University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
view search results
page permalink
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


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
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
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.
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
Case Ongoing Yes
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]
NS-DC-0008-0044.pdf | External Link | Detail
Date: 01/20/1995
Source: Office of the Director of National Intelligence
Standard [FBI] Physical Search Minimization Procedures
NS-DC-0008-0049.pdf | External Link | Detail
Date: 01/20/1995
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
NS-DC-0008-0045.pdf | External Link | Detail
Date: 09/17/1997
Source: Office of the Director of National Intelligence
Standard Minimization Procedures for Electronic Surveillance of a United States Person Agent of a Foreign Power
NS-DC-0008-0048.pdf | External Link | Detail
Date: 09/17/1997
Source: Office of the Director of National Intelligence
Amendments to FBI Standard Minimization Procedures
NS-DC-0008-0046.pdf | External Link | Detail
Date: 09/26/2006
Source: Office of the Director of National Intelligence
Government’s Motion to Compel Compliance with Directives
NS-DC-0008-0023.pdf | Detail
Date: 11/21/2007
Source: Office of the Director of National Intelligence
Yahoo’s Memorandum in Opposition to Motion to Compel
NS-DC-0008-0024.pdf | Detail
Date: 11/21/2007
Source: Office of the Director of National Intelligence
Memorandum Opinion [Denying American Civil Liberties Union's Motion for Release of Court Records] (526 F.Supp.2d 484) (FISC)
NS-DC-0008-0015.pdf | WESTLAW| LEXIS | Detail
Date: 12/11/2007
Source: Westlaw
DoD Procedures Governing Activities that Affect US Persons
NS-DC-0008-0025.pdf | Detail
Date: 12/11/2007
Source: Office of the Director of National Intelligence
Order Establishing Procedures for Handling Classified Information (FISC)
NS-DC-0008-0026.pdf | Detail
Date: 12/28/2007
Source: Office of the Director of National Intelligence
Order Directing the Filing of Affidavits (FISC)
NS-DC-0008-0027.pdf | Detail
Date: 01/04/2008
Source: Office of the Director of National Intelligence
Memorandum Opinion and Order, re DNI AG Certification (FISC)
NS-DC-0008-0047.pdf | Detail
Date: 01/15/2008
Source: Office of the Director of National Intelligence
Declaration of FBI Data Acquisition/Intercept Section
NS-DC-0008-0028.pdf | Detail
Date: 01/16/2008
Source: Office of the Director of National Intelligence
Declaration of Associate General Counsel of Yahoo
NS-DC-0008-0029.pdf | Detail
Date: 01/22/2008
Source: Office of the Director of National Intelligence
Declaration of Manager, Legal Department Compliance Team, Yahoo
NS-DC-0008-0030.pdf | Detail
Date: 01/23/2008
Source: Office of the Director of National Intelligence
Order Directing Parties to Provide Supplemental Briefing on the Fourth Amendment (FISC)
NS-DC-0008-0031.pdf | Detail
Date: 02/06/2008
Source: Office of the Director of National Intelligence
Government’s Supplemental Brief on the Fourth Amendment
NS-DC-0008-0032.pdf | Detail
Date: 02/15/2008
Source: Office of the Director of National Intelligence
Order Granting Motion to File Classified Appendix (FISC)
NS-DC-0008-0033.pdf | Detail
Date: 02/28/2008
Source: Office of the Director of National Intelligence
DoD Procedures Governing Communications Metadata Analysis
NS-DC-0008-0041.pdf | Detail
Date: 03/14/2008
Source: Office of the Director of National Intelligence
Order Authorizing Submission of Ex Parte Filing (FISC)
NS-DC-0008-0034.pdf | Detail
Date: 03/17/2008
Source: Office of the Director of National Intelligence
Memorandum Opinion and Order (FISC)
NS-DC-0008-0035.pdf | Detail
Date: 04/25/2008
Source: Office of the Director of National Intelligence
Order Compelling Compliance with Directives (FISC)
NS-DC-0008-0053.pdf | External Link | Detail
Date: 04/25/2008
Annex to DoD Procedures Under Executive Order 12333
NS-DC-0008-0043.pdf | Detail
Date: 04/29/2008
Source: Office of the Director of National Intelligence
Declaration of Matthew G. Olsen
NS-DC-0008-0037.pdf | Detail
Date: 05/08/2008
Source: Office of the Director of National Intelligence
Government’s Motion for an Order of Civil Contempt
NS-DC-0008-0036.pdf | Detail
Date: 05/09/2008
Source: Office of the Director of National Intelligence
Order Denying Yahoo’s Motion for a Stay (FISC)
NS-DC-0008-0038.pdf | Detail
Date: 05/09/2008
Source: Office of the Director of National Intelligence
Declaration of J. Michael McConnell
NS-DC-0008-0042.pdf | Detail
Date: 05/09/2008
Source: Office of the Director of National Intelligence
Yahoo's Compliance Report
NS-DC-0008-0039.pdf | Detail
Date: 05/14/2008
Source: Office of the Director of National Intelligence
Brief of Appellant Yahoo!
NS-DC-0008-0016.pdf | Detail
Date: 05/29/2008
Source: Office of the Director of National Intelligence
Executive Order 12333, 46 Fed. Reg. 59,941
NS-DC-0008-0040.pdf | Detail
Date: 06/03/2008
Source: Office of the Director of National Intelligence
Government Ex Parte Merits Brief
NS-DC-0008-0017.pdf | Detail
Date: 06/05/2008
Source: Office of the Director of National Intelligence
Reply Brief of Appellant Yahoo!
NS-DC-0008-0052.pdf | External Link | Detail
Date: 06/09/2008
Yahoo Rule 28J Letter
NS-DC-0008-0018.pdf | Detail
Date: 06/13/2008
Source: Office of the Director of National Intelligence
Proceedings
NS-DC-0008-0050.pdf | Detail
Date: 06/19/2008
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
NS-DC-0008-0051.pdf | External Link | Detail
Date: 06/19/2008
Government Ex Parte Supplemental Brief
NS-DC-0008-0019.pdf | Detail
Date: 06/26/2008
Source: Office of the Director of National Intelligence
Government 28J Letter
NS-DC-0008-0020.pdf | Detail
Date: 07/10/2008
Source: Office of the Director of National Intelligence
Government Second 28J Letter
NS-DC-0008-0021.pdf | Detail
Date: 07/15/2008
Source: Office of the Director of National Intelligence
Yahoo Response to Second Government 28J Letter
NS-DC-0008-0022.pdf | Detail
Date: 07/17/2008
Source: Office of the Director of National Intelligence
FISC-R Merits Opinion (551 F.3d 1004)
NS-DC-0008-0014.pdf | WESTLAW| LEXIS | Detail
Date: 08/22/2008
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
NS-DC-0008-0001.pdf | Detail
Date: 06/14/2013
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0008-0002.pdf | Detail
Date: 06/17/2013
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
NS-DC-0008-0003.pdf | Detail
Date: 06/25/2013
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0008-0004.pdf | Detail
Date: 06/26/2013
Source: Office of the Director of National Intelligence
Reply in Support of Yahoo! Inc.'s Motion Under FISC Rule 62
NS-DC-0008-0005.pdf | Detail
Date: 07/09/2013
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0008-0006.pdf | Detail
Date: 07/15/2013
Source: Office of the Director of National Intelligence
United States Response to Court's July 15, 2013 Order
NS-DC-0008-0007.pdf | Detail
Date: 07/29/2013
Source: Office of the Director of National Intelligence
United States' Second Response to the Court's July 15, 2013 order
NS-DC-0008-0009.pdf | Detail
Date: 09/12/2013
Source: Office of the Director of National Intelligence
United States' Third Response to the Court's July 15, 2013 Order
NS-DC-0008-0010.pdf | Detail
Date: 09/27/2013
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
NS-DC-0008-0011.pdf | Detail
Date: 09/30/2013
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0008-0012.pdf | Detail
Date: 10/11/2013
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0008-0013.pdf | Detail
Date: 10/22/2013
Source: Office of the Director of National Intelligence
Judges Arnold, Morris Sheppard Court not on record
NS-DC-0008-0050 | NS-DC-0008-0051
Bates, John D. (D.C. Circuit, FISC)
NS-DC-0008-0015
Kollar-Kotelly, Colleen (FISC)
NS-DC-0008-0047
Selya, Bruce Marshall (FISCR)
NS-DC-0008-0050 | NS-DC-0008-0051
Walton, Reggie B. (FISC)
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)
NS-DC-0008-0050 | NS-DC-0008-0051
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

- click to show/hide ALL -

new search
view search results
page permalink

- top of page -