Case: [Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (2009) (702, McLaughlin, J.)

[redacted] | Foreign Intelligence Surveillance Court

Filed Date: 2009

Closed Date: 2009

Clearinghouse coding complete

Case Summary

In June 2017, in response to a lawsuit filed by the Electronic Frontier Foundation (NS-CA-0027 in this Clearinghouse), the federal government released eighteen previously classified opinions by the Foreign Intelligence Surveillance Court (FISC). One of the opinions declassified involved this case.Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. § 1881a, permits the Attorney General (AG) and the Director of National Intelligence (DNI) to conduct foreign intelligence surveillance targeti…

In June 2017, in response to a lawsuit filed by the Electronic Frontier Foundation (NS-CA-0027 in this Clearinghouse), the federal government released eighteen previously classified opinions by the Foreign Intelligence Surveillance Court (FISC). One of the opinions declassified involved this case.

Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. § 1881a, permits the Attorney General (AG) and the Director of National Intelligence (DNI) to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. The government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must the government specify the nature and location of the facilities or places that surveillance will occur. Communications of U.S. citizens and residents are frequently collected "incidentally" if those U.S. persons are communicating with or about a targeted foreigner.

Section 702 requires that the AG, through the Department of Justice (DOJ), and DNI, through the Office of the Director of National Intelligence (ODNI), submit annual “certifications” that define the categories of foreign actors that may be appropriately targeted. By law, these certifications must include specific targeting and minimization procedures adopted by the AG in consultation with the DNI. These certifications must be approved by the Foreign Intelligence Surveillance Court (FISC) before Section 702 surveillance may be conducted. For a more in-depth overview of the certification process, see NS-DC-0072 in this Clearinghouse.

In September 2008, the FISC approved the government's certifications for 2008. (Those proceedings are discussed in NS-DC-0072 in this Clearinghouse.) In January 2009, however, the government submitted an "Ex Parte Submission [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures," where the government made certain corrections relating to its prior certification application and overcollection incidents.

The substance of those corrections are redacted in the declassified opinion but related to the targeting procedures of the certifications and remedial measures the government took in response to overcollection incidents involving the 2008 FAA certifications. Regardless, whatever the content of those corrections were, FISC Judge Mary A. McLaughlin ultimately approved the certification, noting that “in light of the steps taken by the government to address these [overcollection] incidents and prevent similar occurrences,” she was “satisfied” that the targeting and minimization procedures satisfied the requirements of FISA and the Fourth Amendment.

Summary Authors

Lisa Limb (3/8/2018)

Related Cases

[In re DNI/AG 702(i) Certification 2008], Foreign Intelligence Surveillance Court (2008)

People


Judge(s)

Hogan, Thomas Francis (District of Columbia)

McLaughlin, Mary A. (Pennsylvania)

Judge(s)

Hogan, Thomas Francis (District of Columbia)

McLaughlin, Mary A. (Pennsylvania)

Documents in the Clearinghouse

Document

[redacted]

Memorandum Opinion and Order

[Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (2009)

Jan. 1, 2009

Jan. 1, 2009

Order/Opinion

16-02041

Order

[Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (2009)

Jan. 1, 2009

Jan. 1, 2009

Order/Opinion

[redacted]

Memorandum Opinion and Order

[Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (2009)

Jan. 1, 2009

Jan. 1, 2009

Order/Opinion

[redacted]

Memorandum Opinion

[Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (2009)

April 7, 2009

April 7, 2009

Order/Opinion

Resources

Docket

Last updated Aug. 10, 2022, 3:11 a.m.

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 Court

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

Key Dates

Filing Date: 2009

Closing Date: 2009

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiffs are the Attorney General (AG), through the Department of Justice (DOJ), and the Director of National Intelligence (DNI), through the Office of the Director of National Intelligence (ODNI).

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 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

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Warrant/Order allowing surveillance

Source of Relief:

Litigation

Order Duration: 2009 - 2009

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Required disclosure

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues