University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name [Redacted]; FISA Court Authorizing Surveillance Procedures Under Protect America Act NS-DC-0076
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
As discussed in detail in NS-DC-0068, the Protect America Act (PAA) was passed in 2007 in order to avoid compliance with the FISA Court's interpretation of traditional FISA. The PAA amended FISA in two important ways. First, it allowed ... read more >
As discussed in detail in NS-DC-0068, the Protect America Act (PAA) was passed in 2007 in order to avoid compliance with the FISA Court's interpretation of traditional FISA. The PAA amended FISA in two important ways. First, it allowed warrantless collection of international communications to or from the U.S. from facilities inside the U.S. Second, it allowed warrantless collection of foreign to foreign communications from facilities inside the U.S.

This is the first case in which the FISA Court reviewed the government's procedures for authorizing surveillance under the PAA. In order to authorize surveillance, the Attorney General and the Director of National Intelligence (DNI) had to carry out two statutory requirements. First, they had to determine that there were reasonable procedures in place for ensuring that the surveillance to be undertaken concerned people located outside of the U.S. Second, they had to determine that the acquisition in question did not constitute electronic surveillance as defined by FISA and the PAA. The PAA changed FISA by exempting surveillance of people reasonably believed to located outside the U.S. from FISA's definition of electronic surveillance. Therefore, to meet the second requirement of the PAA, the AG and the DNI had to reasonably believe that a target of surveillance was located outside of the U.S.

The PAA also included provisions for FISA Court review of the government's authorizations of surveillance for compliance with the statute. The statute required the government to submit their procedures for determining that the surveillance concerned people outside the U.S. and did not constitute electronic surveillance. The statutory standard of review was for clear error, and review was narrowly confined to whether the procedures proposed by the government met the statutory requirements.

In an order dated October 11, 2007, the FISA Court (Judge Colleen Kollar-Kotelly) asked the government to supplement its procedures submitted to the Court under seal (the Court references a surveillance certification filed on August 10, 2007 and a corresponding set of procedures filed on August 17, 2007; neither of these documents appear to have been declassified or otherwise made public as of April 2015) by answering several questions regarding the adequacy of the procedures at protecting against the acquisition and retention of protected communications of U.S. persons.

The government responded to the Court's order with answers in a document dated October 26, 2007, and the Court issued a new order approving the use of the procedures as explained by the government's response on January 15, 2008.

The PAA raised considerable concerns that surveillance of some wholly domestic communications would now be outside of traditional FISA. This happened because the PAA broadly defined "person" to include not only individuals, but also groups, entities, associations, corporations, or foreign powers. The worry was that a group like Al Qaeda could reasonably believed to be located abroad, but Al Qaeda related communications could take place wholly within the U.S., and the PAA's broad definitions would allow for such communications to be collected without the probable cause determinations and warrant requirements of traditional FISA. While the government strenuously denied that the PAA would be interpreted to allow such surveillance in practice, the PAA was allowed to sunset in 2008, and was replaced by the FISA Amendments Act of 2008 (FAA) (amending 50 U.S.C. § 1801 et seq.).

The analogous certification matter in 2008, under the FAA, is described in NS-DC-0072 in this Clearinghouse.

Edward Mroczkowski - 04/06/2015


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Issues and Causes of Action
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Issues
General
Other
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action None on record
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
Source of Relief Litigation
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2008
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
Order 10/11/2007 (FISC)
NS-DC-0076-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government's Response to the Court's Order of October 11, 2007 10/26/2007
NS-DC-0076-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
Memorandum Opinion and Order 01/15/2008 (FISC)
NS-DC-0076-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Kollar-Kotelly, Colleen (FISC, D.D.C.)
NS-DC-0076-0001 | NS-DC-0076-0003
Monitors/Masters None on record
Plaintiff's Lawyers Olsen, Matthew G. (District of Columbia)
NS-DC-0076-0002
Defendant's Lawyers None on record
Other Lawyers None on record

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