, ..... UNITED STATES c:' FOREIGN INTELLIGENCE SURVEILLANCE COURi_~\u rt~\ \\ p 2: ',,_ WASHINGTON, D.C. IN RE: DIRECTIVES PURSUANT TO SECTION ) 105B OF THE FOREIGN INTELLIGENCE ) ) SURVEILLANCE ACT ~~~~~~~~~~~~~~~~~ ' :; Docket No. 105B(G) 07-01 ) THE UNITED STATES' RESPONSE TO THE COURT'S MARCH 14, 2016 ORDER On March 14, 2016, the Court issued an order directing the Government to produce to the Court and to Yahoo! Inc. by April 11, 2016, declassified, redacted versions of the documents contained in Revised Appendix A. Consistent with this order, the Government hereby submits the enclosed version of these documents. April 11, 2016 Respectfully submitted, JOHN P. CARLIN Assistant Attorney General for National Security STUART J. EVANS Deputy Assistant Attorney General National Security Division Isl Jonathan Fischbach GABRIEL SANZ-REXACH JONATHAN FISCHBACH U.S. Department of Justice National Security Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 Phone: (202) 514-5600 Fax: (202) 514-8053 Attorneys for the United States ofAmerica . '' ~ CERTIFICATE OF SERVICE I hereby certify that a true copy of the United States' Response to the Court's March 14, 2016 Order, and the enclosed documents, were served via hand delivery at the United States Foreign Intelligence Surveillance Court (FISC) on this 11th day of April, 2016, to the following addressees: Marc J. Zwillinger Jacob A. Sommer ZwillGen PLLC 1900 M Street, NW, Suite 250 Washington, DC 20036 (202) 706-5213 /s/ Jonathan Fischbach Jonathan Fischbach TABLE OF CONTENTS UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. Docket No. 105B(g) 07-01: In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act Tab GROUP B: BRIEFS AND MATERIALS CITED IN THE MEMORANDUM OPINION 1. Government Brief (January 4, 2008) ............................................................... FSC 001-007 2. Government Document (February 20, 2008) .................................................. FSC 008-015 3. Yahoo Brief (February 20, 2008) .................................................................... FSC 016-020 4. Government Brief (March 7, 2008) ................................................................. FSC 021-050 5. Yahoo Brief (March 19, 2008) ........................................................................ FSC 051-068 GROUP C: BRIEFS AND MATERIALS NOT CITED IN THE MEMORANDUM OPINION 6. Government Brief (December 11, 2007) ......................................................... FSC 069-073 7. Order (December 14, 2007) ..................................................................................... FSC 074 8. Government Brief (December 18, 2007) ......................................................... FSC 075-080 9. Yahoo Brief (December 18, 2007) .................................................................. FSC 081-084 10. Yahoo Brief (December 21, 2007) .................................................................. FSC 085-092 11. Government Brief (December 27, 2007) ......................................................... FSC 093-098 12. Second Order (December 28, 2007) ........................................................................ FSC 099 13. Third Order (December 28, 2007) ................................................... FSC 100-102 14. Fourth Order (December 28, 2007) .................................................. FSC 103-104 15. Yahoo Brief (January 9, 2008) ........................................................................ FSC 105-108 16. Order (January 10, 2008) ................................................................................. FSC 109-111 17. Government Brief (January 14, 2008) ............................................................. FSC 112-119 18. Order (January 17, 2008) ................................................................................. FSC 120-122 19. Yahoo Brief (February 7, 2008) ...................................................................... FSC 123-125 20. Government Brief (February 8, 2008) ............................................................. FSC 126-131 21. Order (February 12, 2008) ....................................................................................... FSC 132 22. Order (February 15, 2008) ............................................................................... FSC 133-134 23. Yahoo Brief (February 15, 2008) .................................................................... FSC 135-147 24. Government Brief (February 26, 2008) ........................................................... FSC 148-158 25. Order (February 29, 2008) ............................................................................... FSC 159-167 26. Government Brief (March 3, 2008) ................................................................. FSC 168-182 27. Order (March 5, 2008) ..................................................................................... FSC 183-185 28. Government Brief (March 14, 2008) ............................................................... FSC 186-195 29. Government Brief (April 16, 2008) ................................................................. FSC 196-203 30. Order (April 22, 2008) ..................................................................................... FSC 204-210 31. Government Brief (April 30, 2008) ................................................................. FSC 211-217 32. Government Brief (May 1, 2008) .................................................................... FSC 218-224 33. Order (May 2, 2008) ........................................................................................ FSC 225-227 34. Yahoo Brief (May 6, 2008) ............................................................................. FSC 228-242 35. Fourth Government Brief (May 9, 2008) ........................................................ FSC 243-248 36. Government Brief (May 13, 2008) .................................................................. FSC 249-256 37. Second Yahoo Brief (May 14, 2008) ............................................................... FSC 257-259 38. Order (May 14, 2008) ...................................................................................... FSC 260-261 39. Second Order (May 14, 2008) ......................................................................... FSC 262-264 40. Order (May 15, 2008) .............................................................................................. FSC 265 11 Approved for public release by the ODNI 20160408 SECRET l.~IlED FOREIGI\ C\TELUGE:\CE STATES SLRVEILLA~CE COCRT WASHTI\GTO:S. DC fN RE DIRECTIVES TO YAHOO INC. PLRSt'ANT TO SECTION I 05B OF THE FOREJG;\ ~TELLIGE~CE SURVElLLANCE ACT. lSk_ I Docket ~umber: I05B(gl 07-01 REPLY TO YAHOO l'C.'S SLR-REPL \" :Vlatthew G. Olsen Deputy Assistant Attorney General John C. Demers Deputy Assistant Attorney General Counsel co the .-\ss1stJnt Attc mey General Associate Counsel Office of Intelligence Pohcy and Ke\·ie\\ Attorney Advisors Offict: of lntdligence Policy and Review Counsel for National Security Law & Policy Office of Law and Policy '\;ational Security Divi~ion C .S. Department of Justice ~ECRET FSC 001 Approved for public release by the ODNI 20160408 SECRET INTRODUCTION (U) Pursuant to the Court's Order of December 28, 2007, the United States of America, through the undersigned Department of Justice attorneys, submits this reply to the sur-reply filed by Yahoo Inc. ("Yahoo"). Yahoo's assertion that the Court should not enforce the directives because they violate the Fourth Amendment rights of its customers fails for two independent reasons, either of which is sufficient to support the Court's rejection of Yahoo's claims. Most fundamentally, as detailed in the Government's Memorandum in Support of the Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General, the directives authorize surveillance that is fully consistent with the fourth Amendment. Additionally, however, as further developed below, Yahoo's objection fails because it may not vicariously assert the rights of its customers. The Court may dismiss Yahoo's constitµtional objections to the directives on either ground without reaching the other. ~ ARGUMENT (U) As the United States established in its Memorandum in Support of the Motion.to Compel, Yahoo may not vicariously assert the Fourth Amendment rights of third parties as part of its challenge to the Government's Motion to Compel. Not only is this principle well-established in Supreme Court precedent, 1 it has been applied by the Supreme Court and appellate courts in precisely this situation: to preclude a business from asserting the Fourth Amendment rights of its customers. See California Bankers Ass'n v. Shultz, 416 U.S. 21 (1974) (holding that a bank may not vicariously assert the Fourth Amendment rights of its customers); Ell west Stereo Theatres. 1 Alderman v. United States. 394 U.S. 165, 174 (1969) ("Fourth Amendment rights are personal rights which ... may not be vicariously asserted."); Minnesota v_ Carter, 525 U.S. 83, 88 (1998) ('"The Fourth Amendment is a personal right that must be invoked by an individual."); Rakas v. nlinois. 439 U.S. 128, 140 (1978) (sirmlar). (lJ) ' SECRET FSC 002 Approved for public release by the ODNI 20160408 SECRET Inc. v. Wenner, 681 F.2d 1243, 1248 (9th Cir. l 982) (holding that theater lacks standing to invoke the Fourth Amendment claims of its patrons). 2 ~ Yahoo's attempt to circumvent this fundamental constitutional principle by pointing to section 1805B(g)'s requirement that the directives be "otherwise lawful" fails for three reasons. First and foremost, it turns on its head the basic principle discussed above that an entity, such as Yahoo, may not assert the Fourth Amendment rights of third parties. As the Court explained in Rakas, this principle defines the substantive contours of the Fourth Amendment for the person invoking its protection. Rakas v. Illinois, 439 U.S. 128, 139 (1978). Yahoo has not even contested that the directives infringe its Fourth Amendment rights. With respect to Yahoo, therefore, there is no dispute that the directives are "otherwise lawful," and that is all the statute requires. 3 ~ Second, Yahoo's contrary interpretation of "otherwise lawful" would compel the Court to engage in a roving review of any conceivable infirmity in a directive, without the presence of the persons whose rights may be at stake and without even a guarantee that any imagined infirrillty is anything more than hypothetical. As the Supreme Court has long recognized, courts should avoid deciding "abstract questions of wide public significance" in circumstances in which "the claim is brought by someone other than one at whom the constitutional protection is aimed." Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (internal citations and quotations omitted). This 2 Yahoo's attempts to avoid the impact of the Shultz and Ellwest decisions by characterizing their holdings as dicta is meritless. See Sur-reply at 4 n.8. The Supreme Court's statement that the association and the bank could not "vicariously assert ... Fourth Amendment claims on behalf of bank customers in general" can only be read as a holding as it dismissed one of the claims of the association and the bank on that ground. 416 U.S. at 69. The same principle was a cornerstone of the Ninth Circuit's holding in Ellwest. 681 F.2d at 1248.~ 3 To the extent that Yahoo unplies that unless it raises the Fourth Amendment claims of U.S. persons such claims could not be raised at all, Yahoo is incorrect. As the Supreme Court stated in Alderman, there "is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it." Alderman, 394 U.S. at 174. lfthe Government uses this information against a target of the surveillance in a criminal proceeding, the target will have the opportunity to challenge the legality of the surveillance. -est-_ SECRET -2- FSC 003 Approved for public release by the ODNI 20160408 SECRET consideration is particularly applicable in the Fourth Amendment context because courts evaluating Fourth Amendment rights "are obliged to look to all the facts and circumstances of (the] case." South Dakota v. Opperman, 428 U.S. 364, 375 (1976). It is simply not possible for such facts and circumstances to be brought to the Court's attention where, as here, the persons whose rights may be implicated are not before the Court. 4 ~ Lastly, there is no indication in the text or elsewhere that Congress intended section 1805B(g) to require the Court to engage in such an inquiry at odds with the Supreme Court's instruction that "the Fourth Amendment is a personal right" and may only be asserted by the person who possesses it, Carter, 525 U.S. at 88. In the absence any such indication, the Court should not presume that Congress intended to require such a novel inquiry.~ Yahoo additionally argues that th~ Supreme Court's limitations on who may assert Fourth, Amendment rights is prudential, or judicially created, rather than constitutional in nature. Surreply at 4. This contention, however, is flatly inconsistent with Rakas. As the Court in that case explained, the principle that rights under the Fourth Amendment are personal and may not be vicariously asserted is not merely prophylactic, but a part of "substantive Fourth Amendment doctrine." Rakas, 439 U.S. at 139. This conclusion is a function of the text of the amendment itself. As the Supreme Court has written, the Fourth Amendment "protects persons against unreasonable searches of 'their persons [and] houses' and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual." Carter, 525 U.S. at 88 (emphasis added; brackets in original).~ 4 For instance, for the Court to adjudicate whether the rights of an American abroad are violated by an interception it would need to know the facts surrounding the particular communication to determine whether the person had a reasonable expectation of privacy in it. SECRET -3- FSC 004 Approved for public release by the ODNI 20160408 SECRET It follows directly from this holding, of course, that this principle extends beyond the context of the exclusionary rule to define the scope of the Fourth Amendment's protections. Accordingly, Yahoo is similarly mistaken in its assertion that "the so-called doctrine of' Fourth Amendment standing'" is inapplicable where "the limits of the exclusionary rule," are not at issue. Sur-reply at 3. In Shultz, the Supreme Court itself relied on Fourth Amendment standing principles outside the context of the exclusionary rule in rejecting the attempts of a bank and banker's association to avoid statutory reporting requirements based on the Fourth Amendment rights of customers. Shultz, 416 U.S. at 69 (holding that a bank and banker's association could not "vicariously assert ... Fourth Amendment claims on behalf of bank customers in general"). The courts of appeals, moreover, have routinely _applied these same principles to dismiss civil suits filed pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). 5 Against this authority, Yahoo cites Heartland Acad. Cmtv. Church v. Waddle, 427 F.3d 525, 532 (8th Cir. 2005). Sur-reply at 3. To the extent that Heartland Academy can be construed to limit this Fourth Amendment principle to the exclusionary rule, a proposition for which the court offered no support, it is squarely inconsistent with the Supreme Court's decision in Shultz, as well as the numerous decisions of the courts of appeals cited in note 5. ~ 5 ~~Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir. 1997) (holding in section 1983 action that law enforcement officer's removal of mother's children did not violate her right to be free from wrreasonable seizures since Fourth Amendment rights are personal rights that may not be vicariously asserted); Pleasant v. Lovell, 974 F.2d 1222, 1228-29 (10th Cir. 1992) ("To recover for a Fourth Amendment violation in a Bivens action plaintiffs must show that they personally bad an expectation of privacy in the illegally seized items or the place illegally searched."); Shamaeizadeh v. Cunigan, 338 FJd 535, 544 (6th Cir. 2003) (holding in section 1983 action that to assert a Fourth Amendment violation, plaintiff must show that the government's action in some way invaded his own reasonable expectation of privacy). (U) SECRET -4- FSC 005 Approved for public release by the ODNI 20160408 SEtRET CO~CLCSIO.N (T.J1 For thl! ri.:a:>ons stated abuve and m its opening and reply briefs, tht: Cnited Statej vf America requests that this Court grant its motion for an order compelling Yahoo's compliance:wnh the lawful directives of the Director of 'Sational lntelligeuce and Altomc::y General.~ Respectfully submitted, PIWbec-1¥vi John C. Demers Deputy Assistant .-\nomey Gi;niTELUGEi\CE SL'RVEILLAi\U: ACf.~ Docket Number: lOSB(g)-07-01 CERTIFICATE OF SERVICE (L) I hereb~ U:~rtii~ that, un February 2G, 2008, true and correct c0pies of the Court's FebruclI)' 15, 2001'.S Ex Parte Order tl1 the Government and the Cnited Stutes of Amerira's Response to b P.ute Order to Government .rnd \lotion hx LeaYe to File Cbssified Appendix for thl' Court's Ex Parte and In Camt?ra Review, without attilched classifkd append ix, were sub nutted, by 11.:md delivEry. to a Court-de.sign.1ll'd alternate Litigation Security Officer, for delin~ry to counsel of record for Y'1hoo Inc. 'ls( l".S. Department of Justice SECRET FSC 015 Approved for public release by the ODNI 20160408 SECRET- : ,. 1~1'i--. ., r .__- ~:; ~ \... - FOREIGN INTELLIGENCE Sl'RVEILLAt.'tCE COURT Dkt. No. 105B(G) 07-01 fN RE DIRECTIVES TO YAHOO! l~C PURSCA..'\lT TO SECTION 1058 OF THE FOREIGN INTELLIGENCE Sl.'RVEILLANCE ACT Motion for Disclosure of Filings UNDER SEAL Yahoo' lnc. ("Yahoo!"), through its undersigned counsel, hereby moves this Comt for disclusure of certain documents relied upon by the government in this matter. These documents include a decision of this Court that was cited in the government's February 15, 2008 filing. as well as the replacement Classified Appendix that the government now seeks to file in its Fcbrunr) 20. 2008 motion. Opinion Cited in the Government's Februarv 15. 2008 Supplemental Briefing l. On February 15, 2008, the government filed its Supplemental Brief on the fourth Amendment ("Supplemental Brief'). In that brief, the go\emment went well beyond anS\\ering tht: lim1tcJ question posed by the Court in its February 6. 2008 Order, and instead used the opportunity to reargue the questions of whether a warrant 1s required for foreign intelligence surveillance, 1 and whether the proposed acquisitions are reasonable under the Fourth Amcndment. 2 2. The only significantly "new" argument contained in the Supplemental Brief is the argument in Section 11(8) that the recent decision by this Court -- which purportedly upheld 1 Supplemental Brief, Section ll(AJ. pp. 4-5. =Id. Section Il(BJ. pp.6-10 SECRET FSC 016 Approved for public release by the ODNI 20160408 certam targeting procedures used under the PA ..\ -- demonsuatt:s the reasonahknes.s of the proposed acquisitions for purposes of Fourth Amendment analysis. Id. at 6, c/fi11g Ykm. Op. and Order. t 24. (Foreign Intel. Surv Ct. Jan. 15. 2008J("Procedures Opinson."); see id. at 9, citing Procedures Opinion at 13. n.15 (nddressing the Government's minimilation procedures). l 3. Yahoo! h:is never seen the Procedures Opinion and is not in a position to respond (lir tu seek lea\ e tu responJ) to the argument within Section II(B) without having reviewed a copy of the Procedures Opinion and determining its relevance to the issues in this matter. ... Accordingly, on February 19, 200S, counsel for Yahoo! contacted counsel for the go\'emment to request to ,·iew a copy of the Proc-.:durc::s Opinion (properly rt.:sure Subjec• to Criminal Sar·ctior.03 .• . FSC 021 Approved for public release by the ODNI 20160408 TOP SECRET/f-COMINT//ORCON,NOFORN UNITED STA TES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. ~ Docket Number: 105B(g) 07-01 GOVERNMENT'S RESPONSE TO THE COURT'S ORDER OF FEBRUARY 29, 2008 (U) The United States of America, through the undersigned Department of Justice attorneys, respectfully submits this response to the questions the Court posed in its Order dated February 29, 2008 in the above-captioned matter. ~ INTRODUCTION (U) The Protect America Act of 2007 ("the Protect America Act" or "the Act"), which amended the Foreign Intelligence Surveillance Act of 1978 ("PISA") empowered the Director of National Intelligence ("DNI") and the Attorney General jointly to "authorize the acquisition of foreign intelligence information" from persons reasonably believed to be outside of the United States for up to one year. 50 U.S.C. § 1805B(a). To ensure that TOP Sl!:CRET//COMINT//ORCON,NOFORN FSC 022 Approved for public release by the ODNI 20160408 TOP SECRETHCOMINTJ/ORCON,NOFORN the acquisition targets persons outside the United States and is done in a manner that protects the privacy interests of U.S. persons, the Act predicates any such authorization on certain determinations that must be reduced to a written certification. The determinations include that statutorily required targeting and minimization procedures are in place. JQ. § 1805B(a)(1). Acquisitions under the Act must be conducted "in accordance with the certification of the [DNI] and the Attorney General." Jd. § 1805B(d). ~ and the Government's Motion to Compel A. Consistent with these provisions, the Attorney General and DNI authorized a broad range of acquisitions following the enactment of the Act and executedseparate certifications pertaining to surveillance of different sets of targets. See - •1 The certifications both verified that the procedures the Government would employ in its acquisitions satisfied the statutory requirements of the Protect 1 The citations to "C.A. ~,herein refer to the page number of the doct1ment in the Classified Appendix filed by the Government on February 20, 2008. ~ TOP S~CRET//COMINT#OB.CON,NOFQRN 2 FSC 023 Approved for public release by the ODNI 20160408 TOI' SECRETNCOMINT//ORCON,NOFDR N America Act, and memorialized the respective authorizations for the acquisition of foreign intelligence information. As permitted by the Act, ~ the Attorney General and the DNI subsequently issued directives to communications providers, including Yahoo!, Inc. ("Yahoo"), ordering their cooperation in the acquisition of foreign intelligence information covered by the authorizations. ~ (directives). Each of those providers except Yahoo complied with the directives.~ On November 21, 2007, the Government filed a motion pursuant to section 1805B(g) to compel Yahoo's compliance witl~irectives issued to Yahoo2 by the DNI and the Attorney General pursuant to section 1805B(e) of the Act. 3 The 2 Each directive to Yahoo stated, in relevant part, as follows: ---------- --- -- - - - ---- ---~ -- - - ---- --------------- -------- - - - ------- - - - - -- --- - --~--- . - - Emphasis in original).Csl._ 3 O n - 2 0 0 8 , the Attorney General and DNI executed DNI/AG 105D Certification 08-01 . That certification, as well as the procedures by which the Government determines that ncguisition conducted pursuant to the authorization memorialized in that certification do not constitute electronic surveillance, were filed with this Court o~ 2008. As noted in the notices of filing accompanying those documents, the C:i0vernment is not at this time seeking to compel Yahoo's compliance in connection with quch acquisition. Indeed, at this time, the Government has not served directives upon Yahoo in connection with this acquisHion in consideration, in part, of !his pending litigation. Jf the Government serves such directives upon Yahoo, the Government will file notices to that effect in this docket.lfSifSI/f:IJF) _ 'fOP SECRETJJCOMINT//ORCON,NOFORN 3 FSC 024 Approved for public release by the ODNI 20160408 TOP SEERET//EOMl~T/JORCON,NOFORN Government subsequently filed a classified appendix containing and related materials, including affidavits, minimization procedures, and targeting procedures ("December 2007 Classified Appendix").~ B. First Amendment to (TSf/51/NF) to Permit the CIA to Receive Raw Take On December 14, 2007, the first amendment to was executed. Amendment 1. See C.A. 114-16. As explained in that amended certification and supporting documents, the Government modified existing National Security Agency ("NSA") minimization procedures and approved new minimization procedures for use by the Central Intelligence Agency ("CIA") in receiving uruninimi:zed communications ("raw take") acquired by NSA pursuant to the authorization contained in . See CA. 114-33. 111e amended certification verified that those modifications complied with the requirements of the Act. ('fSh'SI/NF) c. I to Provide Procedures for The DNI and the Attorney Ccnernl executed a second set of amendments to The amendments designated the Federal Bureau of Investigation (FBI and permitted it to TOP SECRET//EOMINT/-/OREON,NOFORN 4 FSC 025 Approved for public release by the ODNI 20160408 TOP Sl?.CRl?.TJ/COMINT//ORCON,NOFORN As explained in the amended certifications and - supporting documents, the Government, adopted additional targeting and minimization procedures to govern the FBI's acquisition o ~inimization procedures, and adopted new minimization procedures to govern Ill Se The amended certifications affirmed that these procedures satisfied section 18058(a) of the Protect America Act.~ D. Government's Classified Appendix and Yahoo's Access to Materials ~ On February 15, 2008, the Court issued an Order regarding the Government's classified appendix. See Ex Pa rte Order to the Government, Uocket No. 1058(g): 07-01 (Feb. 15, 2008). In response, the Government, among other things, moved for leave to file an updated classified appendix pursuant to 50 U.S.C. § 1805B(k) ("February 2008 Classified Appendix"). The February 2008 Classified Appendix, filed on February 20, 2008, contains the complete and up-to-date sets of certifications and supporting documents (including affidavits, procedures concerning the location of targets, and minimizations procedures) applicable lo the directives at is5ue in this proceeding and replaces in its entirety the December 2007 Classified Appendix. 4 Sec Response to Ex The government takes full rc~sponsibi:ity for its prior failure to file all thl.! appropriate documents, including the amended certifications with the Court in this docket and will emn1re thnt such problems elf or cffoctivdy cre<1ting a new on.for. The same holds true for amendml'lltli to the u:rtificatiuns in this cnse. "\St-. TOP SECRET//COMINTNORCON,NOFORN 10 FSC 031 Approved for public release by the ODNI 20160408 TOP SECRET1iCOMIN'fi10RCON,NOFORN Government amended its prior certifications under the Protect America Act to permit broader dissemination under similar minimization procedures and to allow the FBI to acquire certain information using minimization procedures and additional targeting procedures. In both cases, the authority under section 18058 to make the nccessury determinations as an initial matter also provides the authority to amend such determinations in response to a change in the procedures the Govemment uses in its acquisition of foreign intelligence information~ Construing the Act to preclude the Government from amending its existing section 1805B(a) certifications and remaking the determinations would simply require the Government to take the extra step of crafting a new certifications. Nothing in the Protect America Act remotely suggests that the Government is locked into the precise procedures that it used at the time the Attorney General and DNI first authorize acquisitions under the Act.l'i To the contrary, under section 1805B, the Attorney General 6 In fact, the Act dearly contemplates that, in certain circumstilnces, the Court may compel the Government to modify the procedures that it uses in acquisitions authorized under the Act. In particult1r, if the Court disapproves the Government's procedures for determining that targets of surveillance are re;isonably believec\ to be outside of the United States, the Act requires the Court to "issue an order directing the Government to submit~ procedures within 30 days or cease acquisitions under lthe ActJ that are implicated by the court's order." See 50 U.S.C. § 1805C(c) (emphasis c1dded). (U) Similarly, the Court has advised the Government to amend certain procedures. During a December 12, 2007 hearing concerning targeting procedures, Judge Kollar-Kotelly encouraged the Govemment to amend either the NSA targeting procedures or the NSA minimization procedures to add res In part in response to the Court's concerns, the Government amended the existing certifications. To hold that the Government does TOP SECRET//COMINTUORCON,NOEQR N 11 FSC 032 Approved for public release by the ODNI 20160408 TOP SECRET//COMINT//ORCON,NOJ:ORN and DNI could unquestionably issue a "new" certification verifying that the revised procedures Lhe Government wishes to implement are consistent with statutory requirements, and thereby permit the Govemment to conduct its acquisition using those procedures. 50 U.S.C. § 1805B(a). There is no reason to interpret the Protect America Act to require the C,overnment to take such a formalistic step, however, when the language of the Act could reasonably be interpreted to pennit the Government to provide the same assurances by amending the existing certification to account for revised procedures.~ Question 2. Assuming the Government can amend a certification under 50 U.S.C. § 1805b, is the i~:mce of an amended certification tantamount to the issuance of a new certification? t~ Answer. (U) No. The amendment of a certification is not in general tantamount to the issuance of a new section 1805B(a) certification.~ The changes in procedures that prompted the Attorney General and DNI to amend did not make any changes that would require the issuance of a new section 1805B(a) certification. To the contrary, the changes in procedures addressed by the amendments effectuated two internal modifications regarding the procedures for conducting acquisitions and handling foreign intelligence not have the ability to amend certifications in order to make changes to the procedmes that underlie the certifications would thus run counter to the statutory language, as well as direction of this Court to make just such modifications. CTSit.l~l//~lll). TOP SECRET.l/COMINT.l/ORCON,~OFORN 12 FSC 033 Approved for public release by the ODNI 20160408 TOI' SECitETi/COMINT/JORCON,NOFORN information consistent with the Protect Act America Act: (1) they permit the NSA to disseminate "raw take" to CIA, and provide the minimization procedures CIA will use when processing such information; and (2) they provide procedures by which the FBI may o b t a i n - the acquisition of which was already authorized. These are preciseJy the sorts of procedural modifications that are appropriately addressed by an amendment to the existing section 1805B(a) certification. Thus, while there may be instances in which the Government seeks to amend a section 1805B(a) certification in ways that are so substantial that the amendment could be said to be "tantamount" to issuing a new certification, the relatively minor modifications that prompted the amendments here do not approach the sorts of changes that would have such an effect.~ Significantly, the amendments to the existing certifications do not purport to replace those certifications. Rather, the amendments build upon the existing certifications to take account of the additional procedures that the Government intended to use. For example, with respect to the amendment to Certificationpermitting dissemination of raw take to the CIA, the underlying affidavits make clear that the Government was not in any material way modifying the underlying procedures-including the NSA targeting procedures-that had been determined to meet the statutory requirements in the original certification. The affidavits simply provided that the NSA's minimization procedures would be TOP SeC&i:TA'COMINT/./ORCON,NOFORN 13 FSC 034 Approved for public release by the ODNI 20160408 TOP 5ECRET,l/COMIN1WOll:CON,NOFOttN modified to permit dissemination of unminimized communications to the CIA, and that the CIA would process such information using minimization procedures that the Attorney General and DNI have approved as consistent with section lOl(h) of FISA, 50 U.S.C. § 1801(h). See CA. 116. Accordingly, the only determination that the DNI and Attorney General made, and could make, in executing the amendments to the certification was that the amended minimization procedures proposed by NSA and the additional minimization procedures used by the CIA themselves met the definition of minimization procedures. The previous determinations of the ONI and Attorney General under the original certification based on the procedures described in the supporting affidavits remain intact. Indeed, because the amendments standing alone arc insufficient to constitute the full set of determinations required by the Protect America Act, the original certification remains essential to ensure that statutory requirements arc met.~ The same is true of the second set of amendments permitting the rBJ to obtain - and disseminate them within the Government. The affidavits accompanying those amendments made dear that the only material changes being adopted were the targeting and minimization procedures to be used by the FBill -the acquisition of which is authorized by both the existing authorizations and the directives issued to Yahoo. See TOP SECRETHCOMINT//ORCON,NOFORN 14 FSC 035 Approved for public release by the ODNI 20160408 TOP SECRETHCOMINT//ORCON,NO~Oll N Moreover, even the additional targeting and minimization procedures addressed by the amendment represented relatively minor changes to the procedures already determined to meet the statutory requirements as reflected in the section 1805B(a) certification. fBl's targeting procedures were to be applied As a result, the FBI's targeting procedures serve as . Because the original certification reflected the determination that the NSA targeting procedures satisfied the Protect America Act standing alone, it necessarily follows tha Similarly, when the FBI disseminates the "raw take" of its acquisition to NSA or CIA, those agencies would apply minimization procedures that are substantially similar to the procedures the Attorney General and DNI had already determined satisfy the statutory requirements in a previous certification. ~ Accordingly, TOP SECRETl/COMINT/IORCON,NOFORN 15 FSC 036 Approved for public release by the ODNI 20160408 TOP SECRETNCOMINTNORCON,NOFORN the FBI amendments to the certifications simply bolstered the original certification by verifying that the FBI's supplementary minimization procedures also met the requirements of the Protect America Act. Se In sum, because the modifications addressed in the amended certifications are wholly procedural in nature and do not relate to the Government's core collection authority, those additional certifications constitute amendments to the original certification-and are not tantamount to "new certifications."-CTSi/SI/:>rP) Even if the Court elects to treat the amended certifications as effectively new certifications, however, that determination would have little impact on this litigation. For the reasons explained in response to Question 3 below, so long as the authorization for the acquisition of foreign intelligence information is not changed or modified in a substantive way (e.g., by extending its length), the directive issued pursuant to the authorization is valid and requires the provision of assistance by the person receiving the directive- whether or not the authorization is supported by an amended certification or a new certification. (S)_. Question 3. Can the Government rely on a pre-existing directive if it amends a certification, or does it need to issue a new directive pursuant to the amended certification? Does the answer depend upon the nature of the amendment? '(S)__ Answer. (U) Yes. For the reasons explained below, the Attorney General and DNI need not issue a new directive when they amend a certification to account for new procedures TOP SECRETHCOMINTt!ORCON,NOFOB N 16 FSC 037 Approved for public release by the ODNI 20160408 TOP SECRETh'COMINTHORCON,NOFORN the Government wishes to implement. This is true even if they issue a new section 1805B(a) certification supporting an existing authorization. (U) The Protect America Act distinguishes between the Attorney General's and DNI's authorization of acquisition of foreign intelligence information and the written certification that must reflect the determinations required by the Act. While the certification must reflect determinations that the acquisition will comply with statutory criteria, the acquisition itself occurs pursuant to the authorization of the Attorney General and DNI, not pursuant to their certification. Section 1805B(a) makes this clear by, for example, allowing the authorization of acquisitions without making the determinations in a written certification where "immediate action is required and time does not permit the preparation of a certification." 