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Category: Official Statement

Published: 20 November 2017

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• Section 702

• Item Type: Official Statement

The U.S. Intelligence Community relies on Section 702 of the Foreign Intelligence Surveillance Act in the constant hunt for information about foreign adversaries determined to harm the nation or our allies.  The National Security Agency (NSA), for example, uses this law to target terrorists and thwart their plans.  In a time of increasing cyber threats, Section 702 also aids the Intelligence Community’s cybersecurity efforts. 

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Category: Official Statement

Published: 03 August 2017

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• FISA

• PDF Index: Remarks as delivered by James R. Clapper Director of National Intelligence Open Hearing on Foreign Intelligence Surveillance Authorities U.S. Senate Select Committee on Intelligence Thursday, September 26, 2013 216 Hart Senate Office Building, Capitol Washington, D.C. Chairman Feinstein, Vice Chairman Chambliss, distinguished members of the Committee. Thank you so much for having us here today, to talk about the way ahead, occasioned by the dramatic revelations about intelligence collection programs since their unauthorized disclosure, and about the steps we’re taking to make these programs more transparent, while still protecting our national security interests. And thanks to you especially, Madam Chairman and Senator Chambliss, for your staunch leadership and stalwart support. I’m joined today, of course, by Deputy Attorney General, to my left, Jim Cole, and Director of NSA, General Keith Alexander. We each have statements, and so I will transition to General Alexander, and thence to Mr. Cole. Th is hearing is a key part of the discussion our nation needs, about legislation that provides the Intelligence Community with authorities, both to collect critical foreign intelligence, and to protect privacy and civil liberties. We, all of us, in the Intelligence Community, are very much aware that the recent unauthorized disclosures have raised serious concerns, both here in Congress, and across the nation, about our intelligence activities. We know that the public wants both to understand how its Intelligence Community uses its special tools and authorities, and to judge whether we can be trusted to use them appropriately. We believe we have been lawful, and that the rigorous oversight we’ve operated under has been effective. So we welcome this opportunity to make our case to the public. As we engage in this discussion, I think it’s also important that our citizens know that the unauthorized disclosure of the details of these programs has been extremely damaging. 2 From my vantage, as DNI, these disclosures are threatening our ability to conduct intelligence, and to keep our country safe. There’s no way to erase, or make up for, the damage that we know has already been done, and we anticipate even more, as we continue our assessment, and as more revelations are made. Before these unauthorized disclosures, we were always, as you know, conservative about discussing the specifics of our collection programs, based on the truism that the more adversaries know about what we’re doing, the more they can avoid o ur surveillance. But the disclosures, for better or worse, have lowered the threshold for discussing these matters in public. So, to the degree that we can discuss them, we will. But this public discussion should be based on an accurate understanding of the Intelligence Community: Who we are, what we do, and how we’re overseen. In the last few months, the manner in which our activities have been characterized has often been incomplete, inaccurate, or misleading, or some combination thereof. I believe that most Americans realize the Intelligence Community exists to collect the vital intelligence that helps protect our nation from foreign threats. We focus on uncovering the secret plans and intentions of our foreign adversaries. But what we do not do is spy unlawfully on Americans; or for that matter, spy indiscriminately on the citizens of any country. We only “spy” for valid foreign intelligence purposes, as authorized by law, with multiple layers of oversight, to ensure we do not abuse our authorities. Unfortunately, this reality has sometimes been obscured in the current debate. And for some, this has led to a lowering of trust in the Intelligence Community. And we do understand the concerns on the part of the public. I’m a Vietnam veteran, and I remember, as Congressional investigations of the 1970s later disclosed – and I was in the Intelligence Community then – that some intelligence programs back then were carried out for domestic political purposes, without proper legal authorization or oversight. But having lived through that, as a part of the Intelligence Community, I can now assure [the] American people that the Intelligence Community of today is not like that. We operate within a robust framework of strict rules and rigorous oversight, involving all three branches of government. Another useful historical perspective, I think, is that during the Cold War, the Free World and the Soviet bloc had mutually exclusive telecommunications systems, which made foreign collection a lot easier to distinguish. Now, world telecommunications are unified, intertwined with hundreds of millions of innocent people conducting billions of innocent transactions, with a much lesser number of nefarious adversaries who are trying to do harm on the very same 3 netw ork, using the very same technologies. So, our challenge is to distinguish, very precisely, between these two groups of communicants. Now, if we had an alarm bell that went off whenever one terrorist communicated with another terrorist, our jobs would ce rtainly be a lot easier. But that capability just doesn’t exist in the world of technology today. Over the past three months, I’ve declassified and publicly released a series of documents related to both Section 215 of the PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act, or FISA. We did that to facilitate informed public debate about the important intelligence collection programs that operate under these authorities. We felt that in light of the unauthorized disclosures, the public interest in these documents far outweighed the potential additional damage to national security. These documents let our citizens see the seriousness, thoroughness, and rigor with which the FISA Court exercises its responsibilities. They also reflect the Intelligence Community’s, particularly NSA’s, commitment to uncovering, reporting, and correcting any compliance matters that occur. However, even in these documents, we’ve had to redact certain information to protect sensitive sources and methods, such as particular targets of surveillance. But we’ll continue to declassify more documents. That’s what the American people want, it’s what the President has asked us to do, and I personally believe it’s the only way we can reassure our citizens that their Intelligence Community is using its tools and authorities appropriately. The rules and oversight that govern us ensure we do what the American people want us to do, which is protect our nation’s security and our people’s liberties. So I’ll repeat: We do not spy on anyone except for valid foreign intelligence purposes, and we only work within the law. On occasion, as you’ve described, as you’ve stated, we’ve made mistakes – some quite significant. But these are usually caused by human error or technical problems. And whenever we’ve found mistakes, we’ve reported, addressed, and corrected them. The National Security Agency specifically, as part of the U.S. Intelligence Community broadly, is an honorable institution. The men and women who do this sensitive work are honorable people, dedicated to conducting their mission lawfully, and are appalled by any wrongdoing. They, too, are citizens of this nation, who care just as much about privacy and constitutional rights as the rest of the public. They should be commended for their crucial and important work in protecting the people of this country, which has been made all the more difficult by the torrent of unauthorized, damaging disclosures. 4 That all said, we in the IC stand ready to work in partnership with you, to adjust foreign surveillance authorities, to further protect our privacy and civil liberties. And I think there are some principles we already agree on. We must always protect our sources, methods, targets, partners, and liaison relationships. We must do a better job in helping the American people understand what we do, why we do it, and, most importantly, the oversight of our activities. We must take every opportunity to demonstrate our commitment to respecting the civil liberties and privacy of every American. But we also have to remain mindful of the potentially negative long-term impact of over - correcting the authorizations granted to the Intelligence Community. As Americans, we face an unending array of threats to our way of life, mo re than I’ve seen in my 50 years in intelligence. We need to sustain our ability to detect these threats. We welcome a balanced discussion about national security and civil liberties. It’s not an either/or situation; we need to continue to protect both. ###
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Category: Official Statement

Published: 11 August 2016

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• PDF Index: UNITED STATES Filed Unltad States Foreign lntemgence Surveillance Court NOV O 6 2015 t.~"" M}f,tf'I Hall, Clerk of Court FOREIGN INTELLIG ENCE SURVEILLANCE COURT MEMORANDUM OPINION AND ORDER This matter is before the Foreign Intelligence Surveillance Court ("FISC" or "Court") on the "Government's Ex Parte Submission of Reauthorizat ion Certifications and Related Procedures, Ex Parte Submission of Amended Certifications , and Request for an Order Approving Such Certifications and Amended Certifications," which was filed on July 15, 2015 ("July 15 , 2015 Submission"). For the reasons explained below, the government's request for approval is granted, subject to certain reporting requirements. The Court's approvaJ of the certifications , amended certification s, and accompanying targeting procedures and minimization procedures is set out in a separate order that is being entered contemporaneously herewith. TOP SF3CRfi3THSIHORCONfNOfilOR:N Approved I. BACKGROUND A. The 2015 Certifications The July 15, 2015 Submission includes-rtifications that have been executed by the Attorney General ("AG") and the Acting Director of National Intelligence ("DNI") pursuant to Section 702 of the Foreign Intelligence Surveillance Act ("FISA"), which is codified at 50 U.S.C. § 1881a: Each of th-certifications (collectively referred to as "the 2015 Certifications") is accompanied by the support ing affidavits of the Director of the National Security Agency ("NSA''), the Director of the Federal Bureau of Investigation ("FBI"), and the Director of the Central Intelligence Agency ("CIA"); two sets of targeting procedures, for use by the NSA and FBI respectively; 1 and four sets of minimization procedures , for use by the NSA, FBI, CIA, and the National Counterterrorism Center ("NCTC"), respectively.2 The July 15, 2015 Submission also includes an explanatory memorandum prepared by the Department of Justice 1 The targeting procedure s for each of the 201 5 Certifications are identical. The targeting procedures for the NSA ("NSA Targeting Procedures") appear as Exhibit A to each of the 2015 Certifications. The targeting procedures for the FBI ("FBI Targeting Procedures") appear as Exhibit C to each of the 2015 Certifications. 2 The minimization procedures for each of the 2015 Certifications are identical. The minimization procedures for the NSA ("NSA Minimization Procedures") appear as Exhibit B to each of the 2015 Certifications. The minimization procedures for the FBI ("FBI Minimization Procedures") appear as Exhibit D to each of the 2015 Certifications. The minimization procedures for the CIA ( " CIA Minimization Procedures") appear as Exhibit E to each of the 2015 Certifications. The minimization procedures for the NCTC ("NCTC Minimization Procedures") appear as Exhibit G to each of the 2015 Certifications. 'F0P S~CRil'F,'/Sb'/ORC0NfJ~0FORN Page2 Approved ("DOJ") ("July 15, 2015 Memorandum"). Finally, it includes an unclassified swnmary ofDOJ and DNl oversight of Section 702 implementation, and a summary of "notable Section 702 requirements," which have been submitted to the Court in accordance with the recommendation of the Privacy and Civil Liberties Oversight Board ( '"PCLOB "). See July 15, 2015 Memorandum at Tabs 1 and 2; see also PCLOB, Report on the Surveillance Prograin Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act at 142-4 3 (July 2, 2014) ("PCLOB Report") (Recommendation 5). Each of the 2015 Ce11ifications involves "the targeting of non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information." 'FOP SE3CR£!i';','SfNORCONlNOfilOltN Page 3 Approved Each of the 2015 Certifications generally proposes to continue acquisitions of foreign intelligence information that are now being conducted under certifications that were made in 2014 ("the 2014 Certifications"). See July 15, 2015 M emorandum at 2. The 2014 Certifications, approved by the FISC on August 26, 2014. 3 The 2014 Certifications, in tum, generally renewed authorization s to acquire foreign intelligence infonnation under a series of certification s made by the AG and DNI pursuant to Section 702 that dates back to 2008. 4 In its July 15, 2015 Submission, the government also seeks approval of amendments to the certifications in all of the Prior 70 2 Dockets, such that the NSA , CIA, and FBI henceforward will apply the same minimization procedures to information obtained under prior certifications as they will to information to be obtained under the 2015 Certifications. See July 15 Memorandwn at 2-3 ; Memorandum Opinion 5 The July 15 , 2015 Submission does not propose any changes to the FBI Targe ting Pr ocedure s or NCTC Minimization Procedures. See July 15, 2015 Memorandum at 3. Page 4 Approved B. The Extension of Time and the Appointment of Amicus Curiae Before making the July 15, 2015 Submission, the government filed draft ver sions of the 2015 Certifica tions on June 15, 2015. After reviewing those drafts, the Court concluded "that this matter is likely to present one or more novel or significant interpretations of the law, which would requiJe the Court to consider appointment of an amicus curiae" under 50 U.S.C. § 1803(i)(2) . See Order issued on July 7, 20 15 ("July 7, 2015 Order"), at 3. The Court further noted that the 30-day review period specified by 50 U.S.C. § l 881a(i)(l)(B) would, as a practical matter , foreclose amicus participation . Id . The Court may, however, extend that 30-day review period "as necessary for good cause in a manner consistent with national security." 50 U.S.C. § 188laG)(2). To help the Court decide "whether to extend the time it would have to act on the 2015 Certifications and revised procedures in order to allow for meaningful amicus assistance in reviewing them," the Court ordered the government to "explain in writing whether- and if so, how long -an extension of the time for the Court to review the 2015 Certifications and revised procedures would be consistent with national security." July 7, 2015 Order at 4. On July 14, 2015, the Government timely filed its Response to the July 7, 2015 Order, advising that "the government assesses that an extension of 60 to 90 days ... would be consistent with national security." See Government's Response to the Court's Order of July 7,2015, filed on July 14, 2015, at 7. On July 23, 2015, the Court found that "the need for an extension to allow for [runicus] participation constitutes 'good cause"' for an extension under Section 188laG)(2). See Order TOP SECRBTNSIY/OftCON,'NOFORP4 Page 5 Approved issued on July 23, 2015, at 3. Accordingly, it extended "the period for Court review under [Section 1881 a(i)(l )(B) ] for 90 days, such that this review must be completed no later than November 12, 2015." Id. On August 13, 2015, the Court issued an order appointing Amy Jeffress to serve as amicus curiae in this matter pursuant to SO U.S.C. § 1803(i)(2)(B) .6 The Court directed Ms. Jeffress to address whether the minimization procedures accompanying the 2015 Certifications meet the requirements of 50 U.S.C. § 1881a(e) and are consistent with the Fourth Amendment, see id.§ 1881a(i)(3)(A), in view of the provisions of the procedures tha t apply to: (i) queries of information obtained under section 702, particularly insofar as queries may be designed to return information concerning United States persons, see NSA Minimization Procedures at 7, FBI Minimization Procedures at 11- 12 , and CIA Minimization Procedures at 3-4; and (ii) preservation for litigation purposes of information otherwise required to be destroyed under the minimization procedures, see NSA Minimization Procedures at 8-9, FBI Minimization Procedures at 24-25, and CIA Minimization Procedures a t 10-11. Thereafter, the Court issued an order d irecting Ms. Jeffress and the government to submit briefs on these issues no later than October 16, 2015. See Briefing Order issued on September 16, 2015, at 4. After both briefs were timely filed , the Court received oral argument from the 6 The Court wishes to thank Ms. Jeffress for her exemp lary work in this matter. Her written and oral presentations were of the highest quality and extremely informative to the Court 's consideration of this matter . The Court is grateful for her willingness to serve in this capacity. 'FOP SECMYiWSIOORCOfVNOfi!OtHif Page6 Approved amicus and counsel for the government on October 20, 2015.1 C. Review of Compliance Issues FISC review of targeting and minimization procedures under Section 702 is not confined to the procedures as written; rather, the Court also examines how the procedures have been and will be implemented. See, ~. , Memorandum Opinion entered on April 7, 2009, at 22-24 ("April 7, 2009 Opinion"); and Memorandum Opinion entered on Aug. 30, 2013, at 6-11 ("August 30 , 2013 Opinion"). Accordingly, for purposes of its review of the July 15, 2015 Submission, the Court has examined quarterly compliance reports submitted by the government8 since the most recent FISC review of Section 702 certifications and procedures was completed on August 26, 2014, as well as individual notices of non-compliance relating to implementation of Section 702 . Based on its review of these submissions, the Court, through its staff, orally conveyed a nwnber of compliance-related questions to the government. On October 8, 2015, the Court conducted a hearing to address some of the same compliance-related questions ("October 8 Hearing"). IL REVIEW OF CERTIFICATIONS ND OF THEIR PREDECESSOR CERTIFICATIONS AS AMENDED BY THE JULY 15, 2015 SUBMISSION. The Court must review a certification submitted pursuant to Section 702 "to determine 7 See generally Transcript of Proceedings Held Before the Honorable Thomas F. Hogan on October 20, 2015 ("October 20 Transcript"). 8 See Quarterly Reports to the FISC Concerning Compliance Matters Under Section 702 ofFISA, submitted on December 19, 2014, March 20, 2015, June 19, 2015, and September 19 , 2015. TQP SEC:RETJ/SIJ/OBCONA'JOfsOllN Page? Approved 'FOP S:ECRIJ!f//Slf,'ORCOl'Jfl',Ot:Oft:N whether [it] contains all the required elements." 50 U.S.C. § 1881a( i)(2)(A) . The Court's examination of Certifications confi.nns that: (3) as required by 50 U.S.C. § 1881a(g)(2)(B), each of the certifications is accompanied by the applicable targeting procedures and minimization procedures; ( 4) each of the certifications is supported by the affidavits of appropriate national security official s, as described in 50 U.S.C. § 1881a(g)(2)(C);10 and (5) each of the certifications includes an effective date for the authorization in compliance with 50 U.S.C . § 1881a(g)(2)(D)- specifical ly, the certifications become effective on August 14, 2015, or on the date upon which this Court issues an order concemin the certification under Section 188la(i)(3), whichever is later, see 9 The 2015 Certifications were made by the Attorney General and Michael P. Dempsey, the Deputy DNI for Intelligence Integration. At the time , Mr. Dempsey was serving as Acting DNI pursuant to a Presidential Memorandwn dated September 20, 2013. That Memorandum, which was issued pursuant to the Federal Vacancies Reform Act of 1998, as amended, 5 U.S.C. § 3345, et seq., provides that the Deputy DNI for Intelligence Integration "shall act as and perform the functions and duties of the [DNI] during any period in which the DNI and the Principal Deputy Director of National Intelligence have died, resigned, or otherwise become unable to perform the functions and duties of the DNI." See Presidential Memorandum, "Designation of Officers of the Office of the Director of National Intelligence [("ODNI")] to Act as Director of National Intelligence," 78 Fed. Reg. 59,159 (Sept. 20, 2013). rs, United States Navy, Direct or, NSA · Affidavits of James B. Corney, Director, -davits of John 0. Brennan , Page8 Approved T0P 6ECDETh'§l//0ftC0Kff10F0RN -contain all the required statutory elements. See 50 U.S.C . § 188la(i)(2)(A). Similarly, the Court has reviewed the certifications in the Prior 702 Dockets, as amended by the 2015 Certifications, and finds that they also contain all the elements required by the statute. [d. 12 III. REVIEW OF THE TARGETING AND M.INUvfIZATION PROCEDURES The Court is also required, pursuant to 50 U.S.C. § 188la(i)(2)(B) and (C), to review the targeting and minimization procedures to determine whether they are consistent with the requirements of 50 U.S.C. § 188la(d)(l) and (e)(l). Pursuant to 50 U.S.C. § 188 la(i)(3)(A) , the Court further assesses whether the targeting and minimizat ion procedures are consistent with the requirements of the Fourth Amendment. Section 1881 a( d)(l) requires targeting procedures that are "reasonably designed" to "ensure that any acquisition authorized under [the certification] is limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are knmvn at the time of the acquisition to be located in the United States." In addition to these statutory 11 The statement described in 50 U.S.C. § 188la(g)(2)(E) is not requi red in this case because there has been no "exigent circumstances" determination under Section 1881 a( c )(2) . 12 The effective dates for the amendments to the certifications in the Prior 702 Dockets are the same as the effective dates for the 2015 Certifications. See 'J8P SISCRE'J?#SIOORCOi'VHOPORI'~ Page9 Approved 'f0P SEJCfttJ'fOSl#OftCOJIVNOPOltl'~ requirements, the government uses the targeting procedures as a means of complying with Section 1881a(b)(3) , which provides that acquisitions "may not intentionally target a United States person reasonably believed to be located outside the United State s." See NSA Targeting Procedures at 1, 3-4, 7; FBI Targeting Procedures at 1-4. The FISC considers steps taken pur suant to these procedures to avoid targeting United States persons as relevant to its assessment of whether the procedures are consistent with the requirements of the Fourth Amendment. See Docket No . 702(i)-08-01, Memorandwn Opinion entered on Sept. 4, 2008, at 14 ("September 4, 2008 Opinion"). Section 1881 a( e )( 1) requires min irnization procedure s that "me et the definition of minimization procedure s under [50 U.S.C. §§] 1801(h) or 1821(4) ]." The applicable statutory definition is fully set out at pages 12-14 below. A. The NSA and FBI Targeting Procedures Complv With Statut01y Requirements and Are Reasonably Designed to Prevent the Targeting of United States Persons Under the procedures adopted by the government , NSA is the lead agency in making targeting decisions under Section 702. Pursuant to its targeting procedures , NSA may target for acquisition a particular "selector," which is typically a facility such as a telephone number or email addres s. The FBI Targeting Proc edw-es come into play in case s where the government hat has been tasked under the NSA Targeting Procedures. See FBI Targeting Procedw-es at 1. "Thus, the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures, whene ver acquired. " September 4, 2008 Opinion at 20 (emp hasis in original). Page 10 Approved The NSA Targeting Procedures included as part of the July 15, 2015 Submission contain two revisions, neither of which raises any concern. Both changes concern the requirement that, before tasking a selector for collection under Section 702, NSA first assess that the target is expected to possess or receive, or is likely to communicate, foreign intelligence inf om1ation concerning a foreign power or a foreign territory. See NSA Targeting Procedures at 4. The first change consists of new language clarifying that such assessments must be "particularized and fact-based" and must consider the ''totality of the circumstances." See id. The new language, which was added following a recommendation of the PCLOB, ~ PCLOB Report at 134-35 (Recommendation 1 ), results in no change in practice, as NSA has interpreted prior versions of the procedures to require the same particularized, fact-based assessments of the totality of the circumstances. See July 15, 2015 Memorandwn at 5-6. The second change, made in response to the same PCLOB recommendation, is the addition of language requiring NSA analysts to document each such foreign intelligence assessment. New language requires NSA analysts to "provide a written explanation of the basis for their assessment, at the time of targeting, that the target possesses, is expected to receive, and/or is likely to communicate foreign intelligence information concerning [the] foreign power or foreign territory" about which they expect to obtain foreign intelligence infonnation pursuant to a particular targeting detem1ination. See NSA Targeting Procedures at 8. This change, which will facilitate review and oversight of NSA targeting decisions, presents no issue under Section 1881a(d)(l). For the reasons stated above and in the Court's opinions in the Prior 702 Dockets , the ~OP SECRHlWSIOORCOP~iNOFORN Page 11 Approved 'f6P Sl!CM'fMS1fi'OltCOMlNOf Oft!if Court conclude s that the NSA Targeting Procedures and the FBI Targeting Procedures, 13 as Mitten, are reasonably designed, as required by Section 1881a(d)(l): (1) to ensure that any acquisition authorized under the 2015 Certifications is limited to targeting persons reasonably believed to be located outside the United States, and (2) to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States. Moreover, for the reasons stated above and in the Court's opinions in the Prior 702 Dockets, the Court concludes that the NSA and FBI Targeting Procedures, as written, are reasonably designed to prevent United States persons from being targeted for acquisition -a finding that is relevant to the Court's analysis of whether those procedures are consistent with the requirements of the Fourth Amendment. See pages 36-45 below. B. Tbe FBI, NSA, and CIA Minimization Procedures Comply With Statutory Reguirements The FBI, NSA, and CIA all have access to "raw," or unminimized, information obtained under Section 702. Each agency is governed by it s own set of minimization procedures in its handling of Section 702 information. Under Section 1881a(i)(2)(C), the Court ruust determine whether the agencies' respective minimization procedures included as part of the July 15, 2015 Submission meet the statutory definition of minimi zation procedure s set forth at 50 U.S.C. §§ 1 801(h) or 1821(4), as appropriate . Sections 1801(h) and 1821(4) define "minimization 13 The Court has already concluded that procedures identical to the FBI Targeting Procedures included as part of the July 15, 2015 Submission comply with the applicable statutory requirements . See August 26, 2014 Opinion at 12-14. There is no basis for the Court to deviate from that conclusion here . 'f8P SECRElf//SIOORCOfifJ'N8filOlti'i Page 12 Approved ~OP Sl?JCM1¥//Sl,';10ftCON;'NOFOfflf procedures" in pertinent part as: (I) specific procedures, which shall be adopted by the Attorney General , that are reasonably designed in light of the purpose and technique of the particular surveillance [or physical search), to minimize the acquisition and retention, and prohibit the dissemination , of nonpublicly avrulable information concerning unconsenting United States persons consis tent with the need of the United State s to obtain, produce, and disseminate foreign intelligence information ;[ 14 ] (2) procedure s that require that nonpublicly available information, which is not foreign intelligence information, as defined in [50 U.S.C. § 1801(e)(l)], shall not be disseminated in a manner that identifies any United States person, without such per son' s consent , unle ss such person's identity is necessary to understand foreign intelligence information or asses s its importance; [and] (3) notwithstanding paragraphs (I) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being , or is about to be committed and that is to be retained or dis seminated for law enforceme nt purposes(.] 14 Section 1801(e) defines "foreign intelligence information" as (1) information that relates to , and if concerning a United States person is necessary to, the ability of the United States to protect agrunst - (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism , or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power ; or (C) clandestine intelligence activitie s by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or a foreign territory that relate s to, and if concerning a United States person is necessary to - (A) the national defense or the security of the United States ; or (B) the condu ct of the foreign a ffair s of the United States. TOP SF:CRl3'Fff9fH0ftCO~UN0F01tN Page 13 Approved 'f0P SECRE'fh'Sl,1,'0RC6NiN6P6KN 50 U.S .C. § 1801(h); see also id.§ I 821(4).15 l. Changes to Provisions Permitting the Retention of Section 702-Acquired Inform ation Subject to Preservation Oblig ations Arising from Litigation In 2014, the Court approved provi sions permitting FBI , NSA and CIA to retain Section 702-acquired infonnation subject to specific preservation obligations arising in litigation concerning the lawfulness of Sec tion 702. See August 26, 2014 Opinion at 21-25. Access to information retained under these provisions is tightl y restricted. See id. at 21, 23. The revised NSA and CIA Minimization Procedure s accompanying the 2015 Certifications contain revisions to these "litigation hold" provisions. The litigation hold provi sions currently in effect allow NSA and CIA to retrun specific Section 702-acquired infonnation that is otherwise subject to age-offl6 if DOJ has advised either agency in writing that such information is subject to a preservation obligation in pending or anticipated administrative, civil, or criminal litigation. See id. at 22-23. Those provisions also recognize that lit iga tion preservation obligations can also apply to Section 702-acquired infonnation that i s subject to destruction for reasons other than the age-off requirements of the procedures-~ . domestic communications subject to destruction under Section 5 of the NSA 15 The definitfon s of "minimization procedures'' set forth in these provisions are su bstantively ide ntical (although Section 1821(4)(A) refers to "the purpose~ ... of the particular physical search") (emphasis added). For ease of reference, subsequent citations refer only to the definition set forth at Section 1801(h). 16 For example, the NSA generally may not retain telephony and certain forms oflntemet communications for "longer than five years from the expiration date of the certification authorizing the collection" unless the NSA detenn ine s that certain specified retention criteria are met. See NSA Minimization Procedures at 7. The CIA Minimization Procedures contain a sim ilar requirement. See CIA Minimization Procedure s at 2. TQR 'iililC:lllilT'!il':601\GOl:f()JOEOIVJ Page 14 Approved 'fOf St.::CM.:'fitSlfl'ORCON/NOFOltN' Minimization Procedures. See id . at 23-24. When such circumstances arise, the provisions currently in effect state that "'the Government will notify the [FISC] and seek permi ssion to retain the material as appropriate [and] consistent with the law."' See id. (q uoting 2014 procedure s). The Court encouraged the government to consider further revision of the procedures to address such circumstances with generally applicable rules rather than on a piecemeal basis. See id. at 24. In response to this suggestion, the government has modified the language in the NSA and CIA Minimization Procedures Page 15 Approved 'f6P SECRE'fh'Sb';1ORC0NfNOP0RP~ The Court agrees with amicus curiae Amy Jeffress that the revised litigation hold provision s comport wi th the requirements of Section 180l(h) and strike a reasonable and appropriate balance between the retention limitatfons reflected in FISA and the government 's need to comply with its litigation -re lated obligations . See Brief of Am icus Curiae submitted on October 16, 2015, at 28-34 ("Amicus Brief'). 2. Provisions Restdcting the Retention and Use of Section 702-Acguired Informat ion Subject to the Attorney-Client Privile ge The revi sed FBI , NSA and CIA Minimization Procedures all include modifications to the provisions restricting the use and di ssemination of attorney-client communications that are acquired pursuant to Section 702. The FBI Minimization Procedures include three such changes. The procedures currently in effect include a provision permitting the FBI, after providing the T6P St:CM:T//Sn1 , 16ftC6Nlfif6POMif Page 16 Approved oliginal copy of an attorney-client communication to DOJ for sequestration with this Court and destroying other copies, to maintain a back-up copy that is subject to strict access controls. See August 26, 2014 Opinion at 35. The first change to the FBI procedures clarifies that system administrators and technical personnel may have access to such backup copies, but not for analytical or operational purposes. See FBI Minimization Procedures at 14. The second change consists of the addition of language requiring the FBI' s Office of General Counsel to approve all disseminations that include attorney-client privileged communications. See id. at 17. The new language requires that before any such dissemination be made, reasonable efforts be undertaken to instead use other, non-privileged sources of information, and to tailor each dissemination to minimize or eliminate the disclosure of attorney-client privileged infonnation. See id. at 17-18. The third change is the addition of a requirement that all disseminations of attorney-client privileged communications include language to advise recipients that the dissemination contains information subject to the attorney-client privilege, that the infonnation is being disseminated "solely for intelligence or lead purposes," and that it may not be further disseminated or used in any trial, hearing, or other proceeding without approval of the AG or the Assistant AG for National Security. See id. at 18. The provisions of the NSA and CIA Minimization Procedures concerning attorney-client communications also have been modified. The revised language requires, among other things, the destruction of attorney-client communications that are affirmatively detennined not to contain foreign intelligence infonnation or evidence of a crime. See NSA Minimization Procedures at 10 ; CIA Minimization Procedures at 5. Page 17 Approved Moreover, disseminations of privileged information must contain an appropriate caveat to protect the information from being used in a legal proceeding in the United States. See NSA Minimization Procedures at 11; CIA Minimizat ion Procedures at 7. The revisions to the provisions of the FBI, NSA, and CIA Minimization Procedures concerning attorney-client communications serve to enhance the protection of privi leged information. The Court is sati sfied that the changes present no concern under Section 1801(h). " ., . Provisions of the FBI Minimization Procedures Pennitting the Retention of Back-up Copies and Encrypted Information The government has added new language to the FBI Minimization Procedures to pennit the retention of Section 702-acquired infonnation in "backup and original evidence systems. " Page 18 Approved See FBI Minimization Procedures at 24. Only systems administrators and technical personnel ma y ha ve acce ss to such sys tems and data in them may not be viewed or used for the purpose of intelligence analy sis. See id. Backup and original evidence system s are used to pre serve copies of Section 702-acquired data in 1he fonn it was originally acquired. See July 15, 2015 Memorandum at 16 . Such unalter ed copies ar e unreadable with out additional processing but can be used in case of emergency "to restore lo st, destroyed, or inac cessible data, " or to create an "original evidence copy" for evidentiary uses~' to establ is h chain of custody in connection with a criminal pro secution or to fulfill the governm ent' s crimin al discov ery o bligations , see id. at I 6-17). See FBI Minimization Proc edure s at 24. In th e eve nt backup and original evidence syste ms are used to restore lost , destroyed, or inaccessible data, the FBI must apply its minimization procedures, including any applicable time limi ts on retention, to the restor ed data. See id. The government has also added a new provision to the FBI Minimization Procedures permitting the FBI to retain Section 702-acquired informat ion that is encrypted or believ ed to contain secret meaning for any peri od of tim e during which such material is subjec t to , or of use in , cryptanalysis or otherwise deciphering secret meaning. See id. at 25. Access to suc h information is restricted to FBI per sonnel engaged in cryptanalysis or deciphering secret meaning. See id. Nonpublicly available information concerning unconsenting United States per sons retain ed under the provi sion c annot be used for any other purpose unless such use is pennitted under a different provision of the minimization procedures. See id. Once informa tion retain ed under this provision is decrypted or its sec ret m eaning is ascertained, the generaJly- TOP SECRETflSl,'i'ORCON~,OPORN Page 19 Approved applicable retention restrictions of the procedures apply, though the government has stated that it will calculate the age-off date from the later of the date of decryption or the date of expiration of the certification pursuant to which the information was acquired. See July 15, 2015 Memorandum at 18. 19 Neither of these new provisions precludes the Court from finding that the FBI Minimization Procedures comport with Section 1 80l(h). Both are narrowly tailored to serve legitimate government interests in a manner that appropriately protects nonpublicly available information concerning unconsenting United States persons. 4. Re,Porting Requirement for Disseminations to Private Entities or Individuals The version of the FBI Minimization Procedures that was approved by the Court in 2014 provides that '"information that reasonably appears to be foreign intelligence information, is necessary to understand foreign intelligence information or assess its importance, or i s evidence of a crime'" may be disseminated to " 'a private individual or entity in situations where the FBI determines that said private individual or entity is capable of providing assistance in mitigating serious economic hann or serious harm to lite or property."' See August 26, 2014 Opinion at 19 (quoting 2014 FBI Minimization Procedures at 33). Whenever reasonably practicable, such disseminations must not include information identifying a United States person "'unless the FBI reasonably believes it is necessary to enable the recipient to assist in the mitigation or prevention of the hmm."' See id. (quoting 2014 FBI Minimization Procedure s at 33). Such disseminations 19 To avoid confusion regarding the applicable age-off requirements, the government is encouraged to make this calculation methodology explicit in future versions of the procedures. Page20 Approved '.f8P SfJCH'.f//81//0ftCONfNOfilOIH,I must be report ed to DOJ within ten busine ss day s. See id. The government has retained the foregoing language but added language requiri ng that dissemination s pursuant to thi s provi sion also promptly be reported to the FISC. See FBI Minim ization Procedure s at 37. Th is m odification does not alter the Court' s conclusion that this provision of the procedures is consistent with the requirement s of Section 180 1 (h). See Augu st 26 , 2014 Opinion at 20. 5. Provisions Pennitting Comp liance with Specific Constitutional, Judicial or Legislative Mandate s The NSA and CIA Minimization Procedures included as part of the July 15, 2015 Submission each contain new language stating that " [n]othing in these procedures shall proh ib it the rete ntion , proce ssing, or d isseminatio n of information reasonably necessary to comply wi th specific constitutio nal , judicial, or legislative mandates." See NSA Minimizatio n Procedures at 1; CIA Minimization Procedure s at 4-5. These provisions were not included in the draft procedure s that were s ubmitted to the Court in June 2015, but appear to have bee n add ed by the government thereafter. They are not di scus sed in the July 15 , 2015 Memorandwn . The apparent breadth of the se new provisions gives the Court pause . A s di scu ssed above , t he applicab le definition of "mi nimization procedures " requires, inter alia, "specific procedures ... that are reasonably designed in light of the purpo se and technique of the particular surveillance, to minimize the acquisi tio n and retention, and prohibit the dissemination, of no npublicly available information concerning unconsenting United States persons consistent with the need o f the United States to obtain, produce, and di sseminate foreign intelligence i nfom1ation." 