In re Directives [redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act

The FISC Court of Review’s opinion upholding the Protect America Act

In re Directives [redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3rd 1004 (FISC Ct Rev. 2008)

On August 5, 2007, in response to public reaction to the revelations about the Terrorist Screening Program, Congress enacted the Protect America Act (“PAA”) with a scheduled expiration date of February 17, 2008. In this heavily redacted opinion, the FISC Court of Review held that Americans’ Fourth Amendment rights were not violated by a provision in the PAA that allowed the government to conduct warrantless foreign intelligence surveillance on targets “reasonably believed to be outside the United States,” even if the targets were United States citizens or permanent legal residents.

Yahoo!’s motion before the FISC for disclosure

In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, Docket No. 105B(g) 07-01 (FISC filed June 14, 2013)

The decision of the FISC Court of Review in In re Directives arose from the only instance before 2014 in which the FISA Court (“FISC”) heard arguments from a telecommunications provider that substantively contested a directive ordering it to assist the government in acquiring communications. Letter from the Honorable Reggie B. Walton, Presiding Judge, FISC, to the Honorable Patrick J. Leahy, Chairman, Committee on the Judiciary, United States Senate, dated July 29, 2013. In response to public questioning in the wake of the Snowden revelations of the role of telecommunications providers in NSA surveillance, Yahoo! brought this motion before the FISC, asking for publication of the briefs and lower court opinion of April 25, 2008 (“the April 25 Opinion”) in the case. Yahoo! also requested that its identity as the telecommunications provider that had challenged the directive be declassified, and sought declassification of the identity of its attorney.

After the government advised the FISC that it had declassified Yahoo!’s identity, the FISC Court of Review issued an order stating that Yahoo!’s and its counsel’s identity were no longer under seal. Order, In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, Docket No. 08-01 (FISC Ct. Rev. June 28, 2013) (attached as Exhibit A to Yahoo! Inc.’s Reply in Support of Motion under FISC Rule 62 (FISC July 1, 2013)).

On July 15, 2013, the FISC issued an order stating that it anticipated releasing a redacted version of the April 25 Opinion, and directed the government to conduct a declassification review of the opinion and the parties’ briefs. Order, In re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, Docket No. 105B(g) 07-01  (FISC July 15, 2013).

On September 12, 2013, the government informed the FISC that although it would be possible to publish “much of” the April 25 Opinion and an accompanying order by senior intelligence officials and the Department of Justice, some of the information would need to remain classified and redacted from the version that the DNI provided to the Court for publication. The United States’ Second Response to This Court’s July 15, 2013 Order, In re: Directives, Docket No. 105B(g) 07-01 (FISC Sept. 12, 2013).

On September 27, 2013, the government produced a similar response in regard to the publication of the briefs and materials cited in the April 25 Opinion. The United States’ Third Response to this Court’s July 15, 2013 Order.

On October 22, 2013, FISC Judge Reggie B. Walton issued an order, in response to a joint motion of the parties, granting Yahoo! pre-publication access to Court documents after the government declassified them and submitted them to the FISC for review.

On September 11, 2014, in response to an order by the FISC Court of Review for the release of more than 1,500 pages of documents, the Director of National Intelligence (“DNI”) and Department of Justice (“DOJ”)’s posted documents on the DNI’s website. Among the posted documents were redacted versions of briefs before both the FISC and FISC Court of Review, the April 25, 2008 opinion, and additional sections of the the FISC Court of Review’s opinion, previously published as In re Directives [redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3rd 1004 (FISC Ct Rev. 2008). Notably, the documents revealed that while Yahoo!’s appeal was pending before the FISC Court of Review, the government asked the FISC to hold the company in civil contempt, subject to a daily fine of at least $250,000, to be doubled each week that it refused to disclose its customers’ data.

In a Press Release, Yahoo!’s General Counsel, Ron Bell, called the DNI and DOJ’s release of the documents “an important win for transparency,” but indicated that the company would seek the release of further documents pertaining to its challenge to the PAA. The Release stated that in the absence of a public docket of FISC Court of Review proceedings, it was “in the process of making the complete 1500 pages of information available.” In addition, Yahoo! said that in the wake of the FISC Court of Review’s order, it would be pursuing fuller disclosure from the FISC of the trial level proceedings.

On January 30, 2015, the government submitted proposed redactions of documents to the FISC. On March 4, 2015, the government submitted a Notice to the FISC stating that it had reconsidered its decision in September 2014 that two documents in the case needed to be entirely redacted and that “[b]ecause of the public interest in the government’s implementation and application of Section 702 …,” portions of the documents had been disclosed to the public on March 3, 2015. Although neither the Notice nor the DNI’s website made the identity of the newly released documents clear, they appear to be the Minimization Procedures that the NSA and CIA followed before Section 702 of FISA was enacted.

 

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