All withheld information exempt under and unless otherwise noted Approved for Public Release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT Washington D C October 20 2015 2 01 p m TRANSCRIPT OF PROCEEDINGS HELD BEFORE THE HONORABLE THOMAS F HOGAN FOREIGN INTELLIGENCE SURVEILLANCE COURT APPEARANCES FOR THE DEPARTMENT OF JUSTICE bxo wx7x0 STUART J EVANS ESQ FOR THE AMICUS CURIAE AMY JEFFRESS ESQ COURT STAFF mxo oxo Court Reporter Proceedings recorded by_mechanioe1 stenography transcriot produced by computer-aided transcription ACLU RMB 00122 02 02 0 1 01 01 01 01 02 02 02 02 02 02 02 02 02 02 02 02 02 02 03 03 03 '03 43PM 57PM 02PM 05PM 13PM 23PM 25PM 30PM 37PM 42PM 44PM 50PM 54PH 57PH 04PM 07PM 13PM All withheld information exempt under and unless otherwise notedApproved for Public Release I THE COURT All right Good afternoon We're here on the matter that we had appointed Amicus counsel to look into under the new statute I want to introduce you to Judge James Parker Jones from the Western District of Virginia one of our newer PISA judges who is just attending this ceremony with me and who will probably be kicking me under the table telling me how to behave here This matter before the Court is as I've said on the report materials received entitled The Briefs of Amicus Curiae from the Amicus we appointed here Ms Amy Jeffress whom the Court acknowledges for her excellent work in a very tight time frame in this matter and appreciates the work that she's given to the Court and to all of us for this report What I want to start with is a couple of things One is I'd like to have introduced the parties who are going to be arguing for the Court for the record And Ms Jeffress is one and we've got about 18 others so I'll assume we'll reduce that to one or two on the government's side and we won't hear from everybody But also after that anyone who may be intending to be a fact witness if there's questions I want to ask and develop if they would introduce themselves if there's any officials here from the relevant agencies I think the Court counsel for the ACLU 16-CV-8936 RMB 00123 020'3 03 03 03 03 03 03 04 04 04 04 04 04 04 04 04 04 04 O4 04 04 04 04 30PM 34PM 41PM 43PM SZPH 59PM 07FH IOPH 13PM 18PM 20PM 29PM 39PM 40PM 42PM 45PM 49PM 52PM 53PM 55PM SSPH All withheld information exempt under and unless otherwise notedApproved for Public Release Court have at least advised the Court the government that my interest and I believe to first of all my interest really is to the issues she's raised as to the inquiry into the 702 materials by the FBI on evidence of crimes The second inquiry that she had the first was as to the aspects that we found were appropriate under the new law I'd call it The Freedom Act and some minimization procedures adopted by the CIA NSA and then the and it's the FBI we're concerned mostly about And the second issue was the retention of materials for litigation purposes which I think the Amicus has covered as well And if the government wants to be heard on any of those others they can be but my interest really is in the FBI's minimization procedures and the use of inquiries by the FBI into potential criminal activity in the 702 collections So with that if we can have the parties who are going to argue introduce themselves first and then if there are any identified fact witnesses we can have them introduced as well _from the Department of Justice MR EVANS Stuart Evans also from the Department of JUstice Your Honor THE COURT All right And Ms Jeffress ACLU RMB 00124 0204 05 05 05 05 05 05 05 05 05 05 05 5 05 05 05 05 05 05 05 05 06 06 06 58PM 03PM 04PM 06PM 10PM 11PM 14PM 17PH 19PM 20PM 22PM 25PM 27PM 30PM 37PH 44PM 48PM 51PH SBPH 01PM 02PM 04PM All withheld information exempt under and unless othenrvise notedApproved for Public Release MS JEFFRESS Your Honor Amy Jeffress FISC Amicus THE COURT All right Thank you Any potential fact witnesses you may have here if I have questions to ask potentially the MR EVANS Your Honor at this time we do have several representatives from the FBI in the room with us We had not been anticipating necessarily presenting a fact witness but depending on whether the Court had relevant questions that's something that we can THE COURT If I develop questions that you don t answer and you want to turn to someone else to answer them then we'll have them sworn at that time We'll hold off until then All right Well I think that we will begin with the Amicus and her report and Ms Jeffress you'll want to cover the other areas as well but I'm obviously interested in what you have developed as an issue in this FBI minimization procedures and their appropriateness or not as it affects the collection and dissemination of matters related to crime and your position in that matter So if you can take the podium please MS JEFFRESS Yes good afternoon THE COURT Thank you for your work on this matter ACLU 16-CV-8936 RMB 00125 02 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 07 07 07 04PM 07PM 11PM 15PM 19PM ZZPH IQSPH 28PM 31PM 34PH 37PM 41PM 49PM 55PM 53PM OOPH 07PM 10PM 17Ph All withheld information exempt under and unless otherwise notedApproved for Public Release MS JEFFRESS Thank you Your Honor And thank you for appointing me to serve in this role Before I begin I wanted to add one point to what I set forth in my brief about my understanding of my role as Amicus One interpretation of the Amicus provision of the statute would be that my job is to present all legal arguments that advance the protection of individual privacy and civil liberties interests Many advocacy groups and academic experts presented these arguments to the Privacy and Civil Liberties Oversight Board in much_greater detail than I have set forth in my brief I did not think that the time allowed for my participation permitted me to serve that role as a privacy and civil liberties advocate broadly speaking Rather my understanding of the role that I was asked to and was able to fill given the time constraints and my own abilities as advisor to the Court was really to evaluate the program and to determine whether there were any aspects of the certifications and the procedures submitted to the Court that did not comply with the statutory and constitutional requirements as I viewed it with respect to the two specific issues that the Court noted in the order So I reviewed the program with that goal in mind and found that I thought that the FBI's minimization procedures are not consistent with the purpose of Section ACLU 16-CV-8936 RMB 00126 02 02 07 07 07 07 07 07 07 07 07 07 07 08 08 08 08 08 08 08 08 08 08 08 08 32PM 36PM 38PM 41PM 46PM 47PM 50PM 52PM 58PM LOGPH 06PM 14PM 16PM 19PH 24PM 28PM 31PH 39PH 42PM All withheld information exempt under and unless otherwise notedApproved for Public Release 702 or the Fourth Amendment because specifically they do not provide sufficient safeguards of the U S person information that is incidentally collected in the 702 we Section 702 program To start with Your Honor I would first address the issue of whether querying warrants a separate Fourth Amendment analysis at all THE COURT Yes exactly MS JEFFRESS You could argue that a query is not a search under the Fourth Amendment that it is THE COURT Well if the original materials are appropriately collected which they are I assume if they permitted them how is looking at the materials a new search MS JEFFRESS Right It's not a new search so much as it is a separate action that I think does warrant Fourth Amendment scrutiny and needs to be treated as a separate action subject to the Fourth Amendment reasonableness test and I think that that is appropriate and lid also note that the Private and Civil Liberties Oversight Board thought so as well If you look at their report on Pages 95 and 96 they talk about how and I'll just quote -- concerns about post collection practices such as the use of queries to search for the communications of specific U S persons cannot be dismissed on the basis that ACLU RMB 00127 02 02 08 SOPH 08 08 09 09 09 09 09 09 09 09 09 -9 09 09 09 09 09 09 09 09 10 10 '10 55PM 58PH 04PM OBPH 14PM 18PM 23PM 23PM 27PM 33PM 36PM 39PM 43PH 43PM 51PM 54PM 59PM 03PM 06PM 10PM All withheld information exempt under and unless othenNise notedApproved for Public Release the communications were quote lawfully collected unquote That's the end of that quote The report though goes on to say that the Court - must consider whether the procedures that govern the acquisition use dissemination and retention of U S persons e and then I'll quote again quote appropriately balance the government's valid interests with the privacy of U S persons end quote And I think that that querying process too is subject to a totality of the circumstances -test to determine whether it's reasonable under the Fourth Amendment THE COURT Well if your bottom line conclusion is that if the minimization procedures are sufficient and consistent with the reasonableness requirement of the Fourth Amendment that wouldn't solve your problem MS JEFFRESS That's correct That's correct And with respect to the NSA's procedures_and the CIA's procedures I thought that they did I thought that the requirements that may have been followed before the recent changes to the minimization procedures but that it is now very clear requiring that each U S person query be supported by a statement of facts that explains why the information is being sought and why it's relevant to foreign intelligence or why it's expected to produce foreign intelligence information I thought justified the query in ACLU 16-CV-8936 RMB 00128 0211 -1 11 11 11 11 11 11 11 11 11 11 11 23PH 28PM 31PM 36PM 41PM SZPH SSPH 03PM 07PM 14PM 16PM 19PM ZIPH 26PM 28PM 32PM 36PM 44PM 48PM All withheld information exempt under and unless otherwise notedApproved for Public Release a way that the FBI's procedures don't because they allow for really virtually unrestricted querying of the Section 702 data in a way that NBA and CIA have restrained it through their procedures I would just also note that the PCLOB report on Page 96 notes that given the low standards for collection of information under Section 702 quote The standards for querying the collected data to find the communications of specific U S persons may need to be more rigorous than where higher standards are required at the collection stage unquote And that's what distinguishes in my View Section 702 from the information collected pursuant to traditional FISA applications or in other databases that are collected under more traditional criminal procedure methods And then Your Honor the goVernment may have arguments on that point that I would want to respond to but I thought for the interest of just introducing my position I would move to the second step in my analysis which is that the current procedures do not meet the Fourth Amendment reasonableness test and as I ve already said I think that the NSA and CIA do have sufficient protections in requiring a written statement that reflects that each specific query is designed to produce foreign intelligence information and that really justifies the intrusion on U S person information that the queries implicate ACLU 16-CV-8936 RMB 00129 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 02 0 11 SUPH 11 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 13 13 13 13 13 13 58PM 01PM OSPH 08PM 12PM 25PM 28PM 37PM 39PM 49PM 52PH 56PM 58PM 01PH 04PM 07PM 09PH 13PM 17PH All withheld information'exempt under and unless otherwise notedApproved for Public Release The FBI minimization procedures though do not They allow the information to be queried for any legitimate law enforcement purpose and I find two problems with that One is that there need be no connection to foreign intelligence or national security and that is the purpose of the collection of course and so they're overstepping really the purpose for which the information is collected THE COURT Well if you look at the it is somewhat anomalous but it is in the statute I mean 702 the authorization the original authorization it talks about targeting persons reasonably believed to be located outside the United States to acquire foreign intelligence information That s the purpose of it But then you go back to the minimization procedures It's under and I guess in 1801 h 'Minimization procedures with respect to electronic surveillance means and then it talks about 1 specific procedures which I'm sure you're familiar with having been at Justice and all and the Attorney General's adopted these 2 the procedures that require and what to do about it and then 3 says notwithstanding paragraphs 1 and 2 procedures that allow for the retention and dissemination of information that is evidence of a crime which has been or is being or is about to be committed and that is to be retained or disseminated for law enforcement purposes ACLU 16-CV-8936 RMB 00130 0214 14 14 14 IBPH 27PM 30PM 33PM 35PM 36PM 39PM 42PN 48PM 49PM SZPH 56PM 00PM 05PM 08PM 11PM 15PM 21PH 24PM 27PH 33PM 39PM All withheld information exempt under and unless othemise noted25- Approved for Public Release So the statute recognizes another purpose does it not of this collection of the foreign intelligence information as a subsidiary of that or subset that there may be evidence of a crime that's collected as well which is approved to be distributed under the statute MS JEFFRESS That's correct Your Honor and I would note that you're correct that it also specifies any crime So it doesn't just restrict that to THE COURT Right as long as it's a serious crime or a kidnapping or some type that people talk about MS JEFFRESS No no and I think that that is an important point to note And it explains why the government is permitted to retain and disseminate evidence of a crime and that's that you know when the government collects it pursuant to these lawful authorities if there is evidence of a crime it would be somewhat counterintuitive for the government not to be able to use that and to act on it But I think that the use the querying process is different because there is no finding that this incidental collection is such evidence and that takes me to the second point that I wanted to make about the FBI's minimization procedures which is that there are there is no limitation on what type of matter can be the subject of a query So an assessment can be the subject of a query and assessments can be initiated for virtually any reason I'm ACLU 16-CV-8936 RMB 00131 0214 14 14 14 14 15 15 15 15 15 15 15 4 5 15 15 15 15 15 15 15 15 16 16 44PM 50PM 54PM 55PM 00PM 13PM 18PM 19PH 22PM 26PM 35PH 38PM 44PM 48PH 51PM 54PH 58PM 04PM DQPN All withheld information exempt under and unless otherwise notedApproved for Public Release sure there are limits on improper reasons you know racial discrimination and things like that and that's out of bounds of course but really there is no threshold that needs to be met And for an assessment I would note that there are restrictions even on the use of grand jury subpoenas for assessments So grand jury subpoenas can only be issued to request subscriber information for telephone numbers or email addresses and so they're really viewed as considered the very lowest of the purpose for which you would need a query 'And I think that that opens up the Section 702 database to a really very wide ranging really virtually unrestricted use by the FBI that I think should be cabined in order to meet the Fourth Amendment reasonableness test I found that that unrestricted querying just is inconsistent with the language and the analysis in the FISA Court of Reviews case In Re Sealed Case which stated plainly that the FISA process cannot be used as a device to investigate wholly unrelated crimes and I think that that's what this querying process allows the FBI to do without any restriction of the querying process THE COURT That's Judge Silberman 736 of his opinion you're talking about He says for example a group of international terrorists engaged in bank ACLU 16-CV-8936 RMB 00132 0216 16 16 16 16 16 16 16 1e 16 16 16 -6 16 16 16 17 17 17 17 17 17 15PM 18PM 21PM 25PM ZBPH 29PM 31PM 35PM 40PM 48PM 50PM 54PM 55PM 56PM 58PM 59PM 05PM 09PM 12PH 15PM 20PM 24PM 29PM 32PH All withheld information exempt under and unless otherwise notedApproved for Public Release robberies which is something I m going to raise in a minute in order to finance or manufacture a bOmb the evidence of bank robbery should be treated just as evidence of a terrorist act itself but the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes JEFFRESS That's what I thought was the language that made me gave me pause about what the FBI is doing with the Section 702 database here because that's exactly what it seems these minimization procedures permit THE COURT That case in essence approved the practice of retaining and disseminating information about possible crimes MS JEFFRESS It does THE COURT -- under proper controls MS JEFFRESS Right And there's a very careful balancing in the opinion of the purpose the national the foreign intelligence purpose of the statute and the need to preserve and use evidence in a crime but I thought it was a very careful analysis And on Page 735 there's also some language that I thought was instructive where the Court wrote The addition of the word 'significant to the section at issue imposed a requirement that the government have a measurable foreign intelligence purpose other than just criminal ACLU 16-CV-8936 RMB 00133 02 02 02 0s 02 02 02 02 02 02 02 02 02 02 17 34PM 17 17 17 17 17 18 18 1846 53PM ESPN ESPN 02PM 07PM 10PM 14PM 20PM 22PM 30PM 37PM 41PM 46PM 49PM 54PM OOPH All withheld information exempt under and unless otherwise notedApproved for Public Release prosecution of even foreign intelligence crimes So the Court was grappling with what purpose the statute required and I think came to a conclusion that's instructive in this context The last point that I would make Your Honor and then I'm happy to answer specific questions from the Court but I thought that the government actually appeared to recognize the need for limits in one regard with respect to the changes that have been made to the NSA and CIA minimization procedures but also even in the government's brief on Page 14 the government says Given that FBI is a law enforcement agency as well as a member of the intelligence community the ability to query for evidence of a crime using 0 3 person identifiers can help the FBI pursue important leads regarding criminal activity And I think that's good language important leads They clearly want to be able to use it for examples that they cited espionage cyber crimes terrorism and you know they said perhaps to help locate a kidnapper And I think that that that may be justifiable but there's no restriction in the minimization procedures that restrict it even to important leads or important crimes They can use it for any purpose and I just found that to be beyond THE COURT Is it your impression from what you've been able to read in the PCLOB report that an agent ACLU 16-CV-8936 RMB 00134 0220 20 20 20 '30 23PM 30PM BSPH 37PM 39PM 42PM 46PM 48PM 53PM 58PM DOPH 04PM 06PM 16PM 22PM 25PM 33PM 46PM 51PM 53PM 55PM 59 All withheld information exempt under and unless otherwise notedApproved for Public Release or analyst who is conducting the assessment of a nonsecurity crime would get generally responsive results against the queries in the 702-acquired data and I'm referring not to mislead you that the PCLOB reports says and notably the FBI says they don't get that MS JEFFRESS I saw that and I don't know what to make of it because it's anecdotal and they didn't have much support for it but I take it that that is true and maybe you can find out more But I don't know that that is -- that that answers the question because going forward it may be that it does draw responsive data or it may prove the point Your Honor that maybe they don't need to be querying the Section 702 database in cases that are not national security related THE COURT All right If the relevant minimization procedures were modified as you suggested to us in the beginning assuming incorporating executive branch policies that limit this to national security provided these inquiries are serious crimes and that and to be used as evidence in serious criminal cases I mean would the modification be sufficient to satisfy you think the concerns you have about violating the Fourth Amendment MS JEFFRESS Your Honor I didn't make a specific recommendation for what how the FBI should meet this ACLU 16-CV-8936 RMB 00135 0221 21 21 21 21 21 21 21 22 22 22 22 22 22 22 09PM 13PM 14PM 20PM 25PM 30PM 41PN 43PM 51PM 54PM 57PM DOPH 04PM 09PM 12PM 16PM 18 All withheld information exempt under 020 1 and unless otl'terwise notedApproved for Public Release THE COURT Did you talk about maybe they should record or have a written inquiry each time they want to do this Every officer in the FBI would have to sit and write a justification up when he wants to send an inquiry in MS JEFFRESS That is one option Your Honor and the option that you just mentioned a moment ago in terms of limiting the types of matters that can be the subject of a query would be another or perhaps you'd have both given the sensitivity of the incidentally collected information But I would note that the FBI's general counsel James Baker testified three times that I'm aware of possibly more than that before the Privacy and Civil Liberties Oversight Board He's one of the most 'authoritative experts on the program and I think that he would certainly be highly capable of designing minimization procedures that would provide appropriate restrictions but also allow the FBI to use the information for purposes that are really justified and necessary to protect national security But I would note both of those options are ones that I think probably would satisfy the Fourth Amendment reasonableness test but are not present in the current procedures THE COURT One of the things that was pointed out in PCLOB and some of the government's materials as well is ACLU 16-CV-8936 RMB 00136 02 02 22 21PM 22 22 222 3 23 23 23 23 23 23 23 23 23 23 13 45PM 48PM 53PM 56PM 59PM 01PM 05PM 13PM 16PM 19PM 24PH ZBPH 35PM 37PM All withheld information exempt under and unless otherwise notedApproved for Public Release that this set of data is commingled with other data the FBI has normally in their files and that it's essentially a practical impossibility to distinguish between the two Would your requirement sort of be putting more emphasis on the minimization procedures or making them more restrictive and require them somehow to separate those out The government can answer in a minute as to that But would that be necessary you think to have a separate data bank MS JEFFRESS That again is why I didn t delve into the specifics of what I think would be required I think separating it if that's not possible then perhaps they need a justification and a set of requirements surrounding the use of the querying in the entire database and that may be more practical THE COURT I'll ask the goyernment I think_it's flagged somehow that it's NSA material anyway within the same data bank It is flagged because they do have some procedures about that All right Let me just switch with you for a minute On the retention -- the second prong of your assignment that you've accepted from us was a retention for litigation purposes beyond the normal purging time frames Even though there s an exception to the minimization procedures that we ve adapted and that are normally ACLU 16-CV-8936 RMB 00137 02 04 02 02 02 I02 02 02 02 02 02 02 23 23 24 24 24 24 24 24 24 24 24 24 1 41 24 24 24 24 25 25 25 25 25 25 55 59 029 OSPH OSPH 12PM 16PH 20PM 24PH 30PM 33PH 37PM 40PM 46PM 51PM SGPH 59PM 02PM 05PM 10PM 14PM 17PM 21PM 24PM All withheld infonnation exempt under and unless otherwise notedApproved for Public Release required you had felt that that was a justifiable exception MS JEFFRESS I did Your Honor I just couldn't see how the government would handle those competing directives other than they have It seems to me that the government's made a real effort to comply with the destruction requirements but in the face of court orders where information is specifically designated as being necessary for specific cases I think that those specific cases are good cause to maintain the information despite the otherwise applicable destruction requirements So especially after having read the reports that the government files annually with the Court