University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name [Redacted caption] Gov't Ex Parte Submissions of Reauthorization Certification and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications (April 2011) (702, Bates, J.) NS-DC-0057
Docket / Court [Redacted] ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Court
Case Summary
For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

The FISA Amendments Act of 2008 included a new title giving the government the authority to monitor ... read more >
For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

The FISA Amendments Act of 2008 included a new title giving the government the authority to monitor electronic communications of foreigners abroad. Section 702 permits the Attorney General and the Director of National Intelligence to jointly authorize the targeting of persons reasonably believed to be located outside the U.S., but it is limited to targeting non-U.S. persons. Once authorized, such acquisitions may last for periods of up to one year.

Under subsection 702(b), such an acquisition is subject to several limitations. The government may not target any person known at the time of acquisition to be located in the U.S. The government may not intentionally target a person reasonably believed to be located outside the U.S. if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the U.S. The government may not intentionally target a U.S. person reasonably believed to be located outside the U.S. The government may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the U.S. The government must conduct the acquisition in a manner consistent with the Fourth Amendment to the U.S. Constitution.

In June 2013, President Obama directed the Director of National Intelligence to declassify and make public as much information as possible about the government's collection of electronic data under Section 702 of FISA while being mindful of the need to protect sensitive classified intelligence activities and national security. As a result, on August 21, 2013, the Director of National Intelligence declassified and released redacted versions of such documents. The documents included three FISA Court opinions, the 2011 NSA minimization procedures applicable to collection under Section 702, and documents relating to Congressional oversight of Section 702.

On May 2, 2011, the government wrote a letter of "clarification" after applying for reauthorization of collection under Section 702. The letter described how certain "upstream collection" of internet communications included what are called "transactions." Upstream collection refers to collection by tapping the U.S. data pipeline, rather than by collecting from internet service providers and searches through for "selectors," like an email address or a keyword. Transactions "may contain a single, discrete communication, or multiple discrete communications, including communications that are neither to, from, nor about targeted facilities." These "transactions" sometimes turn out to include both purely domestic communications and communications involving U.S. persons not of foreign intelligence interest.

From May through September, the government provided answers to the court's questions about this form of collection. There were written submissions, meetings between the court staff and the Justice Department, and a hearing. At the end of this process, FISC Judge John D. Bates approved most of what the government was seeking, but he also had problems he addressed in an opinion on October 3, 2011. The government released a redacted version of the opinion in response to a Freedom of Information Act request submitted by the Electronic Freedom Foundation.

In the opinion, Judge Bates found that that the vast majority of the collection under Section was consistent with requirement of FISA and Fourth Amendment. However, he also found that part of the National Security Agency's collection under Section 702, specifically "upstream collection," was illegal and unconstitutional. Judge Bates also expressed concern about the accuracy of a series of government representations to the court. Judge Bates found that the NSA collection was, while not targeting Americans, capturing a large number-tens of thousands-of email communications per year that were either purely domestic or that involved U.S. persons whose communications were not of foreign intelligence value. Accordingly, Judge Bates ordered the deficiencies corrected within 30 days, or the government had to cease the particular form of collection in question.

In response to this order, the government developed more stringent minimization procedures containing additional protections for information collected on U.S. persons as part of this discrete subset. These 2011 minimization procedures are available under the documents section.

On November 30, 2011, Judge Bates approved the government's amended minimization procedures on the ground that they "adequately corrected the deficiencies" identified by the earlier opinion. Specifically, Judge Bates found that the new minimization procedures brought the NSA's upstream collection of Internet transactions containing multiple communications into line with 50 U.S.C. § 1881a(e), and the NSA's proposed targeting and minimization procedures into line with the Fourth Amendment.

On September 25, 2012, Judge Bates approved the measures that the government had taken with regards to the communications transactions acquired under the old minimization procedures. Judge Bates listed three primary steps that the government took to mitigate the problem. First, in late 2011, the government began applying certain parts of the amended minimization procedures to past acquisitions. It could not apply all of the amended procedures for technical reasons, but it did so retroactively where it could. Second, the government took the additional step of deleting all such upstream communications and data that were acquired prior to the implementation of the revised procedures approved by the FISC. Third, with regards to reports issued by the NSA that potentially relied on the transactions, the NSA was unable to confirm that all of those reports raised no FISA issues, so the NSA agreed to inform the reports' recipients that they should not use or share any information included in the reports without getting approval first.

Jessica Kincaid - 08/04/2014


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Warrant/order for search or seizure
General
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
Defendant(s) None on record
Plaintiff Description U.S. Government, proceeding by an application by the FBI, on behalf of the NSA.
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 No
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
October 3, 2011, Memorandum Opinion 10/03/2011 (2011 WL 10945618) (FISC)
NS-DC-0057-0002.pdf | WESTLAW | Detail
Document Source: Office of the Director of National Intelligence
Minimization Procedures Used by NSA 10/31/2011
NS-DC-0057-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
November 30, 2011, Memorandum Opinion 11/30/2011 (2011 WL 10947772) (FISC)
NS-DC-0057-0004.pdf | WESTLAW | Detail
Document Source: Office of the Director of National Intelligence
Joint Statement from December 8, 2011, at a Hearing Concerning FISA Amendments Act Reauthorization 12/08/2011
NS-DC-0057-0005.pdf | Detail
Document Source: Office of the Director of National Intelligence
Joint Statement from Feruary 9, 2012, at a Hearing Concerning FISA Amendments Act Reauthorization 02/09/2012
NS-DC-0057-0006.pdf | Detail
Document Source: Office of the Director of National Intelligence
Letters to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence Leadership regarding Section 702 Congressional White Paper entitled The Intelligence Community’s Collection Programs Under Section 702 05/04/2012
NS-DC-0057-0007.pdf | Detail
Document Source: Office of the Director of National Intelligence
September 25, 2012, Memorandum Opinion 09/25/2012 (2012 WL 9189263) (FISC)
NS-DC-0057-0008.pdf | WESTLAW | Detail
Document Source: Office of the Director of National Intelligence
Semi-Annual Assessment of Compliance with the Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, Submitted by the Attorney General and the Director of National Intelligence 08/01/2013
NS-DC-0057-0009.pdf | Detail
Document Source: Office of the Director of National Intelligence
Declassification Cover Letter 08/21/2013
NS-DC-0057-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Bates, John D. (FISC, D.D.C., D.C. Circuit)
NS-DC-0057-0002 | NS-DC-0057-0004 | NS-DC-0057-0008
Monitors/Masters None on record
Plaintiff's Lawyers Holder, Eric H. Jr. (District of Columbia)
NS-DC-0057-0003
Defendant's Lawyers None on record
Other Lawyers None on record

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