Approved for public release by the ODNI 20160415 Filed United States Foreign I Intelligence Surveillance Court Nov 15 2015 Clerk of Court FOREIGN INTELLIGENCIL SURVEILLANCE COURT UNITED STATES D C MEMORANDC OPINION AND ORDER This matter is before the Foreign intelligence Surveillance Court or on the Government s Ex l arte Submission of Reauthorization Certi cations and Related Procedures Ex Parte Submission of Amended Certi cations and Request for an Order Approving Such Certi cations and Amended Certi cations which was led on uly l5 2015 July 15 2015 Submission For the reasons explained below the government s request for approval is granted subject to certain reporting requirements The Court s approval of the certi cations amended certi cations and accompanying targeting procedures and minimization procedures is set out in a separate order that is being entered contemporaneously herewith Approved for public release by the ODNI 20160415 I BACKGROUND A The 2015 Certi cations The July 15 2015 Submission includes lerti cations that have been executed by the Attorney General and the Acting Director of National Intelligence pursuant to Section 702 of the Foreign Intelligence Surveillance Act which is codi ed at 50 We Each of the- certi cations collectively referred to as the 2015 Certi cations is accompanied by the supporting af davits of the Director of the National Security Agency the Director of the Federal Bureau of Investigation and the Director of the Central Intelligence Agency two sets of targeting procedures for use by the NSA and FBI respectively I and four sets of minimization procedures for use by the NSA FBI CIA and the National Counterterrorism Center respectively 2 The July 15 2015 Submission also includes an explanatory memorandum prepared by the Department ol Justice 1 The targeting procedures or each of the 2015 Certi cations are identical The targeting procedures for the NSA Targeting Procedures appear as Exhibit A to each of the 2015 Certi cations The targeting procedures for the Mil 'l argeting Procedures appear as Exhibit to each of the 2015 Certi cation 2 The minimization procedures for each of the 2015 Certi cations are identical The minimization procedures for the NSA SA Minimization Procedures appear as Exhibit to each of the 2015 Certi cations The minimization procedures for the FBI Minimization Procedures appear as Exhibit to each of the 2015 Certi cations The minimization procedures I or the CIA Minimization Procedures appear as Exhibit to each 0 l the 2015 Certi cations The minimization procedures for the NCTC Minimization Procedures appear as Exhibit i to each of the 2015 Certi cations Page 2 Approved for public release by the ODNI 20160415 July 15 2015 Memorandum Finally it includes an unclassi ed summary and oversight of Section 702 implementation and a summary of notable Section 702 requirements which have been submitted to the Court in accordance with the recommendation of the Privacy and Civil Liberties Oversight Board July 15 20l5 Memorandum at Tabs 1 and 2 PCLOB Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign intelligence Surveillance Act at 142-43 July 2 2014 Report Recommendation 5 Each of the 2015 Certi cations involves the targeting of non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information Page 3 Approved for public release by the ODNI 20160415 liach ot the 2015 Certifications generally proposes to continue acquisitions of foreign intelligence information that are now being conducted under certi cations that were made in 2014 the 2014 Certi cations July 15 2015 Memorandum at 2 The 2014 Certi cations 01 approved by the on August 26 2014 3 The 2014 Certi cations in turn generally renewed authorizations to acquire foreign intelligence information under a series ofcerti eations made by the AG and DM pursuant to Section 702 that dates back to 2008 4 In its July 15 2015 Submission the government also seeks approval of amendments to the certi cations in all ot thc Prior 702 Dockets such that the NSA CIA and F131 hencelorward will apply the same minimiyation procedures to information obtained under prior certifications as they will to information to be obtained under the 2015 Certifications July 15 Memorandum at 2-3 5 Memorandum Opinion August 26 2014 Opinion 5 The July 15 2015 Submission does not propose any changes to the FBI 'l argeting Procedures or NCTC Minimization Procedures See July 15 2015 Memorandum at 3 Page 4 Approved for public release by the ODNI 20160415 B The Extension of Time and the Appointment of Anticus Curiae Before making the July 15 2015 Submission the government led draft versions of the 2015 Certi cations on June 15 2015 After reviewing those drafts the Court concluded that this matter is likely to present one or more novel or signi cant interpretations of the law which would require the Court to consider appointment of an amicus curiae under 50 U S C 1803 e Order issued on July 7 2015 July 7 2015 Order at 3 The Court further noted that the 30-day review period speci ed by 50 U S C 1881a i 1 B would as a practical matter foreclose arnicus participation k The Court may however extend that 30-day review period as necessary for good cause in a manner consistent with national security 50 U S C 1881a j 2 To help the Court decide whether to extend the time it would have to act on the 2015 Certi cations and revised procedures in order to allow for meaningful amicus assistance in reviewing them the Court ordered the government to explain in writing whether and if so how long an extension of the time for the Court to review the 2015 Certi cations and revised procedures would be consistent with national security July 7 2015 Order at 4 On July 14 2015 the Government timely led its Response to the July 7 2015 Order advising that the govemment assesses that an extension of 60 to 90 days would be consistent with national security S_ee Government s Response to the Court s Order of July 7 2015 led on July 14 2015 at 7 On July 23 2015 the Court found that the need for an extension to allow for amicus participation constitutes good cause for an extension under Section 1881a i 2 Sie Order Page 5 Approved for public release by the ODNI 20160415 Hon-mm issued on July 23 2015 at 3 Accordingly it extended the period for Court review under Section 1881a i 1 B for 90 days such that this review must be completed no later than November 12 2015 Li On August 13 2015 the Court issued an order appointing Amy Jeffress to serve as amicus curiae in this matter pursuant to 50 U S C The Court directed Ms effress to address whether the minimization procedures accompanying the 2015 Certi cations meet the requirements ofSO U S C 1881a e and are consistent with the Fourth Amendment in view of the provisions of the procedures that apply to queries of information obtained under section 702 particularly insofar as queries may be designed to return information concerning United States persons NSA Minimization Procedures at 7 FBI Minimization Procedures at 11-12 and CIA Minimization Procedures at 34 and ii preservation for litigation purposes of information otherwise required to be destroyed under the minimization procedures NSA Minimization Procedures at 8-9 FBI Minimization Procedures at 24 25 and CIA Minimization Procedures at 10-11 Thereafter the Court issued an order directing Ms effress and the govemment to submit briefs on these issues no later than October 16 2015 g Brie ng Order issued on September 16 2015 at 4 After both briefs were tirnely led the Court received oral argument from the The Court wishes to thank Ms Jeffress for her exemplary work in this matter Her written and oral presentations were of the highest quality and extremely informative to the Court s consideration of this matter The Court is grateful for her willingness to serve in this capacity mm Page 6 Approved for public release by the ODNI 20160415 WW amieus and counsel for the government on October 20 2015 7 C Review of Compliance Issues 1 ISC review of targeting and minimization procedures under Section 702 is not con ned to the procedures as written rather the Court also examines how the procedures have been and will be implemented E ggm Memorandum Opinion entered on April 7 2009 at 22-24 April 7 2009 and - Memorandum Opinion entered on Aug 30 2013 at 6-11 August 30 2013 Opinion Accordingly for purposes of its review of the July 15 2015 Submission the Court has examined quarterly compliance reports submitted by the government8 since the most recent 1 review of Section 702 certi cations and procedures was completed on August 26 2014 as well as individual notices of non-compliance relating to implementation of cction 702 Based on its review of these submissions the Court through its staff orally conveyed a number of compliance-related questions to the government On October 8 2015 the Court conducted a hearing to address some of the same compliance-related questions October 8 Hearing 11 REVIEW or CERTIFICATIONS or THEIR PREDECESSOR AS AMENDED BY THE 11 LY 15 2015 SUBMISSION The Court must review a certi cation submitted pursuant to Section 702 to determine 7 See generallv Transcript of Proceedings Held Before the Honorable Thomas Hogan on October 20 2015 October 20 Transcript 3 Quarterly Reports to the FISC Concerning Compliance Matters Under Section 702 ofFlSA submitted on December 19 2014 March 20 2015 June 19 2015 and September 19 2015 Page 7 Approved for public release by the ODNI 20160415 whether it contains all the required elements 50 IJ S C l881a i 2 A The Court s examination of Certi cations eon rms that l the certi cations have been made under oath by the AG and the Actin as of the attes ations re uire 2 the certi cations contain each 3 as required by 50 U S C B each of the certifications is accompanied by the applicable targeting procedures and minimization procedures 4 each of the certi cations is supported by the affidavits of appropriate national security of cials as described in 50 use and 5 each of the certi cations includes an effective date for the authorization in compliance with 50 II S C specifically the certifications become e ective on August 14 2015 or on the date upon which this Court issues an order conccmin the certi cation under Section 188la i 3 whichever is later The 2015 Certi cations were made by the Attorney General and Michael P Dempsey the Deputy for Intelligence Integration At the time Mr Dempsey was serving as Acting DNI pursuant to a Presidential Memorandum dated September 20 2013 'lhat Memorandum which was issued pursuant to the Federal Vacancies Reform Act of 1998 as amended 5 U S C 3345 et seq provides that the Deputy DNT for Intelligence Integration shall act as and perform the functions and duties of the during any period in which the UM and the Principal Deputy Director of National Intelligence have died resigned or otherwise become unable to perform the functions and duties of the Presidential Memorandum Designation of Officers of the Office of the Director of National Intelligence to Act as Director of National Intelligence 78 Fed Reg 59 159 Sept 20 2013 0 i rs United States Navy Director NSA A t davits of James B Comey Director davits of John O Brennan Page 8 Approved for public release by the ODNI 20160415 -contain all the required statutory elements S_ee 50 U S C 188la i 2 A Similarly the Court has reviewed the certi cations in the Prior 702 Dockets as amended by the 2015 Certifications and finds that they also contain all the elements required by the statute lg 11 REVLBW OF THE TARGIETNG AND MINIMIZATION PROCEDURES The Court is also required pursuant to 50 U S C 1881a i 2 B and C to review the targeting and minimization procedures to determine whether they are consistent with the requirements 01'50 U S C l881a d l and Pursuant to 50 U S C 1881a i 3 A the Court further assesses whether the targeting and minimization procedures are consistent with the requirements of the Fourth Amendment Section 188 I requires targeting procedures that are reasonably designed to ensure that any acquisition authorized under the certi cation is limited to targeting persons reasonably believed to be located outside the United States and to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States In addition to these statutory The statement described in 50 U S C is not required in this case because there has been no exigent circumstances determination under Section '2 The effective dates for the amendments to the certi cations in the Prior 702 Dockets are the same as the effective dates for the 2m 5 Certi cations See Page 9 Approved for public release by the ODNI 20160415 4W requirements the government uses the targeting procedures as a means of complying with Section which provides that acquisitions may not intentionally target a United States person reasonably believed to be located outside the United States SQ NSA Targeting Procedures at 1 3-4 7 FBI Targeting Procedures at 1-4 The FISC considers steps taken pursuant to these procedures to avoid targeting United States persons as relevant to its assessment of whether the procedures are consistent with the requirements of the Fourth Amendment SE Docket No Memorandum Opinion entered on Sept 4 2008 at 14 September 4 2008 Opinion Section 1881a e l requires minimization procedures that meet the de nition of minimization procedures under 50 U S C 1801 h or 'lhe applicable statutory de nition is fully set out at pages 12-14 below A The NSA and FBI Targeting Procedures Comnlv With Statutory Requirements and Are Reasonablv Designed to Prevent the 'l argeting of United States Persons Under the procedures adopted by the government NSA is the lead agency in making targeting decisions under Section 702 Pursuant to its targeting procedures SA may target for acquisition a particular selector which is typically a facility such as a telephone number or email address The FBI Targeting Procedures come into play in cases where the government Targeting Procedures Bl Targeting Procedures at 1 Thus the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures whenever acquired September 4 2008 Opinion at 20 emphasis in original Page 10 Approved for public release by the ODNI 20160415 The NSA Targeting Procedures included as part of the July 15 2015 Submission contain two revisions neither of which raises any concern Both changes concern the requirement that before tasking a selector for collection under Section 702 NSA rst assess that the target is expected to possess or receive or is likely to communicate foreign intelligence information concerning a foreign power or a foreign territory Sic NSA Targeting Procedures at 4 The rst change consists of new language clarifying that such assessments must be particularized and fact-based and must consider the totality of the circumstances g The new language which was added following a recommendation of the PCLOB e PCLOB Report at 134-35 Recommendation 1 results in no change in practice as NSA has interpreted prior versions of the procedures to require the same particularized fact-based assessments of the totality of the circumstances See July 15 2015 Memorandum at 5-6 The second change made in response to the same PCLOB recommendation is the addition of language requiring NSA to document each such foreign intelligence assessment New language requires NSA to provide a written explanation of the basis for their assessment at the time of targeting that the target possesses is expected to receive and or is likely to communicate foreign intelligence information concerning the foreign power or foreign territory about which they expect to obtain foreign intelligence information pursuant to a particular targeting determination SE NSA Targeting Procedures at 8 This change which will facilitate review and oversight of NSA targeting decisions presents no issue under Section For the reasons stated above and in the Court s opinions in the Prior 702 Dockets the Page 1 1 Approved for public release by the ODNI 20160415 Court concludes that the NSA Targeting Procedures and the FBI Targeting Procedures as written are reasonably designed as required by Section 1881a d 1 to ensure that any acquisition authorized under the 2015 Certi cations is limited to targeting persons reasonably believed to be located outside the United States and 2 to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States Moreover for the reasons stated above and in the Court s opinions in the Prior 702 Dockets the Court concludes that the NSA and Bl Targeting Procedures as written are reasonably designed to prevent United States persons from being targeted for acquisition a nding that is relevant to the Court s analysis of whether those procedures are consistent with the requirements of the Fourth Amendment pages 3645 below B The FBI NSA and CIA Minimization Procedures Comply With Statutog Requirements The FBI NSA and CIA all have access to raw or unminimized information obtained under Section 702 Each agency is govemed by its own set of minimization procedures in its handling of Section 702 information Under Section 1881 the Court must determine whether the agencies respective minimization procedures included as part of the July 15 2015 Submission meet the statutory de nition of minimization procedures set forth at 50 U S C 1801 h or 1821 4 as appropriate Sections 1801 h and 1821 4 de ne minimization '3 The Court has already concluded that procedures identical to the FBI Targeting Procedures included as part of the July 15 2015 Submission comply with the applicable statutory requirements See August 26 2014 Opinion at 12-14 There is no basis for the Court to deviate from that conclusion here Page 12 Approved for public release by the ODNI 20160415 procedures in pertinent part as 1 speci c procedures which shall be adopted by the Attorney General that are reasonably designed in light of the purpose and technique of the particular surveillance or physical search to minimize the acquisition and retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain produce and disseminate foreign intelligence 2 procedures that require that nonpublicly available information which is not foreign intelligence information as de ned in 50 U S C shall not be disseminated in a manner that identi es any United States person without such person s consent unless such person s identity is necessary to understand foreign intelligence information or assess its importance and 3 notwithstanding paragraphs 1 and 2 procedures that allow for the retention and dissemination of information that is evidence of a crime which has been is being or is about to be committed and that is to be retained or disseminated for law enforcement purposes Section 1801 e de nes foreign intelligence information as 1 information that relates to and if concerning a United States person is necessary to the ability of the United States to protect against A actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power B sabotage international terrorism or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power or C clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent ofa foreign power or 2 information with respect to a foreign power or a foreign territory that relates to and if concerning a United States person is necessary to A the national defense or the security ofthe United States or B the conduct of the foreign affairs of the United States 40W Page 13 Approved for public release by the ODNI 20160415 49W 50 U S C 1801 h see also 1 Changes to Provisions Permitting the Retention of Section 702-Acquired Information Subject to Preservation Obligations Arising from Litigation In 2014 the Court approved provisions permitting FBI NSA and CIA to retain Section 702-acquired information subject to speci c preservation obligations arising in litigation concerning the lawfulness of Section 702 August 26 2014 Opinion at 21-25 Access to information retained under these provisions is restricted at 21 23 The revised NSA and CIA Minimization Procedures accompanying the 2015 Certi cations contain revisions to these litigation hold provisions The litigation hold provisions currently in effect allow NSA and CIA to retain speci c Section 702-acquired information that is otherwise subject to age-off16 if DOJ has advised either agency in writing that such information is subject to a preservation obligation in pending or anticipated administrative civil or criminal litigation id at 22-23 Those provisions also recognize that litigation preservation obligations can also apply to Section 702-acquired information that is subject to destruction for reasons other than the age off requirements of the procedures 9g domestic communications subject to destruction under Section 5 of the NSA '5 The definitions of minimization procedures set forth in these provisions are substantively identical although Section refers to the purposes of the particular physical search emphasis added For ease of reference subsequent citations refer only to the definition set forth at Section 1801 h '6 For example the NSA generally may not retain telephony and certain forms of Internet communications for longer than ve years from the expiration date of the certi cation authorizing the collection unless the NSA determines that certain speci ed retention criteria are met NSA Minimization Procedures at 7 The CIA Minimization Procedures contain a similar requirement See CIA Minimization Procedures at 2 Page 14 Approved for public release by the ODNI 20160415 Minimization Procedures at 23-24 When such circumstances arise the provisions currently in effect state that the Government will notify' the and seek permission to retain the material as appropriate and consistent with the law gee quoting 2014 procedures The Court encouraged the government to consider further revision of the procedures to address such circumstances with generally applicable rules rather than on a piecemeal basis See id at 24 In response to this suggestion the government has modi ed the language in the NSA and CIA Minimization Procedures Page I 5 Approved for public release by the ODNI 20160415 The Court agrees with amicus curiae Amy Jeffress that the revised litigation hold provisions comport with the requirements of Section 1801 h and strike a reasonable and appropriate balance between the retention limitations re ected in l- lSA and the g0vernment s need to comply with its litigation-related obligations Brief ofAmicus Curiae submitted on October 16 201i at 28-34 Amicus Brief 2 Provisions Restricting the Retention and Use of Section 702-Acquired Information Subiect to the Attornev-Clicnt Privilege The revised FBI NSA and CIA Minimization Procedures all include modi cations to the provisions restricting the use and dissemination ol attorney-client communications that are acquired pursuant to Section 702 The FBI Minimization Procedures include three such changes The procedures currently in effect include a provision permitting the FBI after providing the Page 16 Approved for public release by the ODNI 20160415 are I HE 88 Ways original copy of an attorney-client communication to for sequestration with this Court and destroying other copies to maintain a back-up copy that is subject to strict access controls August '26 2014 Opinion at 35 The rst change to the FBI procedures clari es that system administrators and technical personnel may have access to such backup copies but not for analytical or operational purposes e_e FBI Minimization Procedures at 14 The second change consists of the addition of language requiring the Of ce of General Counsel to approve all disseminations that include attorney-client privileged communications g at 17 The new language requires that before any such dissemination be made reasonable efforts be undertaken to instead use other non-privileged sources oi information and to tailor each dissemination to minimize or eliminate the disclosure oi attomey client privileged information 5% id at 17-18 The third change is the addition of a requirement that all disseminations of attorney-client privileged communications include language to advise recipients that the dissemination contains information subject to the attorney-client privilege that the information is being disseminated solely for intelligence or lead purposes and that it may not be further disseminated or used in any trial hearing or other proceeding without approval ofthe AG or the Assistant AG for National Security e_e id at 18 The provisions of the NSA and CIA Minimization Procedures concerning attorney-client communications also have been modi ed The revised language requires among other things the destruction of attorney-client communications that are af rmatively determined not to contain foreign intelligence information or evidence of a crime Sec NSA Minimization Procedures at 10 CIA Minimization Procedures at 5 Page 17 Approved for public release by the ODNI 20160415 information must contain an appropriate caveat to protect the information from being used in a legal proceeding in the United States NSA Minimization Procedures at I I CIA inimiyation Procedures at 7 The revisions to the provisions of the FBI NSA and CIA Minimization Procedures concerning attomey-elient communications serve to enhance the protection of privileged information The Court is satis ed that the changes present no concern under Section 1801 h 3 Provisions of the FBI Minimization Procedures Permitting the Retention of Back-up Copies and Encrvotcd Information The govemment has added new language to the FBI Minimization Procedures to permit the retention of Section 702 acquired information in backup and original evidence systems I PageiS Approved for public release by the ODNI 20160415 gee FBI Minimization Procedures at 24 Only systems administrators and technical personnel may have access to such systems and data in them may not be viewed or used for the purpose of intelligence analysis g Backup and original evidence systems are used to preserve copies of Section 702-acquired data in the form it was originally acquired July 15 2015 Memorandum at 16 Such unaltered copies are unreadable without additional processing but can be used in case of emergency to restore lost destroyed or inaccessible data or to create an original evidence copy for evidentiary uses to establish chain of custody in connection with a criminal prosecution or to ful ll the government s criminal discovery obligations id at 16 17 S ce FBI Minimization Procedures at 24 In the event backup and original evidence systems are used to restore lost destroyed or inaccessible data the FBI must apply its minimization procedures including any applicable time limits on retention to the restored data The government has also added a new provision to the FBI Minimization Procedures permitting the FBI to retain Section 702-acquired information that is or believed to contain secret meaning for any period of time during which such material is subject to or of use in or otherwise deciphering secret meaning g at 25 Access to such information is restricted to FBI personnel engaged in or deciphering secret meaning ii Nonpublicly available information concerning unconsenting United States persons retained under the provision cannot be used for any other purpose unless such use is permitted under a different provision of the minimization procedures 53 Once information retained under this provision is or its secret meaning is ascertained the generally- Page 19 Approved for public release by the ODNI 20160415 applicable retention restrictions of the procedures apply though the government has stated that it will calculate the age-off date from the later of the date of or the date of expiration of the certi cation pursuant to which the information was acquired July 15 2015 Memorandum at 18 19 Neither of these new provisions precludes the Court from nding that the FBI Minimization Procedures comport with Section 1801 h Both are narrowly tailored to serve legitimate government interests in a manner that apprOpriately protects nonpublicly available information concerning unconsenting United States persons 4 Reporting Requirement for Disseminations to Private Entities or Individuals The version of the FBI Minimization Procedures that was approved by the Court in 2014 provides that information that reasonably appears to be foreign intelligence information is necessary to understand foreign intelligence information or assess its importance or is evidence of a crime may be disseminated to private individual or entity in situations where the FBI determines that said private individual or entity is capable of providing assistance in mitigating serious economic harm or serious harm to life or property See August 26 2014 Opinion at 19 quoting 2014 FBI Minimization Procedures at 33 Whenever reasonably practicable such disseminations must not include information identifying a United States person unless the FBI reasonably believes it is necessary to enable the recipient to assist in the mitigation or prevention of the harm quoting 2014 FBI Minimization Procedures at 33 Such disseminations '9 To avoid confusion regarding the applicable age-off requirements the government is encouraged to make this calculation methodology explicit in future versions of the procedures Page 20 Approved for public release by the ODNI 20160415 WEE-WW must be reported to DOJ within ten business days id The government has retained the foregoing language but added language requiring that disseminations pursuant to this provision also be reported to the FISC $99 FBI Minimization Procedures at 37 This modi cation does not alter the Court s conclusion that this provision of the procedures is consistent with the requirements of Section 1801 h August 26 2014 Opinion at 20 5 Provisions Permitting Compliance with Speci c Constitutional Judicial or Legislative Mandates The NSA and CIA Minimization Procedures included as part of the July 15 2015 Submission each contain new language stating that n othing in these procedures shall prohibit the retention processing or dissemination ofinforrnation reasonably necessary to comply with speci c constitutional judicial or legislative mandates gee NSA Minimization Procedures at 1 CM Minimization Procedures at 4-5 These provisions were not included in the draft procedures that were submitted to the Court in June 2015 but appear to have been added by the government therea er They are not discussed in the July 15 2015 Memorandum The apparent breadth of these new provisions gives the Court pause As discussed above the applicable de nition of minimization procedures requires inter alia speci c procedures that are reasonably designed in light of the purpose and technique of the particular surveillance to minimize the acquisition and retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain produce and disseminate foreign intelligence information 50 U S C 1801 h 1 emphasis added In light of this requirement the NSA Page 21 Approved for public release by the ODNI 20160415 and CIA Minimization Procedures contain page after page of detailed restrictions on the acquisition retention and dissemination of Section 702-aequired information concerning United States persons A provision that would allow the NSA and 21A to deviate from any of these restrictions based upon unspeci ed mandates could undermine the Court's ability to nd that the procedures satisfy the above-described statutory requirement It appears however that the government does not intend to apply these provisions as broadly as their language would arguably permit In 2012 the government proposed a similar provision as part of minimization procedures to be applied by in handling certain unminimized terrorism related information acquired by FBI pursuant to other provisions of ISA In requesting approval of a provision that would allow personnel to deviate from other requirements of its minimization procedures when reasonably necessary to comply with speci c constitutional judicial or legislative mandates the government asserted that Executive Branch orders or directives will not trigger this provision nor will general Congressional directives that are not specific- to information NCTC receives pursuant to this motion Government s Submission of Amendments to Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under FISA and Submission of Revised Minimization Procedures for the NCTC submitted on April 23 2012 at 31-32 'lhe Court approved the NCTC minimization procedures with the understanding that this provision would be applied Sparingly The Court described the provision as permitting NCTC personnel to retain process or disseminate information when reasonably necessary to ful ll speci c legal requirements and compared it to Page 22 Approved for public release by the ODNI 20160415 1 V Ja a more narrowly-drafted provision of separate procedures that permits CIA to retain or disseminate information that is required by law to be retained or disseminated - Memorandum Opinion and Order issued on May 18 2012 at emphasis added The Court understands based on informal communications between the Court staff and attorneys for the government that NSA and CIA intend to apply the similar provisions at issue here in the same narrow manner In any case to avoid a de ciency under the above described de nition of minimization procedures the Court must construe the phrase Speci c constitutional judicial or legislative mandates to include only those mandates containing language that clearly and speci cally requires action in contravention of an otherwise-applicable provision of the requirement of the minimization procedures Such clear and speci c language for instance might be found in a court order requiring the government to preserve a particular target s communications beyond the date when they would otherwise be subject to age-off under the minimization procedures On the other hand these provisions should not be interpreted as permitting an otherwise prohibited retention or use of information simply because that retention or use could assist the government in complying with a general statutory requirement such as those stated at 50 3 8 0 l88la b To ensure that these provisions are being applied in a manner consistent with the Court s understanding the government will be directed to report any use thereof to the Court in writing along with a written justi cation for each such Page 23 Approved for public release by the ODNI 20160415 action page 78 below 20 6 Provisions Concerning Queries of Information Acquired Through Collection Under Section 702 Finally the NSA CIA and FBI Minimization Procedures included as part of the July 15 2015 Submission all include revised provisions concerning queries of unminimized data acquired pursuant to Section 702 The previously-approved minimization procedures for all three agencies permit appropriately-trained personnel with access to Section 702-acquired information to query repositories containing such information subject to certain restrictions _S_e_e PCLOB Report at 55 The terms used to conduct such queries may in some circumstances include information concerning United States persons or otherwise be expected to return information about a United States person id at 55-60 a NSA and CIA querying provisions The NSA and CIA Minimization Procedures accompanying the 2015 Certi cations contain several important restrictions that have been carried forward from prior versions of the procedures Most notably all terms used to query the contents of communications acquired through Section 702 such as phone numbers or key words must be terms reasonably likely to return foreign intelligence information 5 9 NSA Minimization Procedures at 7 CIA Minimization Procedures at 3 This requirement applies to all queries of Section 702 acquired 2 The Court understands that the government may have added these new provisions to clarify that information acquired under Section 702 may be shared with Members of Congress or Congressional committees in connection with Congressional oversight of the program If so the Court would urge the government to consider replacing these broadly-worded provisions with language that is narrowly tailored to that pu1pose Page 24 Approved for public release by the ODNI 20160415 mm contents not just queries containing United States-person identi ers g NSA Minimization Procedures at 7 CIA Minimization Procedures at 3 Further the NSA and CIA Minimization Procedures continue to require that both agencies maintain records of all linith States-person identi ers that are used to query Section 702 data and that such records be made available for mandatory review by and ODNI See NSA Minimization Procedures at 7 CIA Minimization Procedures at 3 7 In addition the NSA and CIA Minimization Procedures accompanying the 2015 Certi cations now also mandate that NSA and CM prepare a statement of facts establishing that the use of any United States-person identi er as a selection term is reasonably designed to return foreign intelligence information as de ned in NSA Minimization Procedures at 7 CLA Minimization Procedures at 3 Like the records referred to above these written justi cations are provided to and ODNI to facilitate their oversight of NSA and CIA queries July 15 2015 Memorandum at 20-21 22 2 'l he NSA Minimization Procedures also continue to preclude United States-person queries of its upstream collection 3g NSA Minimization Procedures at 7 Such collection includes Internet communications acquired through the assistance of providers that control the backbone over which Internet communications are carried and is more likely than other forms of Section 702 collection to con foreign intelligence value gee Memorandum Opinion entered on October 3 2011 at 5 n 3 33-41 October 3 2011 Opinion Because only NSA receives upstream collection ii at 18 n 17 CIA and FBI are unable to query information so acquired 22 Representatives of DOJ and ODNI conduct reviews at NSA and CIA to assess the agencies compliance with the Section 702 targeting and minimization procedures July 15 2015 Memorandumpart of those reviews those and ODNI representatives review all United States-person identi ers approved for use in querying the Page 25 Approved for public release by the ODNI 20160415 These additional requirements will result in no change in practice as NSA and CIA already prepare and record foreign intelligence justi cations for each query which are subsequently provided to and ODNI oversight personnel Nevertheless adding these documentation requirements to the NSA and CIA Minimization Procedures serves to further reduce the risk that Section 702-acquired information concerning United States persons will be used or even accessed for improper purposes The Court agrees with the government and Ms effress23 that the revised querying provisions of the NSA and CIA Minimization Procedures are consistent with the requirements of Section 1801 h b FBI querying provisions i Description of the FBI querying provisions The FBI Minimization Procedures also permit apprOpriately-trajned persomiel to conduct queries of systems containing Section 702 data FBI Minimization Procedures at 11 queries of electronic and data storage systems see at 28 29 queries of ad hoc systems In one respect the queries permitted under the procedures are broader than those allowed by the SA and CIA Minimization Procedures Queries by FBI personnel of Section 702-acquired data contents of Section 702-acquired communications as well as the written documentation of the foreign intelligence justi cations for each such query See k at 3 4 When necessary to assess compliance additional information is requested by the oversight personnel and provided by NSA and any compliance issues are reported to the FISC See at 3 4 23 Amicus Brief at 14 conclude that the NSA and CIA minimization procedures are suf cient to ensure that the use of U S person identi ers for th e purpose of querying Section 702 acquired information complies with the statutory requirements of Section 702 and with the Fourth Amendment Page 26 Approved for public release by the ODNI 20160415 may be reasonably designed to nd and extract either foreign intelligence information or evidence of a crime at 11 28-29 Both types of queries have been explicitly pemtitted by the FBI Minimization Procedures since 2009 24 Unlike NSA and CIA the FBI applies this standard to all queries of Section 702-acquired information regardless of whether the querying term includes information concerning a United States person gee see also Oct 20 Transcript at 19-20 5 The FBI also applies this standard regardless of whether the dataset being queried 24 In the Court approved FBI Minimization Procedures that incorporated as n10 1 in a number of respects not relevant here the Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act whicl Attorney General on October 22 2008 ted to this Court in October 2008 Se Memorandum Opinion issue on 2009 at 14-17 April 7 200 pinion Section of the October 2008 SMPs permitted FBI personnel to use queries that were reasonably designed to nd and extract foreign intelligence information or evidence of a crime and to minimize the extraction of third-party information See Oct 2008 SMPs at 16 Fhe FBI Minimization Procedures contain a general statement that except for certain listed provisions these procedures do not apply to information concerning non-United States persons FBI Minimization Procedures at 2 The querying provisions discussed in the text above are not among the listed exceptions e_e id Nevertheless there are substantial quantities of information concerning United States persons Within the Section 702 data subject to querying by the FBI and it is impossible for FBI personnel to know beforehand Whether or not United States-person information will be responsive to a given query of that data Accordingly the Court does not understand the above-described exception for information concerning non- United States persons to qualify the requirement that each query be reasonably designed to nd and extract foreign intelligence infonnation or evidence of a crime In light of the F Bl s practice Page 27 Approved for public release by the ODNI 20160415 WSW includes the contents of communications or only metadata FBI Minimization Procedures at 1 1-12 28-29 The FBI Minimization Procedures require that records be maintained of all queries of the Section 702 acquired data and that such records include the term used in making each query See at 11 29 Unlike CIA and NSA however the FBI does not require its personnel to record their justi cations for any queries id The government has added language to the querying provisions of the FBI Minimization Procedures to clarify that a search of an FBI storage system containing acquired information does not constitute a query within the meaning of the procedures if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search at 11-12 29 26 In such cases the query results include a noti cation that the queried dataset contains Section 702-acquired information responsive to the query id at 12 n 4 The new language also clari es what actions an agent or analyst without appropriate training and access to Section 702 information may take upon receiving a positive hit indicating the existence of but not access to responsive information FBI Minimization Procedures at 12 n 4 Such a user may request that FBI personnel with Section 702 access rerun 25L continued of applying this standard to all queries of datasets including Section 702-acquired information sg October 20 Transcript at 20 the FBI also does not appear to consider the exception to apply in this regard 26 This can occur either because the user running the query has not been granted access to raw PISA-acquired information or because a user who has been granted such access has chosen to limit the query such that it will not return raw PISA-acquired information FBI Minimization Procedures at 11-12 29 Page 28 Approved for public release by the ODNI 20160415 mm the query if it otherwise would be authorized by the FBI Minimization Procedures and if the request is approved by both the user s supervisor and by a national security supervisor S_ee id Generally speaking the user without access to ISA-acquired information can be provided with access to information contained in the query results only if such information reasonably appears based on the review of FBI personnel with authorized access to Section 702-acquired information to be foreign intelligence information to be necessary to understand foreign intelligence information or to be evidence of a crime gee If it is unclear however whether one of these standards is met the user who does not otherwise have authorized access may review the query result solely in order to assist in the determination of whether information contained within the results meets those standards According to the government such situations are very rare Octoba 2O Transcript at 45 In addition on the recommendation PCLOB Report at 137 38 Recommendation 2 the government has added language to the querying provisions of the FBI Minimization Procedures to more fully describe the querying practices 27 This language is 27 Speci cally the procedures state It is a routine and encouraged practice for the FBI to query databases containing lawfully acquired information including ISA-acquired information in furtherance of the Bl s authorized intelligence and law enforcement activities such as assessments investigations and intelligence collection Section governs the conduct of such queries Examples of such queries include but are not limited to queries reasonably designed to identify foreign intelligence information or evidence of a crime related to an ongoing authorized investigation or reasonably designed queries conducted by FBI personnel in making an initial decision to open an assessment concerning a threat to the national security the prevention or protection against a Federal crime or the collection of foreign intelligence as authorized by the Attorney General Guidelines These examples 49m Page 29 Approved for public release by the ODNI 20160415 mm descriptive and works no change to the applicable querying requirements or to the querying practices 28 ii Analysis oft re FBI querying provisions Amicus curiae Amy Jeffress has raised concerns regarding the querying provisions of the FBI Minimization Procedures See Arnicus Brief at 18-28 Ms Jeffress does not speci cally assert that the querying provisions render the procedures inconsistent with the applicable statutory de nition ofminimization procedures Nevertheless she contends that the FBI Minimization Procedures go far beyond the purpose for which the Section 702-acquired information is collected in permitting queries that are unrelated to national security 53 id at are illustrative and neither expand nor restrict the of the queries authorized in the language above FBI Minimization Procedures at 11 n 4 see also at 28 n 8 similar language 23 The FBI has adopted one policy change that is not re ected in its minimization procedures The government has imposed additional limitations on the use of Section 702- acquired information in connection with non-foreign intelligence criminal matters These limitations which are reflected in the Signals Intelligence Reform 2015 Anniversary Report are described in the report as follows C onsistent with the recommendation of the information acquired under Section 702 about a US person will not be introduced as evidence against that person in any criminal proceeding except 1 with the approval of the Attorney General and 2 in criminal cases with national security implications or certain other serious crimes This change will ensure that if decides to use information acquired under Section 702 about a US person in a criminal case it will do so only for national security purposes or in prosecuting the most serious crimes Amicus Brief at 17 quoting see also at 18 further describing policy Page 30 Approved for public release by the ODNI 20160415 I 19 The Court respectfully disagrees There is no statutory requirement that all activities involving Section 702 data serve solely a foreign intelligence national security purpose To be sure Section 702 was enacted to permit the targeting of persons reasonably believed to be located outside the United States t_o acquire foreign intelligence information 50 U S C 1881a a emphasis added But even at the time of acquisition the statute does not require the government to have as its sole purpose obtaining foreign intelligence information Rather the AG and DNI need certify only that obtaining foreign intelligence information is a sigm cant purpose of the acquisition 1881 emphasis added 29 Under the signi cant purpose standard an acquisition under Section 702 is permissible even if toreign intelligence is only a signi cant not a primary purpose of the targeting decision 84cc in re Sealed Case 310 F 3d 717 734 FISA Ct Rev 2002 discussing 2001 amendment to Title 1 of MSA permitting government to conduct electronic surveillance based upon certi cation that obtaining foreign intelligence information is a signi cant purpose of the Nor does ISA foreclose any examination or use of information acquired pursuant to Section 702 that lacks a purpose relating to foreign intelligence It is true that the govemment s 29 As discussed above each of the 2015 Ccrti purpose 3 5011 8 3 1804 the substance of which appeared in subsection 1 804 a 7 B at the time of In re Sealed Case requires that each application for an order approving electronic surveillance under ISA contain a certi cation by a high-level Executive Branch of cial that among other things a signi cant purpose of the surveillance is to obtain foreign intelligence information Page 31 Approved for public release by the ODNI 20160415 minimization procedures must be reasonably designed in light of the purpose and technique of the collection to minimize the retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain produce and disseminate foreign intelligence information 50 U S C 1801 h 1 emphasis added and must limit the dissemination of nonpublicly available information identifying unconsenting United States persons to certain circumstances id 1801 h 2 Notwithstanding these requirements however FISA states that the minimization procedures must also allow for the retention and dissemination of information that is evidence of a crime which has been is being or is about to be committed and that is to be retained or disseminated for law enforcement purposes Ld 1801 h 3 Hence FISA does not merely contemplate but expressly requires that the government s procedures provide for the retention and dissemination of Section 702-acquired information that is evidence of crime for law enforcement purposes This requirement applies whether or not the crime in question relates to foreign intelligence or national security $111 re Sealed Case 310 F 3d at 731 notwithstanding restrictions in subsections 1801 h subsection 1801 h 3 permits the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes italics in original Ms effress acknowledges this statutory frame-work permits the retention and dissemination for law enforcement purposes of evidence of crimes that is discovered by queries of the Section 702-acquired data that are designed to nd and extract foreign intelligence information October 20 Transcript at 10 She suggests however that it restricts queries of Page 32 Approved for public release by the ODNI 20160415 the unminirnized data in particular those that are predicated on United States-person information that are designed to elicit information about crimes unrelated to foreign intelligence But this distinction nds no support in the statutory text Nothing in the statute precludes the examination of information that has otherwise been properly acquired through application of the targeting procedures and retained under the minimization procedures for the purpose of nding evidence of crimes whether or not those crimes relate to foreign intelligence It would be a strained reading of the de nition of minimization procedures to permit FBI personnel to retain and disseminate Section 702 information constituting evidence of a crime implicating a United States person for law enforcement purposes but to prohibit them from querying Section 702 data in a manner designed to identify such evidence And such an interpretation would lead to anomalous results FBI personnel who came across one communication acquired under Section 702 that incriminates a United States person perhaps because it was reSponsive to a query for foreign intelligence information would be prohibited from running queries tailored to identify additional communications obtained under Section 702 pertaining to the same criminal activity even though Section 1801 h 3 eXplicitly authorizes the retention and dissemination of such information for law enforcement purposes Finally the Court reSpectfully disagrees with Ms Jeffress assertion that the querying practices run afoul of the Foreign Intelligence Surveillance Court of Review s admonition that the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes Amicus Brief at 18 quoting In re Sealed Case 310 F 3d at 736 The 49m Page 33 Approved for public release by the ODNI 20160415 Court of Review made that statement in rejecting the government s contention that even prosecutions of noniforeign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison In re Sealed Case 310 F 3d at 735-736 italics in original The Court of Review concluded that it would be an anomalous reading of the signi cant purpose language of 50 U S C 1804 a 6 B to allow the use of electronic surveillance in such a case ii at 736 The Court nevertheless stressed however that long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution it satisfies the signi cant purpose test Ll at 735 The use of queries designed to elicit evidence of crimes unrelated to foreign intelligence does not convert Section 702 acquisitions into a device to investigate wholly unrelated ordinary crirnes The querying provisions apply only to information that has been acquired following application of the NSA Targeting Procedures As discussed above those targeting procedures require that before tasking a selector for collection NSA first make a particularized assessment based on the totality of the circumstances that the user of the selector is expected to possesses or receive or is likely to communicate foreign intelligence information concerning a foreign power or a foreign territory NSA Targeting Procedures at 4 This requirement ensures that at least a signi cant purpose of each targeting decision under Section 702 is the acquisition of foreign intelligence information Queries of the data acquired through application of this targeting process that are designed to elicit evidence of crimes unrelated to foreign intelligence are therefore consistent with the signi cant purpose language of Section 499W Page 34 Approved for public release by the ODNI 20160415 Finally it must be noted that the FBI Minimization Procedures impose substantial restrictions on the use and dissemination of information derived from queries that taken together ensure that the requirements of Section 1801 h are satis ed In the event that a query produces a positive hit on Section 702-acquired infomration the query results can only be viewed by FBI personnel who are appropriately trained and approved to handle such information and only for the purpose of determining whether it reasonably appears to be foreign intelligence information to be necessary to understand foreign intelligence information or to assess its importance or to be evidence of a crime FBI Minimization Procedures at 8 Generally other FBI personnel who have not been trained for and granted access to PISA-acquired information are not allowed to view the query results unless the information has rst been determined by appropriately cleared personnel to meet one of those standards FBI Minimization Procedures at 12 n 4 3' Information that is determined to meet one of those criteria can be retained for further investigation and analysis and may be disseminated only in accordance with additional restrictions gee a at 30-3 7 Before using FISA- acquired information for further investigation analysis or dissemination the FBI must strike or substitute a characterization for information of or concerning a United States person including that person s identity if it does not reasonably appear to be foreign intelligence information to 3 In Very rare circumstances see October 20 Transcript at 45 FBI personnel who are not trained for and do not have access to Section 702-acquired information may View the results of a query'solely to aid in the determination of whether the information constitutes foreign intelligence infomration or evidence of a crime FBI Minimization Procedures at 12 HA Page 35 Approved for public release by the ODNI 20160415 MW be necessary to understand foreign intelligence information or assess its importance or to be evidence of a crime _ See EL at 9 Based on the foregoing the Court concludes that the revised querying provisions of the FBI Minimization Procedures comport with the requirements of Section 1801 h Ms Jeffress constitutional concerns about these provisions are addressed below 7 Conclusion For the reasons stated above and in the Court s opinions in the Prior 702 Dockets the Court concludes that the SA FBI and CIA Minimization Procedures satisfy the de nition of minimization procedures at Section 1801 h D The Targeting and Minimization Procedures Are Consistent with the Fourth We The Court next considers whether the targeting and minimization procedures included in the July 15 2015 Submission are consistent with the requirements of the Fourth Amendment _S_ee 50 U S C 1881a i 3 A 1 The Applicable Analytical Framework The Fourth Amendment does not require the government to obtain a warrant to conduct surveillance to obtain foreign intelligence for national security purposes that is directed against foreign powers or agents of foreign powers reasonany believed to be located outside the United States In re Directives Pursuant to Section 105B of ISA Docket No 08-01 Opinion at 18-19 F ISA Ct Rev Aug 22 2008 In re This exception to the Fourth 32 A declassi ed version of the opinion in In re Directives is available at 551 F 3d 1004 Page 36 Approved for public release by the ODNI 20160415 Amendment s warrant requirement applies even when a United States person is the target of such a surveillance SE id at 25-26 discussing internal Executive Branch criteria for targeting United States persons The FISC has previously concluded that the acquisition of foreign intelligence information pursuant to Section 702 falls within this foreign intelligence exception to the warrant requirement of the Fourth Amendment September 4 2008 Opinion at 34 36 accord United States v Mohamud 2014 WL 2866749 at 15-18 D Or June 24 2014 It follows that the targeting and minimization procedures are consistent with the requirements of the Fourth Amendment if those procedures as implemented are reasonable In assessing the reasonableness of a governmental intrusion under the Fourth Amendment the court must balance the interests at stake under the totality of the circumstances at 20 The court must consider the nature of the government intrusion and how the government intrusion is__ implemented The more important the government s interest the greater the intrusion that may be constitutionally tolerated In re Directives at 19-20 citations omitted If the protections that are in place for individual privacy interests are suf cient in light of the governmental interest at stake the constitutional scales will tilt in favor of upholding the government s actions If however those protections are insuf cient to alleviate the risks of government error and abuse the scales will tip toward a nding of unconstitutionality 1g at 20 The government s national security interest in conducting acquisitions pursuant to Section 702 is of the highest order of magnitude September 4 2008 Opinion at 37 quoting FISA Ct Rev 2008 Page 3 7 Approved for public release by the ODNI 20160415 a In re Directives at 20 With regard to the individual privacy interests involved the Court has concluded as discussed above that the targeting procedures now before it are reasonably designed to target non-United States persons who are located outside the United States Such persons fall outside the ambit of Fourth Amendment protection See September 4 2008 Opinion at 37 citing United States v Verdugo-Urquidez 494 US 2'9 274-75 1990 Nevertheless because the acquires under Section 702 communications to which United States persons and persons within the United States are parties that is not the end of the matter Such acquisitions can occur when those non-targeted persons are parties to a communication that is to or from or that contains a reference to a tasked selector Se September 4 2008 Opinion at 15-20 Such communications may also be acquired when they constitute part of a larger Internet transaction that also contains one or more communications that are to or from or that contain a reference to a tasked selector In the latter case the entire transaction may be unavoidably acquired by the upstream collection October 3 201 1 Opinion at 5 30-3 1 33 In the Prior 702 Dockets the FISC concluded that earlier versions of the various agencies targeting and minimization procedures adequately protected the substantial Fourth 3 FISA minimization protects the privacy interests of United States persons in communications in which they are discussed regardless of whether they were parties to such communications See Section protecting nonpublicly available information concerning unconsenting United States persons emphasis added in contrast non-targets generally do not have a Fourth Amendment-protected interest in communications in which they are discussed unless they are also parties to the communication See Alderman v United States 394 US 165 174-76 1969 1 - Page38 Approved for public release by the ODNI 20160415 WW Amendment interests that are implicated by the acquisition of communications of such United States persons August 26 2014 Opinion at 38-40 August 30 2013 Opinion at 24-25 In the 3 assessment the combined effect of these procedures has been to substantially reduce the risk that non-target information concerning United States persons or persons inside the United States will be used or disseminated and to ensure that non-target information that is subject to protection under FISA or the Fourth Amendment is not retained any longer than is reasonably necessary August 26 2014 Opinion at 40 internal quotation marks omitted 2 The Querying Practices Do Not Render the Targeting and Minimization Procedures Inconsistent with the Fourth Amendment Amicus curiae Amy effress urges the Court to reconsider its prior Fourth Amendment assessments and to reach a different conclusion in light of the provisions of the FBI Minimization Procedures discussed above permitting agents and to query the Section 702-acquired information in the possession using United States-person information for the purpose of nding evidence of crimes unrelated to foreign intelligence gee Amicus Brief at 22 Ms Jeffress asserts that Without additional safeguards such querying is inconsistent with the requirements of the Fourth Amendment The querying procedures effectively treat Section 702-acquired data like any other database that can be queried for any legitimate law enforcement purpose The minimization procedures do not place any restrictions on querying the data using U S person identi ers As a result the BI may query the data using U S person identi ers for purposes of any criminal investigation or even an assessment There is no requirement that the matter be a serious one nor that it have any relation to national security T hese practices do not comply with the Fourth Amendment 1d at 19 According to Ms Jeffress the querying provisions of the Bl Minimization Procedures should be revised to require a written justi cation for each U S person query of the database Page 39 Approved for public release by the ODNI 20160415 mm that explains Why the query is relevant to foreign intelligence information or is otherwise justified or in some other manner that provides additional protection for the United States- person information in the possession _S_e_e id at 27 Although the minimization procedures have for several years expressly permitted the FBI to query unminimized Section 702-acquired data using query terms that are reasonably designed to find and extract not only foreign intelligence information but also evidence of a crime Ms Jeffress raises concerns that the Court has not expressly addressed in its prior Section 702 Opinions The Court agrees with Ms Jeffress see i at 21-24 that it is not bound by its prior approvals of procedures permitting such querying Indeed Section 702 requires the Court to assess anew whether the procedures accompanying each certi cation submitted to it for review are both consistent with both the applicable statutory requirements and with the Fourth Amendment S_e_e 50 U S C After conducting the required reassessment the Court concludes that the querying practices do not render the government s implementation of Section 702 inconsistent with the Fourth Amendment Ms Jeffress contends that each query by FBI personnel of Section 702-acquired information is a separate action subject to the Fourth Amendment reasonableness test Si October 20 Transcript at 6 see also Amicus Brief at 24-25 The government agrees that the querying process is relevant to the Cow't s reasonableness analysis but asserts that each query is not a separate Fourth Amendment event that should be independently assessed October 20 Transcript at 19 Rather in the government s view it is the program as a whole that must be reasonable under the Fourth Amendment The Court agrees with the Page 40 Approved for public release by the ODNI 20160415 government and declines to depart from the analytical framework described above As discussed above FISA requires the Court to assess whether the targeting and minimization procedures adOpted in accordance with 50 U S C 1881a d and are consistent with the fourth amendment to the Constitution 50 U S C 1881a i 3 A This language directs the Court to assess the constitutionality of the framework created by the targeting and minimization procedures Moreover as also discussed above the Court of Review made clear in In re Directives that the proper analytical approach to Fourth Amendment reasonableness involves balanc ing the interests at stake under the totality of the circumstances presented In re Directives at 20 That approach requires the Court to weigh the degree to which the government s implementation of the applicable targeting and minimization procedures viewed as whole serves its important national security interests against the degree of intrusion on Fourth Amendment-protected interests that results from that implementation at 19-20 After assessing the querying practices under the totality of circumstances the Court declines to deviate from its prior decisions As discussed above the querying provisions of the FBI Minimization Procedures are applied only to information that has been acquired following application of the NSA Targeting Procedures Those procedures require that before tasking a selector for collection NSA rst take steps to determine that the user of the selector is a non- United States person who is reasonably believed to be located outside the United States and that he or she is expected to possess receive or communicate foreign intelligence information S_ee NSA Targeting Procedures at 4 These requirements direct the govemment s acquisitions toward Page 41 Approved for public release by the ODNI 20160415 communications that are likely to yield foreign intelligence information Moreover the purpose of permitting queries designed to elicit evidence of ordinary crimes is not entirely unconnected to foreign intelligence Such queries are permitted in part to ensure that the FBI does not fail to identify the foreign-intelligence signi cance of information in its possession One of the main criticisms of the government following the attacks of September 1 1 200 was its failure to identify and appropriately distribute information in its possession that could have been used to disrupt the plot Although the queries at issue here are designed to nd and extract evidence of crimes believed to be unrelated to foreign intelligence such queries may nonetheless elicit foreign intelligence information particularly since the Section 702 collection is targeted against persons believed to possess receive or communicate such information NSA Targeting Procedures at 4 A query designed to nd and extract data regarding a- -plot for example might reveal a previously unknown connection to persons believed to be funding terrorist operations on behalf of- S ee October 20 Transcript at 20-21 Such unexpected connections may arise only rarely but when they do arise the foreign intelligence value of the information obtained could be substantial With respect to the intrusiveness of the querying process the FBI Minimization Procedures impose substantial restrictions on the use and dissemination of information derived from queries In the event that a query produces a positive hit on Section 702-acquired information the query results can only be viewed by FBI personnel who are appropriately trained and approved to handle such information and only for the purpose of determining whether it reasonably appears to be foreign intelligence information to be necessary to understand foreign Page 42 Approved for public release by the ODNI 201604 5 intelligence information or to assess its importance or to be evidence of a crime 3 FBI Minimization Procedures at 8 12 11 4 Generally other 193 personnel who have not been trained for and granted access to PISA-acquired information are not allowed to view the query results unless the information has rst been determined to meet one of these standards SQ FBI Minimization Procedures at 12 n 4 lnformation that is determined to meet one of those criteria can be retained for further investigation and analysis and may be disseminated only in accordance with additional restrictions See see also id at 30-37 Before using PISA acquired information for investigation analysis or dissemination the FBI must strike or substitute a characterization for information of or conceming a United States person including that person s identity if it does not reasonably appear to be foreign intelligence information to be necessary to understand foreign intelligence information or assess its importance or to be evidence of a crime at 9 Furthermore it must be noted that only a subset of the information acquired by the government pursuant to Section 702 is subject to queries by the FBI The acquires only a small portion of the unminimized Section 702 collection October 20 Transcript at 29-30 PCLOB Report at 161 n 57l Separate Statement By Board Members Rachel Brand and Elisebeth Collins Cook citing Letter from Deirdre M Walsh Director of Legislative Affairs to Hon Ron Wyden United States Senate June 27 2014 the only receives collection on tasked facilities that are deemed to be relevant to an Open -FBI investigation October 20 Transcript at 30 Moreover the FBI does not receive any unminimized information acquired through upstream collection under Section 702 a form of collection that is on Page 43 Approved for public release by the ODNI 20160415 balance more likely than others to include non-target cominunications of United States persons and persons located in the United States that have no foreign intelligence value See- Memorandum Opinion issued on November 30 2011 at 6 Finally according to the government FBI queries designed to elicit evidence of crimes unrelated to foreign intelligence rarely if ever produce responsive results from the Section 70 - acquired data See PCLOB Report at 59 60 id at 162 Separate Statement of Board Members Brand and Cook Hence the risk that the results of such a query will be viewed or otherwise used in connection with an investigation that is unrelated to national security appears to be remote if not entirely theoretical The Court is not prepared to nd a constitutional deficiency based upon a hypothetical problem Nevertheless to reassure itself that this risk assessment is valid the Court will require the government to report any instance in which FBI personnel receive and review Section 702 aequired information that the FBI identifies as concerning a United States person in response to a query that is not designed to nd and extract foreign intelligence information See page 78 below in light of the foregoing the Court concludes that the querying provisions ol the Minimization Procedures strike a reasonable balance between the privacy interests ol'United States persons and persons in the United States on the one hand and the govemment s national security interests on the other 'lhe use of those provisions to conduct queries designed to return evidence of crimes unrelated to foreign intelligence does not preclude the Court from concluding that taken together the targeting and minimization procedures Submitted with the Page 44 Approved for public release by the ODNI 20160415 1 1 2015 Certi cations are consistent with the requirements of the Fourth Amendment E The Compliance and Implementation Issues Reported by the Government Do Not Preclude a Finding that the Targeting and Minimization Procedures Comply With Statutory Requirements and the Fourth Amendment As noted above at pages 6-7 the examines the government s implementation of and compliance with the targeting and minimization procedures as part of assessing whether those procedures comply with the applicable statutory and Fourth Amendment requirements In conducting this assessment the Court is mindful that the controlling norms are ones of reasonableness not perfection 34 This distinction is particularly important in the context ol a large and complex endeavor such as the govemment s implementation of Section 702 While in absolute terms the scope of acquisitions under Section 702 is substantial the acquisitions are not conducted in a bulk or indiscriminate manner Rather they are effected through - discrete targeting decisions for individual selectors 35 Each targeting decision requires 3 Section requiring targeting procedures that are reasonably designed to limit targeting to persons reasonably believed to be located outside the United States and to prevent the intentional acquisition of communications to which all parties are known to be in the United States Section 1801 h l requiring minimization procedures that are Teasonably designed to minimize acquisition and retention and to prohibit dissemination of information concerning United States persons consistent with foreign intelligence needs United States v Knights 534 US 112 118 2001 The touchstone of the Fourth Amendment is reasonableness 35 For example the NSA reports that on average approximately-individual facilities were tasked or acquisition at any given time between June 1 and August 31 2015 Quarterly Report to the Concerning Compliance Matters Under Section 702 of PISA submitted on September 18 20l5 at footnote omitted September 18 2015 Compliance Facilities tasked for ac uisition include it at 1 Additionally between ne 1 reports I at it received and processed approximately i Page 45 Approved for public release by the ODNI 20160415 application of the pre-tasking provisions of the applicable targeting procedures NSA Targeting Procedures at 1-6 FBI Targeting Procedures at 1-3 or each selector while it is subject to tasking there are post-tasking requirements designed to ascertain for example whether its targeted user has entered the United States NSA Targeting Procedures at 6-8 And pursuant to the minimization procedures there are detailed rules concerning the retention use and dissemination of information obtained pursuant to Section 702 See NSA Minimization Procedures at 3-16 FBI Minimization Procedures at 5-33 CIA Minimization Procedures at 1-9 Given the number of decisions and volume of information involved it should not be surprising that occasionally errors are made Moreover the government necessarily relies on - processes in performing post-tasking checks see August 30 2013 Opinion at 7- 9 and in acquiring routing storing and when appropriate purging Section 702 information m gg April 7 2009 Opinion at 17-22 Because of factors such as changes in communications technology or inadvertent error these processes do not always function as intended It is apparent to the Court that the implementing agencies as well as and the National Security Division of DOJ devote substantial resources to their compliance and oversight responsibilities under Section 702 36 With relatively few exceptions one of which is 35 Li at l 36 Indeed during the past year NSD has provided the Court with a very detailed overview of its and ODN 1 s oversight efforts with respect to the Intelligence Community s implementation of Section 702 In July 2014 PCLOB recommended that the government provide the Court with random samples of tasking sheets and and lA s United States person query terms to assist the Court s consideration of Section 702 certifications PCLOB 1 1 71 I Approved for public release by the ODNI 20160415 discussed in detail below instances of non-compliance are identi ed and appropriate remedial actions are taken to include purging information that was improperly obtained or otherwise subject to destruction requirements Accordingly the Court s overall assessment of the implementation of and compliance with the targeting and minimization procedures permits a nding that the these procedures as implemented satisfy the applicable statutory requirements Nonetheless the Court believes it is useful to discuss the following aspects of implementation and in some respects to direct the government to provide additional information 1 The Non-compliance With Attorney-Client Minimization Procedures de nition of minimization procedures at Section 180101 does not by its terms afford any special protection to communications subject to the attorney-client privilege 37 Nevertheless as discussed above the minimization procedures under review have speci c rules for handling attorney client communications NSA Minimization Procedures at 10 FBI Minimization Procedures at 12-17 29-30 CIA Minimization Procedures at 5-7 Because the FBI Report at 141 Recommendation 4 The government adopted this recommendation and in January 2015 it provided the Court s legal staff with an extensive brie ng on its oversight activities as well as sample tasking sheets and query terms The government offered to make additional tasking sheets and query terms available to the Court At the Court s request the government provided an overview of its Section 702 oversight efforts to all of the Court s judges in May 2015 which included a review of sample tasking sheets These brie ngs con rmed the Court s earlier understanding that the govemment s oversight efforts with respect to Section 702 collection are robust 37 ISA does provide that otherwise privileged communication obtained in accordance with or in violation of the provisions of shall lose its privileged character 50 U S C 1806 a 46m Page 47 Approved for public release by the ODNI 20160415 has law enforcement responsibilities and often works closely with prosecutors in criminal cases its procedures have detailed requirements for cases in which a target is known to be charged with a federal crime Unless otherwise authorized by the NSD the FBI must establish a separate review team whose members have no role in the prosecution of the charged criminal matter to conduct the initial review of such a target s communications FBI Minimization Procedures at 13 When that review team identi es a privileged communication concerning the charged criminal matter the original record or portion thereof containing that privileged communication is sequestered with the FISC and other copies are destroyed save only any electronic version retained as an archival backup access to which is restricted I_d As discussed above the FBI Minimization Procedures contain new provisions designed to further enhance the protection of attorney-client privileged communications See FBI Minimization Procedures at 17-18 At the time the Court was considering the 2014 Certi cations the government had identi ed instances discovered in the preceding six months in which FBI case agents knew that persons targeted under Section 702 facedfederal criminal charges but had not established the required review teams August 26 2014 Opinion at 35-36 The government generally attributed those instances to individual failures or confusion rather than a systematic issue 1d The Court s Memorandum Opinion and Order issued in connection with the 2014 Certi cations noted that one would expect the number of Section 702 targets charged with federal crimes to be fairly small given that these targets are reasonably believed to be non-United States persons located outside of the United States at 36 Accordingly the Court noted that then recent 48W Page 48 Approved for public release by the ODNI 20160415 cases in which the FBI had not established the required review teams seemed to represent a potentially signi cant rate of non-compliance I_d In light of this the Court required among other things that the government make a subsequent written submission providing an assessment of the adequacy of the govermnent s training guidance and oversight efforts with regard to the requirements for attorney-client privileged communications in the FBI Minimization Procedures at 42-43 Since the Court approved the prior certi cations in August 2014 the government has identi ed an additional instances in which FBI case agents knew that persons targeted under Section 702 faced federal criminal charges but did not establish the required review teams 18 In notifying the Court 0-hcse instances the government wrote that wjhile there have been isolated instances in which FBI personnel have not established review teams the Govemment continues to believe that these were the result of individual failures or confusion and 8 Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of PISA submitted on December 19 2014 December 19 2014 Compliance Report at 83-86 Quarterly Report to the Concerning Compliance Matters Under Section 702 ol'FlSA submitted on March 20 2015 March 20 2015 Compliance Report at 71-73 Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of submitted on June 19 2015 June 19 2015 Compliance Report at 1 10-1 13 September 18 2015 Com plianec Re ort at 134-135' Se tcmber 9 2015 Prelimina Notice of Compliance Incident Re ardin September 9 l reliminarv Notice October 5 2015 l reliminarv Notice of Com lianee Incident Re ardin October 5 l relimina 'Notice and October 8 2015 l rclimina Notice of Compliance lncidents Regarding ctober8 Preliminary Notice Page 49 Approved for public release by the ODNI 20160415 I - not a systematic issue m Review of the individual instances indeed suggests that at least some BI case agents are generally aware of the requirement for a review team when a Section 702 target is charged with a federal crime but they are confused about the specific requirements of the FBI Minimization Procedures rt-instances for example the relevant l- Bl case agents set up ad hoe or informal review teams wherein a case agent or a professional support employee not involved with the investigation was assigned to review communications for attorney-client privileged material prior to the case agent and team members reviewing the communications 40 In-other instances the relevant FBI case agents were generally aware of the requirement for a review team but mistakenly believed that a review team is not required if the pertinent charging document is under seal or if the target is located outside of the United States ll The Court was extremely concerned about these additional instances of non-compliance and at the October 8 Hearing on compliance matters the Court asked the government to explain why there had been an additional-nstanccs of non-compliance in the past year 42 The government indicated that it had taken a two-pronged approach to improving compliance with these provisions of the minimization procedures during the preceding year at 3 3 December 19 2015 Compliance Report at 83 86 June 19 2015 Compliance Report at 1 13 September 18 2015 Compliance Report at 135 September 9 Preliminary Notice at 2 October 5 Preliminary Notice at 2 and October 8 Preliminary Notice at 2-3 4 SE December 19 2014 Compliance Report at 83 85-86 and June 19 2015 Compliance Report at 112 4 e October 8 2015 Preliminary Compliance Notice at 2 A Page 50 the Honorable Thomas Hogan at 3 October 8 2015 October 8 'l ranscript Approved for public release by the ODNI 201604 t5 FirSt the government indicated that at each of the approximately- versight reviews that SI conducted at FBI eld offices in the preceding year NSD reminded individual case agents that a review team is required when a target is charged with a crime pursuant to the United States Code both in individual meetings and general training sessions Ii at 3-4 The govemment represented at the hearing that it was through some of these oversight reviews that it identi ed some of the instances of non-compliance reported to the Court during the past year ld_ at 4 In response to a question from the Court the govemment also indicated that every FBI case agent is required to receive electronic training prior to receiving access to Section 702 collection which includes training on the review team requirement at 6- Second the government reported that in August 2015 the FBI modi ed its- system through which a case agent nominates a selector for collection of the Section 702 collection Id at 4-5 As a result of this modi cation the- now asks the case agent whether the user of the relevant selector is charged with a federal crime at 4 If the agent indicates that the user is not currently charged the system asks whether the agent expects the user to be charged in the future and if so when Ld If the agent indicates that the user ofa facility is currently charged or likely to he charged in the future FBI Headquarters receives notice and the Headquarters unit that manages Section 702 collection will reach out to the agent to ensure that a review team is established l_d This -tool also requires agents to update information about their Section 702 targets every 90 days a The government represented that as a result of the modification to this system in August - Page 51 Approved for public release by the ODNI 20160415 additional instances of non-compliance with the review team requirement were discovered by the time of the October 8 Hearing 1 at 5 Based on the measures described at the October 8 Hearing the Court is satisfied that the government is taking appropriate measures to prevent further instances ol non-compliance with the review team requirement The Court understands that as a result of these modi cations to the -system -- especially the requirement that case agents update information about their Section 702 targets every 90 days remaining instances ot'non compliance for currently-tasked selectors should be identi ed and remedied in the immediate future 'lhe Court understands from post-hearing communications with the government that for de-tasked facilities identifying remaining instances of non-compliance with the review team requirement will likely happen through NSD oversight reviews The Court does not believe that the recent instances ot non-compliance with the review team requirement prevent a nding that the minimization procedures under review comply with the requirements of Section 1801 h and the Fourth Amendment However the Court strongly encourages the govemment to try to identify any remaining instances ofnon compliance as quickly as possible The Court anticipates holding a follow-up hearing on Section 702 compliance matters in early 2016 at which time the Court will expect to receive an update on compliance with the review team requirements of the FBI Minimization Procedures See page79 below 2 Failure of Access Controls in Section of the FBI Minimization Procedures requires the FBI to retain all PISA- Page 52 Approved for public release by the ODNI 20160415 acquired information under appropriately secure conditions that limit access to such information only to authorized users in accordance with the minimization and other applicable procedures FBI Minimization Procedures at 5 Section HI B of the FBI Minimization Procedures further requires the FBI to grant access to raw Section 702-acquired information in a manner that is consistent with the foreign intelligence information-gathering and responsibilities p ermitting access only by individuals who require access in order to perform their job FBI Minimization Procedures at 7 It also requires users with access to raw PISA-acquired information to receive training on the minimization procedures LL 1 Page 53 Approved for public release by the ODNI 20160415 Approved for public release by the ODNI 20160415 A v I I 'lnlil'l l On July 13 2015 the Government led an Update and Notice Regarding the National Security Agency s NSA purge process for ISA-acquired information in Mission Management Systems July 13 2015 Notice That notice indicated that the NSA had not been purging from its database records associated with purged Section 702 collection July 13 2015 Notice at 3 The database and the question of whether the NSA had to purge the fruits of unlawful surveillance from this mission management system were the subject of several opinions issued by the Court in 2010 and 2011 Because the analyses and Page 55 Approved for public release by the ODNI 20160415 holdings of those opinions are relevant to the issue presented by the July 13 2015 Notice the Court will briefly review them Between June and August of20l 0 the govemment led several compliance notices indicating that the NSA had under an authorization to conduct electronic surveillance - Opinion and Order Regarding Fruits of Unauthorized Electronic Surveillance issued on December it 2010 at 1 2 December 20 t The government proposed to retain the fruits of this unlawful surveillance insofar as they resided in the database 1 at 3 In making this proposal the govemment argued that the Standard Minimization Procedures For Electronic Surveillance Conducted by the NSA Electronic Surveillance only applied to interceptions authorized by the Court and did not apply to the fruits of unlawful surveillance l_d at 34 The government also argued that the criminal prohibition in 50 LI S C 1809 a 2 only prohibits use or disclosure ofunlawfully obtained information for investigative or analytic purposes 14 at 6 The Court issued an opinion in December 2010 rejecting the government's argument that the NSA Electronic Surveillance SMPs do not apply to over-collected information noting instead that they appeared to require the destruction of at least some of the over-collected Section l809 a 2 provides that a person is guilty of an offense if he intentionally discloses or uses information obtained under color of law by electronic surveillance knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute 50 1809 a 2 Page 56 Approved for public release by the ODNI 20160415 A A information Id_ at 4-5 the Court also rejected the government s argument that 1809 a 2 only applies to use or disclosure of information for investigative or analytic purposes but recognized a narrower implicit exception from this prohibition for use or disclosure of the results of unauthorized surveillance that are needed to remedy past unauthorized surveillance or prevent similar unauthorized surveillance in the future I_d at 6-8 In recognizing this exception the Court noted that Congress may be presumed not to have prohibited actions that are necessg to mitigate or prevent the harms at which Section 1809 a 2 is addressed But the application of this principle must be carefully circumscribed so that it does not lead to an unjusti ed departure from the terms of the statute Congress has Spoken clearly a court assessing the reach of the criminal statute must heed Congress s intent as re ected in the statutory text Docket No Memorandum Opinion issued on - at 113 citing Huddleston v United States 415 US 814 831 1974 Opinion Ld at 8 emphasis in original Because the Court could not ascertain whether or to what extent the over-collected information-am might fall within this implicit exception for 1 809 a 2 the Court ordered the govemment to make a subsequent submission explaining why the particular information at issue in that case was needed to remedy past unauthorized surveillance or prevent similar unauthorized surveillance in the future Id at 8-9 After review of this submission and a hearing the Court issued an opinion in May 2011 in which it found that the unauthorized collection in this case did not fall within the implicit narrow exception to 1809 a 2 and that the Electronic Surveillance SMl s required the destruction of the unauthorized collection in this case Opinion and Order Requiring Destruction of Information Obtained by Unauthorized Electronic Surveillance issued on May 13 2011 at 8-9 May 201 In discussing the narrow exception to 1809 a 2 in this opinion the Court 1 Page57 Approved for public release by the ODNI 20160415 noted the following C ourts should not attempt to restrict the unquali ed language of a criminal statute to the particular evil that Congress was trying to remedy even assuming that it is possible to identify that evil from something other than the text of the statute itself Brogan v United States 522 398 403 I998 The exception recognized in the December 10 2010 Opinion stands on narrower but rmer ground that in limited circumstances prohibiting use or disclosure of the results of unauthorized electronic surveillance would be so absurd or glaringly unjust as to call into question whether Congress actually intended what the plain language ol Section i809 a 2 so clearly imports May 2011 -at 5 citations omitted In light of the May 20l l- the Court was very surprised to learn from the July 13 2015 Notice that the NSA had not been deleting from Section 702 records placed on the Master Purge List While that opinion dealt exclusively with Title collection in a particular case it would be dif cult to conclude from its analysis and holding that Section 702 collection subject to purge should not also be deleted from Perhaps more disturbing and disappointing than the failure to purge this information for more than four years was the government s failure to convey to the Court explicitly during that time that the NSA was continuing to retain this information in - At the October 8 2015 Hearing the government acknowledged that it should have more prominently and more ilsomely explained the continued retention of this in -to the Court and that it should not have taken four years for the government to explain its proposed resolution of this issue to the Court October 8 Transcript 5 13 2015 Notice did indicate that the NSA had recon gured to delete ros ectively records placed on the MPL and that it would soon historical records that had been placed on the July purging tom 13 2015 Notice at 4 Page 58 Approved for public release by the ODNI 20160415 at 26-27 As the Court explained to the government at the October 8 Hearing it expects the government to comply with its heightened duty of candor in ex parte proceedings at all times Candor is fundamental to this Court s effective operation in considering ex parte submissions from the government particularly in matters involving large and