50 U.S.C. §§ 180 1(h) (l) (emphasis added). In light of this requirement, the NSA Page 21 Approved and CIA Minimization Procedures contain page after page of detailed restrictions on the acquisition, retention, and dissemination, of Section 702-acquired information concerning United States persons. A provision that would allow the NSA and CIA to deviate from any of these restrictions based upon unspecified "mandates" could undermine the Court's ability to find that the procedures satisfy the above-described statutory requirement. It appears, however, that the government does not intend to apply these provisions as broadly as their language would arguably permit. In 2012, the government proposed a similar provision as part of minimization procedures to be applied by NCTC in handling certain unminimized terrorism-related infonnation acquired by FBI pursuant to other provisions of FISA. In requesting approval of a provision that would allow NCTC personnel to deviate from other requirements of its minimization procedures when "reasonably necessary to comply with specific constitutional, judicial, or legislative mandates," the government asserted that "Executive Branch orders or directives will not trigger this provision, nor will general Congressional directives that are not specific to information NCTC receives pursuant to this motion." See Government's Submission of Amendments to Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under FISA and Submission of Revised Minimization Procedures for the NCTC, _submitted on April 23, 2012, at 31-32. The Court approved the NCTC minimization procedures with the understanding that this provision would be applied sparingly. The Court described the provision as pennitting NCTC personnel to "retain, process or disseminate information when reasonably necessary to fulfill specific legal requirements" and compared it to 'JOP SECRETHSlr,10RCONi'PeOPOHN Page 22 Approved TOP SECR:Ev'/Slf,'0RC0NfNOF0RN a more narrowly-drafted provision of separate procedures that permits CIA to retain or disseminate information that is "required by law to be retained or disseminated.» - Memorandum Opinion and Order issued on May 18, 2012, at J l (emphasis added). The Court understands based on informal communications between the Court staff and attorneys for the government that NSA and CIA intend to apply the similar provision s at is sue here in the same narrow manner. In any case, to avoid a deficiency under the above-described definition of "minimization procedure s," the Court must construe the phrase "specific constitutional , judicial, or legislative mandates" to include only those mandates containing language that clearly and specifically requires action in contravention of an otherwise-applicable prov ision of the requirement of the minimization procedures. Such clear and specific language, for instance , might be found in a court order requiring the government to preserve a particular target's communications beyond the date when they would otherw ise be subject to age-off under the minimization procedures. On the other band, these provisions should not be interpreted as pennitting an otherwise prohibited. retention or use of informatio n simp ly because that retention or use could as sis t the government in complying with a general statutory requirement, such as those stated at 50 U.S.C. § 1881a(b). To en sure that these provisions are being applied in a manner consi stent with the Court 's understanding, the government will be directed to promptly report any use thereof to the Court in writing, along with a written justification for each such Page23 Approved TOP SECRETNSINORCONJNOFORN action. See page 78 below. 20 6. Provisions Concerning Queries oflnformation Acquired Through Collection Under Section 702 Finally, the NSA, CIA, and FBI Minimization Procedures included as part of the July 15, 2015 Submission all include revised provisions concerning queries of unminimized data acquired pursuant to Section 702. The previously-approved minimization procedures for all three agencies permit appropriately-trained personnel with access to Section 702-acquired information to query repositories containing such information, subject to certain restrictions. See PCLOB Report at 55. The terms used to conduct such queries may in some circumstances include information concerning United States persons or otherwise be expected to return information about a United States person. See id. at 55-60. a. NSA and CIA querying provisions The NSA and CIA Minimization Procedures accompanying the 2015 Certifications contain several important restrictions that have been carried forward from prior versions of the procedures. Most notably, all terms used to query the contents of communications acquired through Section 702, such as phone numbers or key words, must be terms "reasonably likely to return foreign intelligence information." See NSA Minimization Procedures at 7; CIA Minimization Procedures at 3. This requirement applies to all queries of Section 702-acquired 20 The Court understands that the government may have added these new provisions to clarify that information acquired under Section 702 may be shared with Members of Congress or Congressional committees in connection with Congressional oversight of the program. If so, the Court would urge the government to consider replacing these broadly-worded provisions with language that is narrowly tailored to that purpose. TOP SECRE'f'h'SlffORCONi'NOFORN Page 24 Approved 'F8P St!iCBl3'F/J'Sl08RCOi"iJl:PiiOPORN contents, not just querie s containing United States-person identifiers . See NSA Minimization Procedures at 7; CIA Minimization Procedures at 3. Further, the NSA and CIA Minimization Proc edures continue to require that both agencies maintain records of all United States-person identifiers that are used to query Section 702 data and that such records be made available for mandatory review by DOJ and ODNI. See NSA Minimization Procedure s at 7; CIA Minimization Procedures at 3.21 In addition, the NSA and CIA Minimization Procedures accompanying the 2015 Certifications now also mandate that NSA and CIA prepare "a statement of facts establishing that the use of any [ U nited States-person] identifier as a selection term is reasonably designed to return foreign intelligence information as defined in FISA," see NSA Minimization Procedures at 7; CIA Minimization Procedures at 3. Like the records referred to above, these written ju stifications are provided to DOJ and ODNI to facilitate their oversight of NSA and CIA querie s. See July 15, 2015 Memorandum at 20-21.22 21 The NSA tvlinimization Procedures also continue to preclude United States-person queries of its "upstream collection." See NSA Minimization Procedures at 7. Such collection includes Internet communications acquired through the assistance of providers that control th e "backbone" over which Internet communications are carried and is more likely than other forms of Section 702 collection to con foreign intelligence value. See , I .... ,., t t •• •I •• I ., , " 1·..:11 • I II Memorandum Opinion entered on October 3, 2011, at 5 n.3, 33-41 ("October 3, 2011 Opinion"). Because only NSA recei ves '"upstream collection," see id. at 18 n.17, CIA and FBI are unable to query informatio n so acquired. 22 Representative s of DOJ and ODNI conduct bi-monthly reviews at NSA and CIA to assess the agencies' compliance with the Section 702 targeting and minimization procedures. July 15, 2015 Memorandum, Tab 1 at 2, 4. As part of those reviews, those DOJ and ODNI representatives review all United States-person identifiers approved for use in querying the (continued ... ) Page 25 Approved These additional requirements will result in no change in practice, as NSA and ClA already prepare and record foreign intelligence justifications for each query, which are subsequently provided to DOJ and ODNI oversight personnel. Nevertheless, adding these documentation requirements to the NSA and CIA Minimization Procedures serves to further reduce the risk that Section 702-acquired infonnation concerning United States persons will be used, or even accessed, for improper purposes. The Court agrees with the government and Ms. Jeffress 23 that the revised querying provisions of the NSA and CIA Minimization Procedures are consistent with the requirements of Section 1801(h). b. FBI querying provisions i. Description of the FBI querying provisions The FBI Minimization Procedures also pennit appropriately-trained personnel to conduct queries of systems containing Section 702 data. See FBI Minimization Procedures at 11 (queries of electronic and data storage systems); see id. at 28-29 (queries of ad hoc systems). In one respect, the queries pennitted under the FBI's procedures are broader than those allowed by the NSA and CIA Minimization Procedures. Queries by FBI personne l of Section 702-acquired data 22( ... continued) contents of Section 702-acquired communications as well as the written documentation of the foreign intelligence justifications for each such query. See id. at 3, 4. When necessary to assess compliance, additional information is requested by the oversight personnel and provided by NSA, and any compliance issues are promptly reported to the FISC. See id. at 3, 4. 23 See Amicus Brief at 14 ("I conclude that the NSA and CIA minimization procedures are suffic ient to ensure that the use of U.S. person identifiers for th[e] purpose of [querying Section 702-acquired infonnation] complies with the statutory requi rements of Section 702 and with the Fourth Amendment."). 'fOP SECRF:'fWSlffORCONi'NOfilORN Page 26 Approved may be reasonably designed to "find and extract" either "foreign in te lligence information" or "ev idenc e of a crim e." See id. at 11, 28-29. Both types of queries hav e been explicitly permitted by the FBI Minimization Procedures since 2009. 24 Unlike NSA and CIA, the FBI applies this st anda rd to all querie s of Section 702-acquired information, regardless of whether the querying term include s information concerning a United States p erson. See id.; see also Oct. 20 Transcri pt at 19-20 . 25 The FBI also applies this standard regardless of whether the dataset being queried 24 In the Court approved FBI Minimization Procedures that I--•,-I I incorporated in a nwnb er of re spects not relevant here, the "Standard Minimization Procedures for FBI Electronic Surveillance and Phy sical Search Conducted Under the Foreign Intelligence Surveillance Act" whic e Attorney General on October 22 2008 · ted to this Court in ("October 2008 SMPs"). , Memorandum Op p 7, 2009, at 14-17 ("April 7, pm1on"). Section ill.D of the October 2008 SMPs permitted FBI personnel to use querie s that were reasonably design ed "to find and extract foreign intelligence information or evidence of a crime and to minimize the extraction of third-party information." See Oct. 2008 Sl\1Ps at 16. 25 The FBI Minimization Procedures contain a general statemen t that, except for certain li st ed provisions, "these procedures do not apply to infonnation concerning non-United States persons. " FBI Minimization Procedures at 2. The querying provisi ons discussed in the text a bove are not among the listed exceptions. See id. Nevertheless, there are subst antial quantities of info rmation concerning United States persons within the Section 702 data subject to querying b y the FBI, and it is impossible for FBI personn el to know b eforehand whether or not U nited States-person information will be responsive to a gi ven query of that data . Accordingly, the Court does not understand the above-described exception for "information concerning non­ United States persons " to qualify the requirement that each query be reasonably designed to find and extract foreign intelligence information or evidence of a crime . In light of the FBI's prac tic e (cont inued ... ) 'rOP S~C:Rf!,'f;'fSf,'fOftCON>'NOFORN Page 27 Approved includes the contents of communication s or only metadata. See FBI Minimization Procedures at 11-12, 28-29. The FBI Minimization Procedure s require that record s be maintained of all queries of the Section 702 acquired data, and that such records include the tenn used in making each query. See id. at 11 , 29. Unlike CIA and NSA, however , the FBI doe s not req uire irn personnel to record their justifications for any q ueries. See id. The government has added language to the querying provision s of the FBI Min imization Procedures to clarify that a search of an FBI storage system containing raw-FISA acquired information does not constitute a "query" ,vithin the meaning of the procedures if the user conducting the search does not receive acces s to unminimized Section 702-acquired information in response to the search. See id . at 11-12, 29. 26 In such cases , the query results include a notification that the queried dataset contain s Section 702-acquircd infonuation responsive to the query. See id. at 12 n.4. The new language also clarifies what actions an agent or analyst without appropriate training and access to Section 702 infonnation may take upon receiving a positive "hit " indicating the exi stence of (but not acces s to) respon sive information. See FBI Minimization Procedures at 12 n.4. Such a u ser may request that FBI personne l with Section 702 access rerun 25 ( ••• continued) of applying this standard to all queries of data sets incl uding Section 702-acquired information , see October 20 Transcript at 20, the FBI also does not appear to consider the exception to apply in this regard. 26 This can occur either because the user nmning the query has not been granted access to raw FISA-acquired information, or because a user who has been granted such access has chosen to limit the query such that it will not return raw FISA-acquired infonnation. See FBI Minimizatio n Procedures at 11-12, 29. TOP SBCRET/-/Sf,t,'NOPORN Page 28 Approved the query if it otheIWise would be authorized by the FBI Mjnimization Procedures and if the request is approved by both the user's supervisor and by a national security supervisor. See id. Generally speaking , the user without access to FISA-acquired information can be provided with access to infonnation contained in the query results only if such information reasonably appears (based on the review of FBI personnel with authorized access to Section 702-acqui:red information) to be foreign intelligence information, to be necessary to understand foreign intelligence information, or to be evidence of a crime. See id. Ifit is "unclear," however, whether one of these standards is met , "the user, who does not otherwise have authorized access may review the query result solely in order to assist in the detennination of whether information contained within the results meets those standards." Id. According to the government, such situations are "very rare ." See October 20 Transcript at 45. In addition, on the PCLOB's recommendation , see PCLOB Report at 137-38 (Recommendat ion 2), the government has added language to the querying provisions of the FBI Minimization Procedures to more fully describe the FBI's querying practice s.27 This language is 2 7 Specifically, the procedures state: It is a routine and encouraged practice for the FBI to query databases containing lawfully acquired information, including PISA-acquired information, in furtherance of the FBI' s authorized intelligence and Jaw enforcement activities, such as assessments, investigations and intelligence collection. Section III.D governs the conduct of such queries. Examples of such queries include, but are not limited to, queries reasonably designed to identify foreign intelligence information or evidence of a crime related to an ongoing authorized investigation or reasonably designed queries conducted by FBI personnel in making an initial decision to open an assessment concerning a threat to the national security, the prevention or protection against a Federal crime, or the collection of foreign intelligence, a s authori zed by the Attorney General Guidelines. These example s (continued ... ) TOP SECRETNSfNORCONINOFORN Page 29 Approved 'i?OP SECRi!l'i?h'St,','ORCOM.fOPORN descriptive and works no change to the applicable querying requirements or to the FBI's querying practices. 28 ii. Analysis of the FBI querying provisions Amicus curiae Arny Jeffress has raised concerns regarding the querying provisions of the FBI Minimization Procedures. See Amicus Brief at 18-28. Ms. Jeffress does not specifically assert that the querying provisions render the procedures inconsistent with the applicable statutory definition of minimization procedures. Nevertheless, she contends that the FBI Minimization Procedures "go far beyond the purpose for which the Section 702-acquired information is collected in permitting queries that are unrelated to national security." See id. at 27( ... continued) are illustrative and neither expand nor restrict the scope of the queries authorized in the lan guage above. FBI Minimization Procedures at 11 n.4 ; see also id. at 28 n.8 (similar language). 28 The FBI has adopted one policy change that is not reflected in its minimi zation procedures. The government has imposed additional limitations on the FBI' s use of Section 702- acquired information in connection with non-foreign intelligence criminal matters. These li mitation s, which are reflected in the ODNI's Signals Intelligence Reform 2015 Anniversary Report, are described in the report as follows: [C]onsistent with the recommendation of the [PCLOB], information acquired under Section 702 about a U.S. person will not be introduced as evidence against that person in any criminal proceeding except (1) with the approval of the Attorney General, and (2) in criminal cases with national security implications or certain other serious crimes. This change will ensure that, if [DOJ] decides to u se information acquired wider Section 702 about a U.S. person in a criminal case, it will do so only for national security purposes or in prosecuting the most seriou s crimes. Amicus Brief at 17 (quoting http:/ /icontherecord.tumblr.com /ppd-28 /20 15/ privacy-civil­ l ib erties# section- 702) ; see also id. at 18 (further describing policy). 'i?OP SECM'f//Sl,¥0~CONi'NOf>ORPi Page 30 Approved 19. The Court respectfully disagrees. TI1ere is no statutory requirement that all activities involving Section 702 data serve solely a foreign intelligence national security purpose. To be sure, Section 702 was enacted to pennit "the targeting of persons reasonably believed to be located outside the United States to a cq uire foreign intelligence information." 50 U.S.C. § 1881a(a) (emphasis added). But even at the time of acquisition, the statute does not require the government to have as its sole purpose obtaining foreign intelligence information. Rather, the AG and DNI need certify only that obtaining foreign intelligence information is "a significant purpose " of the acquisition. See id. § 1881 a(g)(2 )( v) ( emphasis added). 29 U oder the "significant purpo se " standard, an acquisition under Section 702 is permissible "even if 'foreign intelligence ' is only a significant- not a primary -purpose" of the targeting decision. See In re Sealed Case, 310 F .3d 717, 734 (FISA Ct. Re v. 2002) (discussing 2001 amendment to T itle I ofFISA permitting government to conduct electronic surveillance ba sed upon certification that obtaining foreign intelligence information is a "s ignificant purpo se of the surveillance"). 30 Nor does FISA foreclose any examination or use of infonnation acquired pursuant to Section 702 that lacks a purpose relating to foreign intelligence. It is true that the government's 29 As di purpose. See d b h f h d :t ' ' ·:i, ., • 30 50 U.S.C. § 1804 (a)(6)(b) -the sub stance of which appeared in subsection 1804(a)(7)(B) at the time of In re Sealed Case -requires that each application for an order approving electronic surveillance under FISA contain a certification by a high-level Executive Branch official that , among other th in gs, "a significant purpo se of the surveillance is to obtain foreign intelligence infonnation." 'JlOP S~CM'F//St,'J0RCONi'P,0filOIU'i Page 31 Approved 'f8t' SEeM:'fh'Sb','OftC8H;'f:t8PORI'( minimization procedures must be "reasonably designed in light of the purpose and technique of the [collection], to minimize the ... reten tion , and prohibit the dis semination, of nonpublicly available infonnation concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information," 50 U.S.C. § 1801(h)(l) (emphasis added), and must limit the dissemination of nonpublicly available infonnation identifying unconsenting United States persons to certain circumstances, see id. § 1801(h)(2). Notwithstanding these requirements, however, FISA states that the minimization procedures must also "allow for the retention and di ssemination of infonnation that is evidence of a crime which has been, is being, or i s abo ut to be committed and that is to be retained or disseminated for law enforcement purposes." Id. § 180 l (h)(3 ) . Henc e, FISA doe s not merely contemplate, but expressly require s, that the government's procedures provide for the retention and dissemination of Section 702-acqu.ired information that is evidence of crime for law enforcement purposes. This requirement appJies whether or not the crime in question relates to foreign intelligence or national security. See In re Sealed Case, 310 F.3d at 731 (notwithstanding restrictions in subsections 1801 (h)( 1 )-(2), subsection l 801 (h)(3) permits "the retention and d iss emina tion of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes") (italics in original). Ms. Jeffress acknowledge s this statutory framework permits the retention and dissemination for law enforcement purposes of evidence of crimes that is discovered by queries of the Section 702-acquired data that are designed to find and extract foreign intelligence inf ormation. See October 20 Transcript at 10. She suggests, however, that it restricts queries of Page 32 Approved 'F8P Bl!lCRE~/i'Sth'OftCOftJINOPORf~ the unminimized data -in particular those that are predicated on United States-person information -that are designed to elicit information about crimes unrelated to foreign intelligence. See id. But this distinction finds no support in the statutory text. Nothing in the statute precludes the examination of information that has otherwise been properly acquired through application of the targeting procedures and retained under the minimization procedures for the purpose of finding evidence of crimes, whether or not those crimes relate to foreign intelligence. It wouJd be a strained reading of the definition of minimization procedures to permit FBI personnel to retain and disseminate Section 702 information constituting evidence of a crime implicating a United States person for law enforcement purposes, but to prohibit them from querying Section 702 data in a manner designed to identify such evidence. And such an interpretation would lead to anomalous results: FBI personnel who came across one communication acquired under Section 702 that incriminates a United States person -perhaps because it was responsive to a query for foreign int elligence information -would be prohibited from running queries tailored to identify additional communications obtained under Section 702 pertaining to the same criminal activity, even though Section 1801 (h)(3) explicitly authorizes the retention and dissemination of such informatio n for law enforcement purposes. Finally, the Court respectfully disagrees with Ms. Jef:fress' assertion that the FBI's querying practices run afoul of the Foreign Intelligence Surveillance Court of Review's admonition that "'the FISA process cannot be used as a de vic e to investigate wholly unrelated ordinary crimes."' See Amie us Brief at 18 ( quoting In re Sealed Case, 310 F.3d at 736)). The Page 33 Approved Court of Review made that statement in rejecting the government's contention that "even prosecutions of non -foreign intelligence crimes are consi stent with a purpo se of gaining foreign intelligence information so long as the government' s objectiv e is to stop espionage or terrorism by putting an agent of a foreign power in pri son ." See In re Sealed Case. 310 F.3d at 7 35-7 3 6 (italics in original). The Court of Review concluded that it would be an "anomalous reading" of the "significant purpo se" language of 50 U.S.C . § 1804(a)(6)(B) to allow the use of electronic surveillance in such a case. See id . at 736. The Court nevertheless stressed, however, that "[s]o long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test." Id. at 735. The FBI's use of querie s de signed to elicit evidence of crimes unrelated to for eign intelligence does not convert Section 702 acquisition s into "a device to investigate wholly unrelated ordinary crimes." The FBI's querying provision s apply only to information that has been acquired foll owing appli cation of the NSA Targeting Procedures. As discussed above , those targeting procedure s require t hat before ta sking a selector for collection, NSA first make a particularized as sessment, based on the totality of th e circumstances, that the user of the selector is expected to possess es or receive , or is likely to communicate, foreign intelligence informa tion concerning a foreign power or a foreign territory. See NSA Targeting Procedures at 4 . This requirement ensures that at lea st a significant purpo se of each targeting decision under Secti on 702 is the acqui sition of foreign intelligence information. Quer ie s of the data acquired through application of this targeting pr oces s that are de signed to elicit e vidence of crim es unrelated to foreign int elligence are therefore consistent with the "significant purpose" language of Section 'FOP SIBCR:E==tWSIOORCONfNOfilORN Page 34 Approved l 881a(g)(2)(A)(v). Finally, it must be noted that the FBI Minimization Procedures impose substantial restrictions on the use and dissemination of information derived from queries that, taken together, ensure that the requirements of Section 1801(h) are satisfied. In the event that a query produce s a positive hit on Section 702-acquired information, the query results can only be viewed by FBI personnel who are approp1iately trained and approved to handle such information and "only for the purpose of determining whether it reasonably appear s to be foreign intelligence infom 1ation, to be necessary to understand foreign intelligence information or to assess its importance, or to be evidence of a crime." See FBI Minimization Procedures at 8. Generally, other FBI personnel who have not been trained for and granted access to FISA-acquired information are not allowed to view the query results unless the information has first been determined by appropriately cleared personnel to meet one of those standards . See FBI Minimization Procedure s at 12 n.4.31 Information that is determined to meet one of those criteria can be retained for further investigation and analysis and may be disseminated only in accordance with additional restrictions. See id.; s ee als o id. at 30-37. Before using FISA­ ac quired information for further investigation, analysis, or dissemination, the FBI must strike, or substitute a characterization for, inf orma tion of or concerning a United States person, including that person's identity, if it does not reasonably appear to be foreign intelligence information, to 31 In "Very rare '' circumstances, see October 20 Transcript at 45, FBI personnel who are not trained for and do not have access to Sect ion 702-acquired infom1ation may view the results of a query solely to aid in the detennination of whether the information constitutes foreign intelligence infom1ation or evidence of a crime. See FBI Minimization Procedures at 12 n.4. Page 35 Approved TQP SECBE::rf/SIOORCON-i't+OFOftN be necessary to understand foreign intelligence informa tion or assess its importanc e, or to be evidence of a crime .. See id. at 9. Based on the foregoing, the Court concludes that the revised query ing prov isions of the FBI Minimization Procedures comport with the requirements of Section 1801(h). Ms. Jeffress' constitution al concerns about these provisions ar e addressed below. 7. Conclusion For the reasons stated above and in the Court's opinions in the Prior 702 Docke ts, the Court concludes that the NSA, FBI, and CIA Minimization Procedure s satisfy the definition of minimization procedures at Section 1801(h). D. The Targeting and Minimization Pro cedure s Are Consistent with the Fourth J\mendment The Court next considers whether the targeting and minimization procedures included in the July 15, 2015 Submission are consistent with the requirements of the Fourth Amendment. See 50 U.S.C. § 1881a(i)(3)(A). 1. The Applicable Analytical Framework The Fo urth Amendment does not require the government to obtain a warrant to conduct surveillance " to obtain foreign intelligence for national security purposes (that] is directed against foreign powers or agents of foreign power s reasonably believed to be located outside the United States." In re Directives Pursuant to Section 105B ofFISA, Docket No. 08-01, Opinion at 18-19 (FISA Ct. Rev. Aug. 22, 2008) ("In re Directives"). 32 This exception to the Fourth 32 A declassified version of the opinion in In re Directives is available at 551 F.3d 1004 (continued ... ) TOP SECRE'FHSl!i'ORCONfNOPORN Page 36 Approved TOP SECRE'f//Sl/fORCON/NOFORN Amendment's warrant requirement applies even when a United States person is the target of such a surveillance. See id. at 25-26 (discussing internal Executive Branch criteria for targeting United States persons). The FISC has previously concluded that the acquisition of foreign intelligence information pursuant to Section 702 falls within this "foreign intelligence exception" to the warrant requirement of the Fourth Amendment. See September 4, 2008 Opinion at 34-36; accord United States v. Mohamud, 2014 WL 2866749 at* 15-18 (D. Or. June 24, 2014). It follows that the targeting and minimization procedures are consistent with the requirements of the Fourth Amendment if those procedures, as implemented, are reasonable. In assessing the reasonableness of a governmental intrusion under the Fourth Amendment, the court must "balance the interests at stake" under the "totality of the circumstances." Id. at 20. The court must consider "the nature of the government intrusion and how the government intrusion is implemented. The more important the government's interest, the greater the intrusion that may be constitutionally tolerated." In re Directives at 19-20 (citations omitted). If the protections that are in place for individual privacy interests are sufficient in light of the governmental interest at stake, the constitutional scales will tilt in favor of upholding the government's actions. If, however, those protections are insufficient to alleviate the risks of government error and abuse, the scales will tip toward a finding of unconstitutionality. Id. at 20. The government's national security interest in conducting acquisitions pursuant to Section 702 "'is of the highest order of magnitude."' September 4, 2008 Opinion at 37 (quoting 32 ( ••. continued) (FISA Ct. Rev. 2008). TOP SECRET/fSIHORCONfNOFORN Page 37 Approved TQP 6ECRlsTN6100RCQl"ffNOFOfNtJ In re Directives at 20). With regard to the individual privacy interests involved, the Court has concluded, as discussed above, that the targeting procedures now before it are reasonably designed to target non-United States persons who are located outside the United States. Such persons fall outside the ambit of Fourth Amendment protection. See September 4, 2008 Opinion at 37 (citing United States v. Verdugo -Urguidez, 494 U.S. 259 , 274 -75 (1990)). Nevertheless , because the government acquires under Section 702 communications to which United States persons and persons within the United States are parties, that is not the end of the matter. Such acquisitions can occur when those non-targeted persons are parties to a communication that is to or from, or that contains a reference to, a tasked selector. See September 4 , 2008 Opinion at 15-20. Suc h communications may also be acquired when they constitute part of a larger "Internet transaction"(~ that also contains one or more communications that are to or from, or that contain a reference to, a tasked selector. In the latter case, the entire transaction may be unavoidably acquired by the NSA's "upstream" collection. See October 3, 2011 Opinion at 5, 30-31. 33 In the Prior 702 Dockets , the FISC concluded that earlier versions of the various agencies' targeting and minimization procedures adequately protected the substantial Fourth 33 FISA minimization protects the privacy i nterest s of United States persons in cmmnunications in which they are discussed, regardless of whether they were parties to such communications. See Section 1801(h)(l) (protecting "nonpublicly available information concerning unconsenting United States persons'') (emphasis added) . In contrast, non-targets generally do not have a Fourth Amendment-protected interest in communications in which they are discus sed, unless they are al so parties to the communication. See Alderman v. United States , 394 U.S. 165, 174-7 6 (1969 ). 'FOP SBCM'F/fSth'ORC0NfN0F0RN Page 38 Approved Amendment interests that are implicated by the acquisition of communications of such United States persons. See,~. August 26, 2014 Opinion at 38-40; August 30, 2013 Opinion at 24-25. In the FISC's assessment, the combined effect of these procedures has been "to substantially reduce the risk that non-target information concerning United States persons or persons inside the United States will be used or disseminated" and to ensure that "non-target information that is subject to protection under FISA or the Fourth Amendment is not retained any longer than is reasonably necessary." August 26, 2014 Opinion at 40 (internal quotation marks omitted). 2. The FBI's Querying Practices Do Not Render the Targeting and Minimization Procedures Inconsistent with the Fourth Amendment Amicus curiae Amy Jeffress urges the Court to reconsider its prior Fourth Amendment assessments and to reach "a different conclusion" in light of the provisions of the FBI Minimization Procedures, discussed above, permitting agents and analysts to query the Section 702-acquired information in the FBI's possession using United States-person infomiation for the purpose of finding evidence of crimes unrelated to foreign intelligence. See Amicus Brief at 22. Ms. Jeffress asserts that without additional safeguards, such querying is inconsistent with the requirements of the Fourth .Amendment: The FBI's querying procedures effectively treat Section 702-acquired data like any other database that can be queried for any legitimate law enforcement purpose. The minimization procedures do not place any restrictions on querying the data using U.S. person identifiers .... As a result, the FBI may query the data using U.S . person identifiers for purposes of any criminal investigation or even an assessment. There is no requirement that the matter be a serious one, nor that it have any relation to national security. . . . [T]hese practices do not comply with . ... the Fourth Amendment. Id. at 19. According to Ms. Jeffress, the querying provisions of the FBI Minimization Procedures should be revised to "require a written justification for each U.S. person query of the database 'f'0P SECRE'f'J'i'Sln'ORCONfNOfOM• Page 39 Approved Sf0P SECM!if?HSIOORCOPVNOfilORH that explains why the query is relevan t to foreign intelligence information or is otherwise justified ," or in some other manner that provides additional protection for the United States­ person information in the FBI's po ssession. See id. at 27. Although the FBl's minimization procedures have for several years expres sly permitted the FBI to query unminimized Section 702-acquired data using query terms that are reasonably de signed to find and extract not only foreign intellig ence information but also evidence o f a crime, M s. Jeffress raises concerns that the Court has not expressly addressed in its prior Section 702 Opinions . The Court agrees with Ms. Jeffress, see lll. at 21-24, that it is not bound by its prior approvals of procedures pennitting such querying. Indeed, Section 702 requires the Court to assess anew whethe r the procedures accompanying each certification submitted to it for review are both con sis tent with both the applicable statutory requirements and with the Fourt h Amendment. See 50 U.S. C. § 1881a(i)(2)(B) -(C), (i)(3)(A). After conducting the required reassessment, the Court concludes that the FBI's querying practices do not render the government's implementation of Section 702 inconsistent ,vith the Fourth Amendment. Ms. Jeffress contends that each query by FBI personnel of Section 702-acquired information is a "separate action subject to the Fourth Amendment rea sonablene ss test." See October 20 Transcript at 6; see also Amicus Brief at 24-25. The government agrees that the FBJ's querying process is relevant to the Court's reasonablene ss analysis, but asserts that each query is not a "separate Fourth Amendment event" that should be independently assessed. See October 20 Transcript at 19. Rather, in the government 's view, it is "the program as a whole [that] must .. . be reasonable under the Fourth Amendment." See id . The Court agrees with the Page 40 Approved TOP SECRETHSII/ORCON/NOFORN government and declines to depart from the analytical framework described above. As discussed above, FISA requires the Court to assess whether "the targeting and minimization procedures adopted in accordance with [50 U.S.C. § 1881a(d) and (e)] are consistent ... with the fourth amendment to the Constitution." 50 U.S.C. § 1881a(i)(3)(A). This language directs the Court to assess the constitutionality of the framework created by the targeting and minimization procedures. Moreover, as also discussed above, the Court of Review made clear in In re Directives that the proper analytical approach to Fourth Amendment reasonableness involves "balanc[ing] the interests at stake" under the "totality of the circumstances" presented. In re Directives at 20. That approach requires the Court to weigh the degree to which the government's implementation of the applicable targeting and minimization procedures, viewed as whole, sen1es its important national security interests against the degree of intrusion on Fourth Amendment-protected interests that results from that implementation. See id. at 19-20. After assessing the FBI's querying practices under the totality of circumstances, the Court declines to deviate from its prior decisions. As discussed above, the querying provisions of the FBI Minimization Procedures are applied only to information that has been acquired following application of the NSA Targeting Procedures. Those procedures require that before tasking a selector for collection, NSA first take steps to determine that the user of the selector is a non­ United States person who is reasonably believed to be located outside the United States and that he or she is expected to possess, receive, or communicate foreign intelligence information. See NSA Targeting Procedures at 4. These requirements direct the government's acquisitions toward Page 41 Approved 'F0P SECRE::r//S~}ORC0i'Ji'M0PORN communications that are likely to yield foreign intelligence information . Moreover, the purpose of penni tting queries designed to elicit evidence of ordinary crime s is not entirely unconnected to foreign intelligence. Such queries are permitted in part to ensure that the FBI does not fail to identify the foreign-intelligence significance of information in it s posses sion . One of the main criticisms of the government following the attacks of September 11, 2001, was its failure to identify and appropriately distribute information in its possession that could ha ve been used to disrupt the plot. A lthough the queries at issue here are designed to find and extract evidence of crimes believed to be unrelated to foreign intelligence, such queries may nonetheless elicit foreign intelligence information, particularl y since the Section 702 collection is targeted against persons believed to possess, receive , or communicate such information. See NSA Targeting Procedures at 4. A query designed to find and extract data regarding a -plot , for example, might reveal a pre viou sly unknown connection to persons believed to be funding terrorist operations on behalf of See October 20 Transcript at 20-21. Such unexpected connections may arise only rarely, but when they do arise, the foreign intelligence value of the information obtained could be substantial. With respect to the intrusiveness of the querying process, the FBI Minimization Procedure s impose substantial restrictions on the use and dissemination of informa tion derived from queries. In the event that a query produces a posi tive bit on Section 702-acquired information, the query result s can only be viewed by FBI per sonnel who are appropriately trained and approved to handle such information and "only for the purpose of determini ng whether it reasonably appears to be foreign intelligence information, to be necessary to understand foreign Page42 Approved Approved for public release bY the OQNI 201604 I 5 :POP SECRETli'5'1fi'OftC8"1't'i0¥0tttt intelligence information or 1o assess its jmportance, or to be evidence of a ctime."' See FBI Minimization Procedmes at 8. 12 n.4. Generally , other .FBI personnel who have not been train ed for and granted access 1o FISA -a<.:quired information are not allowed to view the query resuJt s unless the infom1ation has first been detenru ned to me .et one of these s 'tauclards. See FBI Minimization Procedures at 12 n.4 . Information I.hat is determined to meet one of those criteria can be retained for further investigal io11 and analysis and may be disseminated only in accl)rd~n ~e with additional restrictions . See~ see also id . at 30-3 7. Before using FISA-acquired information for further investigatjon , analysis, or dissemination, the FBI must strike. or substitute a c haracterization for, information of or concerning a United States person , including that person's identity , if ft does not reasonab ly appear to be foreign intelligence information, to be necessary to understand foreign intelligence infonnati on or assess its importance, or to be evidence of a crime , See id. at 9. Furth ermore, it must be noted tha t only a subset of the information acquired by tbe gove rnment pursuant to Section 702 is subject to queries by the FBI. The FBI acquires onJy a "small portion " of tbe unminimized Section 702 collection. Se 'NOfilORl'i Response also argued that keeping information in these systems that has been placed on the MPL supports the NSA's obligations under Sections I and II of the NSA Targeting Procedures. Id. at 5, n.3, and 8, n .9. As described above, those provisions require the NSA to conduct pre- and post-tasking checks on Section 702 selectors by checking its data repositories to detemtlne a target's location. Id. The government noted that "foreignness determinations, both pre-tasking and post-tasking, are a fundamental element of Section 702's statutory scheme,, and "contribute significantly to the Fourth Amendment reasonableness of Section 702 collection." Id . at 17 . Notwithstanding the government's argument that retention of information on the MPL in and is consistent with the NSA's procedures, the government indicated that it plans to modify its treatment of information collected under FISA and placed on the MPL to better ensure that such information is only used for collection avoidance. Id. at 14. Specifically, the government indicates that for if the underlying data is subject to purge, NSA will delete the underlying data fromalllllland analysts will only be able to access FISA-acquired or derived information in the following specific fields: Id . As part of the query response, analysts will also recei ve notfoe that the evidence supporting the foreignness determination has been purged from -Id. at Attachment A. With respect to the government indicated that going forward, if the underlying data is subject to purge, NSA will limit access to FISA-acquired or derived 'f0P SECRE.'fh'Sb1f0RC0f'\fN0PORN Page 70 Approved TOP SECRE'.£HSllfOR€0NINOFORN information in to the following specific fields: The government's submission noted that access to this information will be restricted to compliance and technical personnel, and intelligenc e analysts will only see a notice indicating that the informatio n has been purged. Id. Again, the government noted that altering the way in which it treats information collected under FISA and placed on the MPL will further ensure that this information is only used for collection avoidance. Id. The Court is persuaded by the government's argument that Section 5 of the NSA :Minimization Procedures does not prohibit the NSA from keeping data in and that i s derived from domestic communications placed on the MPL for the purpose of collection avoidance. The Court also appreciates the NSA's plan to modify its treatment of Section 702-acquired information in and that has been placed on the MPL, to further ensure that it is only used for collection avoidance. Accordingly, the information that remains of concern to the Court -at least insofar as the NSA's compliance with its targeting and minimization procedures is concerned -is what the Court assesses to be the much smaller categories of Section 702-acquired information in and ~t have been placed on the MPL because of other destruction requirem ents under the NSA Targeting and Minimization Procedures. Examples would be incidentally acquired communications of or concerning United States persons that are clearly not relevant to the authorized purpose of the 'FOP SECR:S'FJJSl,¥0RCONffilOPOftf, Page 71 Approved i'Of Si3Cfti31'h'9tf110:R.@Oi'ifNOFOR1'i acquisition or that do not contain evidence of a crime which may be disseminated under the minimization procedures (see Section 3(b)(l) of NSA Minimization Procedures); attorney-client co mmunicati ons that do not contain foreign intelligence information or evidence of a crime (see Section 4(a) of NSA Minimization Procedures); and any instances in which the NSA discovers that a United States person or a person not reasonably believed to be outside the United States at the time of targeting has been intentionally targeted under Section 702 (see Section IV of the NSA Targeting Procedures). The Court is directing the government to report on 1) how the NSA plans to comply with its targeting and minimization procedures with respect to these other categories of information in and or alternatively, 2) how the reten tion and use of the se other categories of infonnation iialllland omports with the NSA's targeting and minimization procedures. See page 78 below. The Court also expects to hear from the government on this issue at the aforementioned follow-up hearing on Sec tion 702 compliance matters in early 2016. The other issue the Court directed the government to report on in its Oct ober 14, 2015 Order was how the government justified under 50 U.S.C. § 1809(a)(2) the retention and use in of informati on otherwise subject to purge. As noted above, § l 809(a)(2) states that "a person is guilty of an offense if he intentionally ... disclos es or uses infonnation obtained under color oflaw by electronic surveillance, knowing or having reason to know that the information was obtained through eJectronic surveilla nce not authorized" by statute. 50 U.S.C. § 1809(a)(2) . Accordingly, a violation of§ 1809(a)(2) must involve the intentional disclosure or use of infonnation that is obtained through activity that meets the 'f'OP SECRE'f'HStflORCONfNOFORN Page 72 Approved 'FOP St1C~'fh'81f/OBCON,~lOFOffll definition of "electronic surveillance;"53 that acti vity must have been unauthorized; and the use or disclosure must be made with at least reason to know it was unauthorized. 54 The plain language of§ 1809(a )(2) does not require the NSA to search for and identify information in and that may be subject to the criminal prohibition. It similarly does not require the NSA to destroy information in these systems that is subject to § 1809(a)(2) . It does, howev er, prohibit the NSA from intentionally disclosing or using information under the circumstances described abo ve. Therefore, when the NSA knows or has reason to know that a piece of information was acquired through an unauthorized electronic surveillance, it has an affirmative statutory obligation to refrain from disclosing or using it. N otab ly, this Court has previou sly state d that the collection of "roamer communications" does not generally violate Section 702. Specifically , in the September 4, 2008 Opinion referenced above, the Court stated the following: 53 It is worth noting that 50 U.S.C. § 1827 contains analogous criminal prohibitions related to physical search, which could include the acquisition of stored data under Section 702. s4 With respect to thi s knowledge element, the Court has previou sly s tated the following: When it is not known , and there is no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized by the Court's prior orders, the information is not subj ect to the criminal prohibition in Section 1809(a)(2). Of course, government officials may not avoid the strictures of Section 1809(a)(2) by cultivating a st ate of deliberate ignorance when reasonable inquiry would establish that inform ation was indeed obtained through unauthorized electronic surveillance. See~ United States v. Whitehall, 532 F.3d 746, 751 (8th Cir.) (where "failure to investigate is equiva lent to 'burying one's head in the sand,'" willful blindness may constitute knowledge) , cert . denied, 129 S. Ct. 610 (2008). Opinion at 115. Page 73 Approved 'fOP SECRE'f/fSlh'ORCONfNOPORN There may be cases where, after properly applying the targeting procedures, the government reasonably believes at the time it acquires a communication that a target is a non-U.S . perso n outside the United States, when in fact the target is a U.S. person and/or is in the United States. The acquisition of such communications is properly authorized under Section 1881a notwithstanding the fact that the government is prohibited from intentionall y targeting U.S. persons or persons inside the United States, or intentionally acquiring a communication when it is known that all parties thereto are inside the United S tates. September 4, 2008 Opini on at 26 (emphasis in original). Accordingly, the domestic communications that the NSA acquires when non-Uni ted States person targets who are reasonably believed to be outside of the United States are in fact in the United States are not s ubject to§ 1809(a)(2), as their acquisition was authorized under Section 702. 55 As noted above, the Court recognized a narrow, implicit exception to § l 809(a)(2) in the December 2010 December 2010 t 8. Specifically, the Court recognized an exception for use or disclosure of the "result s of unauthorized surveillance [that] are needed to remedy past unauthorized surveillance or prevent similar unauthori zed surveill ance in the future." Id. The Court made clear that this exception applied to "action s that are necessary to mitigate or prev ent the very harms at which Section 1809(a)(2) is addressed." Id. (emphasis in original). The government made clear at the October 8 Hearing that it ha s not parsed through the data in to determine what portion of it is subject to § l 809(a)(2) . 55 A different situation would be presented if the NSA failed to detask a Section- 702 tasked selector after it knew the user entered the United States. In this cas e, the ongoin g collection of"roamer communications" would exceed the authorization to acquire communications under Section 702. See 50 U.S.C. § 1881a(a) (providing for authorization of "the targeting of persons reasonably believed to be located outside the United States"). 'f'OP SElCRt3=fHSb'i'ORCONfNOfilORN Page 74 Approved TOP 81:Cm!,T7J~l7JOl:tCO!'°/NOFORl~ October 8 Transcript at 30. The government made a general argument in its written submission, however, that the retention and use in and of information that is otherwise subject to purge falls within the narrow, implicit exception to § l 809(a)(2) recognized in the December 2010 discussed above. Government's October 21, 2015 Response at 21, 25. The Government's October 21, 2015 Response repeatedly emphasized that the retention of information in and that has been placed on the MPL plays a significant role in prevent ing unauthorized surveillance in the future. See~ Government's October 21, 2015 Respo nse at 22-23 , 25-27. While the Court finds it plausible that some information in and that is otherwise subject to purge may fall within the Court's recognized exception to § 1809(a)(2), the Court is simply not in a position to ascertain what portion of that information meets the standa rd for the narrow exception. As described in the May 2011 the determination of whether the use or disclosure of unauthorized electronic surveillance falls within the exception to § l 809(a)(2) is a fact-driven assessment and invo lves an analysis of whether the use or disclosure of that specific info rmation is "necessary to avoid similar instances of over-collection (e.g., by identifying and remedying a techn ical malfun ction) or to remedy a prior over-collection ( e.g., by aiding the identification of over-collected information in various storage systems)." May 2011 at 4-5. The Government's October 21, 2015 Response argued that a more programmatic or categorical approach to the exception is warranted in the context of Section 702 collection. Government' s October 21 , 2015 Respo nse at 23-24, 27. That may be correct , but on the current record, the government has not made a persuasive case that all of the informa tion that it wants to retain in TOP SECRE'fWSflfORCON/NOFOR:N Page 75 Approved 'fl8P SECM:'f//Sli'Jl8ftC8f~i'NOfil8fti'if falls within this exception. In these circumstance s, the Court s imply cannot conclude whether or not the government's proposed course of action is wholly con sistent with§ 1809(a)(2). Nor does the Court have the authority to permit violations of§ 1809(a)(2), even when they are de minimis. 56 In swnmary, it is likely that most Section 702 information in and that is otherwise subject to purge pertains to roamer communications , and therefore may be retained under the NSA Minimization Procedures for collection avoidance purposes and generally does not implicate§ 1809(a)(2). Other Section 702 information that the government proposes to retain i~d . notwithstanding generally 56 As the Court explained in th~pinion , To be sure, this Court, like all other Article III courts, was vested upon its creation with certain inherent powers. See In re Motion for Release of Court Record s, 526 F. Supp. 2d 484,486 (FISA Ct. 2007); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) ("It has long been understood that [ c ]ertain implied powers must necessarily result to our Courts of justice from the nature of the their institution .. .. "). It is well settled, however, that the exercise of such authority "is invalid if it conflicts with constitutional or statutory provisions." Thomas v. Arn. 474 U.S. 140, 148 (1985). And defirung crimes is not among the inherent powers of the federal courts ; rather, federal crimes are defined by Congress and are solely creatures of statute. Bousley v. United States, 523 U.S. 614, 620- 21 (1998); United States v. Hud son, 11 U.S. (7 Cranch) 32, 34 (1812). Accordingly , when Congress has spoken clearly, a court asses sing the reach of a criminal statute must heed Congress's intent as reflected in the statutory text. See,~ ' Huddleston v. United States, 415 U.S. 814,831 (1974). The plain language of Section 1809(a)(2) makes it a crime for any person, acting under color of law, intentional ly to u se or disclose information with knowledge or reason to know that the information was obtained through unauthorized electronic surveillance. The Court simply lacks the power, inherent or otherwise , to authorize the government to engage in conduct that Congress has unambiguously prohib ited . ~pinion at 113 (footnote omitted). Page 76 Approved TQP SEsCRETHSIOORCON,1MOPORN applicable purge requirements, is limited in nature and also would be used for collection a vo idance and other compliance-related purposes. For these reasons, the Court does not believe that the aforementioned issues related to and ~reclude a finding that the NSA Targeting Procedures and Minimization Procedures, taken as a whole, comply with the applicable statutory and Fourth Amendment requirements. The Court does expect, however, to hear more from the government about how it is applying the destruction requirement s of those procedures to Section 702 infonnation in d at the compliance hearing to be held in early 2016. Finally, the Court cannot find, at least on the current record, tha t the information the government proposes to retain in and falls entirely within the implicit exception to§ 1809(a)(2)'s prohibition on disclosure and use. IV. CONCLUSIO N For the foregoing reasons, the Court finds that: (1) the 2015 Certifications, as well as the certifications in the Prior 702 Dockets as amended by the 2015 Certifications, contain all the required statutory elements; (2) the targeting and minimization procedure s to be implemented regarding acquisitions conducted pursuant to the 2015 Certifications comply with 50 U.S.C . § 188la(d)-(e) and are consistent with the requirements of the Fourth Amendment; and (3) the minimization procedures to be implemented regarding information acquired under prior Section 702 certifications comply with 50 U.S.C. §1881a(d)-(e) and are consistent with the requirements of the Fourth Amendment. Orders approving the certifications, amended certifications, and use of the accompanying procedures are being entered contemporaneously herewith. For the reason s discussed above, it is HEREBY ORDERED as follow s: 'FOP SECH'f/>'91//0ft:CONil'fOfi'Ottf( Page 77 'F8P SECRi3'tWSIOOftCOPVN0¥0Rl'( 1. The government shall submit a report to the Court by December 18 , 2015, describing a) how the NSA plans to comply with its targeting and minimization procedures with respect to the catego rie s of information in that are identified on page s 71-72 of th is opinion , or alternatively , b) how the retention and use of the aforementioned categories of information in minimi zation procedures. and comports with the NSA 's targeting and 2. The government shall promptly submit in writing a report de scribing each instance in which NSA or CIA invokes the provis ion of its minimization proced ures stating that "[n] othing in these procedures shall prohibit the rete ntion , proce ssing, or dissemination of information reasonabl y necessary to comply with specific constitutional, judicial, or legis lative mandates." See NSA Minimization Procedures at 1; CIA Minimization Procedures at 4-5 . Each such report should describe the circumstance s of the deviation from the procedures and identify the specific mandate on which the deviation was ba sed. 3. The government shall promptly submit in vvTiting a report concerni ng each instance after December 4, 2015, in which FBI personnel receive and review Section 702-acquired informatio n that the FBI identifies as concerning a United States person in respon se to a query that is not designed to find and extract foreign intelligence information. The report should include a detailed description of the information at issue and the manner in which it has been or will be used for analytical , investigative, or evidentiaiy purposes. It shall also identify the query terms us ed to elicit the information and pro vide the FBl's basis for concluding that the queiy is consistent with the applicab le minimiza tion procedures. Page 78 TOP S~CRE'l':'/Sls'fODCONs'Pi!OFODN 4. The government shall provide substantive updates on each of the four compliance i ss ue s di scussed herein at a hearing to be held on January 27, 2016, at 11 AM. &l·t ENTERED this_· _ day of November , in I 11111111111111, Chlef Deputy Ch?.c ·~ t this document _is a true and corr o:i of the ong111::1I Judge , United States Fo i In telligence Surveillance Court 'f'OP SECUr+'h'St//ORCOHiN0FORN Page 79 FHed . ')Hlttd States Foreign lli~th~@f\Y!! Survemance Court UNITED STATES NOV O 6 2015 FOREIGN INTELLIGENCE SURVEILLANCE ~~11n~afl.Cter1(ofCowt WASHINGTON, D.C. ORDER For the reasons stated in the .Memorandum Opinion and Order issued contemporaneously herewith, and in reliance upon the entire record in thi s matter, the Court finds, pursuant to 50 U.S .C. § 1881 a(i)(3)(A), that the certifications referenced above contain all the required statutory elements and that the targeting procedures and minimization procedures approved for use in connection with those certifications are consistent with the requirements of 50 U.S.C. §1881a(d) ­ (e) and with the Fourth Amendment. Accordingly, it is hereby ORDERED, pursuant to 50 U.S.C. § 1881a(i)(3)(A), that the certifications and the use of suc h procedures are approved. ENTERED this l .;t i ·i day of November 2015, in I, ........ Chief Deputy Cler!c, ~ this document ts a true and correct co of the original THOMAS F. HOGA Judge, United States orei Intelligence Surveill ~Court
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Category: Official Statement

Published: 11 August 2016

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• Section 702
• FISA

• PDF Index: '. ! :~. ·~ :~ "'"' t ; '. .. t: : -.. :_ :' .·i ..... ·.::::: .. ::;:;';~:~:-;; ··~ -. · -.. . ~ , . , ·:·. G . .Yrrt I 52 BE lidlPlit:fllllJHJUNI EXH IBITB . tP~C: $Pr 1 ,_ ,., ,n.,. ... ,J ;_ I 0 rM 3= t 8 MINIMIZA TION PROCE DURES USED BY THE NAT IONAL SECURJTy; ~~N<;::Y _IN CONNECTION WITH ACQU IS IT ION S OFF O~IGNIN TELL IGE~~ :lf :.) . .'"_i~°!. -. \· :·.,.\ i.._L IN FORMATIO N PU RSUA NT TO SECI'I ON 702 OF THE FORE IGN INTE L1:l6ENCE !., UUF ; T SU RVE ILLANCE AC T OF 1978, AS AMEN DED . . (U) Section 1 -Appli cability and Scope (CJ) Thes e Nation al Securit y Age ncy (NSA) min im izatio n procedures apply to the acquisition, rete ntion, use, and di ss emina tion of information, including non-public ly avai lable inform ati on co~cerningunconsenting United .States persons, tha t is acquired by targettng non -United States persons rea sonab ly beli.eve d to be located o utsi de the Uni ted State s in accordance -with sec tion 702 of the Foreign Intelligen ce Surveillance Act of 1978, · as amend ed (FISA or ''the Act11 ). • (U) If NSA determines that it must take action in apparen t depa rture from these minimizati on proce dures t o protect again st an immed iate threat to human life ( e.g., force protectio n or hos tage si tuati ons) and tha t it is not feasi ble to o b t!_i in a timely modificatio n of these procedures, NSA may take such action immediately . NSA will report the actio n taken to th e Office of the Director ofNation.a l Intelligence and to the National Security Di vision of the De partmen t of Justice, whic h.will promptly notify the Foreign Intelligence Surveillance Court of such activity. (Q:11 f~ Nothin g :in these pr ocedure s shall restrict NS A's perfonnance of lawful oversight funct ions of its pe rs onnel or systems, or lavr.ful oversight functions of the Departm ent of J ustice's National Security Divisio n, O ffice of the Dfrect or of National Intelli gence, or th e appl icable Offic es of th e Ins pectors GeneraL Simil arly, nothing in these procedures sha11 prohib it the retention , processing, o r dissemination of i11forrnati on reasonably necessary to com ply with spec ific consti tutional, judic~al , or leg islativ e mandates. Additionally , nothin g in these proced ures sh all restrict NSA's ab ility to conduct vuln erab ility or networ k asses~~ents using informat io11 acquired pursuant to sectio n 702 of the Act in order to ensure that NSA systems are not or have not been compromised. Notwithstanding any other section in these procedures, information use d by NS A to conduct vulnera bility or netw ork assessme nts m ay b e retai ned fo r one year so lely for tha t lim ited purpo se. Any _informa tion retain ed for this purp ose may be dissem inated only i n acco rd ance with the appli cable provi sions of these procedures. (U) For the purp oses of the se pro cedu res, the terms . "National Security Ag ency" and "NSA · personnel" refer to any emp loyees of the Na tiona l Se curity Agency/Centr al Security Service ("NS A/CS S'1 or "NS A") and any other pers onnel en_ga.ge)!"" Notwithstanding the destmction requirements set forth in these minimization procedures, NSA may retain specific section 702-acquired in formation if the Department of Justice advises NSA in writing that suoh infonnation is subject to a preservation obligation in pending or anticipate d administrative, civil, or criminal litigation. The Department of Justice will id en tify in writi ng the specific infonnaticin to be retained (including, but not limited to, the target(s) or selector(s) who se informati on must be preserved and the relevant time period at issu e in the litigation), and the parti cular litigation for which the information will be retained. In order to restrict access to information being retained pursuant to this provision, personnel not working on the particular li tigation ma tter shall not access the section 702 -acquired information preserved pursuant to a written preservation notice from the Departm ent of Justice that would otherwi se ha ve been destroyed pursuant to th ese procedures. Other personnel shall. only access the information being retained for litigation-related rea sons on?- case-:by-case basis after consultation with the Department of Justice. The Department o f Justice shall notify NSA in writing onc e the section 702- acquired information is n o longer required to be preserved for such lit igation matters , and then NSA shall promptly destroy the section 702-acquired inf ormation as othe rwise required by these proc edures . 1. (JM, P' Each ye ar, NSA will provide tl1e Departme nt of Jus tice's National Security Division with a summary of: ( a ) a,11 administrative, civil, or criminal litigation matters nece ssitating preserva tion of section 702 -acquired data that would otherwise be subject to age off pursuant to these procedures, (b) a desctiption of the section 702~acquired i nformation pre.served for each such litigation ma tter, and (c) if possible based on the informatiOD, available to NSA , a description of the status of each such litigation matter. 2. eS/ ,'!if!i' L1 certain crrcumstaoces , NSA may receive written n otice from the Dep artment of Justice advising NSA to preserve section 702-acquired informatio n that would otherwise be sub ject to a destruction requir ement und er Sections 3(b)(l) , 3(b)(4), 3(c)(3), 3(d)(2), 3(e), 4, or 5. NSA will promptly provide the Department of Just ice 's Nationa l Security D ivision with a summary of: (a) all adminis trative, civil , or criminal litigation matters necess itating preservatio n of sec tion 702-acq uired information that would otherwise be subject to destruction pursuant to Sections 3(b )(1 ), 3(b)( 4), 8 l I l I I ~ I ! l I ;~ it l I I i ! I; Approved IOI SECi pursuant to subsection 702(e) of the Act. (U) Section 7 - Othe r Foreign Communications (U) Foreign communications of or conceming a non-United States person may be retained, used , and disseminated in any form in accordance with other applicable law, regulation, and policy . (Ft!l;f;IOif;I liii) J.1oreign communicatio ns of or co ncerning a non-United States person that may be retained under this subsection include discrete communications contained in Internet transactions, provided that NSA has specifically determined, consistent with subsection 3( c)(2) above, that each discrete communication within the Internet transaction either: (a) is to, from, or about a tasked selector; or (b) is not to, from, or about a tasked selector and is also not to or from an identifiable· United State s person or person reasonably believed to. be in the United States. · (U;l;IFOUo, Additionally, foreign communications of or concerning a non-United States person may be retained for the same purposes and in th e same manner as detailed in Section 6(a)(l), above. QJ) Section 8 -Collaboratfon with Foreign Govermnents (a ) (U) Procedures for the di sseminati on of evaluated and minim-i7.ed infonnation. Pursuan t to sectio n l.7(c)(8) of Executive Order No. 12333, as amended, NSA conducts foreign cryptologic liaison relatioru3hips with certain foreign governments. Inf01mation acquired pursuant to section 702 of the Act may be disseminated to a foreign govermlient. Except as pro vided below in subsection 8(b) of these procedures, any dissemination to a foreign government of information of or concerning a United States person that is acquired pursuant to section 702 may onl y be done in a manne r consisten t with sections 6(b) and 7 of these NSA minimization procedures. (b) (U) Procedures for technical or linguisti c assistance. It is anticipa ted that NSA may obtain inforo.1ation or communicati .ons that , becaus e of their technical or linguistic content, may require further analysis by fore ign governments to assi st NSA in detennining their meaning or significance. Notwithsta nding other provisions of these minimization procedures, NSA m ay disseminate computer disks, tape recordings, · transcripts, or other information or items ~ntaining unminimized infor1nation or communications acquired pursuant to sect i.on 702 to foreign governments for further processing and analysis, under the followin g restrictions with respect to any materials so dissemin ated: 101 a z c1 mv1 ·,g1nrnra nn 16 ' ' I f, I ' ' ' : i ~ ~ f ! I I l f l t I f t f f. l : l ,, i J f • ' f ~ I ~ > i ' ,. ~ ii ~ ~ ! * ' I i 1 : ) ' i 1 ~ l } ' ! ' i I I 'j I ' fl · j I ! i 1 ! i ! I ' I i ; l I I ~ : • ! t I , I I ! Approved I et £J~et8!LJ'Jf/81i!;fffOFONi (1) (U) Dissemfoa tion to foreign gover nments will be sole ly for translation or analysis of such infonn ation or co~munications, and assis ting foreign governments will make no use of any informa tion or any com munication of or concerning any person except to prov ide technical and linguistic assistance to NSA . (2) (U) Dissemi nation will be only to tho se personnel within fo rei gn gove rnmen ts involved in the translation or analysis of such information or communication s. The numbe r of such perso nnel wi.11 be resttic ted to the exte nt feasible . There will be no dissemination within foreign gove.tI1IDe nts of this ui winimized da ta. (3) (U) Foreign governments wil l m~e no p ennonent age1 icy record of information or communications of or concerning any person referr ed to or recorded 0 11 computer disks , tape recording s, transcript s, or other items disseminated by NSA to foreign governments, provided that foreign governments may maintain such te mporary records as are necessary to ena ble them to assist NSA with the translatio n or at) af ysi s of such information. Record s maintained by foreign governments for this purpose may not be disse:mirulted within the foreign governments, except to personnel involved in pro viding tecbnical or linguistic assistance to NSA. ( 4) (U) U pon the conclusio n of such te,ehnical o r linguistic assistance to NSA, compu ter disks, tape recordings , transcripts, or other items or informatio n dis seminated to foreign govenm:i .eats will eifuer b e retomed to NSA or be des troyed with an accou nting of such destruction ma.d e to NSA. (5) {U) Any information that foreign governments provi~e to NSA as a r esult of such technical or linguistic assistance may be disseminated by NSA in accordance with these minimization procedures. JU L t O 2015 Date Lo retta E. Lynch Attorne y Gen eral of the Unite 1'Qlt i.iiCPFTUSWNOFORN 17 ' i ' i ' ! ; .f Approved
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