University of Michigan Law School
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Case Name [Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (August 2008) NS-DC-0116
Docket / Court [Redacted] ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Court
Case Summary
In June 2017, in response to a lawsuit filed by the Electronic Frontier Foundation (NS-CA-0027 in this Clearinghouse), the federal government released eighteen previously classified opinions by the Foreign Intelligence Surveillance ... read more >
In June 2017, in response to a lawsuit filed by the Electronic Frontier Foundation (NS-CA-0027 in this Clearinghouse), the federal government released eighteen previously classified opinions by the Foreign Intelligence Surveillance Court (FISC). One of the opinions declassified involved this case.

Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. § 1881a, 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 September 2008, the FISC approved the government's certifications for 2008. (Those proceedings are discussed in NS-DC-0072 in this Clearinghouse.) Later that year, however, the government submitted an "Ex Parte Statement and Notice of Corrections Concerning DNI/AG 702(g)," where the government made certain corrections relating to its prior certification application. The substance of those corrections are redacted in the declassified opinion, but likely related to the targeting procedures of the certifications. Regardless, whatever the content of those corrections were, FISC Judge Mary A. McLaughlin ultimately approved the certification, noting that she had "no reason to think that" the new procedures would "be any less effective in satisfying the requirements of [FISA] and the Fourth Amendment" than the earlier certification approved by the FISC.

John He - 08/06/2017


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Issues and Causes of Action
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Issues
Content of Injunction
Warrant/order for search or seizure
General
Confidentiality
Courts
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 United States
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer No
Case Closing Year 2008
Case Ongoing No
Docket(s)
No docket sheet currently in the collection
General Documents
Memorandum Opinion (FISC)
NS-DC-0116-0001.pdf | Detail
Date: 01/01/2008
Judges McLaughlin, Mary A. (FISC, E.D. Pa.)
NS-DC-0116-0001

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