complex operations such as the implementation of Section 702 On October 5 20 5 the govemment led a supplemental notice regarding the National Security Agency s purge process for PISA-acquired information October 5 2015 Notice That notice indicated that since the ling of the July 13 2015 Notice NSA had removed from Section 702-acquired records that were marked as subject to purge October 5 2015 Notice at 2 However on October 28 2015 the government liled another supplemental notice regarding purge processes October 28 2015 Notice in which it indicated that a technical malfunction in-ad rendered the aforementioned purges incomplete 46 October 28 2015 Notice at 2 The October 28 2015 Notice indicated that the NSA was working to develop a technical solution to fix this system error in how effects purges and investigating the amount of time it will take to develop and implement that Given the government s representation that the NSA is working to correct this error in _urging process the Court does not believe the incomplete purges in this system prevent it from nding that the NSA Minimization Procedures comply with the requirements of Section 1801 and the Fourth Amendment Nevertheless the 4 More specifically in effecting the pur I computer program had been searching for records usin only of the identi ers on the MPL relevant to the information held in 49W Page 59 Approved for public release by the ODNI 20160415 Court expects the government to resolve this issue expeditiously and it anticipates receiving an update on this issue at a follow-up hearing on Section 702 compliance matters in early 2016 page 79 below 4 a Introduction As noted above on July 13 2015 the government led a letter regarding the purge processes for l- lSA acquired information in NSA mission management systems In addition to discussing- this letter also serve d as notice pursuant to Rule 13 b of the Rules Procedure ofa compliance incident regarding PISA-acquired information subject to purge or age olT that is being retained in two of compliance mission management systems _and July 13 3015 Notice at 2 More specifically the letter noted that the government had concluded that these two systems have been retaining data subject to purge and age-o if in a manner that is potentially inconsistent with PISA-related minimization procedures July 13 2015 Notice at 5 Subsequent communications between the government and Court staff revealed that -and -may also have been retaining data the use or disclosure of which could violate 50 U S C 1809 a 2 b Relevant Legal Authorities Analysis of the issues presented by th-and-disclosures requires consideration of the following legal authorities i t' Page 60 Approved for public release by the ODNI 20160415 i 50 as C 1881a As discussed above Section 702 codi ed at 50 U S C 1881a permits the Attomey General and the Director of National Intelligence to target non-United States persons reasonably believed to be located outside of the United States to acquire foreign intelligence information 50 U S C 1881a a Acquisitions under Section 702 must comply with a number of limitations the rst of which is that the government may not intentionally target any person known at the time of acquisition to be located in the United States 50 U S C 1881a b l 'l'o effect this prohibition the statute requires the adoption and use of targeting procedures that are reasonably designed to ensure that Section 702 acquisitions are limited to targeting persons reasonably believed to be located outside of the United States 50 S C l881a c 1 A Section 702 also prohibits the govemment from intentionally targeting a United States person reasonably believed to be outside of the United States or acquiring any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States 50 U S C ii NSA Targeting Procedures The NSA Targeting Procedures contain a number of provisions designed to enable its compliance with the requirements and prohibitions of Section 702 Among the most important are Sections 1 and II Section I of the procedures which relates to the determination of Whether a given target is a non-United States person reasonably believed to be located outside of the United States provides that the NSA may NSA Targeting Procedures at 1 Page 61 Approved for public release by the ODNI 20160415 4W With respect to electronic communications the procedures provide Section ll of the SA Targeting Procedures also provides that a fter a person has been targeted for acquisition by NSA NSA will conduct post-targeting analysis Li at 6 For electronic communications this analysis may include r outinely checking all electronic communications to determine if an electronic communications was accessed from inside the ld A1824 A iinimization Procedures Section 2 e of the NSA Minimization Procedures de nes a foreign communication as one that has at least one communicant outside of the United States and all other communications are considered domestic communications NSA Minimization Procedures at 2 Section 3 id 2 of the NSA Minimization Procedures also provides that ajny communications acquired through the targeting ol a person who at the time ol targeting Was reasonably believed to be located outside the United States but is in fact located inside the United States at the time such communications were acquired will be treated as domestic communications NSA i Page 62 Approved for public release by the ODNI 20160415 Minimization Procedures at 9 Section 5 of the NSA Minimization Procedures provides that a domestic communication will be destroyed upon recognition unless the Director of NSA speci cally determines that the sender or intended recipient had been properly targeted and the communication satis es one or more additional requirements the communication is reasonably believed to contain signi cant foreign intelligence information NSA Minimization Procedures at 12 Notwithstanding this destruction requirement Section 5 also provides that may use information derived from domestic communications for collection avoidance purposes and NSA may retain the communication from which such information is derived but shall restrict the further use or dissemination of the communication by placing it on the Master Purge List at 13 With respect to the length of time that NSA is pennitted to retain Section 702 collection Section 3 c of the procedures provides in relevant part that 1 telephony communications and Internet communications acquired by or with the assistance of the FBI from Internet Service Providers may not be retained longer than ve years from the expiration date of the certi cation authorizing the collection unless the NSA speci cally determines that each such communication meets retention standards in the procedures 2 Internet transactions acquired through upstream collection techniques may not be retained longer than two years from the expiration date of the certi cation authorizing the collection unless NSA makes particular ndings about the transaction and 3 any Internet transactions acquired through upstream collection techniques prior to to October 31 2011 will be destroyed upon recognition 13L at 7-8 Page 63 Approved for public release by the ODNI 20160415 1 iv 50 USC As noted above 50 S C 1809 a 2 provides that a person is guilty of an offense if he intentionally discloses or uses infomiation obtained under color of law by electronic surveillance knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute 50 S C l809 a 2 c Background 0n_ _und their compliance with legal requirements In the July 13 2015 Notice the government provided the following background information abou- and - -is a system use to July 13 2015 Notice at 6 most commonly use as part of a determination of whether the facility can be properly tasked under Section 702 This 7' Page64 Approved for public release by the ODNI 20160415 _s a tool used to perform post-tasking-ehecks to identify indications that a Section 702 target maybe located in the United States l_ L at 5 This tool The July 3 2015 Notice indicated tha- and -were not compliant with several provisions ot the NSA Minimization Procedures With respect to - the notice indicated that it does not age off analyst query results Within the time periods required by the Minimization Procedures ithin two years for upstream 47 As discussed in greater detail below on October 2 2015 the government in resPonsc to an Order issued by this Court led the Govemment's Veri ed Response to the Court s Order Dated October 14 2015 Government's October 21 2015 Response in which it provided more information aboutha nd This lilin I indicated that Government s October 21 2015 Response at 3 4 According to the July 13 2015 Notice Page 65 Approved for public release by the ODNI 20160415 I collection and within ve years for Internet communications acquired by or with the assistance of the FBI from Internet Service Providers though it has aged-oli all Section 702 upstream data acquired before October 31 20 1 July 13 2015 Notice at 7 The July 13 2015 Notice indicated that the NSA does not age off records in-in compliance with the NSA Minimization Procedures because of the utility of these records for compliance and collection avoidance purposes The notice further indicated that NRA compliance personnel use historical information which presumably includes both information required to be aged oi and information associated with objects on the NSA s Pl to support the resolution of alerts when a Section-702 tasked facility appears to have been accessed in the United States and to respond to questions posed by NSD and ODN I in the course of those 0 F ces oversight of the Section 702 program l_d With respect to - the July 13 2015 Notice indicated that -does not comply with the requirement in the NSA Minimization Procedures to age telephony communications and Internet communications acquired by or with the assistance of the FBI from Internet Service Providers within ve years of the expiration date ol the certili cation authorizing Page 66 Approved for public release by the DOM 201604 t5 A the collection l_cL at 6 49 Additionally-is retained within records even NSA systems that directly support intelligence analysis pursuant to minimization requirements at S The notice indicated that instead of purging- certain elds within the records are made to and are visible only to a small number of personnel who have responsibility for system administration and compliance issues so 1d The notice indicated that the NSA has not been purging historical data or data associated with objects placed on the MPL from- because compliance personnel use historical information o a By ample the notice described that ifan-record in combination with other analysis indicates - and detask the relevant selector more quickly in the event that the same target or a different target enters the United States and begins using a tasked selector_ l_d 4 The notice indicated that is in compliance with the requirement to remove Section 702 information acquire om upstream collection within two years of the expiration date of the certi cation authorizing the collection it Additionally all Section 702 Wet collection acquired prior to October 31 2011 has been purged from 1 The Government s October '21 2015 Response indicated that after a communication has been ilaccd on the Ml l the following Section 702-acquired data is retained in to permit more effective resolutions of future alerts iovemment s October 2 2m 5 Response Page 67 Approved for public release by the ODNI 20160415 Finally the notice indicated that the resolution of prior alerts can provide context surrounding new alerts If this information was purged l'rom NSA would not have iniormation about the prior which might result in an unnecessary delay in detasking selectors that The Court was extremely concerned about the failure to comply with its minimization procedures and potentially 50 U S C 1809 a 2 - and questioned the government about these issues at the October 8 Hearing Additionally the Court issued an Order on October 14 2015 October 14 2015 Order requiring the government to make a written submission within a week describing how it justi ed under the NSA Minimization Procedures and 1809 a 2 the retention and use in-and-of information otherwise subject to purge On October 21 2015 the government led atimely rCSponse 5' The Government s October 21 2015 ReSponse indicated that since October 2013 NSA i denti lied approximately instances in which prior alert infonnation resulted in alerts being prioritized as urgent and subject to priority review Government s October 21 2015 Response at It Page 68 Approved for public release by the ODNI 20160415 d Government '5 Proposed Resolution of Identi ed Issues The Government s October 21 2015 Response provided more detailed infomtation about _and some of which is noted above It also indicated that the NSA will begin complying with some elements of its minimization procedures which it is currently violating Finally the submission included the govemment s justifications under the NSA Minimization Procedures and 50 U S C 1809 a 2 for the retention and use and _of other information otherwise subject to purge With respect to the non-compliance with the age-off requirements in its minimization procedures the Government s October 21 2015 Response indicated that the NSA will begin implementing the age-off time periods required by the procedures Government s October 21 2015 Response at 13-14 With respect to the retention in- and _of data associated with objects on the the government noted that despite the general destruction requirement for domestic communications Section 5 of the NSA Minimization Procedures permits the NSA to use information derived from such communications for collection avoidance purposes id at 19 The government noted that the NSA has been retaining information in-and -that has been placed on the MPL for the very purpose of collection avoidance 1d The Government s October 21 20 5 5 Again as noted above Section 5 of the NSA Minimization Procedures states that the general destruction requirement aboveuse information derived from domestic communications for collection avoidance purposes and may provide such information to the FBI and CIA for collection avoidance purposes NSA may retain the communication from which such information is derived but shall restrict the further use or dissemination of the communication by placing it on the Master Purge NSA Minimization Procedures at 13 Page 69 Approved for public release by the ODNI 20160415 Response also argued that keeping information in these systems that has been placed on the MPL supports the obligations under Sections 1 and II of the NSA 'l argeting Procedures at 5 11 3 and 8 n 9 As described above those provisions require the NSA to conduct pre and post-tasking checks on Section 702 selectors by checking its data repositories to determine a target s location Ld_ The government noted that foreignness determinations both pre-tasking and post tasking are a fundamental element of Section 702 s statutory scheme and contribute signi cantly to the Fourth Amendment reasonableness of Section 702 collection at 17 Notwithstanding the govemment s argument that retention of information on the MP1 in - and consistent with the procedures the government indicated that it plans to modify its treatment of information collected under PISA and placed on the MPI to better ensure that such information is only used for collection avoidance at 14 Speci cally the govemment indicates that for - if the underlying data is subject to purge NSA will delete the underlying data from-and will only be able to access PISA-acquired or derived information in the following speci c elds As part of the quer r response will also receive notice that the evidence supporting the foreignness determination has been purged from- at Attachment A With respect to- the government indicated that going forward if the underlying data is subject to purge NSA will limit access to