which your order from 2014 required them to file I thought that the material that was being preserved was limited in nature It was specifically preserved for purposes of you know a relatively small number of cases and I just don t know how else the government would accommodate the needs in those cases which seemed to me to be wholly legitimate and specific Where of course the destruction policies in the minimization requirements are important and they're important in the Court's analysis of the program overall they're also general in nature in that they're you know age off requirements that apply to the entire body of data and not to specific elements of it apart from that material ACLU 16-CV-8936 RMB 00138 0202 02 02 0225 25 25 25 25 25 25 25 25 25 25 26 -6 26 26 26 26 26 26 26 26 26 26 26 30PM 36PM 38PM 40PH 43PM 45PM 47PM 51PM 53PM 55PM 58PM 01PM 02PM 13PM 18PM 27PH 29PM 37PM 46PM SOPH SZPH 54PM 57PH All withheld information exempt under and unless otherwise notedApproved for Public Release that is required to be destroyed because it's inadvertently collected and really shouldn't have been collected but collected basically because of errors So I thought that the government had handled that appropriately Your Honor and with the Court's oversight I don't have any concerns about that aspect of the procedures THE COURT All right Anything else you want to address the Court about on these issues at this time MS JEFFRESS No Do I come back THE COURT You'll get a chance to come back MS JEFFRESS Thank you Your Honor THE COURT Thank you Ms Jeffress I'll hear from you at this time on behalf of the government And you can focus I think your argument principally on the issues we've discussed with Ms Jeffress and explain why this querying of the U S person information should be subject to Fourth Amendment search review or what is reasonable looking at this that can be done with proper minimization procedures to make sure that this is being appropriately done under the law Thank you Your Honor And the government appreciates your careful consideration of these issues We appreciate the views of Amicus and the ability to address them in this hearing ACLU 16-CV-8936 RMB 00139 0202 26 27 27 27 27 27 27 27 27 27 27 27 28 28 28 28 28 28 28 28 28 28 23 59PM 06 12 15PM 19PM 26PM 28 32 46PM 00PM 09PM llP 13PM 18PM 20PM ZZPH 27PM 31PM 34PM 37PH All withheld information exempt under and unless otherwise notedApproved for Public Release To begin with to start with the Fourth Amendment issue that you addressed we would agree with your earlier comments that the querying of this information after it's been lawfully acquired is not a separate Fourth Amendment event It is not a separate search and Amicus did not cite case law that suggests that it would be It's certainly the case that the program as a whole must comply with the Fourth Amendment and must be reasonable under the Fourth Amendment THE COURT Well let me ask you about that Suppose a local agent in the field office runs across somebody's name and without any basis to think that he did anything wrong he starts making an inquiry into the database of the FBI and gets a hit that there are some 702 evidence or materials that he can't see so he asks someone who has a FISA clearance to go ahead and make the inquiry and they bring back something like a credit card fraud or something and that has nothing to do that he can tell with any foreign intelligence issues I mean aren't there some protections that should apply there So I want to be very clear on that point The FBI can only conduct a query for an authorized purpose Now that authorized purpose for FBI is different than NSA and CIA but it must be an authorized purpose They cannot go in and query because they come across someone who as you point out hasn't done anything wrong That is ACLU 16-CV-8936 RMB 00140 28 28 28 28 28 28 29 29 29 29 29 29 2% 29 29 29 29 29 29 29 29 30 10 46PM 50PM ESPN 58 04PM 07PM 11PM 15PM 19PM 26PM 33PM 36PM 39PH 47PM 49PM 54PM 57PH 03PH All withheld information exempt under and unless otherwise notedApproved for Public Release already prohibited by the minimization procedures The authorized purpose that the FBI had is either for queries that are reasonably designed to return foreign intelligence information or reasonably designed to return evidence of a crime Those two purposes as Your Honor points out come directly from the definition of minimization procedures in the statute They are also the joint purposes of the FBI itself It is a dual law enforcement and intelligence agency and certainly one of the things that we've learned in the last 15 years is that we can't make artificial distinctions between these two roles of law enforcement and intelligence and so perhaps hypothetical examples do help You can have instances for example where the FBI is investigating a crime Let s take a minor crime as opposed to the more major ones Let's take a minor crime like something like cigarette smuggling a federal offense or money laundering The FBI queries in these federated systems They query not just the 702 information but other information that they obtain from intelligence and law enforcement from their foreign partners Query across When they conduct that query they re not looking at that time for foreign intelligence information They re looking for evidence of that crime but to the degree something then pings in the 702 and connects a dot that they ACLU RMB 00141 30 30 30 30 3D 30 30 30 30 30 30 30 JD 30 30 30 30 30 31 31 31 31 31 11 06PM 15PM 18PM 18 23 25PM 29PM 30PM 32PM 34PM 37PM 41PM 44PM 50PM 54PM 54PH 59PM 01PM OZPH 05PM 12PM 17PM All withheld information exempt under and unless otJ'Ierwise notedApproved for-Public Release didn't know was there so they find yes my cigarette smuggler actually is speaking with individuals -- that investigation has now taken a very different turn Now we have a national security element to that investigation But when that query was conducted the government didn't know that We can only connect the dots by looking at the information When we ran that query we were doing so because we were looking for evidence of a crime across all of our systems Those federated queries are something that come from a number of experiences the government's had and a number of the commission reports So going back to the 9 11 Commission that Commission was quite critical of the government saying that one of the weaknesses that enabled the 9 11 attacks to occur was the government's failure to make use of information already in its repositories There were three hijackers the Commission found that we couldn't identify and didn't because we didn't look at all the information that we already had To use an example mOre recent and even more on point the Webster Commission's report on the Fort Hood attack criticized the government's queries of information in its possession The people doing the assessment of Nidal Hasan did not identify several messages between Anwar Aulaqi ACLU RMB 00142 31 31 31 31 31 31 31 31 31 31 31 32 32 32 32 32 32 32 32 32 32 32 12 29PM 32PM 36PM 38PM 40PM 50PM 52PM 00PM 02PH 08PM 12PM 18PM 20PM 23PM 25PM 29PM 31 All withheld information exempt under and unless othenNise notedApproved for Public Release and Nidal Hasan and the commission deemed it essential that the FBI possess the ability to search all of its repositories and to do so without balkanizing those data sources And so these systems that do these federated queries that allow us to yes to query the 702 information but all of these sources are in direct response to those findings and they're in direct response to our efforts over the last 15 years to bring down this artificial wall between the law enforcement mission of the FBI and its national security intelligence mission THE COURT As I asked the Amicus the PCLOB said that anecdotally the FBI has advised the board that it is extremely unlikely an agent or analyst who is conducting an assessment of a non-national security crime will get a response or result from the query against 702 acquired data and I know Rachel Brand and her counterparts say it never happens according to her Do you know anything about that WX5XUHWXC So we would say at the very least it would be extremely rare and we believe that's one of the many reasons why the privacy impact of these queries would be quite low It's not surprising that it would be quite rare We are talking about a targeted program Targets for 702 ACLU 16-CV-8936 RMB 00143 0232 37PM 32 32 32 32 32 32 32 33 33 33 33 43 33 33 33 33 33 33 33 33 33 33 33 48PM 48PM 51PM 53PM 56PM 00PM 11PM 17PM 18PM 20PM 25PM 29PM 30PM 31PH 35PM 40PM 43PM 46PM All withheld information exempt under and unless otherwise notedApproved for Public Release collection have to be non-U S persons outside the United States who the government reasonably believes possess or can communicate foreign intelligence information It s a big program but as the Court recognizes it's a targeted program This is not bulk surveillance I know in the Amicus brief there's a footnote about the government conducting surveillance of entire geographic regions That is not this program This program is targeted on people outside of the United States and the likelihood that in any given query information about a U S person is going to be returned is quite low However if it happens when it happens it can be quite significant It can connect that dot that we were not aware of before THE COURT Is there any requirement in the minimization procedures that's been suggested by the government now that the FBI personnel be required to record the purpose of the query Is there a written statement made or anything So that is something that the government has taken a look at in the past We believe that the procedures as they are are sufficient both as a statutory and constitutional matter We don't believe that a difference in documentation and let's be clear what we're talking about is a difference in documentation FBI does have to document some aspects of their query as do NSA ACLU RMB 00144 02 02 0233 33 33 33 34 34 34 34 34 34 34 34 -4 34 34 34 34 34 34 34 34 34 34 50PM 55PM 57PH 59PM 03PM 06PM OBPH 15PM 20PM 22PM 25PM 30PM 34PM 42PM 44PM 45PH 48PM SZPH 55PM SBPH OOPH All withheld information exempt under and unless otherwise notedApproved for Public Release and CIA The particulars of that documentation vary but there is a documentation of parts of it throughout and I can explain that in more detail THE COURT What's the rationale for the difference in the minimization procedures and the FBI minimization procedures So it goes fundamentally to the different missions of those organizations The NSA and the CIA have a are foreign focused intelligence I organizations They have little need usually to query 0 8 persons It happens much more rarely and they don't have that law enforcement mission that the FBI has FBI has all of those things FBI had also as I mentioned in the commission report has a duty to do these federated queries across these systems so they're conducting queries on a much more regular basis But the fact that there isn't a documentation requirement with respect to the justification doesn't mean that the queries don't have to be documented So what is required of the FBI is that every query is recorded Those query terms are recorded what the agent which agent did the query is recorded whether the information has been exported to another system is recorded And what the National Security does with those records for the FBI is-we go out to about 30 field offices a ACLU 16-CV-8936 RMB 00145 02 02 02 02 02 o'l 35 35 35 35 35 35 35 35 3h 35 35 35 45 35 35 35 35 35 36 36 36 36 36 05PM 11PM 14PM 17PM 23PM ZQPH 31PH 34PM 35PH 39PH 44PM 48PM 50PM 03PM 06PM 08PM 10PM 13PM 15 All withheld information exempt under and unless otherwise notedApproved for Public Release year and we sit down with the agents and and we make them justify the queries take a sample and make them justify those queries And what we've found is that they can The agents and the they understand the rules because they have to have a justification They can't to use your first example query someone just because they come across them and they've done nothing wrong They know they have to have a justification and they've given them to us We've done some effective oversight of that We've found no systemic problems We've found FBI agents and understand the rules We've found a few isolated incidents but those incidents have been things like an individual querying their own name for work flow purposes THE COURT In your example you gave for instance of cigarette smuggling which turns out to be potentially related to national security matters is the experience such now you think the FBI queries of 702 data can be limited to national security-related crimes I mean do you have a database where you can recognize crimes generally associated with national security WXBXUQWXC I think limiting the queries to national security crimes is going to cause us to miss connecting some of the dots or something we do not realize is a national security event before we conduct the query ACLU 16-CV-8936 RMB 00146 0236 36 36 36 36 36 36 36 36 56 37 37 3718PM 35PM 38PM 41PM 44PM 47PH 51PM 53PM 59PM 07PM 12PM 17PM 21PM 23PN 25PM 23PM 30PM All withheld information exempt under and unless otherwise notedApproved for Public Release and in fact has national security implications So to take another example for example for cyber security FBI could be investigating a spear phishing attempt a criminal attempt to access a computer They have no indication that there s any sort of foreign connection They-run a query like this in those federated systems and they find out they did not before but they find out that you know we have -cyber hackers who have been using this account They just didn't know that So if we limit what those queries can have we're going to miss those instances where we're going to make that connection As I said those connections are going to be rare but very important when we find them THE COURT Again on the numbers is there any FBI information available as to the actual numbers of queries that come up with hits that 702 evidence is available about a crime And maybe it happens a hundred times a month or is it once a year I don't know mimic So we don t have we unfortunately do not have specific information about when evidence of a crime is returned from one of those queries What I can say Your Honor is that in no instance to date has the government used in a criminal trial or in a non-national security matter 702-obtained information ACLU RMB 00147 02 02 02 02 0237 37 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 88 44PM 52PM 56PM 00PM 03PM OSPH 08PM 11PM 16PM 20PM 23PM 26PM 299M 35PM 38PH 41PM 44PM 46PM 43PM 51PH 53PM All withheld information exempt under and unless otherwise notedApproved for Public Release THE COURT So I understand the program -- I want to make sure I understand it The 702 data that is mixed in with the other information you have is still segregated in a sense that when a query is made it hits a 702 data That comes back that way I mean Certainly Your Honor It's identified as FISA information and this can occur in one of two different ways in this federated system If the agent has a subject matter reason to have access to FISA information and has the full training in the FISA minimization procedures when they run a query like this they will return the results and it will be clear to them that this is FISA information and in fact as they look at it 702 information If the agent does not is a criminal agent working mostly those cigarette cases they would not have access to PISA information in the course of their normal duties They would not have the FISA training When they run that same query they would the content would not be returned to them Metadata would not be returned to them The only thing that would be returned to them was an indication that there is some information available in this database that contains FISA And what the procedures before you do is they require that individual to go to someone who does have the ACLU 16-CV-8936 RMB 00148 0239 39 39 39 39 39 39 39 39 39 39 39 39 39 39 40 40 40 40 40 40 10PM 14PM 17PM 2219M 24PM 27PM 31PM 33PH 38 53PM SSPH 57PM 01PM 02PM 12PM 16PM 18 All withheld information exempt under and unless otf'lerwise notedApproved for Public Release training and the minimization procedures They have access to the data to rerun the query And there is a new requirement a new restriction that has not been in the procedures before that also requires supervisory approval both from the criminal agent's supervisor and the national security agent's supervisor before that second query is run to ensure that it's appropriate to ensure -- to use your first example again they are not running queries for someone for whom they have no reason to THE COURT Again about whether you can ask questions whether they be related to national- or foreign intelligence related crimes was Judge Silberman's expression that the Amicus pointed out where he talks about international terrorists engaged in bank robbery that's obviously to finance or manufacture a bomb The evidence of bank robbery is treated just like a terrorist act itself I'm not going to get into that So he concludes then but the FISA process cannot be used as a device to investigate Wholly unrelated ordinary crime So I think unfortunately the quote the Amicus identified really turns the actual holding of In Re Sealed Case on its head So In Re Sealed Case was a case about the initial targeting of an individual getting that authorization from the FISA court in order to and it ACLU 16-CV-8936 RMB 00149 0'5 40 20PM 40 40 40 40 40 40 40 40 40 40 40 41 41 41 41 41 41 41 41 41 41 i1 28 34PM 36PM 39PM 43PM 48PM 49PM SZPH ESPN ESPN 04PM 08PM 10PM 13PH 16PM 21PM ZEPH 30PM 31PM 32PM 35PH All withheld information exempt under and unless otherwise notedApproved for Public Release was saying that we could not get a FISA for purely criminal reasons But the holding of that case was that not even constitutionally a primary purpose of the government but only a significant purpose of the government needed to be to obtain foreign intelligence information And AmicuS's brief repeatedly refers to the purpose the purpose The purpose is an even stronger standard than a primary purpose which has been rejected by In Re Sealed Case and has been rejected by Congress in the Patriot Act It must be that it's a significant purpose and in 702 we have that purpose because when we're acquiring the information we are acquiring information only because we've assessed that the target of that collection in addition to being a non U S person who we believe to be outside the United States either possesses or is communicating foreign intelligence information THE COURT PCLOB says at one point and really I'd like the opportunity to question what the PCLOB has said But the PCLOB said at one point at Page 161 there's a statement I made a note -1 that it received -- the FBI receives only quote a small portion of the 702 collection Do you know what that is or Yes I do Your Honor Thank you That's actually a point I was hoping to return to ACLU 16-CV-8936 RMB 00150 41 41 41 41 41 42 42 42 42 42 42 42 42 42 42 42 42 42 42 42 43 43 '43 39PM 54PM 03PM 06PM 09PM 12PM 19PM 22PM 30PM 34PM 35PM 41PH SIPH 58PM OZPH 07PM All withheld information exempt under and unless othenNise notedApproved for Public Release Not surprisingly the individuals that the FBI is identifying are related to the things that FBI investigates They are the CT cases They are the cyber cases weapons of mass destruction Those are cases that they have already opened THE COURT But when an FBI analyst has supposedly been tasked to email accounts and he's reviewing all the emails and he has a task because you were talking about weapons of mass destruction or something but in there he finds ordinary credit card fraud would that change the analysis of whether he could then use that and proceed with an investigation It wasn't what he was looking for Do you know anything about that It was not originally what they were ACLU 16-CV-8936 RMB 00151 02 43 43 43 43 43 43 43 43 43 43 43 43 43 43 44 44 44 44 44 44 44 44 15PM 18PM 19PM 23PM 26PM 30PM 33PM 36PM 40PM 43PM 51PM 54PM 59PM 01PM 13PM 19PM 25PM 35PH 48PM 55PM All withheld information exempt under and unless otherwise notedApproved for Public Release looking for but FISA and this is not just the 702 FISA from the beginning from 1978 has recognized that the FBI might come across evidence of a crime in the course of doing their investigation Now I would say as I said earlier the government has not used 702 obtained information'in a non national security crime to date This is an instance where and sort of interestingly the interest of defendants and the interest of the intelligence community happen to align right The intelligence community this is puts a great deal of importance on this program They're not going to risk their sources and methods for this important program on an ordinary crime and that's where the use policy that the government announced earlier this year stems from is the fact that the information is not going to be used in an ordinary crime because we're not just going to risk our sources and methods in those instances THE COURT Is there any reason why the minimization procedures could not incorporate some restrictions to limit the searches to as I said certain crimes related to national security I'm not sure where the Amicus has argued in her brief and she can raise this again but that it's there are certainly possibilities if not probabilities that ACLU 16-CV-8936 RMB 00152 02 02 0 1 44 45 45 45 245 45 45 45 45 45 45 45 45 45 46 46 46 46 46 46 46 46 58 08PM 11PM 15PM ZOPH 24PM 28PM 31PM 35PM 39PM 43PM 46PM 52PM 54PM 57PM 00PM 00PM 04PH 09PM 11PH 14PM 18PM All withheld information exempt under and unless otherwise notedApproved for Public Release there will be incidental collection I mean we're talking _of bits of information collection of American conversations or whatever with others abroad et cetera or emails et cetera that are totally innocent and it seems to me that the minimization procedures in effect now would allow the FBI to make inquiries that would then go into this information to see what might be there that would return anything about a crime because they had some -- you're saying some investigation open about somebody But I don t know how you limit that appropriately to satisfy the requirements in the statute There has to be reasonableness under the Constitution for this search or this inquiry at least to be made of this information I'm struggling with that a little bit I think from a statutory perspective as you mentioned earlier the statute doesn't distinguiSh between-crimes It just says evidence of a crime With respect to reasonableness the government would really assert that when the Court looks at these 'procedures they need to look at the sum of these procedures as opposed to isolating aspects of them It starts with a targeting and a limited collection aperture of the targeting in the first place and for those purposes That doesn't mean we will not receive some incidental U S person ACLU 16-CV-8936 RMB 00153 02 46 25 46 46 46 46 46 46 46 46 46 47 47 47 47 47 47 47 47 47 47 47 a BOPH 33PM 37PM 41PH 47PM 50PM 54PM 00PM 10PH 14PM 18PH 23PM 27PH 31PM 39PH All withheld information exempt under and unless otherwise notedApproved for Public Release information That's probably only where it starts You also have the access controls that are limiting this information to individuals who are working on these national security issues You have the controls on retention you know the controls on dissemination You have the controls of attorney client communications You have_the controls on querying that can only be done for an authorized purpose All of these privacy controls-are an integrated approach to protect Americans' civil liberties and privacy and that whole of all of those protections we have found does a very good job of ensuring that no one is rifling through these communications THE COURT Do we have numbers or ballpark figures as to the number of inquiries made by the Not just for crime but just the numbers made to the 702 collection of materials on a yearly basis So we don t have specific numbers It's a substantial number of queries particularly because of these federated systems They don't break down by U S person or non U