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

Foreign Intelligence Surveillance Court of Review
551 F.3d 1004 (2008)


Facts

The Protect America Act (PAA), 50 U.S.C. §§ 1805a-c, a temporary set of amendments to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801, authorized the Director of National Intelligence (DNI) and U.S. Attorney General (AG) to instruct communications service providers to assist in carrying out warrantless searches, for periods of up to one year, in order to gather foreign intelligence from subjects who were foreign agents the government reasonably believed to be outside the United States. In 2007, the government issued directives ordering a service provider (plaintiff) to aid in warrantless surveillance of specified customers. The provider did not comply with the government’s orders and instead challenged the government’s authority to issue the directives before the Foreign Intelligence Surveillance Court (FISC). The FISC concluded that the directives were valid and compelled the provider to comply. The communications provider petitioned for review, arguing that the government must follow Fourth Amendment warrant requirements in issuing directives, or in the alternative, even if a foreign intelligence exception to the warrant requirement exists, the surveillances still violated the Fourth Amendment, because they were unreasonable.

Rule of Law

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Issue

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Holding and Reasoning (Selya, J.)

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  • A “yes” or “no” answer to the question framed in the issue section;
  • A summary of the majority or plurality opinion, using the CREAC method; and
  • The procedural disposition (e.g. reversed and remanded, affirmed, etc.).

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