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 (July 2012) (702, Walton, J.) NS-DC-0120
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.

On July 31, 2012, the government filed an Ex Parte Submission of [Redacted] and Related Procedures, Ex Parte Submission of [Redacted], and Request for an Order Approving [Redacted]. On August 30, 2013, FISC Judge Reggie B. Walton approved the government's targeting and minimization procedures. The government's submissions were accompanied by two sets of targeting procedures, for use by the NSA and FBI, and four sets of minimization procedures, for use by the NSA, FBI, CIA, and the National Counterterrorism Center (NCTC).

Although Judge Walton's analysis of the NSA and FBI's targeting procedures are heavily redacted, he found that both procedures were "reasonably designed" to target persons reasonably believed to be located outside the United States and to prevent intentional acquisition of any communications where the sender and recipients are located in the United States.

Judge Walton found that the four sets of minimization procedures by the NSA, FBI, CIA, and NCTC were all sufficiently similar, if not identical, to the 2012 certifications and that "basic framework of protections formed by the previously-approved procedures remain[ed] intact." Therefore, Judge Walton was satisfied that any compliance problems and relatively minor changes in the minimization procedures did not preclude the court from finding that the targeting and minimization procedures were consistent with the Fourth Amendment and the statutory requirements of Section 702.

Lisa Limb - 11/04/2018


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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 2012 - 2012
Filing Year 2012
Case Closing Year 2012
Case Ongoing No
Docket(s)
No docket sheet currently in the collection
General Documents
Memorandum Opinion (FISC)
NS-DC-0120-0002.pdf | Detail
Date: 01/01/2012
Source: Office of the Director of National Intelligence
Memorandum Opinion (FISC)
NS-DC-0120-0001.pdf | Detail
Date: 08/30/2013
Source: Office of the Director of National Intelligence
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Judges Bates, John D. (D.C. Circuit, FISC, D.D.C.) show/hide docs
NS-DC-0120-0002
Walton, Reggie B. (FISC, D.D.C.) show/hide docs
NS-DC-0120-0001

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