Case: In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders [FISA Docket Misc. 13-07 (LinkedIn Corporation)]

13-00007 | Foreign Intelligence Surveillance Court

Filed Date: 2013

Closed Date: 2014

Clearinghouse coding in progress

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, Inc. moved for declaratory judgment under the First Amendment to publish the number of FISA requests it receives and the number of users or accounts encompassed within such requests. On June 19, Microsoft followed suit and moved for declaratory judgment. 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)

Related Cases

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)], 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)

People


Judge(s)

Eagan, Claire None (Oklahoma)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Garland, James M (District of Columbia)

Gidari, Albert (Washington)

Nichols, Carl John (District of Columbia)

Roth, Jerome Cary (California)

Zwillinger, Marc J. (District of Columbia)

Attorneys(s) for Defendant

Carlin, John P. (District of Columbia)

Gauhar, Tashina (District of Columbia)

Patterson, Nicholas J. (District of Columbia)

Judge(s)

Eagan, Claire None (Oklahoma)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Garland, James M (District of Columbia)

Gidari, Albert (Washington)

Nichols, Carl John (District of Columbia)

Roth, Jerome Cary (California)

Zwillinger, Marc J. (District of Columbia)

Attorneys(s) for Defendant

Carlin, John P. (District of Columbia)

Gauhar, Tashina (District of Columbia)

Patterson, Nicholas J. (District of Columbia)

Other Attorney(s)

Isaacson, William Anthony (District of Columbia)

Expert/Monitor/Master

Iftimie, Alex (District of Columbia)

Documents in the Clearinghouse

Document

13-00007

Motion for Declaratory Judgment that LinkedIn Corporation May Report Aggregate Data Regarding FISA Orders

In RE Motion to Declaratory Judgment that LinkedIn Corporation May Report Aggregate Data Regarding FISA Orders

Sept. 17, 2013

Sept. 17, 2013

Pleading / Motion / Brief

13-00007

Order

In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders

Sept. 18, 2013

Sept. 18, 2013

Order/Opinion

13-00007

Declaration of Andrew G. McCabe

In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders

Sept. 30, 2013

Sept. 30, 2013

Declaration/Affidavit

13-00007

Response of the United States to Motions for Declaratory Judgment by Google Inc., Microsoft Corporation, Yahoo! Inc., Facebook, Inc., and LinkedIn Corporation

In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders

Sept. 30, 2013

Sept. 30, 2013

Pleading / Motion / Brief

13-00007

Order on Motion of Dropbox, Inc. for Leave to File Amicus Curiae Brief

In re Motions to Disclose Aggregate Data Regarding FISA Orders and Directives

Oct. 1, 2013

Oct. 1, 2013

Order/Opinion

13-00007

Joint Motion for Stay of Proceedings

In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders

Oct. 7, 2013

Oct. 7, 2013

Pleading / Motion / Brief

13-00007

Amicus Curiae Brief of Apple Inc. in Support of Providers' Motion for Declaratory Judgment

In re Motions for Declaratory Judgment to Disclose Aggregate Data Regarding FISA Orders and Directives

Nov. 5, 2013

Nov. 5, 2013

Pleading / Motion / Brief

13-00007

Motion to Strike Government's Ex Parte Response to Motions to Disclose Aggregate Data Regarding FISA Orders

In re Motion to Aggregate Data Regarding FISA Orders

Nov. 12, 2013

Nov. 12, 2013

Pleading / Motion / Brief

13-00007

13-00003

13-00004

13-00005

13-00006

Order Granting Joint Motion for Partial Stay of Proceedings

In re Motion for Declarator Judgment to Report Aggregated Data Regarding FISA Orders

Nov. 13, 2013

Nov. 13, 2013

Order/Opinion

13-00007

13-00003

13-00004

13-00005

13-00006

The United States' Opposition to the Companies' Motion to Strike the Government's Ex Parte Response to Motions to Disclose Aggregate Data Regarding FISA Orders

In RE Motion to Disclose Aggregate Data Regarding FISA Orders

Dec. 6, 2013

Dec. 6, 2013

Pleading / Motion / Brief

Resources

Docket

Docket sheet not available via the Clearinghouse.

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

Key Dates

Filing Date: 2013

Closing Date: 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

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):

Jurisdiction-wide

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

Availably Documents:

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Settlement

Litigation

Form of Settlement:

Court Approved Settlement or Consent Decree

Voluntary Dismissal

Content of Injunction:

Reporting

Monitoring

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues