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Civil Rights Litigation Clearinghouse
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Case Name In re Directives to Yahoo Pursuant to Section 105B of the Foreign Intelligence Surveillance Act. [105B(g) 07-01] NS-DC-0008
Docket / Court 105B(g) 07-01 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Internet Metadata
Foreign Intelligence Surveillance Court
Case Summary
In 2012, leaks by Edward Snowden revealed many details about NSA surveillance programs that had been going on for many years. In the aftermath of those leaks, the government has declassified many previously secret details. Among the recently declassified documents are those in this case, in which ... read more >
In 2012, leaks by Edward Snowden revealed many details about NSA surveillance programs that had been going on for many years. In the aftermath of those leaks, the government has declassified many previously secret details. Among the recently declassified documents are those in this case, in which the internet company Yahoo attempted to resist surveillance of some of its customers by the NSA, but lost in front of the FISA Court and the FISA Court of Review.

Beginning in 2007, the government issued directives to Yahoo!, Inc. commanding it to assist in warrantless surveillance of certain customers, pursuant to a now-expired set of amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-1871 (2007) and the Protect America Act of 2007 (PAA), Pub.L. No. 110-55, 121 Stat. 552, which authorized the U.S. to direct communications service providers to assist in acquiring foreign intelligence when those acquisitions targeted third persons reasonably believed to be located outside the United States. Having received the directives, Yahoo challenged their legality before the Foreign Intelligence Surveillance Court (FISC). That court found the directives lawful and compelled obedience.

Yahoo appealed, bringing a petition for review before the Foreign Intelligence Surveillance Court of Review (FISCR), and moved for a stay pending appeal. The FISC refused to grant the stay. Yahoo began compliance under threat of civil contempt. On August 22, 2008, in its second ever decision, the Court of Review affirmed the motion to compel. In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Int. Sur. Ct. Rev. 2008). The Court of Review then issued an order on January 12, 2009 placing under seal all classified information in the matter. Because of that order, none of the documents in the matter were public.

On June 14, 2013, Yahoo filed a motion seeking publication of the Foreign Intelligence Surveillance Court decisions and records. On June 17, 2013, FISC Judge Reggie B. Walton issued a scheduling order for the government's response and Yahoo's reply. On June 25, 2013, the government responded indicating that the public had an interest in disclosure of the information in the Motion and the identity of the provider. On June 26, 2013, Judge Walton ordered that Yahoo's motion, response, and the court order of June 17, 2013 should no longer be under seal. The government then informed Yahoo that its name and its counsels' identities were no longer classified and might be released. Yahoo subsequently moved on July 9, 2013, to disclose additional portions of the court's April 25, 2008, Opinion and the parties' legal briefs. On July 15, 2013, because the government had offered no objection to disclosures, the Court ordered the government to conduct a declassification review of the Memorandum Opinion of April 25, 2008 and the legal briefs submitted by parties. The government was required to report by July 29, 2013 with estimated dates when it would complete the review.

In response, on July 29, 2013, the government proposed to conduct a declassification review of (a) the April 25, 2008 opinion by September 12, 2013; (b) the briefs and materials cited in the April 25 opinion by September 27, 2013; and (c) other briefs and materials on a rolling basis. The government's response included an appendix containing a list of documents and associated dates for declassification review. The government provided to the court the first and second portions of the records pursuant to the timeline. The portions were redacted and subject to publication upon the court's review.

On September 30, 2013, Yahoo requested permission to review the government's submissions to review its redactions. On October 21, 2013, the parties filed a joint motion to allow Yahoo pre-publication access to the court documents after declassification by government and submission to the court for review. Judge Walton granted the order on October 22 and established a procedure for Yahoo to review and file any motions regarding the release of those documents. The Court also stated that it intended to suspend its review of the proposed redactions submitted by the Government in order to permit the results of the declassification process before the Court of Review in Docket Number 08-01 to inform its examination of declassified materials on the same subject matter. As of the date of this summary, nothing further appears in the public record.

Elizabeth Homan - 01/30/2014
Jessica Kincaid - 06/05/2014


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Monitoring
Recordkeeping
Reporting
Warrant/order for search or seizure
General
Access to lawyers or judicial system
Confidentiality
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
Defendant(s) None on record
Plaintiff Description Plaintiff, a communications service provider whose identity was under seal, was directed by the United States to assist in acquiring foreign intelligence targeting the service provider's customers. In 2013, the Foreign Intelligence Surveillance Court unsealed the identity of the communications provider, Yahoo! Inc.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
FBI Standard Physical Search Minimization Procedures [Search of a US Person Agent of a Foreign Power] 01/20/1995
NS-DC-0008-0044.pdf | Detail
Document Source: Office of the Director of National Intelligence
Standard [FBI] Physical Search Minimization Procedures 01/20/1995
NS-DC-0008-0049.pdf | Detail
Document Source: Office of the Director of National Intelligence
FBI Standard Minimization Procedures for Electronic Surveillance of a Non-US Person Agent of a Foreign Power 09/17/1997
NS-DC-0008-0045.pdf | Detail
Document Source: Office of the Director of National Intelligence
Standard Minimization Procedures for Electronic Surveillance of a United States Person Agent of a Foreign Power 09/17/1997
NS-DC-0008-0048.pdf | Detail
Document Source: Office of the Director of National Intelligence
Amendments to FBI Standard Minimization Procedures 09/26/2006
NS-DC-0008-0046.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government’s Motion to Compel Compliance with Directives 11/21/2007
NS-DC-0008-0023.pdf | Detail
Document Source: Office of the Director of National Intelligence
Yahoo’s Memorandum in Opposition to Motion to Compel 11/21/2007
NS-DC-0008-0024.pdf | Detail
Document Source: Office of the Director of National Intelligence
Memorandum Opinion [Denying American Civil Liberties Union's Motion for Release of Court Records] 12/11/2007 (526 F.Supp.2d 484) (FISC)
NS-DC-0008-0015.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
DoD Procedures Governing Activities that Affect US Persons 12/11/2007
NS-DC-0008-0025.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Establishing Procedures for Handling Classified Information 12/28/2007 (FISC)
NS-DC-0008-0026.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Directing the Filing of Affidavits 01/04/2008 (FISC)
NS-DC-0008-0027.pdf | Detail
Document Source: Office of the Director of National Intelligence
Memorandum Opinion and Order, re DNI AG Certification 01/15/2008 (FISC)
NS-DC-0008-0047.pdf | Detail
Document Source: Office of the Director of National Intelligence
Declaration of FBI Data Acquisition/Intercept Section 01/16/2008
NS-DC-0008-0028.pdf | Detail
Document Source: Office of the Director of National Intelligence
Declaration of Associate General Counsel of Yahoo 01/22/2008
NS-DC-0008-0029.pdf | Detail
Document Source: Office of the Director of National Intelligence
Declaration of Manager, Legal Department Compliance Team, Yahoo 01/23/2008
NS-DC-0008-0030.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Directing Parties to Provide Supplemental Briefing on the Fourth Amendment 02/06/2008 (FISC)
NS-DC-0008-0031.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government’s Supplemental Brief on the Fourth Amendment 02/15/2008
NS-DC-0008-0032.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Granting Motion to File Classified Appendix 02/28/2008 (FISC)
NS-DC-0008-0033.pdf | Detail
Document Source: Office of the Director of National Intelligence
DoD Procedures Governing Communications Metadata Analysis 03/14/2008
NS-DC-0008-0041.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Authorizing Submission of Ex Parte Filing 03/17/2008 (FISC)
NS-DC-0008-0034.pdf | Detail
Document Source: Office of the Director of National Intelligence
Memorandum Opinion and Order 04/25/2008 (FISC)
NS-DC-0008-0035.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Compelling Compliance with Directives 04/25/2008 (FISC)
NS-DC-0008-0053.pdf | Detail
Annex to DoD Procedures Under Executive Order 12333 04/29/2008
NS-DC-0008-0043.pdf | Detail
Document Source: Office of the Director of National Intelligence
Declaration of Matthew G. Olsen 05/08/2008
NS-DC-0008-0037.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government’s Motion for an Order of Civil Contempt 05/09/2008
NS-DC-0008-0036.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order Denying Yahoo’s Motion for a Stay 05/09/2008 (FISC)
NS-DC-0008-0038.pdf | Detail
Document Source: Office of the Director of National Intelligence
Declaration of J. Michael McConnell 05/09/2008
NS-DC-0008-0042.pdf | Detail
Document Source: Office of the Director of National Intelligence
Yahoo's Compliance Report 05/14/2008
NS-DC-0008-0039.pdf | Detail
Document Source: Office of the Director of National Intelligence
Brief of Appellant Yahoo! 05/29/2008
NS-DC-0008-0016.pdf | Detail
Document Source: Office of the Director of National Intelligence
Executive Order 12333, 46 Fed. Reg. 59,941 06/03/2008
NS-DC-0008-0040.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government Ex Parte Merits Brief 06/05/2008
NS-DC-0008-0017.pdf | Detail
Document Source: Office of the Director of National Intelligence
Reply Brief of Appellant Yahoo! 06/09/2008
NS-DC-0008-0052.pdf | Detail
Yahoo Rule 28J Letter 06/13/2008
NS-DC-0008-0018.pdf | Detail
Document Source: Office of the Director of National Intelligence
Proceedings 06/19/2008
NS-DC-0008-0050.pdf | Detail
Document Source: Office of the Director of National Intelligence
Transcript of Proceedings Before the Honorable Bruce M. Seyla, Ralph K. Winter, Jr. and Morris S. Arnold 06/19/2008
NS-DC-0008-0051.pdf | Detail
Government Ex Parte Supplemental Brief 06/26/2008
NS-DC-0008-0019.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government 28J Letter 07/10/2008
NS-DC-0008-0020.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government Second 28J Letter 07/15/2008
NS-DC-0008-0021.pdf | Detail
Document Source: Office of the Director of National Intelligence
Yahoo Response to Second Government 28J Letter 07/17/2008
NS-DC-0008-0022.pdf | Detail
Document Source: Office of the Director of National Intelligence
FISC-R Merits Opinion 08/22/2008 (551 F.3d 1004)
NS-DC-0008-0014.pdf | WESTLAW| LEXIS | Detail
Document Source: Office of the Director of National Intelligence
Provider's Unclassified Motion under FISC Rule 62 for Publication of this Court's Decision and Other Records 06/14/2013
NS-DC-0008-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 06/17/2013 (FISC)
NS-DC-0008-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
United States Response to Yahoo's Motion Under FISC Rule 62 for Publication of This Court's Decision and Other Records 06/25/2013
NS-DC-0008-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 06/26/2013 (FISC)
NS-DC-0008-0004.pdf | Detail
Document Source: Office of the Director of National Intelligence
Reply in Support of Yahoo! Inc.'s Motion Under FISC Rule 62 07/09/2013
NS-DC-0008-0005.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 07/15/2013 (FISC)
NS-DC-0008-0006.pdf | Detail
Document Source: Office of the Director of National Intelligence
United States Response to Court's July 15, 2013 Order 07/29/2013
NS-DC-0008-0007.pdf | Detail
Document Source: Office of the Director of National Intelligence
United States' Second Response to the Court's July 15, 2013 order 09/12/2013
NS-DC-0008-0009.pdf | Detail
Document Source: Office of the Director of National Intelligence
United States' Third Response to the Court's July 15, 2013 Order 09/27/2013
NS-DC-0008-0010.pdf | Detail
Document Source: Office of the Director of National Intelligence
Yahoo! Inc.'s Unclassified Motion under FISC Rule 62 to Allow Pre-Publication Review of Documents Produced in Response to This Court's July 15, 2013 Order 09/30/2013
NS-DC-0008-0011.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 10/11/2013 (FISC)
NS-DC-0008-0012.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 10/22/2013 (FISC)
NS-DC-0008-0013.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Arnold, Morris Sheppard (Eighth Circuit, W.D. Ark.)
NS-DC-0008-0050 | NS-DC-0008-0051
Bates, John D. (D.D.C., D.C. Circuit, FISC)
NS-DC-0008-0015
Kollar-Kotelly, Colleen (FISC, D.D.C.)
NS-DC-0008-0047
Selya, Bruce Marshall (D.R.I., FISCR, First Circuit)
NS-DC-0008-0050 | NS-DC-0008-0051
Walton, Reggie B. (FISC, D.D.C.)
NS-DC-0008-0002 | NS-DC-0008-0004 | NS-DC-0008-0006 | NS-DC-0008-0012 | NS-DC-0008-0013 | NS-DC-0008-0026 | NS-DC-0008-0027 | NS-DC-0008-0031 | NS-DC-0008-0033 | NS-DC-0008-0034 | NS-DC-0008-0035 | NS-DC-0008-0038 | NS-DC-0008-0053
Winter, Ralph K. Jr. (FISCR, Second Circuit)
NS-DC-0008-0050 | NS-DC-0008-0051
Monitors/Masters None on record
Plaintiff's Lawyers None on record
Defendant's Lawyers Carlin, John P. (District of Columbia)
NS-DC-0008-0003 | NS-DC-0008-0007 | NS-DC-0008-0009 | NS-DC-0008-0010
Demers, John C. (District of Columbia)
NS-DC-0008-0017 | NS-DC-0008-0019 | NS-DC-0008-0032 | NS-DC-0008-0036
Eisenberg, John A. (District of Columbia)
NS-DC-0008-0017 | NS-DC-0008-0019 | NS-DC-0008-0032
Filip, Mark R. (Illinois)
NS-DC-0008-0017
Garre, Gregory G. (District of Columbia)
NS-DC-0008-0019 | NS-DC-0008-0020 | NS-DC-0008-0021 | NS-DC-0008-0050 | NS-DC-0008-0051
Gauhar, Tashina (District of Columbia)
NS-DC-0008-0003 | NS-DC-0008-0007 | NS-DC-0008-0009 | NS-DC-0008-0010
Mukasey, Michael B. (New York)
NS-DC-0008-0017 | NS-DC-0008-0041
Olsen, Matthew G. (District of Columbia)
NS-DC-0008-0017 | NS-DC-0008-0019 | NS-DC-0008-0023 | NS-DC-0008-0028 | NS-DC-0008-0032 | NS-DC-0008-0036 | NS-DC-0008-0037 | NS-DC-0008-0040 | NS-DC-0008-0050 | NS-DC-0008-0051
Patterson, Nicholas J. (District of Columbia)
NS-DC-0008-0003 | NS-DC-0008-0007 | NS-DC-0008-0009 | NS-DC-0008-0010
Rowan, J. Patrick (District of Columbia)
NS-DC-0008-0017 | NS-DC-0008-0050 | NS-DC-0008-0051
Smith, Jeffrey Michael (District of Columbia)
NS-DC-0008-0003 | NS-DC-0008-0007 | NS-DC-0008-0009 | NS-DC-0008-0010
Wiegmann, J. Bradford (District of Columbia)
NS-DC-0008-0003 | NS-DC-0008-0007 | NS-DC-0008-0009 | NS-DC-0008-0010
Other Lawyers Reno, Janet (District of Columbia)
NS-DC-0008-0048 | NS-DC-0008-0049
Sommer, Jacob A. (District of Columbia)
NS-DC-0008-0001 | NS-DC-0008-0005 | NS-DC-0008-0011 | NS-DC-0008-0050
Zwillinger, Marc J. (District of Columbia)
NS-DC-0008-0001 | NS-DC-0008-0005 | NS-DC-0008-0011 | NS-DC-0008-0016 | NS-DC-0008-0018 | NS-DC-0008-0022 | NS-DC-0008-0024 | NS-DC-0008-0039 | NS-DC-0008-0050 | NS-DC-0008-0051 | NS-DC-0008-0052

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