Case: In re Motion to Disclose Aggregate Data Regarding FISA Orders [FISA Docket Misc. 13-04 (Microsoft Corporation)]

13-00004 | Foreign Intelligence Surveillance Court

Filed Date: 2013

Closed Date: 2014

Clearinghouse coding in progress

Case Summary

For the Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.In June 2013, several major newspapers, including the Guardian (London) and the Washington Post, reported on the National Security Agency's intelligence collection programs based on the classified documents leaked by former NSA contractor Edward Snowden. Both the Guardian and the Post included reports that U.S. internet companies were allowing the NSA to tap directly into their central servers.…

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

In June 2013, several major newspapers, including the Guardian (London) and the Washington Post, reported on the National Security Agency's intelligence collection programs based on the classified documents leaked by former NSA contractor Edward Snowden. Both the Guardian and the Post included reports that U.S. internet companies were allowing the NSA to tap directly into their central servers.

Several of the companies complained that the newspaper reports mischaracterized their relationship with the NSA. Those companies asserted that the NSA did not have any direct access to servers, but rather obtained access to communications based on both court orders entered under one of a variety of Foreign Intelligence Surveillance Act provisions, and administrative subpoenas issued by the FBI, also known as National Security Letters (NSLs). On June 11, 2013, Google requested the Department of Justice and the FBI permit Google to publish aggregate numbers regarding the receipt of NSLs from the NSA and FBI. The request was refused.

Several providers filed suit against the United States in the FISA Court, seeking a declaratory judgment permitting them to publish aggregate data about orders or directives they received under FISA or the FISA Amendments Act (FAA). On June 18, 2013, Google, Inc. moved for declaratory judgment under the First Amendment to publish the number of FISA requests it receives and the number of users or accounts encompassed within such requests. On June 19, Microsoft followed suit and moved for declaratory judgment. Meanwhile, numerous amici curiae filed briefs in the case, including numerous United States Congressional Representatives, several First Amendment organizations, and news corporations.

On September 9, 2013, Google and Microsoft filed amended motions for declaratory judgment in Dockets Misc. 13-03 and 13-04, respectively. Simultaneously, Yahoo! and Facebook, filed motions for declaratory judgment in Dockets Misc. 13-05 and 13-06, respectively. Given the overlap in issues, the court consolidated the cases. Shortly thereafter on September 17, LinkedIn Corporation filed a motion for declaratory judgment under Docket Misc. 13-07, which the court also consolidated with the other dockets. Dropbox and Apple filed amicus briefs.

On September 30, 2013, the government filed a response, arguing that the transparency the providers were requesting would be adverse to the security interests of the United States, informing terrorist organizations and others where the U.S. intelligence agencies were focusing their efforts.

On the joint motion of the parties, the court then issued a stay of the proceedings until late October 2013, due to the shutdown of the federal government because Congress had failed to pass an appropriations bill. The petitioner-providers moved to strike the ex parte part of the response, in which the government had submitted classified information for the court to review in camera. Thereafter, the parties moved for a partial stay until late December 2013.

On January 27, 2014, the United States informed the court that it would permit the petitioners to publish the aggregate data at issue, and the Director of National Intelligence declassified the aggregate data. The parties stipulated to the dismissal of the actions without prejudice.

Summary Authors

Elizabeth Homan (3/23/2014)

Related Cases

In re Motion for Declaratory Judgment of a First Amendment Right to Publish Aggregate Information about FISA Orders [FISA Docket Misc. 13-03 (Google); Misc. 13-04 (Microsoft); Misc. 13-05 (Yahoo!); Misc. 13-06 (Facebook); Misc. 13-07 (LinkedIn)], Foreign Intelligence Surveillance Court (2013)

In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02], Foreign Intelligence Surveillance Court (2013)

In re Motion for Declaratory Judgment to Disclose Aggregate Data Regarding FISA Orders and Directives [FISA Docket Misc. 13-05 (Yahoo!, Inc.)], Foreign Intelligence Surveillance Court (2013)

In re Motion for Declaratory Judgment to Disclose Aggregate Data Regarding FISA Orders and Directives [FISA Docket Misc. 13-06 (Facebook, Inc.)], Foreign Intelligence Surveillance Court (2013)

In re Motion for Declaratory Judgment to Report Aggregated Data Regarding FISA Orders [FISA Docket Misc. 13-07 (LinkedIn Corporation)], Foreign Intelligence Surveillance Court (2013)

People


Judge(s)

Eagan, Claire (Oklahoma)

Attorney for Plaintiff

Garland, James M (District of Columbia)

Attorney for Defendant

Carlin, John P. (District of Columbia)

Expert/Monitor/Master/Other

Abrams, Floyd (New York)

Brown, Bruce D. (Virginia)

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Documents in the Clearinghouse

Document

13-00004

Microsoft Corporation's Motion for Declaratory Judgment or Other Appropriate Relief Authorizing Disclosure of Aggregate Data Regarding Any FISA Orders It Has Received

In RE Motion to Disclose Aggregate Data Regarding FISA Orders

June 19, 2013

June 19, 2013

Pleading / Motion / Brief

13-00004

Order

In RE Motion to Disclose Aggregate Data Regarding FISA Orders

June 20, 2013

June 20, 2013

Order/Opinion

13-00004

Response of the United States to the Court's Order Dated June 20, 2013

In RE Motion to Disclose Aggregate Data Regarding FISA Orders

June 25, 2013

June 25, 2013

Pleading / Motion / Brief

13-00004

Order

In Re Motion to Disclose Aggregate Data Regarding FISA Orders

July 3, 2013

July 3, 2013

Order/Opinion

13-00004

Brief of First Amendment Coalition, American Civil Liberties Union, Center for Democracy and Technology, Electronic Frontier Foundation, And TechFreedom as Amici Curiae In Support

In RE Motion for Declaratory Judgment of Google Inc.'s First Amendment Right to Publish Aggregate Information about FISA Orders

July 8, 2013

July 8, 2013

Pleading / Motion / Brief

13-00004

Brief of Amicus Curiae The Reporters Committee for Freedom of the Press, ABC, Inc., The Associated Press, Bloomberg LP, Dow Jones & Company, Inc., Gannett Co., Inc., Los Angeles Times, The McClatchy Company, National Public Radio

In RE Orders Issued by This Court Interpreting Section 215 of the Patriot Act

July 15, 2013

July 15, 2013

Pleading / Motion / Brief

13-00004

Order

In RE Motion for Declaratory Judgment of a First Amendment Right to Publish Aggregate Information about FISA Orders

July 18, 2013

July 18, 2013

Order/Opinion

13-00004

Order

In RE Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders

Sept. 4, 2013

Sept. 4, 2013

Order/Opinion

13-00004

Microsoft Corporation's First Amended Motion for Declaratory Judgment or Other Appropriate Relief Authorizing Disclosure of Aggregate Data Regarding any FISA Orders It Has Received

In RE Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders

Sept. 9, 2013

Sept. 9, 2013

Pleading / Motion / Brief

13-00004

Order

In RE Amended Motion for Declaratory Judgment of a First Amended Right to Publish Aggregate Information About FISA Orders

Sept. 13, 2013

Sept. 13, 2013

Order/Opinion

Docket

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 Act—Internet Metadata

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2013

Closing Date: 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff is Microsoft Corporation, an electronic communication services and remote computing storage provider.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States Department of Justice, Federal

United States, Federal

Defendant Type(s):

Jurisdiction-wide

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

Available Documents:

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Settlement

Litigation

Form of Settlement:

Court Approved Settlement or Consent Decree

Voluntary Dismissal

Content of Injunction:

Reporting

Monitoring

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues