Filed Date: 2009
Closed Date: 2009
Clearinghouse coding complete
In June 2017, in response to a lawsuit filed by the Electronic Frontier Foundation, 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 [In re DNI/AG 702(i) Certification 2008].
In September 2008, the FISC approved the government's certifications for 2008. 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)
[In re DNI/AG 702(i) Certification 2008], Foreign Intelligence Surveillance Court (2008)
Hogan, Thomas Francis (District of Columbia)
McLaughlin, Mary A. (Pennsylvania)
Last updated March 21, 2024, 3:08 a.m.
Docket sheet not available via the Clearinghouse.State / Territory: District of Columbia
Case Type(s):
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):
Unreasonable search and seizure
Special Case Type(s):
Warrant or subpoena application
Available Documents:
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Warrant/Order allowing surveillance
Source of Relief:
Content of Injunction:
Warrant/order for search or seizure
Order Duration: 2009 - 2009
Issues
General/Misc.: