Case: In re Motion for Declaratory Judgment of a First Amendment Right to Publish Aggregate Information about FISA Orders [FISA Docket Misc. 13-03 (Google); Misc. 13-04 (Microsoft); Misc. 13-05 (Yahoo!); Misc. 13-06 (Facebook); Misc. 13-07 (LinkedIn)]

13-00003 | U.S. District Court for the Foreign Intelligence Surveillance Court

Filed Date: June 11, 2013

Closed Date: Jan. 27, 2014

Clearinghouse coding complete

Case Summary

For the Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.In June 2013, several major newspapers, including the Guardian (London) and the Washington Post, reported on the National Security Agency's intelligence collection programs based on the classified documents leaked by former NSA contractor Edward Snowden. Both the Guardian and the Post included reports that U.S. internet companies were allowing the NSA to tap directly into their central servers.…

For the Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

In June 2013, several major newspapers, including the Guardian (London) and the Washington Post, reported on the National Security Agency's intelligence collection programs based on the classified documents leaked by former NSA contractor Edward Snowden. Both the Guardian and the Post included reports that U.S. internet companies were allowing the NSA to tap directly into their central servers.

Several of the companies complained that the newspaper reports mischaracterized their relationship with the NSA. Those companies asserted that the NSA did not have any direct access to servers, but rather obtained access to communications based on both court orders entered under one of a variety of Foreign Intelligence Surveillance Act provisions, and administrative subpoenas issued by the FBI, also known as National Security Letters (NSLs). On June 11, 2013, Google requested the Department of Justice and the FBI permit Google to publish aggregate numbers regarding the receipt of NSLs from the NSA and FBI. The request was refused.

Several providers filed suit against the United States in the FISA Court, seeking a declaratory judgment permitting them to publish aggregate data about orders or directives they received under FISA or the FISA Amendments Act (FAA). On June 18, 2013, Google moved for declaratory judgment under the First Amendment to publish the number of FISA requests it received and the number of users or accounts encompassed within such requests. On June 19, Microsoft followed suit and moved for declaratory judgment. As similar requests from providers rolled in, the FISC amended briefing schedules liberally. Meanwhile, numerous amici curiae filed briefs in the case, including numerous United States Congressional Representatives, several First Amendment organizations, and news corporations.

On September 9, 2013, Google and Microsoft filed amended motions for declaratory judgment in Dockets Misc. 13-03 and 13-04, respectively. Simultaneously, Yahoo! and Facebook filed motions for declaratory judgment in Dockets Misc. 13-05 and 13-06, respectively. Given the overlap in issues, the court consolidated the cases. Shortly thereafter on September 17, LinkedIn Corporation filed a motion for declaratory judgment under Docket Misc. 13-07, which the court also consolidated with the other dockets. Dropbox and Apple filed amicus briefs.

On September 30, 2013, the government filed a response, arguing that the transparency the providers were requesting would be adverse to the security interests of the United States, informing terrorist organizations and others where the U.S. intelligence agencies were focusing their efforts.

On the joint motion of the parties, the court then issued a stay of the proceedings until late October 2013, due to the shutdown of the federal government because Congress had failed to pass an appropriations bill. The petitioner-providers moved to strike the ex parte part of the response, in which the government had submitted classified information for the court to review in camera. Thereafter, the parties moved for a partial stay until late December 2013.

On January 27, 2014, the United States informed the court that it would permit the petitioners to publish the aggregate data at issue, and the Director of National Intelligence declassified the aggregate data. The parties stipulated to the dismissal of the actions without prejudice.

Summary Authors

Elizabeth Homan (3/23/2014)

Ellen Aldin (12/15/2020)

Related Cases

In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02], Foreign Intelligence Surveillance Court (2013)

In re Motion to Disclose Aggregate Data Regarding FISA Orders [FISA Docket Misc. 13-04 (Microsoft Corporation)], Foreign Intelligence Surveillance Court (2013)

In re Motion for Declaratory Judgment to Disclose Aggregate Data Regarding FISA Orders and Directives [FISA Docket Misc. 13-05 (Yahoo!, Inc.)], Foreign Intelligence Surveillance Court (2013)

In re Motion for Declaratory Judgment to Disclose Aggregate Data Regarding FISA Orders and Directives [FISA Docket Misc. 13-06 (Facebook, Inc.)], Foreign Intelligence Surveillance Court (2013)

In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders [FISA Docket Misc. 13-07 (LinkedIn Corporation)], Foreign Intelligence Surveillance Court (2013)

People


Judge(s)

Eagan, Claire None (Oklahoma)

Saylor, F. Dennis IV (Massachusetts)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Berengaut, Alexander A. (District of Columbia)

Blavin, Jonathan H. (California)

Fagan, David N (District of Columbia)

Garland, James M (District of Columbia)

Gidari, Albert (Washington)

Nichols, Carl John (District of Columbia)

Raphael, Justin P. (California)

Judge(s)

Eagan, Claire None (Oklahoma)

Saylor, F. Dennis IV (Massachusetts)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Berengaut, Alexander A. (District of Columbia)

Blavin, Jonathan H. (California)

Fagan, David N (District of Columbia)

Garland, James M (District of Columbia)

Gidari, Albert (Washington)

Nichols, Carl John (District of Columbia)

Raphael, Justin P. (California)

Roth, Jerome Cary (California)

Sonderby, Chris (California)

Zwillinger, Marc J. (District of Columbia)

Attorneys(s) for Defendant

Carlin, John P. (District of Columbia)

Gauhar, Tashina (District of Columbia)

Hardee, Christopher (District of Columbia)

Iftimie, Alex (District of Columbia)

Patterson, Nicholas J. (District of Columbia)

Smith, Jeffrey Michael (District of Columbia)

Other Attorney(s)

Abdo, Alex (New York)

Abrams, Floyd (New York)

Bankston, Kevin Stuart (District of Columbia)

Brown, Bruce D. (Virginia)

Isaacson, William Anthony (District of Columbia)

Ringel, Dean (New York)

Rumold, Mark Thomas (California)

Scheer, Peter E. (District of Columbia)

Szoka, Berin (District of Columbia)

Tisne, Philip (New York)

Expert/Monitor/Master

Sommer, Jacob A. (District of Columbia)

Documents in the Clearinghouse

Document

Microsoft Corporation's Motion for Declaratory Judgment or Other Appropriate Relief Authorizing Disclosure of Aggregate Data Regarding Any FISA Orders It Has Received

In re Motion to Disclose Aggregate Data Regarding FISA Orders [FISA Docket Misc. 13-04]

June 19, 2013 Pleading / Motion / Brief

Order [Informing Government of Timetable to Bar Potentially Classified Information from Public]

In re Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders [FISA Docket Misc. 13-03]

June 20, 2013 Order/Opinion

Response of the United States to the Court's Order Dated June 20, 2013

In re Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders [FISA Docket Misc. 13-03]

June 25, 2013 Pleading / Motion / Brief

Order [Granting Government's Consent Motion for Extension of Time]

In re Motion to Disclose Aggregate Data Regarding FISA Orders [FISA Docket Misc. 13-04]

July 3, 2013 Order/Opinion

Brief of First Amendment Coalition, American Civil Liberties Union, Center for Democracy and Technology, Electronic Frontier Foundation, and Techfreedom as Amici Curiae in Support of the Motion for Declaratory Judgment

In re Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders [FISA Docket Misc. 13-03]

July 8, 2013 Pleading / Motion / Brief

Brief of Amici Curiae The Reporters Committee for Freedom of the Press, ABC, Inc., The Associated Press, Bloomberg L.P., Dow Jones & Company, Inc., Gannett CO., Inc., Los Angeles

In re Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders [FISA Docket Misc. 13-03]

July 15, 2013 Pleading / Motion / Brief

Motion for Declaratory Judgment of Google Inc.'s First Amendment Right to Publish Aggregate Information about FISA Orders

In re Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders [FISA Docket Misc. 13-03]

July 18, 2013 Pleading / Motion / Brief

Order [Allowing 3 different motions for parties filing to become Amici Curiae]

In re Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders [FISA Docket Misc. 13-03]

July 18, 2013 Order/Opinion

Order

In Re Motion to Disclose Aggregate Data Regarding FISA Orders

Aug. 13, 2013 Order/Opinion

Order

In Re Motion to Disclose Aggregate Data Regarding FISA Orders

Aug. 19, 2013 Order/Opinion

Docket

Last updated May 11, 2022, 8 p.m.

Docket sheet not available via the Clearinghouse.

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

Key Dates

Filing Date: June 11, 2013

Closing Date: Jan. 27, 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Google, an internet services provider; Microsoft Corporation, an electronic communication services and remote computing storage provider; Yahoo!, Inc., an electronic communications and internet services provider; Facebook, Inc, an electronic communications service provider and social media website; and LinkedIn, an electronic communications service provider and social media website.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States Department of Justice, Federal

United States, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

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

FISA Title III Warrant (Physical Search), 50 U.S.C. §§ 1821-1829

FISA Title IV order (pen register/trap-and-trace), 50 U.S.C. §§ 1841-1846

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

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

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Availably Documents:

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Settlement

Form of Settlement:

Voluntary Dismissal

Content of Injunction:

Reporting

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues