University of Michigan Law School
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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 (August 2014) (702, Hogan, J.) NS-DC-0102
Docket / Court [Redacted] ( FISC )
Additional Docket(s) [ 14- ]  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
Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq., permits the Attorney General (AG) and the Director of National Intelligence (DNI) to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. The government need not ... read more >
Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq., permits the Attorney General (AG) and the Director of National Intelligence (DNI) to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. The government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must the government specify the nature and location of the facilities or places that surveillance will occur. Communications of U.S. citizens and residents are frequently collected "incidentally" if those U.S. persons are communicating with or about a targeted foreigner.

Section 702 requires that the AG, through the Department of Justice (DOJ), and DNI, through the Office of the Director of National Intelligence (ODNI), submit annual “certifications” that define the categories of foreign actors that may be appropriately targeted. By law, these certifications must include specific targeting and minimization procedures adopted by the AG in consultation with the DNI. These certifications must be approved by the Foreign Intelligence Surveillance Court (FISC) before Section 702 surveillance may be conducted. For a more in-depth overview of the certification process, see NS-DC-0072 in this Clearinghouse.

In July 28, 2014, DOJ and ODNI submitted their annual certifications for 2014. On August 26, 2014, FISC Judge Thomas F. Hogan approved the government’s annual certifications for 2014. The 2014 certifications generally proposed to continue acquisitions of foreign intelligence information that were being conducted at that time under certifications made in 2013, which had been approved by the FISC on December 13, 2013. The FBI Minimization Procedures included new provisions respecting the transmittal of information to the National Center for Missing and Exploited Children (NCMEC), the dissemination of information to mitigate serious harm, preservation of information for litigation purposes by the FBI.

The government reported several compliance and implementation issues. Under the NSA Minimization Procedures, the NSA is required to discontinue acquisition for a facility if it determines that the user of the facility is in the United States. However, given the high rate of false positives (i.e., not indicative of access of the facility by a user inside the United States), Judge Hogan held that the NSA’s current practices regarding facility acquisitions complied with the statutory requirements of 50 U.S.C. §1881a(d)(1)(A). Judge Hogan also addressed issues regarding the FBI’s non-compliance with attorney-client minimization procedures. Although FISA’s definition of minimization procedures do not, by its terms, afford any special protection to communications subject to the attorney-client privilege, the minimization procedures submitted by the Government contained specific rules for handling attorney-client communications. Specifically, the FBI is required to establish a separate review team, who have no role in the prosecution of the charged criminal matter, to conduct the initial review of a target’s communications.

Since February 2014, the FISC had received notice of instances in which the responsible FBI case agent knew that a person targeted under Section 702 faced federal criminal charges but did not establish the required review team. Judge Hogan held that because the circumstances triggering the obligation to establish a review team arose infrequently in the context of Section 702 acquisitions, he did not believe that the instances of non-compliance prevented a finding that the minimization procedures complied with statutory requirements. However, Judge Hogan held that he intended to further monitor compliance with this provision of the FBI Minimization Procedures closely and directed the Government to fully report on additional instances of non-compliance.

In short, Judge Hogan found that the reported compliance issues did not preclude a finding that the NSA, FBI, and CIA’s targeting and minimization procedures complied with the statutory requirements. Ultimately, Judge Hogan found that, pursuant to 50 U.S.C. § 1881a(i)(3)(A), the certifications contained the requisite statutory elements and that the targeting and minimization procedures were consistent with FISA and Fourth Amendment requirements.

Lisa Limb - 02/08/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Recordkeeping
Reporting
Required disclosure
General
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Special Case Type
Warrant or subpoena application
Causes of Action FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
Plaintiff Description Attorney General and Director of National Intelligence, seeking {}.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Warrant/Order allowing surveillance
Targeting and Minimization Procedures Approved
Source of Relief Litigation
Order Duration 2014 - 2014
Filing Year 2014
Case Closing Year 2014
Case Ongoing No
Docket(s)
No docket sheet currently in the collection
General Documents
Letter re: Notice of NSA's Assessment of Purge Practices and Discovery of Incomplete Pages
NS-DC-0102-0009.pdf | External Link | Detail
Date: 03/18/2014
Source: Office of the Director of National Intelligence
Letter re: Supplemental Notice of NSA's Assessment of Purge Practices and Discovery of Incomplete Pages
NS-DC-0102-0010.pdf | External Link | Detail
Date: 05/29/2014
Source: Office of the Director of National Intelligence
Affidavit of Richard H. Ledgett, Jr., Acting Director, National Security Agency
NS-DC-0102-0003.pdf | External Link | Detail
Date: 07/23/2014
Source: Office of the Director of National Intelligence
Minimization Procedures Used by the Federal Bureau of Investigation in Connections with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA
NS-DC-0102-0013.pdf | External Link | Detail
Date: 07/24/2014
Source: Office of the Director of National Intelligence
Minimization Procedures Used by the Central Intelligence Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA
NS-DC-0102-0014.pdf | External Link | Detail
Date: 07/24/2014
Source: Office of the Director of National Intelligence
DNI/AG 702(g) Certification
NS-DC-0102-0001.pdf | External Link | Detail
Date: 07/25/2014
Source: Office of the Director of National Intelligence
Letter re: Notice Regarding NSA Purge Practices
NS-DC-0102-0011.pdf | External Link | Detail
Date: 07/25/2014
Source: Office of the Director of National Intelligence
Government's Ex Parte Submissions of Reauthorization Certifications and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certifications and Amended Certifications
NS-DC-0102-0002.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Affidavit of James B. Comey, Director, Federal Bureau of Investigation
NS-DC-0102-0004.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Affidavit of the Director of the Central Intelligence Agency
NS-DC-0102-0005.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Exhibit F [ENTIRE DOC REDACTED]
NS-DC-0102-0006.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Procedures Used by the Federal Bureau of Investigation for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of FISA [ENTIRE DOC REDACT]
NS-DC-0102-0007.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Procedures Used by the National Security Agency for Targeting Non-United States Persons Reasonably Believed to be Outside the United States to Acquire Foreign Intelligence Pursuant to Section 702 of FISA [ENTIRE DOC REDACT]
NS-DC-0102-0008.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Minimization Procedures Used by the National Counterterrorism Center in Connection with Information Acquired by the Federal Bureau of Investigation Pursuant to Section 702 of FISA
NS-DC-0102-0015.pdf | External Link | Detail
Date: 07/28/2014
Source: Office of the Director of National Intelligence
Minimization Procedures Used by the National Security Agency in Connections with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA
NS-DC-0102-0012.pdf | External Link | Detail
Date: 07/29/2014
Source: Office of the Director of National Intelligence
Memorandum Opinion and Order (FISC)
NS-DC-0102-0016.pdf | External Link | Detail
Date: 08/26/2014
Source: Office of the Director of National Intelligence
Judges Hogan, Thomas Francis (FISC, D.D.C.)
NS-DC-0102-0016
Plaintiff's Lawyers Carlin, John P. (District of Columbia)
NS-DC-0102-0002
Other Lawyers Holder, Eric H. Jr. (District of Columbia)
NS-DC-0102-0001 | NS-DC-0102-0002 | NS-DC-0102-0012 | NS-DC-0102-0013 | NS-DC-0102-0014 | NS-DC-0102-0015

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