Statement by the ODNI and the U.S. DOJ on the Declassification of Documents Related to the Protect America Act Litigation

Statement by the ODNI and the U.S. DOJ on the Declassification of Documents Related to the Protect America Act Litigation

Thursday, 11 September 2014 18:50
THE DIRECTOR OF NATIONAL INTELLIGENCE
WASHINGTON, DC 20511

September 11, 2014


Statement by the Office of the Director of National Intelligence and the U.S. Department of Justice on the Declassification of Documents Related to the Protect America Act Litigation

On January 15, 2009, the U.S. Foreign Intelligence Surveillance Court of Review (FISC-R) published an unclassified version of its opinion in In Re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Intel. Surv. Ct. Rev. 2008).  The classified version of the opinion was issued on August 22, 2008, following a challenge by Yahoo! Inc. (Yahoo!) to directives issued under the Protect America Act of 2007 (PAA).  Today, following a renewed declassification review, the Executive Branch is publicly releasing various documents from this litigation, including legal briefs and additional sections of the 2008 FISC-R opinion, with appropriate redactions to protect national security information.  These documents are available at the website of the Office of the Director of National Intelligence (ODNI), www.dni.gov; and ODNI’s public website dedicated to fostering greater public visibility into the intelligence activities of the U.S. Government, IContheRecord.tumblr.com.  A summary of the underlying litigation follows.


FISC Proceedings

In Re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act involved a challenge by Yahoo! to directives issued by the Director of National Intelligence (DNI) and the Attorney General under the PAA.  The PAA was the predecessor to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FISA Amendments Act of 2008 or FAA).  The directives issued to Yahoo! under the PAA required it to assist the U.S. Government in acquiring foreign intelligence information through the surveillance of targets reasonably believed to be located outside the United States.  Yahoo! refused to comply with the directives, and the U.S. Government initiated proceedings in the FISC to compel compliance.

Yahoo! opposed the U.S. Government’s motion to compel compliance with the directives primarily on the ground that the directives violated the Fourth Amendment rights of its customers.  On April 25, 2008, following extensive briefing by the parties, the FISC held that the directives were lawful and ordered Yahoo! to comply.
  • The FISC held that there is a foreign intelligence exception to the warrant requirement, and that the exception applied to surveillance conducted pursuant to the directives, including surveillance targeting U.S. persons located outside the United States. 
  • The FISC held that the U.S. Government has sufficient procedures in place “to ensure that the Fourth Amendment rights of targeted U.S. persons are adequately protected and that the acquisition of foreign intelligence to be obtained through the directives issued to Yahoo!, as to these individuals, is reasonable under the Fourth Amendment.”  It further held, based on prior case law and noting the applicable minimization procedures, that “any incidental acquisition of the communications of non-targeted persons located in the United States and of non-targeted U.S. persons, wherever they may be located, is also reasonable under the Fourth Amendment.”


Yahoo! then appealed to the FISC-R. 


FISC-R Proceedings

On August 22, 2008, following briefings and oral argument, the FISC-R issued a classified opinion, affirming the FISC’s decision that the directives were lawful.  In its decision, the FISC-R first held that Yahoo! had standing to challenge the directives based on the Fourth Amendment interests of its customers that Yahoo! was alleging.  Turning to the merits of the case, the FISC-R rejected Yahoo!’s Fourth Amendment challenge to the directives.

  • First, the FISC-R held that a traditional warrant was not required.  Basing its opinion on a line of U.S. Supreme Court cases recognizing “special needs” exceptions to the Fourth Amendment’s warrant requirement, the FISC-R held that the U.S. Government’s collection of foreign intelligence information pursuant to the directives addressed a special need that justified an exception to the warrant requirement. 
  • Second, the FISC-R held that the surveillance at issue met the reasonableness requirement of the Fourth Amendment, in light of the national security interests at issue and the “matrix of safeguards” required by the PAA and implemented by multiple branches of the Government.  Those safeguards included:

    • Targeting procedures reviewed by the FISC and designed to ensure that the U.S. Government targets someone only if the Government has a valid foreign intelligence purpose and reasonably believes that person is located outside of the United States. 
    • Minimization procedures designed to limit the retention and dissemination of information about U.S. persons.
    • Procedures that require the Attorney General to find, before the U.S. Government conducts surveillance of any U.S. person located outside the United States, that the targeted U.S. person is a foreign power or an agent of a foreign power.  These procedures were not required by the PAA.  Rather, the U.S. Government included them as a requirement in the certifications for the surveillance of U.S. persons located outside the United States, consistent with its practice since 1981 under Section 2.5 of Executive Order 12333. 


 No rehearing or further review in the U.S. Supreme Court was sought.


The FISA Amendments Act


The PAA expired in February 2008 and was ultimately replaced with the FISA Amendments Act of 2008, codified as Title VII of FISA.  The FISA Amendments Act incorporates many of the provisions and procedures that the FISC-R found important to its holding that the U.S. Government’s surveillance was constitutional.  The FISA Amendments Act also builds in additional safeguards that did not exist in the PAA.  For example:

  • The FISA Amendments Act goes beyond the PAA and imposed, for the first time, the requirement for a judicial finding that a U.S. person located outside the United States targeted for surveillance or search is a foreign power, agent of a foreign power, or officer or employee of a foreign power.  This finding is made by the FISC under the FISA Amendments Act; as noted above, under the PAA and prior to the PAA this finding was made exclusively by the Attorney General.
  • The FISA Amendments Act requires FISC approval of the targeting and minimization procedures.   Under the PAA, the FISC reviewed only the targeting procedures. 


The FISA Amendments Act, by requiring those and other safeguards, is even more protective of the Fourth Amendment rights of U.S. persons than the statute upheld by the FISC-R as constitutional.

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Document List




Yahoo Brief (May 29, 2008)

Government Ex Parte Merits Brief (June 5, 2008)

Yahoo Reply Brief (June 9, 2008)

Yahoo Rule 28(j) Letter to FISC-R Clerk from Zwillinger (June 13, 2008)

Government Ex Parte Supplemental Brief (June 26, 2008)

Yahoo Motion for Leave to File and Reply Brief to Gov’t Supplemental Brief (June 30, 2008) CR 357

Government Motion for Leave to File and Ex Parte Supplemental Reply Brief (July 3, 2008) CR 378

Rule 28(j) Letter to Judge Selya from Acting SG Greg Garre (July 10, 2008)

Government 28(j) Letter to Judge Selya from Acting SG Greg Garre (July 15, 2008)

Yahoo Response to Gov’t 28(j) Letter (July 17, 2008)

FISC-R Merits Opinion (Aug. 22, 2008)

Joint Appendix Cover Sheet

Docket Entry Sheet

Government’s Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General, with attached directives (November 21, 2007)

Yahoo! Inc.’s Memorandum in Opposition to Motion to Compel (November 30, 2007)

Department of Defense Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons, DoD 5240.1-R, Dec. 1982 (excerpts) (December 11, 2007)

Motion to File Classified Appendix (motion only) (December 11, 2007)

Order Establishing Procedures for Handling Classified Information (December 28, 2007)

Order Directing the Filing of Affidavits (January 4, 2008)

Declaration of [. . .] , Federal Bureau of Investigation Data Acquisition/Intercept Section (January 16, 2008)

Declaration of [. . .], Vice President and Associate General Counsel, Yahoo!, Inc. (January 22, 2008)

Declaration of [. . .], Manager, Legal Department Compliance Team, Yahoo!, Inc. (January 23, 2008)

Order Authorizing Submission of Ex Parte Filing (January 31, 2008)

Order Directing Parties to Provide Supplemental Briefing on the Fourth Amendment (February 6, 2008)

Government’s Supplemental Brief on the Fourth Amendment (February 15, 2008)

Response to Ex Parte Order to Government and Motion for Leave to File Classified Appendix for the Court’s Ex Parte and In Camera Review (without attached classified appendix) (February 20, 2008)

Order Granting Motion to File Classified Appendix (February 28, 2008)

Notice of Filing of Motion to File Classified Information (March 14, 2008)

Order Authorizing Submission of Ex Parte Filing (March 17, 2008)

Redacted Memorandum Opinion and Order (April 25, 2008)

Government’s Motion for an Order of Civil Contempt (May 9, 2008)

Declaration of Matthew G. Olsen, Deputy Assistant Attorney General, with attached exhibits (May 8, 2008)

Motion for Leave to File Classified Declaration for the Court’s Ex Parte and In Camera Review (without attached classified declaration) (May 9, 2008)

Order Denying Yahoo’s Motion for a Stay and Granting Government’s Motion to File a Classified Appendix (May 9, 2008)

Yahoo!, Inc’s Compliance Report (May 14, 2008)

Executive Order 12333, 46 Fed. Reg. 59,941 (December 4, 1981)

Ex Parte Appendix Cover Sheet

Classified Appendix in Support of the Government’s Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General (February 20, 2008)

Department of Defense Supplemental Procedures Governing Communications Metadata Analysis (March 14, 2008)

Memorandum Opinion (unredacted (April 25, 2008)

Declaration of J. Michael McConnell, Director of National Intelligence (May 9, 2008)

Classified Annex to Department of Defense Procedures Under Executive Order 12333

FBI Standard Minimization Procedures for Physical Search of a United States Person Agent of a Foreign Power (January 20, 1995)

FBI Standard Minimization Procedures for Physical Search of a Non-United States Person Agent of a Foreign Power (January 20, 1995)

FBI Standard Minimization Procedures for Electronic Surveillance of a United States Person Agent of a Foreign Power (September 17, 1997)              

FBI Standard Minimization Procedures for Electronic Surveillance of a Non-United States Person Agent of a Foreign Power (September 17, 1997)  

Amendments to FBI Standard Minimization Procedures (September 29, 2006)

Memorandum Opinion and Order, In re DNI/AG Certification [. . .], with attached exhibits (January 15, 2008)

Oral Argument Transcript, (Added on November 17, 2014)

Errata Sheet  (Added on November 21, 2014)