Case: In re Petition to Set Aside or Modify Directive Issued to [Redacted]

For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection. 

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 this Clearinghouse.

On April 21, 2022, the FISC issued an order approving the certifications and accompanying procedures for 2021. At issue in this case was a directive issued by the government pursuant to the 2021 certifications. The directive required a redacted entity to “immediately provide the Government with all information, facilities, or assistance necessary" to accomplish the acquisition of foreign intelligence information authorized by the 2021 certifications. 

In 2022, Judge Rudolph Contreras of the FISC granted a petition to set aside or modify the directive. Under Section 702(i)(l)(A), the Attorney General may direct an "electronic communication service provider" (ECSP) to immediately provide the government with assistance in conducting authorized Section 702 acquisitions. However, the redacted entity in this case contended that it did not qualify as an ECSP regarding some of the things the directive covered. The FISC agreed, holding that the redacted entity did not act as a provider of electronic communication services and didn’t have access to wire or electronic communications. Thus, the FISC modified the directive, but the changes were redacted.

Subsequently, the Department of Justice appealed this decision to the United States Foreign Intelligence Surveillance Court of Review (FISCR) before Judges David Sentelle, Stephen Higginson, and Robert Miller in 2023. The judges affirmed the order of the FISC. They agreed that the FISC correctly held that the redacted entity was not a service that enabled its users to send or receive electronic communications, and that it was not a communication service provider with access to wire or electronic communications. Therefore, the FISCR upheld the modified directive. FISCR also noted that Congress, if it wanted to, could update FISA to fit the internet's modern structure.

This case is now presumed closed.