50 U.S.C._§ 1805B(a). In addition, the Act provides that "authorizations for the acquisition of foreign intelligence information pursuant to the [Protect America Act] ... and directives issued pursuant to such authorizations" remain in effect following the sunset of the Act. Id.§ 1805C(d). The sunset provision's reference to authorizations and not certifications confirms that the acquisition takes place pursuant to an authorization, not a certification. Finally, the certifications required by the Act require limited determinations, which are not themselves adequate to describe the authorization granted. (U) Because directives are issued pursuant to authorizations by the Attorney General and the DNI, not certifications, the amendment of a section 1805B(a) certification-or TOP SECREr//COMINT#ORCON,NOFORN 17 FSC 038 Approved for public release by the ODNI 20160408 TOP SECRETNCOMINT//ORCON,NOrORN even the issuance of u new section 1805B(a) certification rclntcd to an ongoing authorization-does not generally require the issuance of a new directive to providers. ~ 50 U.S.C. § 1805B(e) ("With respect to an authorization of un acquisition under [50 U.S.C. § 18058], the DNI and the Attorney General may direct a person to immedilltely provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition ... ") (emphases added); id.§ 1805C(d) (referring to "directives issued pursuant to such authorizations"). A new directive is required only if there is a new authorization for the acquisition of foreign intelligence information, for example where the Government makes changes to its acquisition in way thut expands the µI)rlerlying authorization,~ by extending the time for which the authorization would be in effect. The Government thus can rely upon a pre-existing directive if it amends a certification. (U) Consistent with this statutory framework, the Government's directives to Yahoo were issued pursuant to an authorization under 50 U.S.C. § 1805B(a) and not the particulur section l 805B(a) certifications reflecting the statutorily required determinations. 'lb be sure, the directives refer to u specilic certification and note that the execution of the certification "thereby authorizeled] the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States." See Yahoo directives). But this merely reflects that, with respect to each of the directives received by Yahoo, the authorization for the TOP SECRETh'COMINT//ORCON,XOFORN 18 FSC 039 Approved for public release by the ODNI 20160408 TOP SECRETNCOMINTHORCON,NOFORN acquisition of foreign intelligence information is recorded in the same document as the certification of the determinations required by section 1805B(a)(1H5). See 50 U.S.C. § 1805B(a). It does not, and could not, change the statutory requirement that directives be issued pursuant to authorizations, not pursuant to a certified document recording the five required statutorily required determinations.~ In this case, as discussed in response to Question 2, none of the changes to the procedures the Government uses in its acquisitions altered the acquisition(~., by extending its duration). Accordingly, by any measure of what changes would constitute a new "authorization" under the Act, the changes here fall short. Accordingly, the Government's acquisition continues to operate under the original authorizations, and no new directive was required to be issued.~ That the procedural modifications made pursuant to the amendments do not require the Government to issue an additional directive is further supported by the practice of this Court with respect to traditional FISA orders, as discussed above. When the Court has amended primary FISA orders, e.g., to permit the Government to employ revised minimization procedures with respect to a particular collection, it has not issued new secondary orders to the provider, directing their compliance with the revised primary order. Rather, as here, the Court has relied on its original secondary orders as sufficient to require compliance with the primary order as amended. See. e.g., In re TOP SECRET//COMINT#ORCON,NOiORN 19 FSC 040 Approved for public release by the ODNI 20160408 TOP 8ECRE1'N€0MINT//ORCON,NOFORN Question 4. If the Government can amend certifications without issuing new directives, then how can the recipi~nt of a directive obtain meaningful judicial review of the legality of the directive? ~ Answer. (U) The fact that the Government may amend certifications or even issue new certifications without issuing new directives does not affect the ability of a provider to obtain meaningful judicial review of the legality of a directive for two reasons.~ First, at the time a provider must decide whether to comply with a directive or seek review of a directive via a petition lo this Court, the provider does not have access to the authorization, the certification that render the acquisition lawful under the Protect America Act, or any of the underlying materials supporting the certifications. The only information that a provider has received is a general directive requiring it to provide the Government with the specified assistance. See,~ CA. 30 (directive issued to Yahoo); 50 U.S.C. § 180SB(e). Thus, at the point at which a provider must decide whether to comply with a directive or to challenge it, the provider's decision necessarily turns on the fact of receiving a directive, not on the specifics of the authorization, the underlying certification, or the procedures or affidavit supporting the certification. Therefore, Government's authority to revise the procedures it uses in TOP SECRETNCOMINTNORCON,NOFORN 20 FSC 041 Approved for public release by the ODNI 20160408 TOf' SECRET//COMINT//ORCON,NOFORN acquiring foreign intelligence information has no affect on the ability of a provider to seek judicial review of a directive.~ Second, in the event that a provider challenges a directive or the Government seeks to compel a provider to comply with a directive, the Government's authority to modify its procedures in the course of its acquisition similarly does not affect the provider's ability to obtain meaningful judicial review. While litigation is pending before this Court regarding the legality of directives under the Protect America Act, the Government has an obligation to alert this Court to any material change that may affect the Court's decision. This obligation extends to any material changes made to an authorization, an accompanying certification, or the procedures the Government uses in the course of its acquisition of foreign intelligence information. The Government's obligations to keep the Court informed of changes that may inform its analysis are amplified where as here the materials at issue are filed ex parte. See ABA Model Rules, Rule 3.3(d) ("In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal lo make an informed decision, whether or not the facts are adverse."). The Government further has the duty to notify the Court anytime that it amends a materially certification in response to changes in the procedures it uses in its acquisition. See 50 U.S.C. § 1805B(c) (providing that the "Attorney General shall transmit as soon as practicable ... to the court ... a copy of a certification made under subsection (a)"); see also Foreign Intelligence Surveillance TOP SECRET//COMINT//ORCON,NOFORN 21 FSC 042 Approved for public release by the ODNI 20160408 TOP SECRETHCOMINTh'ORCON,NOFORN Court, Rules of Procedure, Rule lO(b) (effective February 17, 2006) ("If the Government discovers that a submission to the Court contained a misstatement or omission of material fact, the Government, in writing, must immediate inform the Judge to whom the submission was made ... "). TI1is obligation would continue, of course, if this Court were to compel a provider to comply with a directive for the entire period covered by the directive. 7 ~ In light of these obligations to keep the Court apprised of any material changes in the procedures the Government uses in its acquisition, the Government's ability to modify those procedures-· and corresponding authority to amend the certifications related to acquisitions-does not deprive a provider of meaningful judicial review. The Court would have the opportunity to consider how any changes to the Government's procedures affect its analysis, along with the authority to take any steps that it believes appropriate to address those changes, including ordering additional briefing or revoking any existing orders. This authority ensures that any provider choosing to seek review of a directive (or forcing the Government lo compel its compliance) will be able to obtain meaningful judicial review of the legality of the directive~ See ABA Model Rules, Rule 3.3(c); District of Columbia Rules, Rule 3.3(c) & cmt. 12; If. Board of J,icense Comm'rs of the Town of Tiverton v. Pastore, 469 U.S. 238, 240 (1985) (per curiam) (dismissing a case as moot but noting that "[i]t is appropriate to remind counsel that they have 'a continuing duty to inform the Court of any development which may conceivably affect the outcome' of lhe Ii ligation.") (quoting Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., concurring)). (U) 7 TOP SECRETHCOMINTHORCON,NOFORN 22 FSC 043 Approved for public release by the ODNI 20160408 TOP SECRETNCOMINTl/ORCON,NOFORN Last, it is worth noting that requiring the Government to issue new directives to a provider each time it made amendments to a certification or the underlying materials would not enhance the provider's access to judicial review. In almost all circumstances, the new directives issued to the provider would be substantively identical to the directives the provider had previously received. The similarity of directives, even relating to different authorizations, is apparent in the-directives issued to Yahoo. The only differences between the . . directives are the name of the certification (e.g. ), the dates on which U1e certification was executed, and the date the directives expire. . It is difficult to see how receiving multiple, identical directives would affect a provider's ability to challenge the legality of the Government's acquisition. Moreover, such a regime risks the disclosure of classified information to the provider under circumstances that would not warrant the disclosure.\S}Question 5. Assuming the Government can amend a certification under certain circumstances, can it do so for the purpose of instituting new procedures for determining that the acquisition concerns persons reasonably believed to be located outside the United States or for the purpose of changing the underlying minimization procedures?~ Answer. (U) Yes. As explained in detail in the Government's responses to questions 1 and 2 above, the Government may amend certifications to institute new targeting procedures TOP SECRET//COMlNT!/ORCON,NOEOR.S 23 FSC 044 Approved for public release by the ODNI 20160408 TOP 8ECRETHCOMINTHORCON,NOFORN or minimization procedures or to change or supplement existing procedures. This authority, which derives from the Government's statutory obligation to iluthorize acquisitions based on the determinations required by statute and reduced to written certifications, is similar to this Court's authority to amend pre-existing orders to supplement the minimization procedure approved for use under that pre-existing order • (TS//51!/NF) Question 6. Can the Government submit new procedures to this Court for review under SO U.S.C. § 1805c more than 120 days after the effective date of the Protect America Act, but prior to the annual update envisioned by the statute?~ Answer. {U) Yes. Where the Government authorizes new acquisitions of foreign intelligence information after 120 days and certifies that the requirements of the Protect America Act are met, the plain language of the Act requires the Government to submit new procedures to the Court. See 50 U.S.C. § 1805B(c). Thus, section 1805c must be read consistent with this statutory requirement to permit the Government to submit new procedures to this Court more than 120 days after the Protect America Act became effective. (U) Under 50 U.S.C. § 1805B, the Attorney General and the DNI could authorize the acquisition of foreign inte11igence information at any time from August 5, 2007, the TOP SECRET//COMINTNORCON,NOPORN 24 FSC 045 Approved for public release by the ODNI 20160408 TOP S~CR~T,\'COMINT//ORCON,NOFORN effective date of the Protect America Act, through February 16, 2008, 195 days after the effective date of the Protect America Act. 8 See 50 U.S.C. § 1805B(a). For each acquisition under section 18058, the Government is required to submit the relevant procedures to the Court for review under section 1805C. 50U.S.C.§1805B(a)(l) (requiring the Attorney General and DNI to determine, inter alia, that "there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act") (emphasis added). Because the Government is required to certify that its targeting procedures for each acquisition it authorizes-including those initiated after the 120-day period-will be reviewed under section 1805C, the statute specifically envisions that if such acquisitions are authorized after the initial 180-day period has passed, but before the annual update and submission required by 50 U.S.C. § 1805C(a), the Court must accept targeting procedures more than 120 days after the Act's enactment. See 50 U.S.C. § 1805B(a)(l).9 (U) a Congress passed a fifteen-day extension of the PAA, so the PAA did not actually sunset until midnight on February 16, 2008. (U) 9 The alternative interpretation-prohibiting the Government from filing new or amended procedures after 120 days-would create an anomalous situation in which the Attorney General and the DNI could authorize acquisitions under section 18058 but could not submit the relevant procedures to this Court for review under section 1805C. Such an interpretation would be contrary to the evident intent of Congress to ensure oversight of each such acquisition through this Court's review of the relevant TOP SECRETNCOMINTl/ORCON,NOFORN 25 FSC 046 Approved for public release by the ODNI 20160408 'fOI' SECRET/JCOMINTHORCON,NOFORN In addition, the Protect America Act expressly requires this Court to order the Government to file new targeting procedures if this Court deems those procedures insufficient in the course of its review under under section 1805C. See SO U.S.C. § 1805C(c) (requiring this Court to "issue an order directing the Government to submit new procedures within 30 days or cease any acquisitions under section 1058 that are implicated by the court's order" if it finds the Government's determination regarding its targeting procedures to be clearly erroneous). Because the Court's review is to be completed 180 days after the enactment of the statute (Pebruary 1, 2008), see SO U.S.C. § 1805C(b), such an order could require the filing of such procedures after the initial 120 day window. Thus, the submission of new procedures to this Court after December 3, 2007, is consistent with, and under certain circumstances, required by the plain language of the Protect America Act. (U) Section 1805C does not create any ambiguity with respect to the Government's ability to submit procedures to this Court after December 3, 2007. Although that section imposes requirements on the Government with respect to the initial submission of targeting procedures, it does not bar the Government from submitting procedures for review after December 3, 2007. This construction of section 1805C makes the submission of targeting procedures to this Court for its review consistent with the procedures. See 1805B(a)(l) (requiring that the Government's determinations regarding targeting procedures for each acquisition authorized pursuant to the Protect America Act "will be subject to review of the Court pursuant to section 105C"). (U) TOP SECRET//COMINT//ORCON,NOFORN 26 FSC 047 Approved for public release by the ODNI 20160408 TOP 8ECRETNCOMINT,~1 0RCON,NOPORN acquisilion authority granted in section 1805Tl-which permits the authorization of acquisitions beyond the initial 120-day window and requires the submission of procedures for such acquisitions-and does not render the 120-day requirement in section 1805C superfluous. See Eood & Drug Admin. v. B[Own & Williamson Tobacco Qmi., 529 U.S. 120, 133 (2000) (court must interpret statute "as a symmetrical and coherent regulatory scheme, and fit, if possible, all pnrts into an harmonious whole") (internal quotations and citations omitted). (U) Finally, interpreting section 180SC to bar the Government from submitting any procedures after December 3, 2007, would preclude the Government from submitting amended procedures to lhe Court whenever the Government discovered a need to improve its targeting procedures or when this Court recommends an amendment to such procedures in the course of its review under section 1805C. :"Jothing in the Act supports this result. As discussed above in response to Question 1, the Act affirmatively contemplates that the Government may alter certain procedures in the course of an acquisition. Indeed, the amendments made to the certifications underlying the directives at issue here were just such amendments. First, the Government determined that it needed supplementary procedures to disseminate raw take tu the CIA under Certification.and to allow the FBI lo Second, the Court suggested, al a December 12, 2007, hearing on the Government's targeting procedures (130 days after the effective dale of the PAA), that the Government amend TOP SECRETHEOMINTl/ORCON,NOFORN 27 FSC 048 Approved for public release by the ODNI 20160408 - TOP SECRETh'COMINT//ORCON,NOFORN the targeting or minimization procedures underlying the directives at issue in this litigation. See Dec. 12, 2007 Hrg. Tr. at 22-23. These changes were perfectly consistent with the Protect America Act; there is, for the reasons stated above, no basis for construing the Act to preclude the Court from reviewing them.~ TOP SECRETf/COMINTHORCON,NOFORN 28 FSC 049 Approved for public release by the ODNI 20160408 l OP SECKETh'COMINlWORCON,NOFORN Respectfully submilted, . 01\~ \~L0sJiv_~\. ) John A. Eisenberg Deputy Assistant Attorney General \,fatthew G. Olsen Deputy Assistant Attorney General Juhn R. Phil1 ips Juhn C. Demers Attorney Counsel to the Assistant Attorney General Counsel to the Assistant Attorney General Deputy Assistant Attorney General Advi~or Office of Legal Counsel United States Department of Ju::;tice Associate Counsel Office of Intelligence Policy and Review Allornt!y Advisors Office of lntelligcncc Policy and Review Counsels for National Security Law & Policy Office of Law and Policy National Security Division United States Department of Juslice TOP SECUETl/COMIXT//ORCON,NOFORN 29 FSC 050 Approved for public release by the ODNI 20160408 SECRET FOREIGN INTELLIGENCE SURVEILLANCE COURT Dkt. No. lOSB(G) 07-01 Yahoo! Inc.'s Supplemental Briefing on Protect America Act Statutory Issues IN RE DIRECTIVES TOY AHOO! INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT UNDER SEAL MARC J. ZWILLINGER Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W. Suite 600; East Tower Washington, DC 20005 Tel: (202) 408-6400 Fax: (202) 408-6399 mzwillinger@sonnenschein.com Attorneys for Yahoo! Inc. March 19, 2008 SECRET FSC 051 Approved for public release by the ODNI 20160408 SECRET INTRODUCTION On March 5, 2008, this court ordered Yahoo! to respond to six specific questions related to the government's attempt to amend the certifications on which the directives at issue in this litigation were based. Because some of the questions are inextricably related, Yahoo! has grouped the court's questions into three sections addressing: (1) the effect of the new certifications; (2) the interplay between the new certifications and the old directives; and (3) the effect of the government's updates to the procedures for determining that targets of the surveillance are located outside the United States. In addition, section four of this memorandum addresses the effect of the February 15, 2008 expiration of the Protect America Act of 2007, Pub. L. No: 110-55, 121 Stat. 552 (2007) ("PAA") and how its expiration mandates that the Court deny the government's motion to compel. As described below, given that the certifications of the Attorney General and the Director of National Intelligence provide the sole legal basis upon which any foreign intelligence acquisitions can be conducted under the PAA, any attempts to amend the certifications that purport to change the way in which the acquisitions shall be conducted must be treated as new certifications. Such new certifications require the issuance of new directives because the authority under which the prior directives have been issued - the original certifications - are no longer valid and in force. Given that no new directives were issued to Yahoo! while the PAA was still in effect, the government's motion to compel must be denied. Finally, due to the expiration of the PAA, this court no longer has jurisdiction to resolve the government's motion to compel because Congress provided no explicit savings clause that would allow this court to retain jurisdiction over disputes related to directives that were not implemented prior to the expiration of the PAA 2 SECRET FSC 052 Approved for public release by the ODNI 20160408 -SECltET - ARGUMENT Before it expired, the PAA permitted the government to authorize the acquisition of "foreign intelligence information concerning persons reasonably believed to be outside the United States." Congress' grant of authority, however, was subject to specific statutory 1 requirements. Before acquiring communications under the authority of the PAA, the Director of National Intelligence and the Attorney General must first determine that five key statements are accurate: (I) (t]here are reasonable procedures are in place for detennining that the acquisition of foreign intelligence infonnation under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to the review of the Court pursuant to section l 805c of this Title ("Targeting Procedures"); (2) the acquisition does not constitute electronic surveillance; (3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications provider, [or other person] who has access to [such] communications ... ; (4) a significant purpose of the acquisition is to obtain foreign intelligence information; and (5) the minimization procedures to be used with respect to such acquisition meet the definition of minimization procedures under section 1801 (h) of this title. See 50 U.S.C. § 1805b(a)(l)-(5). These required findings limit the executive branch's authority under the PAA and are statutory (although not constitutionally sufficient) prerequisites for the government's acquisition of private communications with no prior judicial authorization. Congress did not set forth these findings as mere suggestions for the government to consider, but instead required the 1 As Yahoo! has argued in its earlier submissions to this Court, the certification requirements imposed in 50 U.S.C. § l 805b (2008) are inadequate to protect the rights of United States persons under the Fourth Amendment because they permit the government to acquire the contents of communications in which United States persons have a reasonable expectation of privacy without prior authorization from a neutral and detached magistrate. Nothing in this memorandum should be read to undermine that position. 3 SECRET FSC 053 Approved for public release by the ODNI 20160408 Govcnuncnt's detcm1inatio11 regarding these factors to he certijic•d in "-Titing by both the Director of National Intelligence and the Attorney General. 18 lJ.S.C. § 1805b(a). Moreover, Congress required that the findings be supported by evidence in the fonn of affidavits from high ranking govenunem officials - Presidential appointees subject to Senate confirmation or the Head of any Intelligence Committee Agency. fd. To ensure the accuracy of these affidavits, and thus the legitimacy of the asserted basis for surveillance, Congress required the contents of the affidavits supporting the certification to be verified under oath. Id. Finally, Congress required the certifications to be filed, wider seal, with the FISC so that the certification:s could be scrutinized in the event that a directive based on one of the certifications is challenged. 18 U.S.C. §1805b(c). Given these requirements, the cenification process set forth in§ I805(b) is not a mere fonnality. Under the framework for the PAA. these certifications provide the authority for conducting acquisitions that may involve the private communications of U.S. persons and are comparable in ej]"ece to a court order authorizing surveillance under Title Ill or FJSA. Although the PAA docs not sufficiently protect the Fourth Amendment rights of United States persons against warrantless interception of their private communications, it was designed to impose some limits on the executive branch. Indeed, the process is the un(v safeguard provided under the PAA to protect United States persons against improper surveillance. I. NEW CERTJFICATIONS WERE FILED IN Any attempt by the government to materially amend the certifications that provided the authority for issuing the directives served on Yahoo! in this matter should be treated as if the government were filing new certifications. served on Yahoo! in [n this case, the directives that were pccifically reference certifications that were filed in 4 SECRET FSC 054 Approved for public release by the ODNI 20160408 SF.CRET 2 The government's statutory authority to conduct the acquisitions for which it seeks Yahoo! 's assistance is predicated entirely upon the findings contained in those certifications antl the sworn affidavits and Targeting and Minimization Procedures that are required elements of the certifications. Months after this litigation was pending, the Court apparently recognized that the government had filed, in other dockets, documents that purported to amend the specific certifications at issue here and asked the govemment whether it intended those amendments to apply to the certifications that provided the authority for the directives issued to Yahoo!.J in response, the government clarified that it intended the more recent documents to apply here and filed a new classified appendix in this docket containing new procedures and affidavits, thus attempting to modify the existing certifications:' This exchange between the Court and the government, as well as the questions posed by the Court, suggests that the new certifications contain changes to either the Targeting Procelfrt0}1R1ltN'1- UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT . WASHINGTON, DC IN RE DIRECTJVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. 't&l ~, . .-- ( ' '·- Docket Number: 105B(g) 07-01 EX PARTE MOTION FOR LEAVE TO FILE CLASSIFIED INFORMATION FOR THE COURT'S EX PARTE AND IN CAMERA REVIEW (U) The United States of America, through the undersigned Department of Justice attorneys, hereby moves this Court for leave to file the attached classified information pursuant to section lOSB(k) of the Foreign Intelligence Surveillance Act of 1978, as amended (FISA or the Act). The grounds for the motion are as follows:~ 1. On November 21, 2007, the government filed a motion pursuant to section lOSB(g) to compel Yahoo's compliance with .direclives issued Lo Yahoo Inc. ("Yahoo") by the Director of National Intelligence and the Attorney General pursuant to section lOSB(e) of the Act~ SECRET//COMINT//ORCON,NOl'ORN FSC 186 Approved for public release by the ODNI 20160408 SECRETHCOMINT//ORCON,NOl'ORN 2. On December 11, 2007, the government filed with the Court a Memorandum in SL1pport of the Government's Motion to Compel Compliance with the Directives of the Director of National Intelligence and Attorney General ("Gov't Mem."). The government attached as an exhibit to the Memorandum excerpts of the "Department of Defense Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons," DoD 5240.1-R, Proc. 5, Pt.2.C ("DoD Procedures"). The government also discussed the DoD Procedures in its Memorandum for the sole purpose of describing the findings the Attorney General must make to authorize acquisition against a U.S. person overseas pursuant to section 2.5 of Executive Order 12333. See Gov't Mem. at 15-16. ~ 3. On January 3, 2008, the Attorney General signed the "Department of Defense Supplemental Procedures Governing Communications Metadata Analysis," which purported to supplement the DoD Procedures ("Supplement to DoD Procedures"), a copy of which is attached hereto as Exhibit A. The Supplement to DoD Procedures concerns the analysis of communications metadata that has already been lawfully acquired by DoD components, including the National Security Agency (NSA). Specifically, the Supplement to DoD Procedures clarifies that NSA may analyze communications metadata associated with U.S. persons and persons believed to be in the United States. The Supplement to DoD Procedures does not relate to the findings the Attorney General must make to authorize acquisition against a U.S. person overseas SECRET//COMINT,t/ORCON,NOFORN FSC 187 Approved for public release by the ODNI 20160408 SECRETHCOMINTh'ORCON,NOFORN pursuant to section 2.5 of Executive Order 12333. The minimization procedures approved for use under each of the certifications contain no restrictions that would prohibit NSA from conducting the analysis of communications metadata acquired under the certifications. NSA will continue to comply with those minimization procedures, including with any restrictions on the dissemination of information. (S//SI//OC,NF) 4. This motion constitutes the government's request under section 105B(k) that the Court review ex parte and in camera the classified information attached hereto as Exhibit A. 1 The government has styled this request as a motion for leave to file classified material, although section 105B(k) speaks in mandatory terms, providing that "the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information."R 5. Because the government is filing this motion ex parte and because the motion contains information for which Yahoo's counsel does not have the appropriate clearances nor the need-to-know, it has only provided Yahoo with a notice of filing The government recognizes that portions of the Protect America Act recently ceased to have effect. This fact does not affect this litigation or this motion, however, because section 6(d) of the Protect America Act (which is not subject to the sunset contained in section 6(c) of the Protect America Act) provides that "[a]uthorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration." Further, this Court's authority to enforce such directives under section 105B(g), as well as the government's ability to file the attached classified appendix under section 105B(k), are unaffected because Section 6(d) provides, in relevant part, that "(s]uch acquisitions shall be governed by the applicable provisions of such amendments."~ 1 SECRETNCOMINT//ORCON,NOEOU N FSC 188 Approved for public release by the ODNI 20160408 S~CRET//COMINT//ORCON,NO:FORN regarding this motion and does not intend to provide the motion or the attached classified information to Yahoo.~ WHEREFORE the United States of America, by counsel, respectfully requests that the Court review the classified information attached hereto as Exhibit A ex parte and in camera. A proposed Order is attached hcreto. lS).._ ty Assistant Attorney General Associate Counsel Office of Intelligence Policy and Review Attorney Advisors Office of Intelligence Policy and Review National Security Division United States Department of Justice SECRET//COMINT//ORCON,NOFORN FSC 189 Approved for public release by the ODNI 20160408 SECRE'fHCOMINTHORCON,NO:PORN UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 1058 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: lOSB(g) 07-01 ORDER TI1e United States, pursuant to section 105B(g) of the Foreign Intelligence Surveillance Act of 1978, as amended (PISA or the Act), has moved this Court for an order compelling Yahoo Inc. to comply with irectives issued by the Director of National Intelligence and Attorney General pursuant to section 105Il(e) of the Act. Pursmmt to section lOSB(k) of the Act, the United States now requests leave to file classified information for ex parte and in camera review by the Court, and it appearing that such motion should be granted, IT JS HEREBY ORDERED, pursuant to the authority conferred on this Court by the Act, that the motion of the United States is GRANTED, and it is SECftE'fh1COMINTl/ORCON,NOFORN FSC 190 Approved for public release by the ODNI 20160408 SECRET.l/COMINT,l/ORCON,NOFORN FURTHER ORDERED that the classified information submitted by the government in the above-captioned matter is accepted for ex parte and in camera review by the Court. Signed __________________ E.T. Date Time REGGIE B. WALTON Judge, United States Foreign Intelligence Surveillance Court SECRITT/!COMINTJ,IORCON,NOFORN FSC 191 Approved for public release by the ODNI 20160408 SECRE I l/COMll\fT17ftl~:L TO USA, AUS, CAN, GBR, NZLH2029 l I 23 of Defense Supplemental Procedures Governing Communications Metadata Analysis ~epartment Sec. 1: Purpose in DoD Regulation 5240.1-R and the ClassifiedAnnex thereto. These procedures govern NSA's analysis of data that it has already lawfully collected and do not authorize collection of additional data. These procedures also clarify that, except as stated in section 3 below, the Procedures in DoD Regulation 5240.1-R and the Classified Annex thereto do not apply to the analysis of communications metadata. ~These procedures supplement the Procedures found - Sec. 2: Defmitions ~ommunications metadata means the dialing, routing, addressing, or signaling information associated with a communication, but does not include infonnation concerning the substance, purport or meaning of the communication. The two principal subsets of corrununications metadata are telephony metadata and electronic communications metadata. (a) Telephony "metadata" includes the telephone number of the calling party, the telephone number of the called party, and the date, time, and duration of the call. It does not include the substance, purport, or · meaning of the communication. (b) For electronic communications, "metadata" includes the information appearing on the "to," "from," "cc," and "bee" lines of a standard e-mail or other electronic communication. For e-mail communications, the "from1' line contains the e-mail address of the sender, and the "to," "cc," and "bee" lines contain the e-mail addresses of the recipients. "Metadata 11 also means (1) information about the Internet-protocol (IP) address of the computer from which an e-mail or other electronic communication was sent and, depending on the circumstances, the IP address of routers and servers on the Internet that have handled the communication during transmission; (2) the exchange of an IP address and e-mail address that occurs when a user logs into a web-based e-mail service; and (3) for certain logins to web-based e-mail accounts, inbox metadata that is transmitted to the user upon accessing the account. 11 Metadata' 1 associated with electronic communications does not include information from the 11 subject 11 or "re'' line of an e-mail or information from the body of an e-mail. SFCRfI//CO,MlNillBFI IO llSA A,I IS , ~ D s C¢~ ' ' 041123 s1fy On: 20291 FSC 192 Approved for public release by the ODNI 20160408 SECRETh'COMINT//RELTO USA, AUS, CAN, GBR, NZLH20291 l23 chaining. Contact chaining is a process by which communications metadata is organized. It shows, for example, the telephone numbers or e-mail addresses that a particular telephone number or e-mail address has been in contact with, or has attempted to contact. Through this process, computer algorithms automatically identify not only the first tier of contacts made by the seed telephone number or e-mail address, but also the further contacts made by the first tier of telephone numbers or e-mail addresses and so on. ~Contact Sec. 3: Procedures (a) ~NSA will conduct contact chaining and other communications metadata analysis only for valid foreign intelligence purposes. (b) ~SA will disseminate the results of its contact chaining and other analysis of communications metadata in accordance with cun-ent procedures governing dissemination ofinfonnation concerning US persons. See Section 4.A.4 of the Classified Annex to Procedure 5 ofDoD Regulation 5240.1-R. cu/7FoocQ Any apparent misuse or improper dissemination of metadata (c) shall be :investigated and reported to appropriate oversight organization(s). See Procedure 15 of DoD Regulation 5240.1-R. Sec. 4: Clarification ~or pU11JOses of Procedure 5 ofDoD Regulation 5240.1-R and the Classified Annex thereto, contact chaining and other metadata analysis do not qualify as the ":interception" or "selection" of communications, nor do they qualify as "us[ing] a selection term," including using a selection term "intended to intercept a communication on the basis of ... [some] aspect of the content of the communication." D RObert (dhte8 Secretary of Defense ::\/~ ~ ~d Michael B. Mukasey Attorney General · of the United States /0- Date /'J- l:il- Date SECRI!'ftiCOMft•ff/IREL}'O USA, AUS, CAf.J, QBR, l>TZI 1120'291123 FSC 193 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURV~ILLAN_CE ACT. ~ Docket Number: 105B(g)-07-01 ' NOTICE OF FILING (U) Notice is hereby given that on March 14, 2008, the Government filed an Ex Parle Motion for I.eave to File Classified Information for the Court's Ex Parte and In Camera Review pursuant to section 105B(k) of the Foreign Intelligence Surveillance Act of 1978, as amended, in the above-captioned matter.~ Attorney Advisors National Security Division U.S. Department of Justice SECRET FSC 194 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: lOSB(g)-07-01 CERTIFICATE OF SERVICE (U) I hereby certify that, on March 14, 2008, a true and correct copy of the attached Notice of Filing was submitted, by hand delivery, to a Court- designated alternate Litigation Security Officer, for delivery to counsel of record for Yahoo Inc~ Attorney Advisors National Security Division U.S. Department of Justice SECRET 2 FSC 195 29 Approved for public release by the ODNI 20160408 UNITED STATES • i '' FOREIGN IN!ELLIGENCE SURVEILLANCE COURT --· WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION lOSB OF THE FOREIGN INTELLIGENCE SURVEILLANCE .... • 1,,. • ... ~ ·~ .. - ' ' I ~. I ': Docket Number: 105B(g) 07-01 ACT.~ UNOPPOSED MOTION TO UNSEAL RECORDS (U) The United States of America, by and through the undersigned Deparhnent of Justice attorneys, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, and Rule 7(b) of the Rules of Procedure of this Court, to unseal the following documents fiJed in the above-captioned matter: (1) the United States of America's Supplemental Brief on the Fourth Amendment (filed February 15, 2008); (2) Yahoo! Inc.'s ("Yahoo") Supplemental Briefing on Fow·th Amendment Issues (filed February 15, 2008); (3) the Government's Response to the Court's Order of February 29, 2008 (fiJed March 7, 2008); and (4) Yahoo's Supplemental Briefing on Protect America Act Statutory Issues (filed March 19, 2008). The SECRET FSC 196 • I ~) Approved for public release by the ODNI 20160408 _SECRET - Government assumes for purposes of this motion that the documents are records of the Court pursuant to Rule 7(b). ~ Pursuant to Section 4 of the recently enacted Protect America Act, the Attorney General on a semiammal basis must inform specified congressional committees of "incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issue a directive." Protect America Act of 2007, Pub. L. No. 110-95, § 4(1)(B), 121 Stat. 552, 555-56 (2007). In connection with this requirement, staff members of the Select Committee on Intelligence of the Senate and Committee on the Judiciary of the Senate were briefed on the status of the decision of Yahoo not to comply with directives issued under the Protect America Act. On December 14, 2007, staff members of the Select Committee on Intelligence of the Senate and Committee on the Judiciary of the Senate requested access to briefing in connection with the consideration of proposed legislation to amend the Foreign Intellige1:ce Surveillance Act of 1978.~ In response to this request, the Government has previously moved the Court to unseal the following documents: (1) the Government's Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General (filed November 21, 2007); (2) Yahoo's Memorandum in Opposition to Motion to Compel (filed November 30, 2007); (3) the Memorandum in Support of the Government's SECRET 2 FSC 197 Approved for public release by the ODNI 20160408 SECRETMotion to Compel (filed December 11, 2007); (4) Yahoo's Sur-Reply Brief (filed December 21, 2007) and (5) the Government's Reply to Yahoo's Sur-Reply (filed Janua1y 4, 2008). The Court approved the unsealing of these documents by Orders dated January 10 and 17, 2008. ~ Staff members recently requested access to more recent briefing in the abovecaptioned matter. Accordingly, the Government now moves the Court to unseal the following documents: (1) the United States of America's Supplemental Brief on the Fourth Amendment (filed February 15, 2008); (2) Yahoo's Supplemental Briefing on Fourth Amendment Issues (filed February 15, 2008); (3) the Government's Response to the Court's Order of February 29, 2008 (filed March 7, 2008); and (4) Yahoo's Supplemental Briefing on Protect America Act Statutory Issues (filed Mard119, 2008). On April 16, 2008, counsel for Yahoo informed the Government that Yal100 does not oppose the relief sought provided that: (i) the above-referenced documents are w1sealed for the limited purpose of allowing the Government to disclose and submit them to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives; and (ii) prior to such disclosure, the Government will redact from the SECRET 3 FSC 198 Approved for public release by the ODNI 20160408 SECRET above-referenced documents the name of Yahoo and all other references that would disclose the identity of Yahoo. iSl._ WHEREFORE the United States of America, by counsel, respectfully requests that the Court unseal the documents identified above. An agreed proposed order accompanies this motion. ~ Respectfully submitted, Matthew G. Olsen Deputy Assistant Attorney General National Security Division United States Department of Justice ttorney visors National Security Division United States Department of Justice SECRET 4 FSC 199 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION lOSB OF TIIE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: lOSB(g) 07-01 ORDER This matter having come before this Court on the motion of the United States of America pursuant to Rule 7(b) of the Rules of Procedure of this Court in the abovecaptioned docket number and, relying upon the facts set forth in the motion and the statement of the agreement of the parties, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) the United States of America's Supplemental Brief on the Fourth Amendment (filed February 15, 2008), (2) Yahoo! lnc.'s ("Yahoo") Supplemental Briefing on Fourth Amendment Issues (filed February 15, 2008), (3) Government's Response to the Court's Order of February 29, 2008 (filed March 7, 2008), and (4) Yal100' s Supplemental Briefing on Protect America Act Statutory Issues (filed March 19, 2008) (hereinafter collectively ~BCRET FSC 200 Approved for public release by the ODNI 20160408 SECRET "the Briefs"), which were filed pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, in the above-captioned docket number, is GRANTED for the limited purpose of allowing the Government to disclose and submit the Briefs to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives. In all other respects, the Briefs shall remain sealed. IT IS FURTHER ORDERED that, based on the agreement of the parties, the Government shall, prior to disclosure of the Briefs, redact from the Briefs the name of Yahoo and all other references that would disclose the identity of Yahoo. S i g n e d - - - - - - - - - - - - - Eastern Time Date Time Judge, United States Foreign Intelligence Surveillance Court SECRET 2 FSC 201 Approved for public release by the ODNI 20160408 -SECRET cc: Marc J. Zwillinger Sonnensche:in Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for the United States SECRET 3 FSC 202 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION lOSB OF THE FOREIGN INTELLIGENCE Docket Number: lOSB(g)-07-01 SURVEILLANCE ACT.~ CERTIFICATE OF SERVICE (U) I hereby certify that, on April 16, 2008, true and correct copies of the United States of America's Unopposed Motion to Unseal Record, with proposed order, and this Certificate of Service were submitted, by hand delivery, to a Court- designated alternate Litigation Security Officer, for delivery to counsel of record for Yahoo Inc~ Respectfully submitted, Attorney Advisor National Security Division U.S. Department of Justice SECRET 30 Approved for public release by the ODNI 20160408 SECRET UNITED ST ATES . : -- . ' FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. iS)_ f-. I e,.J - ... ... ·. (){I-(~~ Docket Number: lOSB(g) 07-01 UNOPPOSED MOTION TO UNSEAL RECORDS (U) The United States of America, by and through the undersigned Department of Justice attorneys, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, and Rule 7(b) of the Rules of Procedure of this Court, to unseal the following documents filed in the above-captioned matter: (1) the United States of America's Supplemental Brief on the Fourth Amendment (filed February 15, 2008); (2) Yahoo! Inc.'s ("Yahoo") Supplemental Briefing on Fourth Amendment Issues (filed February 15, 2008); (3) the Government's Response to the Court's Order of February 29, 2008 (filed March 7, 2008); and (4) Yahoo's Supplemental Briefing on Protect America Act Statutory Issues (filed March 19, 2008). The SECRET FSC 204 _; Approved for public release by the ODNI 20160408 SBCRET Government assumes for purposes of this motion that the documents are records of the Court pursuant to Rule 7(b). ~ Pursuant to Section 4 of the recently enacted Protect America Act, the Attorney General on a semiannual basis must inform specified congressional committees of "incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issue a directive." Protect America Act of 2007, Pub. L. No. 110-95, § 4(1)(B), 121 Stat. 552, 555-56 (2007). In connection with this requirement, staff members of the Select Committee on Intelligence of the Senate and Committee on the Judiciary of the Senate were briefed on the status of the decision of Yahoo not to comply vvith directives issued under the Protect America Act. On December 14, 2007, staff members of the Select Committee on Intelligence of the Senate and Committee on the Judiciary of the Senate requested access to briefing in connection with the consideration of proposed legislation to amend the Foreign Intelligei:ice Surveillance Actof1978~ In response to this request, the Government has previously moved the Court to unseal the following documents: (1) the Government's Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General (filed November 21, 2007); (2) Yahoo's Memorandum in Opposition to Motion to Compel (filed November 30, 2007); (3) the Memorandum in Support of the Government's SECRET 2 FSC 205 Approved for public release by the ODNI 20160408 SECRET Motion to Compel (filed December l t 2007); (4) Yahoo's Sur-Reply Brief (filed December 21, 2007) and (5) the Government's Reply to Yahoo's Sur-Reply (filed January 4, 2008). The Court approved the unsealing of these documents by Orders dated January 10 and 17, 2008. (S}__ Staff members recently requested access to more recent briefing in the abovecaptioned matter. Accordingly, the Government now moves the Court to unseal the following documents: (1) the United States of America's Supplemental Brief on the Fourth Amendment (filed February 15, 2008); (2) Yahoo's Supplemental Briefing on Fourth Amendment Issues (filed February 15, 2008); (3) the Government's Response to the Court's Order of February 29, 2008 (filed March 7, 2008); and (4) Yal1oo's Supplemental Briefing on Protect America Act Statutory Issues (filed March 19, 2008). On April 16, 2008, counsel for Yahoo informed the Government that Yahoo does not oppose the relief sought provided that: (i) the above-referenced documents are unsealed for the limited purpose of allowing the Government to disclose and submit them to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives; and (ii) prior to such disclosure, the Government will redact from the SECRET 3 FSC 206 Approved for public release by the ODNI 20160408 SECRET above-referenced documents the name of Yahoo and all other references that would disclose the identity of Yahoo.~ WHEREFORE the United States of America, by counsel, respectfully requests that the Court unseal the documents identified above. An agreed proposed order accompanies this motio~ Respectfully submitted, Matthew G. Olsen Deputy Assistant Attorney General National Security Division United States Department of Justice National Security Division United States Department of Justice SECRET 4 FSC 207 Approved for public release by the ODNI 20160408 SRCRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. ~ Docket Number: 105B(g) 07-01 ORDER This matter having come before this Court on the motion of the United States of America pursuant to Rule 7(b) of the Rules of Procedure of this Court in the abovecaptioned docket number and, relying upon the facts set forth in the motion and the statement of the agreement of the parties, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) the United States of Amerii;a's Supplemental Brief on the Fourth Amendment (filed February 15, 2008), (2) Yahoo! Inc.'s ("Yahoo") Supplemental Briefing on Fourth Amendment Issues (filed February 15, 2008), (3) Government's Response to the Court's Order of February 29, 2008 (filed March 7, 2008), and (4) Yahoo's Supplemental Briefing on Protect America Act Statutory Issues (filed Mard1 19, 2008) (hereinafter collectively S~CRE'f - FSC 208 Approved for public release by the ODNI 20160408 SECBET "the Briefs"), which were filed pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, in the above-captioned docket number, is GRANTED for the limited purpose of allowing the Government to disclose and submit the Briefs to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives. In all other respects, the Briefs shall remain sealed. IT IS FURTHER ORDERED that, based on the agreement of the parties, the Government shall, prior to disclosure of the Briefs, redact from the Briefs the name of Yahoo and all other references that would disclose the identity of Yahoo. Signed 4J· J 22 1 Date uor/ :i; 1 u lJ./11, Time Eastern Time Judge, United States Foreign Intelligence Surveillance Court 0 • \ i ,· ~ :: i.ji ~-: ·~ l '.; F: oriuin::::I. SECRET 2 FSC 209 Approved for public release by the ODNI 20160408 SECRET cc: Marc J. Zwillinger Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Vvashington, D.C. 20530 Counsel for the United States SECRET 3 FSC 210 31 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.--est--___ 1'1 ·; ··-. ·,,:..t:,',;;-;; •' Docket Number: lOSB(g) 07-01 UNOPPOSED MOTION TO UNSEAL RECORDS (U) The United States of America, by and through the undersigned Department of Justice attorneys, hereby moves this Court, pursuant to the Foreign h1telligence Surveillance Act of 1978, as amended, to unseal the following documents in the abovecaptioned matter: (1) the Order Compelling Compliance with Directives (dated April 25, 2008) ("Order"); and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"). The Order provides that the Order and Opinion "are sealed and shall not be disclosed by either party without authorization by this Court." ~ Pursuant to Section 4 of the Protect America Act, the Attorney General on a semiannual basis must inform specified congressipnal committees of "incidents of noncompliance by a specified person to whom the Attorney General and Director of SECRET FSC 211 ; . •__-.'_,'_,· Approved for public release by the ODNI 20160408 SECRET National Intelligence issue a directive." Protect America Act of 2007, Pub. L. No. 11095, § 4(1)(B), 121 Stat. 552, 555-56 (2007). In connection with this requirement, staff members of the Select Committee on Intelligence of the Senate and the Committee on the Judiciary of the Senate were briefed on the status of the decision of Yahoo Inc. ("Yahoo") not to comply with directives issued under the Protect America Act. Staff members of the Select Committee on Intelligence of the Senate and Committee on the Judiciary of the Senate since have requested access to briefing in connection with the consideration of proposed legislation to amend the Foreign Intelligence Surveillance Act of 1978.~ In response to these requests, the Government has previously moved the Court to unseal the certain pleadings filed by the Government and Yahoo. The Court approved the unsealing of those documents by orders dated January 10 and 17, 2008, and April 22, 2008~ The Government now intends to inform the specified congressional committees of the Court's resolution of the above-captioned matter and to provide copies of the Order and Opinion. The Government, accordingly, moves to unseal the Order and Opinion. "tS}-.._ On April 29, 2008, counsel for Yahoo informed the Government that Yahoo does not oppose the relief sought provided that: (i) the Order and Opinion are unsealed for SECRlff 2 FSC 212 Approved for public release by the ODNI 20160408 SECRET the limited purpose of allowing the Government to disclose and submit them to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives; and (ii) prior to such disclosure, the Govemment will redact from the above-referenced documents the name of Yahoo and all other references that would disclose the identity of Yahoo.~ WHEREFORE the United States of America, by counsel, respectfully requests that the Court unseal the documents identified above. An unopposed proposed order accompanies this motion~ Respectfully submitted, Matthew G. 01 sen Deputy Assistant Attorney General National Security Division United States De artment of ustice National Security Division United States Department of Justice SECRl!T 3 FSC 213 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: 105B(g) 07-01 ORDER This matter having come before this Court on the motion of the United States of America in the above-captioned docket number and, relying upon the facts set forth in the motion and the statement of the agreement of the parties, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) the Order Compelling Compliance with Directives (dated April 25, 2008) ("Order"); and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"), which were issued pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, in the above-captioned docket number, is GRANTED for the limited purpose of allowing the Government to disclose and submit the Order and Opinion to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of SECR~T Approved for public release by the ODNI 20160408 SECREFRepresentatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives. In all other respects, the Order and Opinion shall remain sealed until further order of the Court. IT IS FURTHER ORDERED that, based on the agreement of the parties, the Government shall, prior to disclosure of the Order and Opinion, redact from the Order and Opinion the name of Yahoo Inc. ("Yahoo") and all other references that would disclose the identity of Yahoo. S i g n e d - - - - - - - - - - - - - Eastern Time Date Time Judge, United States Foreign Intelligence Surveillance Court SECRET 2 FSC 215 Approved for public release by the ODNI 20160408 SECRET cc: Marc J. Zwillinger Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Peimsylvania Avenue, N.W. Washington,D.C.20530 Counsel for the United States SECRET 3 FSC 216 Approved for public release by the ODNI 20160408 S'ECRF.T UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE coiJRt'i:' l WASHINGTON, OC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION lOSB OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. ~ - _____ ,\; /.\ i '.] '5·i,; ..: ;_;_ ;~ . -· ; I '- :._ h Docket Number: lOSB{g)-07-01 I __, CERTIFICATE OF SERVICE (U) t- I hereby certify that, on April 30, 2008, true and correct copies of the United States of America's Unopposed Motion to Unseal Records, with proposed order, and this Certificate of Service were submitted, by hand delivery, a Court-designated alternate Litigation Security Officer, for delivery to counsel of record for Yahoo Tnc~ SECRET 32 Approved for public release by the ODNI 20160408 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: 105B(g) 07-01 EXPEDITED MOTION TO UNSEAL RECORDS (U) The United States of America, by and through the undersigned Department of Justice attorneys, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, to unseal the following documents in the abovecaptioned matter: (1) the Order Compelling Compliance with Directives (dated April 25, 2008) ("Order"); and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"). The Order provides that the Order and Opinion "are sealed and shall not be disclosed by either party without authorization by this Court."Csl_ By this motion, the Government seeks authorization to unseal the Order and Opinion for the limited purpose of discussions with any other communications service provider directed to provide assistance to the Government pursuant to the Protect SECRET FSC 218 Approved for public release by the ODNI 20160408 SECRET America Act of 2007, Pub. L. No. 110-95, 121 Stat. 552 (2007) ("Protect America Act"). Tii.e Government seeks authorization to discuss the following matters and others that may arise in the course of discussions with such communications service providers: (i) the fact that the Court granted the Government's Motion to Compel Compliance with Directives of the Director of National Intelligence and Attorney General; (ii) the Court's holding that the certifications and directives at issue satisfy the Protect America Act, are consistent with the Fourth Amendment, and are otherwise lawful; (iii) the holding that the immunity provisions of the Protect America Act remain in effect for the duration of the directives; and (iv) the determination that the certifications may be amended and such amendments do not require the issuance of new directives where, as in this case, certain specified conditions are met.~ In conducting such discussions with other communications service providers, the Government will not provide for inspection or copying the Order and Opinion themselves nor will it disclose the identity of the communication service provider, Yahoo Inc. ("Yahoo"), whose compliance the Government sought to compel.~ In addition, to facilitate discussions with other communications service providers, the Government requests expeditious consideration of this motion.~ On April 30, 2008, by telephone and e-mail communications with counsel for Yahoo, the Government sought the consent of Yahoo to the relief sought in this motion. SliCRET 2 FSC 219 Approved for public release by the ODNI 20160408 SECRET As of the filing of this motion, Yahoo has not informed the Government whether Yahoo opposes the motion.~ WHEREFORE the United States of America, by counsel, respectfully requests that the Court W1seal the documents for the limited purpose identified above. A proposed order accompanies this motion~ Respectfully submitted, Matthew G. Olsen Deputy Assistant Attorney General National Security Division United States Department of Justice National Security Division United States Department of Justice SECRET 3 FSC 220 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: 105B(g) 07-01 ORDER This matter having come before this Court on the motion of the United States of America in the above-captioned docket number and, relying upon the facts set forth in the motion, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) the Order Compelling Compliance with Directives (dated April 25, 2008) ("Order"); and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"), is GRANTED for the limited purpose set forth in the Government's motion. In all other respects, the Order and Opinion shall remain sealed until further order of the Court. IT IS FURTHER ORDERED that the Government shall not, in its discussions with communications service providers directed to provide assistance under the Protect America Act of 2007, provide for inspection or copying the Order and Opinion or SECRET FSC 221 Approved for public release by the ODNI 20160408 SECRET identify Yahoo Inc. ("Yahoo") as the communication service provider whose compliance the Government sought to compel. S i g n e d - - - - - - - - - - - - - Eastern Time Date Time Judge, United States Foreign Intelligence Surveillance Court SECRET 2 FSC 222 Approved for public release by the ODNI 20160408 SECRET cc: Marc J. Zwillinger Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for the United States S~CRET 3 FSC 223 Approved for public release by the ODNI 20160408 UNITED STA TES FOREIGN INTELLIGENCE Sl.JRVEILLANCE COURT . ·. WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT~ Docket Number: lOSB(g)-07-01 CERTIFICATE OF SERVICE (U) I hereby certify that, on May 2, 2008, h·ue and correct copies of the United States of America's Expedited Motion to Unseal Records, with proposed order, and this Certificate of Service were submitted, by hand delivery, t Co mt- designated alternate Litigation Security Officer, for delivery to counsel of record for Yahoo I n c ' National Security Division U.S. Department of Justice SECRET 33 Approved for public release by the ODNI 20160408 SECRET UNJTED ST ATES FOREIGN TNTELLIGENCE SURVEILLANCE COURT W/\SHINGTON, D.C. -~------------------ Docket Number 1OSB(g): 07-01 IN RE DIRECTIVES TO YAHOO!, INC. PURSUANT TO SECTION 1OSB OF THE FORElGN INTELLIGENCE SURVEILLANCE ACT ------·--~------------- ORDER This matter having come before this Court on the motion of the government filed on May 1, 2008, in the above-captioned docket number, and the government also having filed on that date in the above-captioned docket number a notice stating that Yahoo!, Inc. does not oppose such motion, IT IS HEREBY ORDERED TilAT the Order Compelling Compliance with Directives ("Order") and the Memorandum Opinion (..Opinion"), each of which was entered in the abovecaptioned docket number on April 25, 2008, are unsealed for the limited purpose of allowing discussions of the Order and the Opinion between the government and communications service providers directed to provide assistance under the Protect America Act of 2007, Pub. L. No. 110- 55, 121 Stat. 552, and SECRET Page 1 FSC 225 Approved for public release by the ODNI 20160408 SECRET IT IS FURTHER ORDERED THAT, as described in the motion, the government is not authorized to provide the Order or Opinion to such communications service providers for inspection or copying, 1 or to identify Yahoo!, Inc. as the communications service provider whose compliance the government sought to compel. ENTERED this ;;).~day of May, 2008 in Docket Number 105B(g): 07-01. ~ 'i2k:J ~B.WALTON Judge, Foreign Intelligence Surveillance Court Because these communications service providers will not see the Order and Opinion, the Court expects the government to take special care to describe their contents accurately. 1 I, Karen E. Sutton, Clerk, FISC, certify that this document Is a true and correct copy of the origin~ SECRET Page 2 FSC 226 Approved for public release by the ODNI 20160408 SECRE'f' cc: Marc J. Zwillinger Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo!, Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for the United States SECRET Page 3 FSC 227 34 Approved for public release by the ODNI 20160408 SECRET FOREIGN INTELLIGENCE SURVEILLANCE COURT Dkt. No. 1OSB(G) 07-01 IN RE DIRECTIVES TOYAHOO! INC. PURSUANT TO SECTION I 05B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Yahoo! Ioc.'s Motion for Stay Pending Appeal UNDER SEAL MARC J. ZWILLINGER Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W. Suite 600; East Tower Washington, DC 20005 Tel: (202) 408-6400 Fax: (202) 408-6399 mzwillinger@sonnenschein.com Counsel/or Yahoo! Inc. May6, 2008 SECRET FSC 228 Approved for public release by the ODNI 20160408 SECRET INTRODUCTION Yahoo! hereby moves this Court for a temporary stay of its April 25, 2008 Order compelling Yahoo! to comply wit-directives issued to Yahoo! pursuant to the Protect Ametica Act of2007, Pub. L. No. 110-55, 121 Stat. 552 ("PAA"), pending resolution of Yahoo!'s Petition for Review to the Foreign Intelligence Court of Review, which was filed on May 5, 2008. As this com1 has already noted, this case is a "complicated matter of first impression." 1 It is also a case of tremendous national importance. 2 As this Court observed in the conclusion of its 98-page Memorandum Opinion, the statute at issue in this litigation represents an attempt by Congress to strike the proper balance between the security of our nation on one hand and the interests protected by the Fourth Amendment to the United States Constitution on the other.3 Although the Court undoubtedly believes it reached the right result by ruling that the surveillance pennitted by the PAA as modified by certain promises made by the govenunent in its certifications and in Section 2.5 of Executive Order 12333 does not offend the Fourth Amendment, this conclusion was neither obvious nor easy, but resulted from "painstaking and complex constitutional and statutory analysis."4 As part of that analysis, this Court employed a new test for reasonableness under the Fomth Amendment that departs, in material respects, from the reasoning of the two judicial decisions it found most applicable -- In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. Rev. 2002) and United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000). 1 Memorandum Opinion, April 25, 2008 ("Mcm. Op.") at 3. As demonstrated by the government's recent flurry of motions to unseal, this case is being tracked by both houses of Congress (and the Administration), and the government is also seeking to use the Qmrt's opinion to persuade other providers to comply with the PAA without bringing any further legal 2 challenges. J Mem. Op. at 97. -t Id. at 97. 2 SECRET FSC 229 Approved for public release by the ODNI 20160408 The new four-factor analysis employed by the Court borrows aspects from both decisions but eschews certain factors, such as prior judicial review, that were important to the Foreign Intelligence Surveillance Court of Review's ("FIS CR" or "Court of Review") analysis in !11 re Sealed Case, which is the lone binding precedent on this Court. 5 This one facet of the 98-page opinion alone is sufficient to raise a substantial question as to whether the FISCR will agree with this Com1's analysis. In addition, without a stay, United States persons' whose communications may be intercepted under the PAA will suffer irreparable injury if the decision is later reversed by the FISCR. At the core of the litigation is the question of whether the government is pennitted, under the Fourth Amendment of the United States Constitution, to examine the private communications of United States persons without a wan ant. The FISC has now ruled that the govenunent is entitled to examine these communications. Once government officials have gained access to the communications, the Fourth Amendment rights of the United States persons will be irreversibly Jost. These two strong factors -- likelihood of success on the merits and irreparable hann combined with the fact that the issuance of a temporary stay will not cause substantial harm to other parties and will further the public interest, indicate that a stay pending a ruling of the FISCR on Yahoo!'s Petition for Review is appropiiate. Such a stay is necessary to preserve the status quo until Yahoo!'s appeal can be heard. Despite the "weighty concerns" at the core of this litigation, 6 the government has made clear that it intends to consider contempt proceedings against Yahoo! if it fails to comply with this Court's Order, even while this motion for stay is 5 See Mem. Op. at 57, 72. 6 Id. at 71. 3 SECRET FSC 230 Approved for public release by the ODNI 20160408 pe11di11g. 7 Although Yahoo! believes that contempt proceedings are inappropriate and unwarranted when a motion to stay is pending, 8 the government has not agreed, making guidance from this Court even more essential. ARGUMENT Federal courts generally have the power to stay a judgment granting an injunction while an appeal of that judgment is pending. See Hawaii Housing Authority v. Mid/djf, 463 U.S. 1323, 1324 (1983). A party seeking a stay of a judgment pending appeal must establish four elements: (1) that it has a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the stay is denied; (3) that issuance of the stay will not cause substantial hmm to other parties; and (4) that the public interest will be served by issuance of the stay. United States v. Philip Morris Inc., 314 F.3d 612, 617 (D.C. Cir. 2003). These elements must be applied flexibly, such that if a party makes a particularly strong showing on one or more of the requirements, a court may grant a stay despite a weaker showing on one of the other requirements. See McSurely v. McClellan, 697 F.2d 309, 317 (D.C. Cir. 1982); see also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (holding, in 7 See Ex. A, Letter from J. Rowan to M. Zwillinger dated May 5, 2008; Ex. B, Letter from M. Zwillinger to J. Rowan dated May 5, 2008; Ex. C, Letter from M. Olsen to M. Zwi1linger dated May 5, 2008; Ex. D., Letter from M. Zwillinger to M. Olsen dated May 6, 2008. In Clemente v. United States, 766 F.Zd 1358, 1367 (9 1h Cir. 1985), the court held that "to find a defendant guilty of 'willful and deliberate defiance of the court's order,' when a stay has been immediately sought would render meaningless the whole process by which parties invoke the power of the courts to defer the effect of their judgments. The Supreme Court has recognized that 'willfulness' may be qualified 'by a concurrent attempt on defendants' part to challenge the order by motion to vacate or other appropriate procedures.' Appellant's motion to stay was an 'appropriate procedure.' Accordingly, we vacate the judgment of contempt." Id., citing United States v. United Mine Workers, 330 U.S. 258, 303 (1947). See also General Teamsters Union Local No. 439 v Sunrise Sanitation Se111ices, Inc, 2006 WL 2091947 (E.D. Cal. 2006) ("Federal Rule of Civil Procedure 62(c) explicitly affords the losing party an opportunity to seek a stay pending appeal. This rule would be meaningless if, as here, parties could be held in contempt before the trial court was given an opportunity to consider such motions."). Here, Yahoo!'s Motion for a Stay Pending Appeal was filed within 24 hours after the filing of its Petition for Review, and one day after the service of the Court's Memorandum Opinion. This is not a case of either willful or deliberate defiance of the Court's Order. In fact, Yahoo! has taken appropiiate steps to be prepared to comply with the Order should the stay be denied. 8 4 SECRET FSC 231 Approved for public release by the ODNI 20160408 -SECRET- the context of reviewing a preliminary injunction in which it applied the same standards, that "[i]fthe showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak"). While there is no binding precedent indicating that the test is the same in this context, there are also no compelling reasons why these factors should not apply. In this case, Yahoo! can make a sufficient showing on all four elements and given the complex constitutional issues at stake, Yahoo! has an especially strong case on likelihood of success on the merits and itTeparable injury. I. YAHOO! HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. As the Court itself confirmed in its opinion, the issues of constitutional law that govern this case are complex and not easily resolved. Never before has the constitutionality of the PAA been considered by any court. Although this Court surely believes that its detailed constitutional analysis is sound, this outcome could hardly be free from doubt. This is especially true with regard to the issue at the heart of Yahoo 1's Petition for Review; whether this Court eITed when it detennined that some of the reasonableness factors invoked by the FISCR in its decision in In Re Sealed Case are not approp1iate or compelling factors in measuring the reasonableness of surveillance conducted pursuant to the PAA. The Court of Review in !11 re Sealed Case identified six safeguards imposed by FISA that, when combined, satisfy the Fourth Amendment's "reasonableness" requirement. Those safeguards are: • "prior judicial scmtiny" of the surveillance; • "probable cause that the target is a foreign power or an agent of a foreign power;" • a certification "approved by the Attorney General or the Attorney General's deputy" to "designate the type of foreign intelligence information being sought, and to certify that the infonnation sought is foreign intelligence information;" FSC 232 Approved for public release by the ODNI 20160408 SECRET • "probable cause to believe that each of the facilities or places at which the surveillance is directed is being used, or is about to be used, by a foreign power or agent;" • "a 'necessity' provision, which requires the com1 to find that the infommtion sought is not available through nomrnl investigative procedures;" and • "minimization of what is acquired, retained and disseminated." In re Sealed Case, at 738-741. When Congress enacted the PAA, it did not merely modify the safeguards relevant to FISA's compliance with the Fourth Amendment, it essentially eliminated half (three out of six) of the safeguards. The safeguards that Congress eliminated -prior judicial scrutiny, probable cause to believe that a facility is being used or about to be used by an agent of a foreign power, and necessity - could be viewed by the FISCR as fundamental to the Fourth Amendment's protections against unreasonable search and seizure. As this Court recognized: It is not clear from the FISCR opinion how much importance the Court attached to each of the above-desciibed factors. For that reason, it is difficult to discern what effect the modification or removal ofone of the factors would have on the overall detennination of reasonableness. Nor is there clear guidance on how the requirements of reasonableness might vary for targets who are United States persons [remainder of sentence redacted]. Mem. Op. at 77. Given that frank assessment, it is quite likely that the FISCR may reach a different conclusion as to the effect of the modification or removal of the factors, especially "prior judicial scrutiny." Prior judicial scrutiny was the FISA safeguard that the FISCR discussed first and most prominently in In re Sealed Case, and this safeguard has long been a cornerstone of the Supreme Court's Fourth Amendrnentjurisprudence. 9 In that case, the FISCR observed that "[w]ith limited exceptions not at issue here, both Title III and FISA require prior judicial scrutiny of an application for an order authorizing electronic surveillance." Id. at 738. The FISCR specifically 9 See 310 F.3d at 738 (discussing Dalia v. United States, 441 U.S. 238, 255 (1979)). 6 SECRET FSC 233 Approved for public release by the ODNI 20160408 SECRET pointed to 50 U.S.C. § 1805, which in subsection (a) requires that a FISA "judge ... enter an ex parte order" as a prerequisite to "electronic surveillance." Although this Court aclmowledged that it is bound by the holding in In Re Sealed Case, it went on to employ a reasonableness analysis that did not include this "critical element" of the FISCR's reasonableness assessment in that case: However, given that the FIS CR highlighted prior judicial review as one of the three essential requirements of the Fomth Amendment Warrant Clause, it seems apparent that the FISCR considered this to be a critical element in its reasonableness assessment. (Mem. Op. at 73) (emphasis added). **** This Court find the reasoning of the District Court [in Bin Laden] persuasive and therefore accepts as a general piinciple, that p1ior judicial approval of an acquisition of foreign intelligence infonnation targeted against a United States person abroad is not an essential element for a finding of reasonableness under the Fourth Amendment. (Id. at 83-84) (emphasis added). As a result, on this factor alone, there is a substantial likelihood that the Court of Review will come to a different conclusion with regard to the factors that should be employed to evaluate the constitutionality of the surveillance authorized by the PAA. Second, in passing the PAA, Congress eliminated the requirement for "probable cause to believe that each of the facilities or places at which the surveillance is directed is being used, or is about to be used, by a foreign power or agent." This requirement, as set f011h in FISA in 50 U.S.C. § 1805(a)(3)(B), was part of the FISCR's determination of reasonableness in In re Sealed Case. 10 But there is no analogous requirement in the PAA. Indeed, the surveillance need not be directed at any specific facility or place at all. In devising its new reasonableness test, this Comt substantially discounted this factor, finding that "in the overseas context, there is less of a need to require a prior showing of probable cause to believe that a properly targeted individual is using 10 See 310 F.3d at 740. 7 SECRET FSC 234 Approved for public release by the ODNI 20160408 ~ or is about to use a specific targeted facility." 11 But it is by no means clear why this would be the case. If the govenm1ent surveils the wrong yahoo.com email account, it is quite likely that the account will belong to a U.S. person, not a non-United States person. 12 Finally, in passing the PAA, Congress removed any '"necessity' provision, which requires the court to find that the infonnation sought is not available through nonnal investigative procedures." 310 F.3d at 740. For standard FISA Court Orders, this requirement is set forth in 50 U.S.C. § 1804(a)(7)(E)(ii). The PAA, on the other hand, contains no such requirement. See, generally, 50 U.S.C. § 1805b. It does not require the government to even certify in the directive that "the infonnation sought is not available through nomial investigative procedures," much less submit such a certification to a court for prior judicial consideration. This Com1 concluded that necessity is not an essential factor to the reasonableness determination in this case. While this conclusion may be reasonable on its face, "necessity' is the third of the six reasonableness factors cited in In re Sealed Case that this Court excluded from its reasonableness analysis. While the Court may ultimately be correct that the FISCR would agree that the modified analysis used here meets the Constitutional standards of the Fourth Amendment, it is indisputable that this Court's reasoning differs materially from the reasonableness analysis set fmih in /11 re Sealed Case. Given that discrepancy, and the special consideration" that must be afforded to the Ione precedent binding this Court, Yahoo! has demonstrated that there is a substantial likelihood that the FISCR might reach a different conclusion. 11 See Mem. Op. at 85 and n.79. There is no citation for the Court's conclusion that the erroneous targeting of an email account would be more likely to adversely affect a non-U.S. person and it is unclear why the Court thought this to be the case. See id. 12 8 SECRE'I' FSC 235 Approved for public release by the ODNI 20160408 8ECR:EI II. THERE WILL BE IRREPARABLE INJURY IF THIS CASE IS NOT STAYED PENDING APPEAL. If the Court's constitutional analysis is inconect, without a stay pending appeal, constitutional rights will be violated. The "violation of a constitutional right constitutes in-eparable injury." Davis v. District of Columbia, 158 F.3d 1342, 1347 (D.C. Cir. 1998). In the First Amendment context, where this issue frequently arises, the United States Supreme Court has held that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Bums, 427 U.S. 347, 373 (1976) (threejustice plurality opinion); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 299 (citing Elrod with approval for this proposition). "A statute that threatens freedom of expression to a significant degree by its nature gives rise to irreparable injury." Beal v. Stern, 184 F.3d 117, 123 (2d Cir. 1999) (Winter, J.). Searches that violate the Fomth Amendment likewise constitute i1Teparable injury. As the United States Court of Appeals for the Second Circuit held in Covino v. Patrissi, "given the fundamental right involved, namely, the right to be free from unreasonable searches - . . . [the plaintiff] has sufficiently demonstrated for preliminary injunction purposes that he may suffer irreparable ham1 arising from a possible deprivation of his constitutional rights." 967 F.2d 73, 77 (2d Cir. 1992). 13 This rule applies with full force in cases involving national security. For example, in Doe v. Gonzales, an entity with library records challenged 18 U.S.C. § 2709(c), which prohibited it from disclosing that it had received a National Security Letter ("NSL") from the FBI requiring it to disclose infonnation about its patrons. 386 F. Supp. 2d 66, 73 (D. Conn. 2005). The court held that "it is apparent to this court that the loss of Doe's ability to speak out 13 See also McD01111ell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (holding that "[t]he violation of privacy in being subjected to the searches and tests in question is an irreparable harm"); Chavez v. United States, 226 Fed. Appx. 732, 737 (9th Cir. 2007) (holding that allegations of Fourth Amendment violations by "roving patrol operations" on the border between the United States and Mexico established "a likelihood of substantial and immediate irreparable injury"). 9 SECRET FSC 236 Approved for public release by the ODNI 20160408 SECRET now on the subject as a NSL recipient is a real and present loss of its First Amendment right to free speech that cannot be remedied." Id. The district court entered a preliminary injunction prohibiting enforcement of the "gag" component of the statute, finding that the entity was irreparably ham1ed by the temporary deprivation of its First Amendment right to free speech. Id. Here, the injury could be pai1icularly severe because the violation of constitutional rights is permanent rather than temporary. This Court has already acknowledged that "extremely sensitive, personal information could be acquired tlu-ough the directives, akin to electronic eavesdropping of telephone conversations." 14 Once the communications at issue are disclosed, they cannot once again be secreted and their contents cam10t be removed from the minds of the government officials that have reviewed them. In this regard, this case is similar to United States v. Philip Morris Inc., 314 F.3d 612 (D.C. Cir. 2003). There, the United States Com1 of Appeals for the D.C. Circuit considered whether to stay a district com1 order requiring a defendant to produce a memorandum prepared by counsel. The Court held that the defendant would be irreparably injured by disclosure of the memorandum because the damage done to the defendants' 1ights under the attorney-client privilege could not be undone. See id. at 621. In addition, the Court noted that the haim of disclosure was increased by the danger that "the attorneys for the United States would be able to use the [attorney-prepared] Memorandum to pursue new leads on discovery and witness questioning." Id. The same danger is present if Yahoo! is compelled to disclose its customers' communications, because the violation of rights under the Fourth Amendment is not temporary and cannot be undone. Moreover, the detrimental effect of that violation could be magnified as the govenunent uses the disclosed communications as the basis for further investigations. 14 Mem. Op. at 71. 10 SECRET FSC 237 Approved for public release by the ODNI 20160408 Ill. SECRET A STAY PENDING APPEAL SHOULD NOT CAUSE SUCH SUBSTANTIAL HARM TO THE GOVERNMENT TO JUSTIFY DENYING A STAY. Yahoo! acknowledges that the government has a compelJing, interest at stake - the need to obtain foreign intelligence information to protect national security. But, this litigation has been pending since November 21, 2007. The government has been asking this Court for expedited decision-making for over five months. Despite these repeated entreaties, this Court believed it appropriate to engage in detailed statutory and constitutional analysis before ruling on the issues. The government exigencies were not deemed so significant as to give the legal analysis short shrift. The same considerations should be given to allow the FISCR time to review the weighty issues at stake. Any harm incurred by the government from a stay pending appeal does not exceed the harn1 resulting from the potential violation of constitutional rights. This motion does not require the Court to weigh the constitutional rights ofYahoo!'s customers against the government's need for the con ten ls of the communications at issue. Rather, it requires the Court to weight the constitutional rights ofYahoo!s' customers against a further delay in the government's access to the communications at issue. Although this delay may cause hann to the gove1runent, there is no reason to believe that the harm will be substantial enough to justify the denial of a stay. To the contrary, any argument by the government that it will be substantially ham1ed by delay in obtaining the contents of the communications it seeks is belied by the govenunent's actions in this case. During the five-month duration of the litigation, the govenunent has had the option of seeking an order authorizing "emergency employment of electronic surveillance" pursuant to 50 U.S.C. § 1805(f). This procedure continues to be available for emergencies that may arise while the stay is in effect. As a result, any harm to the government from a modest delay 11 SECRET FSC 238 Approved for public release by the ODNI 20160408 SECRET while the Court of Review considers the important issues raised by this case does not outweigh risking an irreparable violation of the constitutional rights of United States Persons. IV. ISSUANCE OF A STAY PENDING APPEAL IS IN THE PUBLIC INTEREST. The threat posed by terrorism is a serious one, at the highest end of the scale. But the public interest in protecting the freedoms established in the Bill of Rights is equally unassailable. As the United States Supreme Court held in United States v. Raines, "there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private 1ights." 362 U.S. 17, 27 ( 1960). In Almeida-Sanchez v. United States, the Supreme Court considered the public's interest in a similar case involving a conflict between the Constitution and the government's efforts to secure the borders of the United States: It is not enough to argue, as does the govenunent, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. 413 U.S. 266, 273-274 (1973). The Supreme Court explained why the Fourth Amendment is so vital to the public interest, even in the face of assertions of national security, by quoting with approval an earlier dissenting opinion written by Justice Jackson shortly after his return from the Nuremberg Trials: These (Fourth Amendment Rights), I protest, are not mere second-class lights but belong in the catalog ofindipensable [sic] freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spiiit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. Id. at 274 (quoting with approval Brinegar v. United States, 338 U.S. 160, 180 ( 1949) (Jackson, J., dissenting)). If there is a substantial likelihood of a different result on appeal, federal courts have consistently found that the public interest lies with the protection of Fourth Amendment rights despite arguments by the government regarding the needs of law enforcement. See, e.g., Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1071 (7th Cir. 1976) ("the public interest is served by 12 SECRET FSC 239 Approved for public release by the ODNI 20160408 SECRET the preliminary injunction, for othe1wise the dragnet practices violating the Fourth Amendment rights of plaintiffs could continue unabated"); Platte v. Thomas Township, 504 F. Supp.2d 227, 247 (E.D. Mich. 2007) ("it is not in the public interest to perpetuate the unconstitutional application of a statute"); Dearmore v. City of Garland, 400 F. Supp.2d 894, 905-906 (N.D. Tex. 2005) (granting preliminary injunction against enforcement of an Ordinance that provided for unconstitutional searches and holding that "enjoining the enforcement of an unconstitutional provision of the Ordinance promotes rather than disserves the public interest"); Haynes v. Office of the Attorney General Phil/ Kline, 298 F. Supp.2d 1154, 1160 (D. Kan. 2003) (enjoining search of plaintiffs computer that would violate Fourth Amendment and holding that "the relief granted by the court will promote the public interest"). 15 Given the substantial weighty public interest on both sides of the question, a slightly greater weight has to be given to the Constitutional interests because the relief sought is only temporary and necessary to protect the status quo. Compared with a potential iITeparable violation of the Constitutional rights of U.S. citizens, an additional delay to afford the Court of Review an opportunity to ensure that the government's searches are consistent with the United States Constitution is in the public's interest. CONCLUSION Congress clearly intended that this Court not be the final arbiter on the question of the constitutionality of the PAA. 16 Given the ( 1) complex constitutional issues at stake; (2) the 15 See also Doe v. LaDue, 514 F. Supp.2d 1131, 1138 (D. Minn. 2007). In LaDue, the court found that despite the govenm1ent's interest in preventing recidivism by sex offenders, there was an alternate constitutional means to accomplish the same purpose while a preliminary injunction was pending. Therefore, the greater public interest was in issuing an injunction to protect plaintiffs constitutional rights against unreasonable searches under the Fourth Amendment. 16 See 50 U.S.C. § l 805b(3)(i) ("The government or a person receiving a directive reviewed pursuant to subsection(h) of this section may file a petition with the Court of Review established under section l 803(b) of this title for review of the decision issued pursuant to subsection(h) of 13 SECRET FSC 240 Approved for public release by the ODNI 20160408 SECRET indisputable fact that the analysis employed by this Comi differs from the analysis employed by the Court of Review in In Re Sealed Case; and, (3) the irreparable hann that would occur if this Comi's reasonable analysis were ovenuled by the FISCR, Yahoo! respectfully requests that the Court grant Yahoo!'s Motion for Stay Pending Appeal. DATED: May 6, 2008 Sonnenscl in Natl & Rosenthal LLP 1301 K Street, N. . Suite 600; East Tower Washington, DC 20005 Tel: (202) 408-6400 Fax: (202) 408-6399 mzwillinger@sonnenschein.com Counsel for Yahoo! Inc. this section not later than 7 days after the issuance of such decision ... Such court of review sha11 have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition for a writ of certiorari by the government or any person receiving such directive, the record shaH be transmitted under seal to the Supreme Court, which shall havejurisdiction to review such decision."). 