University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name [In re DNI/AG 702(i) certification 2009] NS-DC-0073
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
The FISA Amendments Act § 702, enacted in 2008, authorized the U.S. Government to compel providers of electronic communications services to assist the Government in acquiring foreign intelligence information concerning targeted non-US persons located outside the United States. Under this authority, ... read more >
The FISA Amendments Act § 702, enacted in 2008, authorized the U.S. Government to compel providers of electronic communications services to assist the Government in acquiring foreign intelligence information concerning targeted non-US persons located outside the United States. Under this authority, the Foreign Intelligence Surveillance Court annually reviews "certifications" jointly submitted by the U.S. Attorney General and Director of National Intelligence. These certifications define the categories of foreign actors that may be appropriately targeted, and by law, must include specific targeting and minimization procedures adopted by the Attorney General in consultation with the Director of National Intelligence and approved by the Court as consistent with FISA and Fourth Amendment. Certifications last for one year.

The FISA Court approved the first such certification on September 4, 2009. That matter is discussed at NS-DC-0072 in this Clearinghouse.

This case deals with the second round of approvals of such certifications, in 2009. We do not currently have the filings made by the government in this case, or the court responses and orders. But there is extensive discussion of this case in a "Summary Document" prepared by the NSA Office of General Counsel and leaked by Edward Snowden. That summary is included this case record (and is also available here. It has not been declassified from its assigned Top Secret classification.

The summary explains the changes from the 2008-A and 2008-B certifications submitted by the NSA and discussed in NS-DC-0072.

The 2009-A certification, like the 2008-A certification, covers foreign governments, factions, entities and foreign based political organizations. The 2009 version updated the list of foreign entities. The only other change to the foreign entities certification was that a notice requirement to the AG and DNI was changed from seven days to five business days.

And like the 2008-B certification, the 2009-B certification targets named foreign terrorist groups. The list of such terrorist groups changed slightly in the new certification. The only other change was, as in 2009-A, a recasting of the AG/DNI notice requirement to five business days, from 7 days.

The 2009-C certification was new, however, and covers Weapons of Mass Destruction/Proliferation. Instead of containing lists of specific targets, the 2009-C certification provides examples of acceptable targets based on their activities.

The targeting procedures in the 2009-C certification contained no changes from the 2008-A certifications. However, the minimization procedures differ in two ways. First, they contain a clearer instruction regarding dissemination of intelligence reports to foreign governments once they have been minimized. Second, they expanded NSA's capability to obtain technical and linguistic support from foreign governments.

Edward Mroczkowski - 04/20/2015


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Issues and Causes of Action
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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
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief None on record
Source of Relief None on record
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
FISA Amendments Act of 2008, Section 702: Summary Document 12/23/2008
NS-DC-0073-0001.pdf | Detail
Procedures used by the NSA ... Pursuant to Section 702 of the FISA of 1978, as Amended 07/28/2009
NS-DC-0073-0002.pdf | Detail
Minimization Procedures used by the NSA ... Pursuant to Section 702 of the FISA of 1978, as Amended 07/28/2009
NS-DC-0073-0003.pdf | Detail
Judges None on record
Monitors/Masters None on record
Plaintiff's Lawyers Holder, Eric H. Jr. (District of Columbia)
NS-DC-0073-0002 | NS-DC-0073-0003
Defendant's Lawyers None on record
Other Lawyers None on record

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