S person A query is a query But it is a routine and encouraged practice for the FBI to conduct queries at the beginning of an assessment This is the way that the FBI looking at its lawfully acquired information makes its initial ACLU 16-CV-8936 RMB 00154 02 47 47 47 48 48 48 48 48 48 48 48 48 48 48 48 48 48 49 49 49 49 52PM 56PM 59PM 02PM 05PM IOPH 15PM 21PM 25PM 27PH 28PM 33PH 37PH 42PM 50PM SOPH 54PH 10PM 12PM 16PM 19PM 22PM All withheld information exempt under and unIess otherwise noted_19Approved for Public Release determinations about whether further investigation which often involves further more privacy invasive steps is warranted or not They conduct these queries and then based on the results either have confidence no there's nothing here and stop or there is some additional information that we need to investigate THE COURT What problems would arise if the Amicus's suggestion of modifying the minimization procedures to be more precise and controlled although it may be a written authorization et cetera would arise to the FBI by having to do that So maybe to start with that written justification requirement Because these systems are queried on such a routine basis these federated systems in some ways are FBI's Google of its lawfully acquired information They are quite routine They must have that justification before they query but they're quite routine queries And so the implications here there are technical issues we would have to work out But far more concerning to us than the technical issues are the practical ones If we require our agents to write a full justification every time think about if you wrote a full justification every time you used Google Among other things you would use Google a lot less Well one of the ACLU 16-CV-8936 RMB 00155 0202 02 02 01 02 02 02 02 02 02 02 02 02 02 49 49 49 49 49 49 49 49 49 50 SO 50 J0 SO 50 50 50 50 50 50 50 50 50 26PM 31PM 34PM 37PM 41PM 44PM 49PM 52PM 56PM 00PM 03PM 06PM 09PM 12PM 15PM 19PM 24PM 26PH 32PM 33PM 39PH 41PM All withheld information exempt under and unless otherwise notedApproved for Public Release things that we learned from these commission reports is that's not what we want We want the FBI to look and connect the dots in its lawfully acquired information -So there's a practical limitation that's going to just cause the FBI to use these tools that we've spent a good deal of time and learned some very hard lessons in order to have to build and in addition to that I'm Sorry I'm losing my place here for a moment In addition to that once you have that requirement that bureaucratic requirement the FBI really has two choices Either you re going to have agents use the system less or alternatively and the FBI when it was examining this very kind of requirement said well one of the things we might have to do is then pull the 702 information out Pull it out of the federated system Balkanize the data again THE COURT That was my next question Unlearn that lesson and have it in a separate repository And if we have it in that separate repository again we're going to miss our dots because we now have to query multiple systems It's that querying of multiple systems that has gotten us as the government again and again and again We finally I think have learned our lesson We don't want to unlearn it THE COURT All right Do you have any other issues you wanted to address in this matter ACLU 16-CV-8936 RMB 00156 0250 50 50 SO 50 50 50 51 51 5147PM 48PM 51PM 51PM 52PM 57PM 58PM 00PM 05PM 08PM 10PM 11PM 11PH 13PM 16PM 22PM 24PM 28PM 37PM 43 All withheld information exempt under and unless otherwise notedApproved for Public Release 130 5 Your Honor if you have no further questions I THE COURT Anything else All right Thank I appreciate it Thank you Your Honor THE COURT We'll get Ms Jeffress up and get a chance for her last word here MS JEFFRESS Thank you Your Honor I'd like to first go back to the question that the Court asked THE COURT Can you lower the mic a second I can't see That's why MS JEFFRESS There you go Better THE COURT Thank you MS JEFFRESS I wanted to go back to the question the Court asked with respect to the rationale for the difference between procedures and NSA's and CIA's and that's in fact the subject that was just talking about that it would be more difficult to adopt those to adopt similar procedures because the FBI's queries are so frequent I don't think that that is necessarily an answer that justifies not complying with the Fourth Amendment It doesn't seem to me to be too -unreasonable to require ACLU 16-CV-8936 RMB 00157 51 51 51 52 52 52 52 51 52 52 5253 53 48PM 55PM 59PM 03PM 06PM 09PM 12PM 16PM 19PM ZZPH ZBPH 32PM 38PH 41Pl 1 44PM 49PM 55PM 59PM 03PM 06PM 11PM 14PM All withheld information exempt under and unless otherwise notedApproved for Pubiic Release AS explained the queries are already recorded and when the Department of Justice goes to field offices to do oversight they require the agents to explain them and they have in fact found which is good to know that the agents can explain them I don't think it's a real imposition to have the agents have to put that explanation in writing before they conduct the query and I think it is a step that perhaps may mean that they don t always do it in the cases where now they do always do it but perhaps that means because now they are doing it in cases where there really isn't a real obvious need to be doing it assessments that aren't sufficiently important and other circumstances So I don't think it s an unreasonable requirement and I don't think that it would rebuild the wall or render the government unable to connect the dots If the matter is important enough where the dots are important and could be connected I think that the FBI will do it I also wanted to explain the point that I made about the scope of the incidental collection I did not mean in my Footnote 7 to endorse what the ACLU statement said about the program and I actually don't think that statement is accurate What I was really trying to do is to say Here s the extreme end of this criticism But I do stand by the text that I wrote with respect to how often Americans' communications could be ACLU 16-CV-8936 RMB 00158 02 02 02 02 02 02 02 02 02 02 02 02 01 02 02 02 DZ 02 02 02 02 02 02 53 S3 S3 53 53 S3 53 53 53 53 53 S4 -4 54 54 5419PM 27PM 34PM 41PM 50PM 53PM 56PM SSPH 01PM 04PM 07PM 10PM 14PM 16PM 20PM 22pm 26PM 28PH 33PH 39PM 42 All withheld information exempt under and unless otherwise notedApproved for Public Release intercepted incidentally-because the targets are so wide and actually did explain that to some extent that the FBI only receives a certain portion of the Section 702 informatiOn which is helpful But the entire body of it really does likely intercept lots of information of you know Americans who are communicating with friends overseas who as I pointed out So I thought that the was really very potentially very broad although I didn't take the same view that the ACLU took of that And Your Honor you mentioned that your concern is with you know obtaining information about credit card fraud and the like and I think that they're that's one issue but there is a potentially greater issue with just the intrusiveness of having the innocent communications reviewed And there are lots of private communications that take place over email that people who are whose communications are incidentally collected would not want to be reviewed for any purpose and so I think there should be stricter limitations for that reason I wanted to also respond to the comment about my turning the logic of In Re Sealed Case on its head And I understand gwmni point but I don't think that I did that because the analysis in that case was really whether ACLU 16-CV-8936 RMB 00159 02 02 02 0t 02 DZ 02 02 02 02 02 02 I32 02 02 02 02 02 02 02 02 02 54 55 55 55 55 55 5 55 55 55 55 55 55 5e 56 56 56 llP 24PM 28PM 30PM 33PH 38PM 39PM 43PM 50PH 53PM 57PM SBPH 07PH 12PM 15PM All withheld information exempt under and unless othenNise notedApproved for Public Release it was balancing the prosecution being prosecution of national security crimes for the most part being a purpose of the collection versus just a collection of foreign intelligence information So it really didn't go into the sort of issues surrounding the prosecution of unrelated crimes which is my central concern here And I think let me just check my notes for one thing Your Honor Finally I think that the query as pointed out if it is reasonably designed to return foreign intelligence information or evidence of a crime that can be explained in a statement that is a relatively minimal imposition on the FBI I would just conclude by saying that I don't think that the FBI will voluntarily set limits on its querying procedures because law enforcement agencies tend not to take steps to restrict or limit what they can do for obvious reasons and that's you know giving them the full benefit that they're very well intentioned and they want to do their job as best they possibly can But the incentive is that if you give them a program or a database or any other power they will use it to the fullest possible extent and I think that in this case the procedures could be tighter and more restrictive and should be in order to comply with the Fourth Amendment ACLU 16-CV-8936 RMB 00160 0202 02 02 02 02 02 02 02 02 02 02 02 56 56 56 56 56 56 56 56 55 55 56 56 JD 57 57 S7 57 S7 57 57 57 S7 57 37 18PM 25PM 29PM 32PM 34p 35PM 41PM 41PM 43PM 47PM 56PM O3PH 07 PH 10 PM 12PM MPH 19PM 23PH 26Pr'1 28PM 34PH All withheld information exempt under and unless otherwise notedApproved for Public Release THE COURT Thank you very much Ms Jeffress I'm going to see if counsel for the Court has any particular question they wanted to raise Your Honor can I ask one question can I THE COURT You can sit down wa -- ask you one follow-up question on something ' So just following up on the statement that the judge mentioned the anecdotal statement and this other statement in the PCLOB report I think it's in the separate Brand and Cook part of the report We are unaware of any instance this says in which a database query in an investigation of a nonforeign intelligence crime resulted in a hit on Section 702 information and much less a situation in which such information was used to further such an investigation of prosecution I think you made the point you know that that undercuts the notion of this being overly intrusive but at the same time doesn't it undermine the I mean how do you reconcile that with the national security purpose of the collection as a whole You gave a bank robbery example or I think it was I can't remember exactly what it was but THE COURT Cigarettes ACLU 16-CV-8936 RMB 00161 02 57 57 57 57 57 58 58 58 58 58 58 58 J81 58 58 58 58 58 58 58 53 58 59 59 35PM 338PH 43PM 49PM 52PM 57PM 00PM 03PM 07PM 10PM 13PH 16PM 19PM 22PM 22PM 26PM 31PM 34PM 37PH 43PM SOPH 53PM 00PM 05PM All withheld information exempt under and unless otherwise notedApproved for Public Release WNB Cigarette smugglers Are there any examples where queries unrelated to foreign intelligence on the front end resulted in the acquisition of information relating to foreign intelligence And if the answer is no then how does this process really serve the overall national security purpose of Section 702 So to answer your question I don't have a smoking gun example for you and I think thatfs for a couple of reasons One is because again the collection that is being acquired is of the non 0 8 persons outside the United States We would expect queries particularly queries not for foreign intelligence information but instead for evidence of crime to very rarely respond to anything And for a second reason which is it is -- querying is one tool in FBI's toolbox and to discern that any individual query was the thing that broke open the case is often a very difficult thing to do That said what we have found again just returning to those returning to the commission reports of the past is that we do not want to limit our ability to connect the dots We don't know beforehand before we do the query whether the information is going to be responsive and is going to lead to that national security angle And we have appropriate controls We limit the ACLU 16-CV-8936 RMB 00162 59 08PM 59 59 59 59 59 59 59 59 59 59 59 59 59 00 00 00 00 00 00 00 00 90 14PM 18PM 22PM 28PH 31PH 34PM 38PM 43PM 46PH SOPH 56PM 59PM 02PM OGPH 08PM 13PM 18PH 25PM 31PM 31PH All withheld information exempt under and unless otherwise notedApproved for Public Release access We limit the retention We can limit the dissemination and we have our policy on use We have a variety of limitations designed particularly designed to protect the privacy and civil liberties of individuals but what we don't want to-do is to balkanize our data to then limit our ability to find that dot that is out there in the case where it is in fact important It is and I think this is something that we also saw in the PCLOB report It wasn't that the PCLOB report thought there were no concerns Where they ultimately came out on this was where are the proper places to put those protections and we believe the proper places are to limit those queries to foreign intelligence information or evidence of a crime to limit that access to limit the targeting to foreign intelligence information to limit the retention and dissemination to limit their use We've imposed all of those but what we don't believe we should do is limit our ability to find the dots where we weren't expecting to find them WXB Thank you Your Honor wX6 I guess what I want to ask about is federated queries which it sounds like is the principal means by which FBI personnel queried the 702 data Is that correct It is one of the means So the FBI ACLU 16-CV-8936 RMB 00163 0 0 00 00 00 00 00 00 01 01 01 01 01 01 01 01 01 2011 01 01 01 01 01 01 n2 34PM 41PM 45PM 50PM SBFH 57PM 04PM 04PM OSPH 13PM 16PH ZSPH 30PM 34PM 33PM 4ZPH 44PM 48PM 52PM 57PM 01PM All withheld information exempt under and unless otherwise notedApproved for Public Release has both a repository of information that includes FISA and some other information for example like national security letter information that it queries but it also has the system I believe it's DIVS that allows these federated queries of not just the FISA information but for example CBP records foreign intelligence reports FBI's own case files It is really those federated queries where those come into play WXB So let s talk about a federated query on DIVS then mas mum Sure I If it's one query that reaches into multiple data sets including the 702 data is it the same standard for queries across all those different data sets It is now So because the FISA information is one of the repositories that is queried what you in effect have had is that the FISA rules now apply to all of these data sets when you conduct that query If I conduct a query and I have authorization to get 702 information as a result of that query then my query needs to meet the FISA standard regardless of the fact that it might not ping any of the bring back any of the 702 information regardless of the fact that I was actually intending thinking oh I'm looking for those CBP records or something else ACLU 16-CV-8936 RMB 00164 02 02 02 02 02 02 02 02 02 02 02 02 v2 02 02 02 02 03 03 03 03 03 03 n3 02PM 09PM 13PM 25PM 27PM SZPN 37PM 44PH 47PM 50PM SSPH 57PH 59PM 02PM 05PM 09PM 12PM 17PM 24PM 30PH All withheld information exempt under and unless otherwise noted Approved for Public Release what we have already done because of the FISA information that's in there is to make sure that we have this more restrictive regime WXB And that's true even for FBI personnel who haven't been trained on the 702 data and so wouldn't have direct return but rather the sort of mediated process with supervisory approval that you described before So for FBI personnel for whom the data would not return content or metadata for those individuals their queries would not necessarily need to meet the standard because one of the things that is in this repository are internal FBI records when someone has done like a temporary duty assignment but they would at most get back a response saying there is positive foreign intelligence there is a positive hit in this repository that contains FISA and some other information And they would stop there unless they were conducting a foreign intelligence or evidence of a crime type query and in that case they would have to go to a But in any scenario a query that reaches into the 702 data is subject to the reasonably designed to return foreign intelligence information or ACLU 16-CV-8936 RMB 00165 0303 03 03 03 03 03 03 03 03 03 03 03 03 3 04 04 04 04 04 04 04 04 04 04 32PM 36 44PM 47PM 52PM 58PH 58PM 59PM 02PM 05PM 08PM 11PM 15PH 18PM 19PM 21PM 22PM 26PM All withheld information exempt under and unless otherwise notedApproved for Public Release evidence of a crime mxm wx7x0 If content or metadata can be returned to the person conducting the query then it has to meet that standard each and every time WXG Okay And if it were withheld from Ytas WXB But they ultimately only get it if it meets that standard after people look at it is that right bxo mx7x0 Correct Just one small clarification on that when it talks ACLU 16-CV-8936 RMB 00166 0304 04 04 04 04 04 04 04 04 04 04 04 r 05 05 05 05 05 05 05 05 05 05 29PM 35PH 36PM 38PH 44PM 45PM 47FM 52PM 53PM 53PM 59PM 11PM 19PH ZZPH 26PM 28PM 31PM 32PM 38PM All withheld information exempt under and unless otherwise notedApproved for Public Release If the answer is no it ends there That information goes nowhere It doesn't go into FBI's case files It doesn't go for permanent retention It isn't disseminated If the answer is yes and it is foreign intelligence information or evidence of a crime it is covered by the minimization procedures and used appropriately WXB Thank you one more question Should it be understood that it s not sufficient for in order to run a query that touches on the 702 data for it to relate to the subject of an assessment or any other type of open FBI investigation it has to be reasonably designed to return evidence of a crime or foreign intelligence information So it may be necessary but it's not sufficient that it relates to an open assessment or other Correct category of case Every query that returns content or metadata has to be for an authorized purpose That authorized purpose has to be that the query is reasonably ACLU 16-CV-8936 RMB 00167 0303 05 40PM 05 05 05 05 05 05 05 05 06 06 06 06 06 06 06 06 06 06 06 06 06 49PH SOPN SZPH 53PM 56PM S7PH 01PM 01PM 01PM 16PM 17FH 17PM 19PM 21PM 23PM 31PH 36PM 40PM 44PM 47PM 49PH All withheld information exempt under and unless otherwise notedApproved for Public Release designed to return foreign intelligence information or evidence of a crime That is true for every query that returns content or metadata wX6 Thank you THE COURT All right Thank you very much I appreciate your work on that WXBXUHWNC Thank you Your Honor THE COURT Anything else MS JEFFRESS No Your Honor I think the government may want another word No MR EVANS One moment Your Honor if you would THE COURT Sure Pause MR EVANS Your Honor nothing further Thank you THE COURT All right Thank you I want to thank you again all the counsel here for their work on the matter and the agents but particularly Ms Amy Jeffress who dedicated I know weekends and nights to prepare and to study and understand in a short period of time this rather difficult and complex area and has given an excellent report of great assistance to the Court and that's why we have an Amicus So I appreciate that very much I I We are going to look at this We have to consider ACLU 16-CV-8936 RMB 00168 03 06 53 0' All withheld information exempt under and unless othemrise noted Approved for Public Release the certifications in the near future to look forward on these matters So we'll take a look at it and let you all know Thank you again Whereupon the hearing was concluded at 3 07 CEREIFICAEE OF OFFICIAL COURE REPORTER I one RDR CRR do hereby certify that the above and foregoing constitutes a true and accurate transcript of my stenographic notes and is a full true and complete transcript of the proceedings to the best of my ability Dated this 29th day of October 2015 WXQ ACLU 16-CV-8936 RMB 00169 All withheld information exempt under and unless othemise noted Approved for Public Release UNITED STATES If EOREIGN INTELLIGENCE SURVEILLANCE COURT - g 35 WASHINGTON DC IN RE ATTORNEY GENERAL GUIDELINES UNDER SEAL ADOPTED PURSUANT TO 50 U S C Docket No U GOVERNMENTS EX PARTE SUBMISSION OF ATTORNEY GENERAL GUIDELINES U In accordance with subsection 702 f 2 C of the Foreign Intelligence Surveillance Act of 1978 as amended the Act the United States of America by and through the undersigned bepartment Of Justice attorney hereby submits ex parte the attached Attorney General's Guidelines for the Acquisition of Foreign Intelligence Information Pursuant to the Foreign Intelligence Surveillance Act of 1978 as Amended 5 August 2033 ACLU 16-CV-8936 RMB 00170 All withheld information exempt under and unless otherwise noted Approved for Public Release These guidelines have been adopted by the Attorney General in consultation with the - Director of National Intelligence pursuant to subsection 702 f 1 of the Act U Rese tfull submitted a National Security Division United States Department of Justice ACLU RMB 00171 All withheld information exempt under and unless otherwise noted Approved for Public Release THE ATTORNEY GUIDELINES FOR THE ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION PURSUANT TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AS AMENDED INTRODUCTION U These guidelines have been adopted by the Attorney General in consultation with the Director of National Intelligence pursuant to subsection 7 02 t 1 of the Foreign Intelligence Surveillance Act of 1978 as amended the Act They govern the implementation of acquisitions of foreign intelligence information under the Act U ACQUISITIONS UNDER SUBSECTION 702 a OF THE ACT U All acquisitions conducted under subsection 702 a of the Act shall be conducted in compliance with the following limitations 1 An acquisition authorized under subsection 702 a of the Act may not intentionally target any person known at the time of acquisition to be located in the United States The targeting of a person under subsection 702 a may be done only in accordance with targeting procedures that have been adopted by the Attorney General in consultation with the Director of National Intelligence and that are reasonably designed to ensure that only persons reasonably believed to be located outside the United States are targeted Any targeting procedures adopted by the Attorney General in consultation with the Director of National Intelligence also shall include measures for detecting those occasions when a person who when targeted was reasonably believed to be located overseas has since entered the United States Such targeting procedures also shall require that When such an Classi ed by The Attorney General Reason Declassify on 1 August 2033 ACLU RMB 00172 All withheld information exempt under and unless othenNise noted Approved for Public Release when such an occasion is detected all acquisition from the targeted person shall be terminated Without delay 39- 2 An acquisition authorized under subsection 702 3 may not intentionally target a person reasonably believed to be located outside the United Statesif the purpose of such acquisition is to target a particular known person reasonably believed to be in the United States A non United States person reasonably'believed to be located outside the United States may not be targeted under subsection 702 a unless a signi cant purpose of the targeting is to acquire foreign intelligence information that such person possesses is reasonably expected to receive and or is likely to communicate 683 If at any time an agency targets a person it has as its purpose for targeting that'person the targeting of a particular knotvn person reasonably believed to be in the United States it must follow the prescribed procedures under the Foreign Intelligence Surveillance Act and other governing authorities that apply for targeting persons inside the U S 3 An acquisition authorized under subsection 702 3 may not intentionally target a United States person reasonably believed to be located outside the United States Any targeting procedures adopted by the Attorney General in consultation with the Director of National Intelligence shall include a - requirement that in targeting a person reasonably believed to be located outside the United States due diligence is exercised to inform the reasonable belief that the target ofthe acquisition ACLU 16-CV-8936 RMB 00173 All withheld information exempt under and unless otherwise noted Appioved for Public Release 4 5 ea- If at any time an agency targets a person it is intentionally targeting a United States person reasonably believed to be outside the United States it must follow the prescribed procedures under the Foreign Intelligence Surveillance Act and other governing authorities that apply for targeting U S persons abroad Si- An acquisition authorized under subsection 702 3 may not intentionally acquire any communication as to which the sender and all intended recipients are Imown at the time of acquisition to be located in the United States Any targeting procedures adopted by the Attorney General in consultation with the Director of National Intelligence shall include measures for detecting those occasions when a person who when targeted was reasonably believed to be located overseas has since entered the United States Such targeting procedures also shall require that when such an occasion is detected all acquisition from the targeted person shall be terminated without delay An acquisition authorized under subsection 702 a shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States Any communication to from or concerning a United States person that is incidentally acquired under subsection 702 3 of the Act shall be processed in accordance with minimization procedures which meet the de nition ef r'nini'nrizati'On procedures in subsections 301 4 of the A ct'and ACLU RMB 00174 All withheld infomation exempt under and unless otherwise noted Approved for Public Release which have been adopted by the Attorney General in consultation with the Director of National Intelligence pursuant to subsection 702 6 of the Act U Any acquisition of foreign intelligence information under subsection 702 3 that does not comply with each of these limitations is prohibited Furthermore an acquisition authorized under subsection 702 a shall-be conducted only in accordance with l targeting and minimization procedures adopted by the Attomey General in consultation with the Director of National Intelligence pursuant to subsections 702 d and of the Act and 2 upon submission of a certi cation in accordance with subsection 702 g of the Act such certi cation U Speci c guidance regarding targeting Intelligence agencies may not designate a nominal non-US person foreign target when the actual target is a US with whom ACLU 16-CV-8936 RMB 00175 All withheld information exempt under and unless otherwise noted Approved for Public Release ACQUISITIONS FOR WHICH AN APPLICATION FOR A COURT ORDER UNDER THE ACT MUST BE FILED U Any time an element of the Intelligence Community seeks to acquire foreign intelligence infonnation by conducting electronic surveillance pen register or trap and trace surveillance or physical search as de ned in the Act of any person known at the time of acquisition to be located in the United States an application for a court order under the Act must be led Prior to the making of such application the Attorney General may authorize emergency collection as provided in the Act U Anytime an element of the Intelligence Community seeks to acquire foreign intelligence information by intentionally targeting a United States person reasonably believed to be located outside the United States and such acquisition is conducted within the United States and constitutes electronic surveillance or the acquisition 0 an application for a court order under the Act must be led and authority to do so must be obtained from the Attorney General pursuant to Section 2 5__o_f Executive Order ACLU 16-CV-8936 RMB 00176 All withheld information exempt under and unless otherwise noted Approved for Public Release 12333 Prior to the making of such application the Attorney General may authorize emergency acquisition as provided in the Act U Any time an element of the Intelligence Community seeks to acquire foreign intelligence information by intentionally targeting a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes and such acquisition is conducted outside the United States an application for a court order under the Act must be led and authority to do so must be obtained from the Attorney General pursuant to Section 2 5 of Executive Order 12333 Prior to the making of such application the Attorney General may authorize emergency acquisition as provided in the Act U AUG 5 2008 chael B M asey Attorney General of the United States Date ACLU RMB 00177 All withheld information exempt under and Approved for Public Release Emergency USP Content Queries within FAA 702 PRISM and Telephony Content Collection External Oversight Process Description Oversight Activity Name Emergency USP Queries within FAA 702 PRISM and Telephony Content Collection Document Classification TOP SECRETIICOMINTIINOFORN 1 Oversight Purpose The information described below will provide reasonable assurance1 to and ODNI that in the event of a national security emergency a threat scenario any USP identifiers used to query FAA 702 PRISM and telephony content collection will be reasonably likely to return foreign intelligence information The oversight process described below has been reviewed by NSA Leadership and NSA can reasonably implement it 2 External Oversight Process Emergency Scenario NSA OGC and will approve any United States person identi ers used to query the FAA 702 PRISM and telephony content collection NSA will maintain a specific record of the following information and provide and ODNI such information for oversight purposes as soon as practicable after approval a Approved identi ers and the realm for each identi er b The United States person if known who uses the identifier and c The foreign intelligence information reasonably likely to be obtained by running a query with the identi er stated as I A short description of the user of the identi er and or the foreign intelligence information that could be obtained from a query as well as the basis for this belief it will not include attachments or supporting analytic assessment documentation Example information Identifier Realm US Person Name Foreign Intelligence 1 Reasonable assurance is a term of art commonly used in the auditing and compliance context that serves as an a kerMedgm n't'th fiti 0t possible to 'asse' 'With' b l t 'b itaihfy that-afi Eleni Will 5r_vvill'n6t occur li i th context of oversight activity the term indicates that oversight personnel will have access to persuasive evidence that will-allow them to reach conclusions about whether the underlying activity conforms to a speci ed compliance standard ACLU 16-CV-8936 RMB 00178 All withheld information exempt under and unless otherwise noted Approved for Public Release 22-May-12 USP Queries within FAA 702 PRISM and Telephony Content Collection External Oversight Process Description Oversight Activity Name USP Queries of FAA 702 PRISM and Telephony Content Collection Document Classification TOP 1 Oversight Purpose The information described below will provide reasonable assurance1 to and ODNI that any USP identi ers used to query FAA 702 PRISM and telephony content collection will be reasonably likely to return foreign intelligence information The oversight process described below has been reviewed by NSA Leadership and NSA can reasonably implement it 2 Proposed External Oversight Process The external oversight requirements of USP queries within FAA 702 PRISM and telephony content collection will depend on the nature of the USP identi er used to query Three categories of identi ers and their respective oversight processes are described below 2 1 Identifiers Managed by Existing Oversight Processes All United States erson identi ers authorized for electronic suweillanceW FISA Court Order or RAS approved under NSA me a a a au orI Ies are approved to query the FAA 702 PRISM and telephony content collection because these identi ers have already been reviewed and assessed to be associated with a foreign power and hence any query with those identi ers is reasonably likely to return foreign intelligence information Approval to query each identi er under section 2 1 will cease upon the expiration or termination of the underlying FISA court authority or RAS approval whichever is applicable to the approved identi errecor or a es erson I an I Iers au horized for electronic surveillance - FISA Court Order these lists will be availab 0 an upon reques b NSA currently maintains records of all RAS approved identi ers This list will be made available to and ODNI upon request a 2 2 Identifiers Managed by Targeting Systems and Associated with 7041705b Targets US Persons Held Captive or Emergency Collection Any United States person identi ers used by approved 704 705b targets that are managed by 1 Reasonable assurance is a term of art commonly used in the auditing and compliance context that serves as an eck riowiedgm'e f'that it is ct possible to aSSert WIth' absolur will n ot o'ccur ln'th'e context of oversight activity the term indicates that oversight personnel will have access to persuasive evidence that will allow them to reach conclusions about whether-the underlying activity conforms-to a-speci ed compliance standard 499W - Page '1 0f 5 ACLU 16-CV-8936 RMB 00179 All withheld infon'nation exempt under and unless othenrvise noted WW Approved for Public Release 22-May-12 targeting systems and otherwise not Identi ed in section 2 1 above are approved to query the FAA 702 PRISM and telephony content collection because any query with those identi ers is reasonably likely to return foreign intelligence information Likewise any United States person identi er used by a person reasonably believed to be held captive by a foreign power or by a group engaged in international terrorist activities are approved to query the FAA 702 PRISM and telephony content collection when DIRNSA or Acting DIRNSA has given specific approval to intentionally intercept or deliberately select communications of or concerning a United States person in accordance with Section 4 A 1 a 3 of the Classi ed Annex to Department of Defense Procedures under Executive Order 12333 Any United States person identi er used by a person approved for collection by DIRNSA or the Attorney General under SP0018 section 4 1 are approved to query the FAA 702 PRISM and telephony content collection Approval to query each identi er under section 2 2 will cease upon the expiration or termination of the underlying authority to target the individual or upon determination that the identi er is no longer used by an authorized target For each identi er approved under section 2 2 NSA will maintain a specific record of the following information and provide and ODNI such information for oversight purposes at the existing 60 day review a Approved identi ers and the realm for each identi er b The name of the United States person if known who uses the identi er and c The basis for NSA assessing that the identi er is used by an approved 704 705b target that the identi er is used by a person reasonably believed to be held captive by a foreign power or group engaged in international terrorist activities and has been approved by DIRNSA or Acting DIRNSA in accordance with Section 4 A 1 a 3 of the Classi ed Annex or that the identi er is used by a person approved for collection by DIRNSA or the Attorney General under SP0018 section 4 1 d in each ofthese instances once the connection to the target is identi ed it is clear that foreign intelligence information is reasonably likely to be returned Example infonnation identi er Realm US Person Name Foreign Intelligence li Page 2 Of 5 ACLU 16-CV-8936 RMB 00180 All withheld information exempt under and unless otherwise noted Approved for Public Release 22-May-12 2 3 All Other US Person Identifiers For any United States person identi ers approved to query the FAA 702 PRISM and telephony content collection not identi ed in sections 2 1 and 2 2 above NSA will maintain a speci c record of the following information and provide and ODNI such information for oversight purposes at the existing 60-day review a Approved identifiers the realm for each identi er and the duration of the approvalz b The United States person if known who uses the identi er and c The foreign intelligence information reasonably likely to be obtained by running a query with the identi er stated as - A short description of the user of the identifier and or the foreign intelligence information that could be obtained from a query as well as the basis for this belief it will not include attachments or supporting analytic assessment documentation Example information Identi er - Realm us PersonName _Foreignintelligence' Duration 2-Upon approval of each identi er under section 2 3 the approving of cial will specify- the duration of the approval The process for managing approvals and durations will be developed as described in Section 3 3 Page 3 0f 5 ACLU 16-CV-8936 RMB 00181 All withheld information exempt under and unless otherwise noted WSW Approved for Public Release 22-May-12 3 NSA Resources Required to Implement Phasel Phase II Phase ill 3 4 W1 Technical Implementation 3 5 t bh 'ibal implementationwill app'ropria t pa ramete'rs to query FAA 702 PRISM and telephony content collection with USP identi ers and not query FAA 702 Upstream collection Page 4 of 5 ACLU 16-CV-8936 RMB 00182 All withheld information exempt under and unless otherwise noted Approved for Public Release WW 22-May-12 Training 3 6 Additionally for all phases of implementation a USP Query of 702 PRISM and Telephony Content Collection training package will need to be developed and implemented for both NSA auditors and This training will cover the information need to document in order to have USP identi ers approved to query FAA 702 PRISM and telephony content collection Note This may be done via email and or in- person sessions until such information can be included in standard formal training documentation 4 Additional Comments 4 1 Upon request NSA will make available to and ODNI any query logs of USP queries of FAA 702 PRISM and telephony content collection that are generated by systems used to query FAA 702 PRISM and telephony content collection 4 2 It is important to note that a query of the 702 PRISM and tele hon content collection ma be com rised of several terms I ize 0 narrow query resu s an minimize return of irrelevant data are already instructed as part of their USSID SP0018 training to make their queries as focused as possible and NSA auditors are trained to look out for and question regarding overly broad queries lfa USP identi er is included as part of a broader query involving multiple terms that identi er will still be included in the oversight process described above 4 3 In general NSA will be deemed to have met its obligation to support oversight of USP queries of FAA 702 PRISM and telephony content collection under Section 2 above by providing the information described in that section and will not generally be expected to provide additional supporting documentation or references to speci c traf c or reporting Further for queries in accordance with sections 2 2 0 and 2 3 0 above NSA expects the information descriptions to remain generally consistent with the examples above lmportantly for queries in accordance with section 2 2 NSA does not intend to require regular updates to the date of the information referenced SIGINT collection from October 2011 4 4 USP Queries of FAA 702 Metadata Oversight of queries of metadata derived from FAA 702 PRISM and telephony collection containing USP identi ers will be handled in accordance with separate procedures Those queries will not be handled in accordance with these procedures Page 5 0f 5 ACLU 16-CV-8936 RMB 00183 Approved for Public Release U S Department of Justice National Security Division Washington D C 20530 To Litigation Section Of ce of Intelligence From Stuart J Evans Deputy Assistant Attorney General for Intelligence Re Restriction Regarding the Use of ISA Section 702 Information in Criminal Proceedings Against United States Persons This memorandum serves to document a policy restriction imposed on authorizations of the use of information acquired from Section 702 of the Foreign Intelligence Surveillance Act FISA against United States persons in criminal proceedings For background in January 2014 in response to a recommendation from the President s Review Group on Intelligence and Communication Technologies the President directed the Attorney General and Director of National Intelligence to place additional restrictions on the govemment s ability to use in criminal cases communications between Americans and foreign citizens incidentally collected under Section 702 The Department of Justice and the Intelligence Community in consultation with the Administration subsequently adopted a policy restriction which was announced in the Intelligence Community s Signals Intelligence Reform 2015 Anniversary Report published on February 3 2015 While this restriction was formalized in February 2015 it is also fully consistent with the Department s past practice regarding authorizations for the use of Section 702 acquired information Speci cally in addition to any other limitations imposed by applicable law including FISA any communication to or from or information about a U S person acquired under Section 702 of ISA shall not be introduced as evidence against that U S person in any criminal proceeding except 1 with the prior approval of the Attorney General and 2 in A criminal proceedings related to national security such as terrorism - B other prosecutions of crimes involving - - -- - ACLU 16-CV-8936 RMB 00184 Approved for Public Release ii kidnapping substantial bodily harm iv conduct that constitutes a criminal offense that is a speci ed offense against a minor as de ned in 42 U S C 16911 incapacitation or destruction of critical infrastructure as de ned in 42 U S C 51950 e vi cybersecurity vii transnational crime or human traf cking Requests for authority to use Section 702 acquisitions in criminal proceedings against United States persons must comply with the above restriction Prior to recommending that the Attorney General as de ned by FISA authorize such use Office of Intelligence personnel will ensure that the requested use and the recommended authorization complies with the above policy This policy will remain in effect unless modi ed in the future by the Attorney General and Director of National Intelligence This policy is not intended to does not and may not be relied upon to create any rights substantive or procedural enforceable at law by any party in any matter civil or criminal Cc Deputy Assistant Attorneys General National Security Division Chief Counterterrorism Section Chief Counterintelligence and Export Control Section ACLU 16-CV-8936 RMB 00185 Approved for Public Release USP Queries of Communications Metadata Derived from FAA 702 and Telephony ectlon External Oversight Process Description Note Documented herein is the purpose process and implementation details associated with an NSA activity that requires external oversight The formal articulation of these oversight aspects when combined with the process of coordinating these activities with our overseers will ensure clear understanding between NSA and our overseers regarding oversight expectations This process will also serve to document NSA s effort and resource allocation required to support the oversight Oversight Activity Name USP Queries of Communications Metadata derived from FAA 702 and Telephony Collection Document Classification TOP SECRETIICOMINTIINOFORN 1 Oversight Purpose The information described below will provide reasonable assurance1 to and ODNI that any query of communications metadata derived from FAA 702 and telephony collection starting with USP identifiers will be reasonably likely to return foreign intelligence information The oversight process described below has been reviewed by NSA Leadership and NSA can reasonably implement it 2 Proposed External Oversight Process 2 1 US Person Identifiers For any query of communications metadata a derived from the FAA 702 and telephony collection starting with a United States person identi er NSA will maintain a specific record identifying each United States person query which will include the following information and provide and ODNI access to such information for oversight purposes at the existing 60-day review a The query and b The foreign intelligence Fl justification for the query i Each initial seed query will require the analyst to enter an Fl justification The Fl justification will apply to all traf c analysis performed as a result of 1 Reasonable assurance is a term of art commonly used in the auditing and compliance context that serves as an acknowledgment that it is not possible to assert with absolute certainty that an event will or will not occur In the context of oversight activity the term indicates that oversight personnel will have access to persuasive evidence that will allow them to reach conclusions about whether the underlying activity conforms to a speci ed compliance standard 2 For the purpose of these procedures communications metadata is the same as the description of metadata provided in the response to question 9 within the Government's Responses to FISC Questions re Amended 2011 Section 7 02 Certi cations led 3 NSA will rely on an algorithm andlor a business rule to identify queries of communications metadata derived from the FAA 702 and telephony collection that start with a United-States person identi er Neither method will identify those queries that start with a United States person identi er with 100 percent accuracy wasp-seam Page ion 19 Aug 2013 docx ACLU 16-CV-8936 RMB 00186 Approved for Public Release the seed query to include the identi cation and analysis of direct and indirect contacts of the initial seed query ii Recording Fl justifications is intended to assist in memorializing the purpose of their metadata analysis activities The Fl justification documents the analytic knowledge linking the selector to a foreign target or foreign intelligence purpose The Fl justification is a memory aid in the event that the analytic process is questioned long after the fact The justification preserves the rationale behind the query Fl justi cations are subject to review spot check 3 NSA Resources Required to Implement Technical Implementation 3 1 NSA's technical implementation will ensure that USP metadata queries of FAA 702 collection will only run against communications metadata derived from FAA 7'02 and telephony collection NSA's Technical Directorate TD continues work to implement this requirement Training 3 2 Training sufficient to grant analyst access to systems that support the Supplemental Procedures Concerning Communications Metadata Analysis SPCMA will be suf cient to start a query of communications metadata derived from FAA 702 and telephony collection with a United States person identifier 4 Additional Comments 4_1 4 2 are not required to check any speci c database or seek any internal approvals prior to executing a query against metadata derived from FAA 702 or telephony collection Further NSA are not required to attach supporting documentation to the FI justi cation or reference speci c traf c or reporting 4 3 These procedures describe the external oversight of USP queries of communications metadata derived from FAA 702 and telephony collection Nothing in these procedures is intended to alter or modify the underlying minimization procedures NSA personnel apply to the analysis of communications metadata derived from FAA 702 and telephony collection Substantively the analysis of FAA 702 and telephony communications metadata does not differ in any material respect from the analysis of metadata governed by the SPCMA procedures that the Secretary of Defense and Attorney General approved in late 2007 Maintaining consistency between the analysis of FAA 702 and telephony metadata and the analysis of metadata governed by the SPCMA process creates a more uniform rule- set for to follow which allows to execute the mission more efficiently and helps prevent compliance incidents mm Page20f2 19 Aug 2013 docx ACLU 16-CV-8936 RMB 00187