14 - SECRET FSC 241 Approved for public release by the ODNI 20160408 SECRET CERTIFICATE OF SERVICE I hereby certify that on this 61h Day of May 2008, I provided a true and correct copy of Yahoo! Inc.'s Motion for Stay Pending Appeal (the "Motion") to an Alternate Court Security Officer, who has informed me thats/he will deliver one copy of the Briefing to the Court for filing, and a second copy (without exhibits) to the: United States Department of Justice National Security Division 950 Pennsylvania Ave., NW Room 6150 Washington, D.C. 20530 Sm 1enscl ein Nat 1301 K Street, N. Suite 600; East Tower Washington, DC 20005 Tel: (202) 408-6400 Fax: (202) 408-6399 mzwillinger@sonnensehein.com Counsel for Yahoo! Inc. 15 SECRET FSC 242 35 Approved for public release by the ODNI 20160408 SECRIIT ....... -, UNITED STA TES :.. ::~. ,-.,....-- ~ t.~S\# L:~l ...-., -~~ r.r·:,':• !,'"'_-: 5.~,-' FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC - ~ ;·::-.~-,~i :,~.::~ :·:;··c:-":; ..... - . . ~ IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: lOSB(g) 07-01 UNOPPOSED MOTION TO UNSEAL RECORDS (U) The United States of America, by and through the undersigned Department of Justice attorneys, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, to unseal the following documents in the abovecaptioned matter: (1) the Order Compelling Compliance with Directives (dated April 25, 2008) ("Order")i and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"). The Order provides that the Order and Opinion "are sealed and shall not be disclosed by either party without authorization by this Court." '(S}._ The Government previously filed an Expedited Motion to Unseal Records -the Order and Opinion - for the limited purpose of discussions with other communications service providers directed to provide assistance to the Government pursuant to the SECRET FSC 243 Approved for public release by the ODNI 20160408 SECRET Protect America Act of 2007, Pub. L. No. 110-95, 121 Stat. 552 (2007). By Order dated May 2, 2008, the Court granted the Government's Expedited Motion to Unseal. ~ In furtherance of those discussions, the Government seeks authorization to provide the Order and Opinion to such communications service providers for the limited purpose of allowing them to read, but not retain, redacted versions of the Order and Opinion. The Government, accordingly, moves to unseal the Order and Opinion. In providing such communications service providers access to the Order and Opinion for their review, the Government will redact from the Order and Opinion: (i) the name of Yahoo Inc. ("Yahoo"), (ii) all other references that would disclose the identity of Yahoo, and (iii) all information that was redacted from the versions of the Order and Opinion served on counsel for Yahoo, specifically all information at the Top Secret/COMINT level and all information for which Yahoo, its counsel and other communications service providers have no need-to-know. In addition, for each communication service provider representative who reads the redacted Order and Opinion, the Government will require that the representative sign a non-disclosure agreement prior to his or her review~ On May 9, 2008, counsel for Yahoo informed the Government that Yahoo does not oppose the relief sought in this motion, provided that the Government redacts the Order and Opinion as described above and requires each communication service SECRlff 2 FSC 244 Approved for public release by the ODNI 20160408 SECRET provider representative who reads the redacted Order and Opinion to sign a nondisclosure agreement prior to his or her review.~ WHEREFORE the United States of America, by counsel, respectfully requests that the Court unseal the documents for the limited purpose identified above. A proposed order accompanies this motion.~ Respectfully submitted, Matthew G. Olsen Deputy Assistant Attorney General National Security Division United States Department of Justice epu m ie National Security Division United States Department of Justice SECRET 3 FSC 245 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: 105B(g) 07-01 ORDER This matter having come before this Court on the motion of the United States of America in the above-captioned docket number and, relying upon the facts set forth in the motion, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) the Order Compelling Compliance with Directives (dated April 25, 2008) ("Order"); and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"), is GRANTED for the limited purpose set forth in the Government's motion. In all other respects, the Order and Opinion shall remain sealed until further order of the Court. IT IS FURTHER ORDERED that, based on the agreement of the parties, the Government shall, prior to disclosure of the Order and Opinion, redact the Order and Opinion in the manner described in the Government's motion and require that each SECRET FSC 246 Approved for public release by the ODNI 20160408 SECRET communication service provider representative who reads the redacted Order and Opinion sign a non-disclosure agreement prior to his or her review S i g n e d - - - - - - - - - - - - - Eastern Time Date Time Judge, United States Foreign Intelligence Surveillance Court cc Marc J. Z willinger So1menschein Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for the United States SliCRET 2 FSC 247 Approved for public release by the ODNI 20160408 SECRET UNITED STATES -- . . . i .. ' ~ . .. ··-. . ~. ' - 3. • • FOREIGN INTELLIGENCE SURVEILLANCE COlJRT -· · "' :: () WASHINGTON, DC IN RE DIRECTIVES TO YAHOO Ii'\C. PURSUANT TO SECTION 105B OF THE FOREIGN Ji\J!ELLIGENCE Docket Number: lOSB(g)-07-01 SURVEILLANCE ACT.~ CERTIFICATE OF SERVICE (U) I hereby certify that, on May 9, 2008, true and correct copies of the United States of America's Unopposed Motion to Unseal Records, with proposed order, and this Certificate of Service were submitted, by hand delivery, to a Court- designated alternate Litigation Security Officer, for delivery to counsel of record for Yahoo Inc.~ SECRET FSC 248 36 Approved for public release by the ODNI 20160408 SECRET UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO Ij'.\;C. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ Docket Number: 105B(g) 07-01 UNOPPOSED MOTION TO UNSEAL RECORDS (U) The United States of America, by and through the undersigned Department of Justice attorneys, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, and Rule 7(b) of the Rules of Procedure of this Court, to unseal the following documents in the above-captioned matter: (1) Yahoo!, Inc.'s ("Yahoo") Motion for Stay Pending Appeal (filed May 6, 2008); (2) Government's Motion for an Order of Civil Contempt (filed May 9, 2008); (3) Combined Memorandum in Opposition to Yahoo's Motion for Stay Pending Appeal and in Support of Government's Motion for an Order of Civil Contempt (filed May 9, 2008); (4) Motion for Leave to File Classified Declaration for the Court's Ex Parte and In Camera Review, with attached classified declaration (filed May 9, 2008); (5) the Court's order (entered SECRET FSC 249 Approved for public release by the ODNI 20160408 SECRET May 9, 2008) ("May 9, 2008 Order"); and (6) Yahoo's report on the status of its compliance with the Court's April 25, 2008 Order (to be filed with the Court Security Officer no later than 5:00 p.m. on May 14, 2008). The May 9, 2008 Order provides that it "is sealed and shall not be disclosed by either party without authorization by this Court." In addition, the Government assumes that the documents described above are records of the Court pursuant to Rule 7 ( b ) ' Pursuant to Section 4 of the Protect America Act, the Attornev General on a J semiannual basis must inform specified congressional committees of "incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issue a directive." Protect America Act of 2007, Pub. L. No. 11095, § 4(1)(B), 121 Stat. 552, 555-56 (2007). In connection with this requirement, staff members of the Select Committee on Intelligence of the Senate and the Committee on the Judiciary of the Senate were briefed on the status of the decision of Yahoo not to comply with directives issued under the Protect America Act. Staff members of the Select Committee on Intelligence of the Senate and Committee on the Judiciary of the Senate since have requested access to briefing in connection with the consideration of proposed legislation to amend the Foreign Intelligence Surveillance Act of 1978. ~ In response to these requests, the Government has previously moved the Court to unseal certain pleadings filed by the Government and Yahoo and to unseal the Order FSC 250 Approved for public release by the ODNI 20160408 and Opinion issued by the Court on April 25, 2008. The Court approved the unsealing of those documents for disclosure to the specified congressional committees by orders dated January 10 and 17, 2008, and April 22 and 30, 2008. ~ The Government now intends to provide copies of the above-described motions, memorandum, May 9, 2008 Order, and report to the specified congressional committees. The Government, accordingly, moves to unseal the above-described documents. --i--(.,..,S~)On May 13, 2008, counsel for Yahoo informed the Government that Yahoo does not oppose the relief sought provided that: (i) the above-described documents are unsealed for the limited purpose of allowing the Government to disclose and submit them to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives; and (ii) prior to such disclosure, the Government will redact from the above-described documents the name of Yahoo and all other references that would disclose the identity of Yahoo.~ SECRET 3 FSC 251 Approved for public release by the ODNI 20160408 SECRET WHEREFORE the United States of America, by counsel, respectfully requests that the Court unseal the documents identified above. An unopposed proposed order accompanies this motion~ Respectfully submitted, Matthew G. Olsen Deputy Assistant Attorney General National Security Division United States Department of Justice National Security Division United States Department of Justice SECRET 4 FSC 252 Approved for public release by the ODNI 20160408 SECRET UNITED ST ATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO INC. PURSUANT TO SECTION 1058 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.~ I Docket Number: lOSB(g) 07-01 I ORDER This matter having come before this Court on the motion of the United States of America in the above-captioned docket number and, relying upon the facts set forth in the motion and the statement of the agreement of the parties, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) Yahoo!, Inc.'s ("Yahoo") Motion for Stay Pending Appeal (filed May 6, 2008), (2) Government's Motion for an Order of Civil Contempt (filed May 9, 2008), (3) Combined Memorandum in Opposition to Yahoo's Motion for Stay Pending Appeal and in Support of Government's Motion for an Order of Civil Contempt (filed May 9, 2008), (4) Motion for Leave to File Classified Declaration for the Court's Ex Parte and In Camera Review, with attached classified declaration (filed May 9, 2008), (5) the Court's order FSC 253 Approved for public release by the ODNI 20160408 SECRET (entered May 9, 2008) ("May 9, 2008 Order"), and (6) Yahoo's report on the status of its compliance with the Court's April 25, 2008 Order (to be filed with the Court Security Officer no later than 5:00 p.m. on May 14, 2008), which were or will be filed or issued pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, in the abovecaptioned docket number, is GRANTED for the limited purpose of allowing the Government to disclose and submit the above-described documents to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives. In all other respects, the above-described documents shall remain sealed until further order of the Court. IT IS FURTHER ORDERED that, based on the agreement of the parties, the Government shall, prior to disclosure of the above-described documents, redact from them the name of Yahoo and all other references that would disclose the identity of Yahoo. S i g n e d - - - - - - - - - - - - - Eastern Time Time Date Judge, United States Foreign Intelligence Surveillance Court SECRET 2 FSC 254 Approved for public release by the ODNI 20160408 SECR~T cc: Marc J. Zwillinger Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W., Suite 600 East Tower Washington, D.C. 20005 Counsel for Yahoo Inc. Matthew G. Olsen Deputy Assistant Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for the United States SECRET 3 FSC 255 Approved for public release by the ODNI 20160408 SECRET L'NITED STATES FOREIGN IN1ELLIGENCE SURVEILLANCE COURT WASHINGTON, DC IN RE DIRECTIVES TO YAHOO L'JC. PURSUANT TO SECTION lOSB OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. Docket Number: 105B(g)-07-01 R CERTIFICATE OF SERVICE (U) I hereby certify that, on May 13, 2008, true and correct copies of the United States of America's Unopposed Motion to Unseal Records, with proposed order, and this Certificate of Service were submitted, by hand delivery, to a Court-designated Litigation Security Officer or alternate Litigation Security Officer, for delivery to counsel of record for Yahoo Inc. "(SJ- National Security Division U.S. Department of Justice SECRET FSC 256 37 Approved for public release by the ODNI 20160408 ~ FOREIGN INTELLIGENCE SURVEILLANCE COURT Dkt. No. 105B(G) 07-01 IN RE DIRECTIVES TO YAHOO! INC. Yahoo! Inc.'s Unopposed Motion to Transmit the Record to the Foreign Intelligence Surveillance Court of Review PURSUANT TO SECTION 1058 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT UNDER SEAL Yahoo!, by and through its undersigned counsel, hereby moves this Court pursuant to the Foreign Intelligence Surveillance Act, as amended, and Rule 18 of the Rules of Procedure of this Court, to Transmit the Record in this docket to the Foreign Intelligence Court of Review ("Court of Review'). On May 5, 2008, Yahoo! filed a Petition for Review with the Court of Review, a filestamped copy of which is attached as Ex. A. The Draft Procedures for Review of Petitions Filed Under Section I 05B(h) of the Foreign Intelligence Surveillance Act of 1978 ("Draft Procedures") contain no provisions for the transmission of the record to the Court of Review upon appeal by either party. Section 2 of the Draft Procedures, however, specify that the Rules of Procedure of the Foreign Intelligence Surveillance Court ("Rules of Procedure") apply to all matters before this Court. Rule 18 of the Rules of Procedure specify that where the government files an appeal after the denial of one of its applications, the government must file a motion to transmit the record to the Court of Review. Therefore, it follows that when an appeal, or Petition for Review, is brought by either the government or a provider regarding the enforcement of a SECRET FSC 257 Approved for public release by the ODNI 20160408 8ECft:Ei Directive, a motion to transmit the record to the Court of Review must also be filed in co1mection with the appeal. Counsel for Yahoo! has spoken with counsel for the govenm1ent, who has advised that the government does not oppose the instant Motion to Transmit the Record to the Court of Review, provided that the govenunent's non-opposition is without prejudice to any argument that the government may make before the Court of Review with regard to the approptiateness of Yahoo!'s appeal and/or the jurisdiction of the Court. WHEREFORE Yahoo!, by counsel, respectfully requests that the Court transmit the record in this docket to the Court of Review. DATED: May 14, 2008 Smmenschein Nath 1301 K Street, N.W. Suite 600; East Tower Washington, DC 20005 Tel: (202) 408-6400 Fax: (202) 408-6399 mzwillinger@sonnenschein.com Counsel/or Yahoo! Inc. 2 SECRET FSC 258 Approved for public release by the ODNI 20160408 SECRET CERTIFICATE OF SERVICE I hereby ce11ify that on this 14111 Day of May 2008, I provided a true and correct copy of Yahoo! Inc.'s Motion to Transmit Record (the "Motion") to an Alternate Court Security Officer, who has infonned me thats/he will deliver one copy of the Motion to the Com1 for filing, and a second copy (without Exhibit A, which the government has already received) to the: United States Department of Justice National Security Division 950 Pennsylvania Ave., NW Room 6150 Washington, D.C. 20530 Sonnenschei Nath 1301 K Street, N. . Suite 600; East Tower Washington, DC 20005 Tel: (202) 408-6400 Fax: (202) 408-6399 mzwillinger@sonnenschein.com Counsel for Yahoo! Inc. 3 - SECRET_ FSC 259 38 Approved for public release by the ODNI 20160408 SECRET rn-nTED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT \1\1 ASHINGTON, DC IN RE DIRECIBTES TO YAHOO INC. PUP'5UANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SlJRVEILLANCE ACT.~ Docket Number: 105B(g) 07-01 ORDER This matter having come before this Court on the motion of the United States of America in the above-captioned docket number and, relying upon the facts set forth in the motion, it appearing to the Court that the motion should be granted, IT IS HEREBY ORDERED that the motion of the United States to unseal (1) the Order Compelling Compliance vdth Directives (dated April 25, 2008) ("Order"); and (2) Memorandum Opinion (dated April 25, 2008) ("Opinion"), is GRANTED for the limited purpose set forth in the Goven1-rnent' s motion. In all other respects, the Order and Opinion shall remain sealed until further order of the Court. IT IS FURTHER ORDERED that, based on the agreement of the parties, the Government shall, prior to disclosure of the Order and Opinion, redact the Order and f- i st..- ff ,,.... 17 f>ir .. "i c/e. Opinion in the manner described in the Government's motion and i:equrre that eaGl:i. r~-'A.~-1-~d ~rr:/~ir -...J ·,d\..- +o ..._ eo!...-. ... .,:e-f;.,,,,. si::..-v:c.~ f)(j o,, ,-.,. SECRET FSC 260 Approved for public release by the ODNI 20160408 SECRET re: p-'e.S e ....+q+r .,._ -fr. ,,-e a./ i .f +.t.._&:;.+ l"t:: f'""e'.f'~,,.-f..,,.-1-"ia e. l-. q_s /]8 GaHTm·a't:kaesn g;e:Ti,ee..ppe-..ider re:p~·e3entativ2 ~o td:icis th.:. :=sdereted Greer and· /dr" 11i d t!.,.s-i5.,,,e.J ,,, Qpini