FlSA-acquired or derived Page 70 Approved for public release by the ODNI 20160415 intimation in _to the snowing speci c elds _The government s submission noted that access to this information will be restricted to compliance and technical personnel and intelligence will only see a notice indicating that the information has been purged Li Again the government noted that altering the way in which it treats information collected under and placed on the MPL will further ensure that this information is only used for collection avoidance The Court is persuaded by the government s argument that Section 5 of the NSA Minimization Procedures does not prohibit the SA from keeping data in _and _that is derived from domestic communications placed on the MPL for the purpose of collection avoidance The Court also appreciates the plan to modify its treatment of Section 702-acquircd information in-and _that has been placed on the MPL to Further ensure that it is only used for collection avoidance Accordingly the information that remains of concem to the Court at least insofar as the compliance with its targeting and minimization procedures is concerned is what the Court assesses to be the much smaller categories of Section 702 aequircd information in _and _hat have been placed on the MPL because of other destruction requirements under the NSA Targeting and Minimization Procedures Examples would be incidentally acquired communications of or concerning United States persons that are clearly not relevant to the authorized purpose of the Page 71 Approved for public release by the ODNI 20160415 acquisition or that do not contain evidence of a crime which may be disseminated under the minimization procedures slag Section of NSA Minimization Procedures attorney-client communications that do not contain foreign intelligence information or evidence of a crime Section 4 a of NSA Minimization Procedures and any instances in which the NSA discovers that a United States person or a person not reasonably believed to be outside the United States at the time of targeting has been intentionally targeted under Section 702 Section IV of the NSA Targeting Procedures The Court is directing the government to report on 1 how the NSA plans to comply with its targeting and minimization procedures with respect to these other categories of information in -and - or altematively 2 how the retention and use ol these other categories of information i-and -omports with the targeting and minimization procedures 83 page 78 below The Court also expects to hear from the government on this issue at the aforementioned follow-up hearing on Section 702 compliance matters in early 2016 The other issue the Court directed the government to report on in its October 14 2015 Order was how the government justi ed under 50 U S C the retention and use in _and_ of information otherwise subject to purge As noted above 1809 a 2 states that a person is guilty of an offense if he intentionally discloses or uses information obtained under color of law by electronic surveillance knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute 50 U S C 1809 a 2 Accordingly a violation of must involve the intentional disclosure or use of information that is obtained through activity that meets the i Page 72 Approved for public release by the ODNI 20160415 de nition of electronic surveillance 53 that activity must have been unauthorized and the use or disclosure must be made with at least reason to know it was unauthorized 54 The plain language of 1809 a 2 does not require the NSA to search for and identify information in- and _that may be subject to the criminal prohibition It similarly does not require the NSA to destroy information in these systems that is subject to 1809 a 2 It does however prohibit the NSA from intentionally disclosing or using information under the circumstances described above Therefore when the NSA knows or has reason to know that a piece of information was acquired through an unauthorized electronic surveillance it has an af rmative statutory obligation to refrain from disclosing or using it Notably this Court has previously stated that the collection of roamer communications does not generally violate Section 702 Speci cally in the September 4 2008 Opinion referenced above the Court stated the following 53 It is worth noting that 50 U S C 1827 contains analogous criminal prohibitions related to physical search which could include the acquisition of stored data under Section 702 5'1 With respect to this knowledge element the Court has previously stated the following When it is not known and there is no reason to know that a piece of information was acquired through electronic surveillance that was not authorized by the Court s prior orders the information is not subject to the criminal prohibition in Section 1809 a 2 Of course government of cials may not avoid the strictures of Section 1809 a 2 by cultivating a state of deliberate ignorance when reasonable inquiry would establish that information was indeed obtained through unauthorized electronic surveillance g United States v Whitehall 532 F 3d 746 751 Cir where failure to investigate is equivalent to burying one s head in the sand willful blindness may constitute knowledge cert denied 129 Ct 610 2008 _opinion at 115 1 1 - Page 73 Approved for public release by the ODNI 20160415 There may be cases where after properly applying the targeting procedures the government reasonably believes at the time it acquires a communication that a target is a non-US person outside the United States when in fact the target is a US person and or is in the United States The acquisition of such communications is properly authorimd under Section 1881a notwithstanding the fact that the government is prohibited from intentionallv targeting 8 persons or persons inside the United States or intentionally acquiring a communication when it is known that all parties thereto are inside the United States September 4 2008 Opinion at 26 emphasis in original Accordingly the domestic communications that the NSA acquires when non United States person targets who are reasonably believed to be outside of the United States are in fact in the United States are not subject to 1809 a 2 as their acquisition was authori7ed under Section 702 As noted above the Court recognized a narrow implicit exception to 1809 a 2 in the December 2010- December 2010 -t 8 Speci cally the Court recognized an exception for use or disclosure of the results of unauthorized surveillance that are needed to remedy past unauthorized surveillance or prevent similar unauthorized surveillance in the future The Court tnade clear that this exception applied to actions that are necessarv to mitigate or prevent the very harms at which Section 1809 a 2 is addressed 11 emphasis in original The government made clear at the October 8 Hearing that it has not parsed through the data in -and _to determine what portion of it is subject to 55 A different situation would be presented if the NSA failed to detask a Section-702 tasked selector after it knew the user entered the United States In this case the ongoing collection of roamer communications would exceed the authorization to acquire communications under Section 702 See 50 U S C 1881a a providing for authorization of the targeting of persons reasonably believed to be located outside the United States Page74 Approved for public release by the ODNI 20160415 October 8 Transcript at 30 The government made a general argument in its written submission however that the retention and use in _and of information that is otherwise subject to purge falls within the narrow implicit exception to 1809 a 2 recognized in the December 2010 - discussed above iovemment s October 21 2015 Response at 21 25 The Govemmem s October 21 2015 Response repeatedly emphasized that the retention of information in- and _that has been placed on the MPL plays a signi cant role in preventing unauthorized surveillance in the future Sic ggu Government s October 21 20 5 Response at 22-23 25-27 While the Court nds it plausible that some information in-and - that is otherwise subject to purge may fall within the Court s recognized exception to 1809 a 2 the Court is simply not in a position to ascertain what portion of that information meets the standard for the narrow exception As described in the May 2011- the determination of whether the use or disclosure of unauthorized electronic surveillance falls within the exception to 1809 a 2 is a fact-driven assessment and involves an analysis of whether the use or disclosure of that speci c information is necessary to avoid similar instances of over-collection by identifying and remedying a technical malfunction or to remedy a prior over-collection g by aiding the identi cation of over-collected information in various storage systems May 2011 -at 4-5 The Government s October 2 2015 Response argued that a more programmatic or categorical approach to the exception is warranted in the context of Section 702 collection Govemment s October 21 2015 Response at 23 74 27 That may be correct but on the current record the government has not made a persuasive case that all of the information that it wants to retain in Page 75 Approved for public release by the ODNI 20160415 -and -falls within this exception In these circumstances the Court simply cannot conclude whether or not the government s proposed course of action is wholly consistent with Nor does the Court have the authority to permit violations of even when they are de minimis 56 In summary it is likely that most Section 702 information in-and _that is otherwise subject to purge pertains to roamer communications and therefore may be retained under the NSA Minimization Procedures for collection avoidance purposes and generally does not implicate 1809 a 2 Other Section 702 information that the government proposes to retain in-nd notwithstanding generally 5 As the Court explained in the- pinion To be sure this Court like all other Article courts was vested upon its creation with certain inherent powers S_ee In re Motion for Release ofCourt Records 526 F Supp 2d 484 486 PISA Ct 2007 see also Chambers v NASCO lne 501 ILS 32 43 1991 It has long been understood that c ertain implied powers must necessarily result to our Courts of justice from the nature of the their institution It is well settled however that the exercise of such authority is invalid if it con icts with constitutional or statutory provisions Thomas v Am 474 140 I48 l985 And de ning crirnes is not among the inherent powers of the federal courts rather federal crimes are de ned by Congress and are solely creatures of statute Bousley v United States 523 US 614 620- 21 1998 United States v Hudson 11 US 7 Cranch 32 34 1812 Accordingly when Congress has spoken clearly a court assessing the reach of a criminal statute must heed Congress s intent as re ected in the statutory text SE IIuddleston V United States 415 US 814 831 1974 The plain language ofSection 1809 a 2 makes it a crime for any person acting under color of law intentionally to use or disclose information with knowledge or reason to know that the information was obtained through unauthorized electronic surveillance The Court simply lacks the power inherent or otherwise to authorize the govemment to engage in conduct that Congress has unambiguously prohibited _ pinion at 13 footnote omitted Page 76 applicable purge requirements is limited in nature and also would be used for collection avoidance and other compliance-related purposes For these reasons the Court does not believe that the aforementioned issues related to-and -precludc a nding that the NSA 'l argeting Procedures and Minimization Procedures taken as a whole comply with the applicable statutory and Fourth Amendment requirements The Court does expect however to hear more from the government about how it is applying the destruction requirements of those procedures to Section 702 information in -and -at the compliance hearing to be held in early 2016 Finally the Court cannot nd at least on the current record that the information the government proposes to retain in - and falls entirely within the implicit exception to prohibition on disclosure and use 1V CONCLUSION For the foregoing reasons the Court nds that the 2015 Certi cations as well as the certi cations in the Prior 702 Dockets as amended by the 2015 Certi cations contain all the required statutory elements 2 the targeting and minimization procedures to be implemented regarding acquisitions conducted pursuant to the 2015 Certi cations comply with 50 U S C and are consistent with the requirements of the Fourth Amendment and 3 the minimization procedures to be implemented regarding information acquired under prior Section 702 certi cations comply with 50 U S C and are consistent with the requirements of the Fourth Amendment Orders approving the certi cations amended certifications and use of the accompanying procedures are being entered contemporaneously herewith For the reasons discussed above it is HEREBY ORDERED as follows Page 77 I The government shall submit a report to the Court by December 18 2015 describing a how the NSA plans to comply with its targeting and minimization procedures with respect to the categories of information in-and_that are identi ed on pages 71-72 of this opinion or alternatively b how the retention and use of the aforementioned categories of information in -and-comports with the targeting and minimization procedures 2 The government shall submit in writing a report describing each instance in which NSA or CIA invokes the provision of its minimiyation procedures stating tha n othing in these procedures shall prohibit the retention processing or dissemination of information reasonably necessary to comply with speci c constitutional judicial or legislative mandates $3 NSA Minimization Procedures at 1 CIA Minimization Procedures at 4-5 Each such report should describe the circumstances of the deviation from the procedures and identify the specific mandate on which the deviation was based 3 The govemment shall submit in writing a report conceming each instance after December 4 2015 in which FBI personnel receive and review Section 702-acquired information that the FBI identi es as concerning a United States person in response to a query that is not designed to nd and extract foreign intelligence information The report should include a detailed description of the information at issue and the manner in which it has been or will be used for analytical investigative or evidentiary purposes It shall also identify the query terms used to elicit the information and provide the basis for concluding that the query is consistent with the applicable minimization procedures Page 78 4 The government shall provide substantive updates on each of the four compliance issues discussed herein at a hearing to be held on Januaty 27 2016 at I AM I THOMAS F HOGAN Judge United States Fo gig Intelligence Surveillance Court f l Chic-l eruty Uh certi at this document 13 3 mm Page 79 true and Boner ow of the original Filed Eritrea State-e Foreign iht iitgie ee Suweiltance Court MW 05 2015 FOREIGN sciwnn Mgmm Ham mark of 09m LINl'l l l ORDER For the reasons stated in the Memorand urn Opinion and Order issued contemporaneously herewith and in reliance upon the entire record in this matter the Court nds pursuant to 50 S C 1881a i 3 A that the certi cations referenced above contain all the required statutory elements and that the targeting procedures and minimization procedures approved for use in connection with those certi cations are consistent with the requirements of 50 U S C 1881a d and with the Fourth Amendment Accordingly it is hereby ORDERED pursuant to 50 U S C 1881a i 3 A that the certi cations and the use of such procedures are approved ENTERED this 5 2 day of November 2015 i1 F i Judge United States orei 1 Intelligence Sun'eillh if Court Ctnef CHEW corn 5 this document is a true and correct cool i of the original