Case: [Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (November 2013) (702, Walton, J.)

[redacted] | Foreign Intelligence Surveillance Court

Filed Date: 2013

Closed Date: 2013

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.

On July 31, 2012, the government filed an Ex Parte Submission of [Redacted] and Related Procedures, Ex Parte Submission of [Redacted], and Request for an Order Approving [Redacted]. On August 30, 2013, FISC Judge Reggie B. Walton approved the government's targeting and minimization procedures. The government's submissions were accompanied by two sets of targeting procedures, for use by the NSA and FBI, and four sets of minimization procedures, for use by the NSA, FBI, CIA, and the National Counterterrorism Center (NCTC).

Although Judge Walton's analysis of the NSA and FBI's targeting procedures are heavily redacted, he found that both procedures were "reasonably designed" to target persons reasonably believed to be located outside the United States and to prevent intentional acquisition of any communications where the sender and recipients are located in the United States.

Judge Walton found that the four sets of minimization procedures by the NSA, FBI, CIA, and NCTC were all sufficiently similar, if not identical, to the 2012 certifications and that "basic framework of protections formed by the previously-approved procedures remain[ed] intact." Therefore, Judge Walton was satisfied that any compliance problems and relatively minor changes in the minimization procedures did not preclude the court from finding that the targeting and minimization procedures were consistent with the Fourth Amendment and the statutory requirements of Section 702.

Summary Authors

Lisa Limb (10/7/2018)

People


Judge(s)

Walton, Reggie B. (District of Columbia)

Judge(s)

Walton, Reggie B. (District of Columbia)

Documents in the Clearinghouse

Document

[redacted]

Order

[Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (November 2013)

Aug. 30, 2013

Aug. 30, 2013

Order/Opinion

[redacted]

Order [Partially Redacted]

[Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (November 2013)

Oct. 29, 2013

Oct. 29, 2013

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 (November 2013)

Dec. 13, 2013

Dec. 13, 2013

Order/Opinion

Resources

Docket

Last updated Aug. 5, 2022, 3:24 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: 2013

Closing Date: 2013

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: 2013 - 2013

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