity was initially under seal, was directed by the United States to assist in acquiring foreign intelligence targeting the service provider's customers. In 2013, the Foreign Intelligence Surveillance Court unsealed Yahoo!'s identity.

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c

Constitutional Clause(s):

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Warrant/order for search or seizure

Issues

General:

Access to lawyers or judicial system

Confidentiality

Records Disclosure

Search policies

Terrorism/Post 9-11 issues