Case: [In re DNI/AG 702(i) certification 2009]

Redacted | U.S. District Court for the Foreign Intelligence Surveillance Court

Filed Date: 2009

Clearinghouse coding complete

Case Summary

The FISA Amendments Act § 702, enacted in 2008, authorized the U.S. Government to compel providers of electronic communications services to assist the Government in acquiring foreign intelligence information concerning targeted non-US persons located outside the United States. Under this authority, the Foreign Intelligence Surveillance Court annually reviews "certifications" jointly submitted by the U.S. Attorney General and Director of National Intelligence. These certifications define the ca…

The FISA Amendments Act § 702, enacted in 2008, authorized the U.S. Government to compel providers of electronic communications services to assist the Government in acquiring foreign intelligence information concerning targeted non-US persons located outside the United States. Under this authority, the Foreign Intelligence Surveillance Court annually reviews "certifications" jointly submitted by the U.S. Attorney General and Director of National Intelligence. These certifications define the categories of foreign actors that may be appropriately targeted, and by law, must include specific targeting and minimization procedures adopted by the Attorney General in consultation with the Director of National Intelligence and approved by the Court as consistent with FISA and Fourth Amendment. Certifications last for one year.

The FISA Court approved the first such certification on September 4, 2009. That matter is discussed at NS-DC-0072 in this Clearinghouse.

This case deals with the second round of approvals of such certifications, in 2009. We do not currently have the filings made by the government in this case, or the court responses and orders. But there is extensive discussion of this case in a "Summary Document" prepared by the NSA Office of General Counsel and leaked by Edward Snowden. That summary is included this case record (and is also available here. It has not been declassified from its assigned Top Secret classification.

The summary explains the changes from the 2008-A and 2008-B certifications submitted by the NSA and discussed in NS-DC-0072.

The 2009-A certification, like the 2008-A certification, covers foreign governments, factions, entities and foreign based political organizations. The 2009 version updated the list of foreign entities. The only other change to the foreign entities certification was that a notice requirement to the AG and DNI was changed from seven days to five business days.

And like the 2008-B certification, the 2009-B certification targets named foreign terrorist groups. The list of such terrorist groups changed slightly in the new certification. The only other change was, as in 2009-A, a recasting of the AG/DNI notice requirement to five business days, from 7 days.

The 2009-C certification was new, however, and covers Weapons of Mass Destruction/Proliferation. Instead of containing lists of specific targets, the 2009-C certification provides examples of acceptable targets based on their activities.

The targeting procedures in the 2009-C certification contained no changes from the 2008-A certifications. However, the minimization procedures differ in two ways. First, they contain a clearer instruction regarding dissemination of intelligence reports to foreign governments once they have been minimized. Second, they expanded NSA's capability to obtain technical and linguistic support from foreign governments.

Summary Authors

Edward Mroczkowski (4/20/2015)


Attorneys(s) for Plaintiff

Holder, Eric H. Jr. (District of Columbia)

Attorneys(s) for Plaintiff

Holder, Eric H. Jr. (District of Columbia)

Documents in the Clearinghouse

Document

FISA Amendments Act of 2008, Section 702: Summary Document

No Court

Dec. 23, 2008 Statute/Ordinance/Regulation

Minimization Procedures used by the NSA ... Pursuant to Section 702 of the FISA of 1978, as Amended

July 28, 2009 Statute/Ordinance/Regulation

Procedures used by the NSA ... Pursuant to Section 702 of the FISA of 1978, as Amended

July 28, 2009 Statute/Ordinance/Regulation

Docket

Last updated May 12, 2022

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 Court

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

Key Dates

Filing Date: 2009

Case Ongoing: No

Plaintiffs

Plaintiff Description:

U.S. Government

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

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

Availably Documents:

None of the above

Outcome

Prevailing Party: Plaintiff