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.
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.
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.