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 (2009) (702, McLaughlin, J.) NS-DC-0118
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
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.) In January 2009, however, the government submitted an "Ex Parte Submission [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures," where the government made certain corrections relating to its prior certification application and overcollection incidents.

The substance of those corrections are redacted in the declassified opinion but related to the targeting procedures of the certifications and remedial measures the government took in response to overcollection incidents involving the 2008 FAA certifications. Regardless, whatever the content of those corrections were, FISC Judge Mary A. McLaughlin ultimately approved the certification, noting that “in light of the steps taken by the government to address these [overcollection] incidents and prevent similar occurrences,” she was “satisfied” that the targeting and minimization procedures satisfied the requirements of FISA and the Fourth Amendment.

Lisa Limb - 03/08/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Monitoring
Recordkeeping
Reporting
Required disclosure
Warrant/order for search or seizure
General
Confidentiality
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 Plaintiffs are the Attorney General (AG), through the Department of Justice (DOJ), and the Director of National Intelligence (DNI), through the Office of the Director of National Intelligence (ODNI).
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
Source of Relief Litigation
Order Duration 2009 - 2009
Filing Year 2009
Case Closing Year 2009
Case Ongoing No
Case Listing NS-DC-0072 : [In re DNI/AG 702(i) Certification 2008] (FISC)
Docket(s)
No docket sheet currently in the collection
General Documents
Order (FISC)
NS-DC-0118-0001.pdf | Detail
Date: 01/01/2009
Source: Office of the Director of National Intelligence
Memorandum Opinion and Order (FISC)
NS-DC-0118-0002.pdf | Detail
Date: 01/01/2009
Source: Office of the Director of National Intelligence
Memorandum Opinion and Order (FISC)
NS-DC-0118-0003.pdf | Detail
Date: 01/01/2009
Source: Office of the Director of National Intelligence
Memorandum Opinion (FISC)
NS-DC-0118-0004.pdf | Detail
Date: 04/07/2009
Source: Office of the Director of National Intelligence
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Judges Hogan, Thomas Francis (FISC, D.D.C.) show/hide docs
NS-DC-0118-0002 | NS-DC-0118-0003
McLaughlin, Mary A. (FISC, E.D. Pa.) show/hide docs
NS-DC-0118-0001 | NS-DC-0118-0004

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