wwm- La" 9 1? A-ll redacted information exempt under (130(3), and Approved bait-Ego release KAREN esunon, CLERK MAY 1 0 2002 - US. Foreign Intelligence' UNITED STATES Suwamaooe Coud FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D. C. IN RE ELECTRONIC SURVEILLANCE AND Docket Numbers: Multiple PHYSICAL SEARCH OF INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, - AND RELATED TARGETS. MOTION FOR AMENDED ORDERS PERMITTING MODIFIED MINTMIZATION PROCEDURES By this motion, the United States seeks amended orders in the above-referenced cases to permit the implementation of modified minimization procedures, unoer which the Central Intelligence Agency (CIA) and the National Security Agency (NBA) will be permitted to receive raw data ftOm Court-authorized electronic surveillance and physical search; minimize such data pursuant to the minimization procedures specified herein; and retain and disseminate foreign intelligence information so obtained. The instant motion applies to surveillances and Cleesified byi James A. Baker, Counsel for Intelliqence Policy, 0.8. Deoartment of Justice Reason: searches conducted by the Federal Bureau of Investigation (FBI) targeting: (1) foreign powers as defined at 50 U.S.C. 1801(a)(4); (2) agents of such foreign powers; and (3) other targets where the search or surveillance is reasonably expected to yield foreign intelligence information related to international terrorism.1 However, granting the instant motion will not apply the modified minimization procedures proposed herein to the surveillances and/or searches referenced in paragraph 16 below. In support of this motion, the United States states as follows: (U) The Current International Terrorism Threat (U) 1. _On September 14, 2001, the President of the United States declared that a national emergency has existed since September 11, 2001, ?by reason of the terrorist attacks at the World Trade Center, New Yorkr New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.? (U) 2. On September 15, 2001, upon the motion of the Government, the Court suspended the ?Court wall,? certification,- - $533554awe-Lei;new SECRET and Caveat requirements that previously had applied to Court- authorized electronic surveillance and physical search "of I - related targets, while directing that the F31 continue to apply the standard minimization procedures applicable in each case. As stated in the order resulting from that motion, the Court took this action in light of, inter alia: ?the President's September 14, 2001, declaration of a national emergency and the near war conditions that currently exist:? ?the personal meeting the Court had with the Director of the FBI on September 12, 2001, in which he assured the Court of the substantial foreign intelligence purpose of the collection authority requested from.this Court in the face of the nature and scope of the multi? faceted response of the United States to the above- referenced attacks:? and ?the need for the Government to rapidly disseminate pertinent foreign intelligence information to appropriate'authorities." 3. On September 24, 2001, the President issued Executive Order No. 13,224, which authorized the Department of the Treasury to freeze the 0.8. assets of, and prohibit U.S. persons from conducting transactions with, Usama Bin Laden, his key lieutenants, al Qaeda and related terrorist organizations, as well as entities that are known to provide financial and operational support to al Qaeda. In so doing, the President found that grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the terrorist attacks in New York, and the Pentagon committed on September 11, 2001, and the continuing and immediate threat of further attacks on United States nationals or the United States constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and in furtherance of my proclamation of September 14, 2001, Declaration of National Emergency by Reason of Certain Terrorist Attacks, hereby declare a national emergency to deal with that threat. (U) Procedures Now Governing NSA and CIA Assistance (8) 4. Many of the abovewcaptioned applications, particularly those that have.been made to this Court since the terrorist - attacks of September ll, 2001,-contain special minimization procedures permitting the CIA, NSA, and other federal agencies to provide technical and linguistic assistance to the FBI with respect to the results of Courtuauthorized electronic surveillance or physical search. When NSA or CIA has provided 'technical or linguistic assistance pursuant to these special minimization procedures currently in use, NSA or CIA employees usually have been detailed to the FBI for the purpose of providing such assistance. Once detailed, such CIA or NSA employees have functioned as FBI employees under FBI supervision. -4- .33 and control. When detailed or otherwise, NSA or CIR employees who receive access to raw data2 from FISH surveillances and searches pursuant to these special minimization procedures currently in use do so solely for the purpose of providing technical or linguistic assistance to the FBI. They do not retain, disseminate or make any other use of such data on behalf of NBA or CIA, unless and until the FBI disseminates information to the CIA or NSA pursuant to the standard minimization procedures. thus, information from FBI PISA collection informs CIA or NSA intelligence reports, analyses, and assessments on international terrorism, or CIA and NSA targeting and other operational decisions, only if and when it is disseminated to CIA or NSA pursuant to the standard minimization procedures. 2 Under its standard minimization procedures, the FBI is required to take certain steps to minimize the acquisition of non~foreign intelligence information. See, Section 3(c) of the procedures for electronic surveillance of a U.S. person agent of a foreign power ?raw eta? is not meant to su otherwise. Modified Procedures Proogsed in this Motion (U) 5. Under the modified minimization_procedures proposed herein, the CIA and NSA would be permitted to receive raw data acquired by the from PISA surveillances and searches: to minimize such information pursuant to the minimization procedures proposed herein for each agency; and to retain and disseminate3 foreign intelligence information consistent with such minimization procedures. Under the modified minimization procedures, CIA and NSA would be permitted to receive raw data from Court-authorized electronic surveillance and physical search from the FBI, but would not be permitted to acq?ire such information from Court?authorized electronic surveillance or physical search independently.? Thus, the modified minimization procedures contemplate that, at the acquisition stage, 3 As used in this motion and the proposed NSA and CIA procedures, ?dissemination? by CIA or NSA refers to any disclosure (except among NBA, CIA, and FBI personnel as described in paragraph 12 below) by CIA or NSA to a?recipient who is not a CIA or NBA employee, contractor, agent or asset. Under Executive Order No. 12,333 (with exceptions that generally dd not apply to the surveillances or searches subject to this motion), not permitted to conduct electronic? surveillance or physical searches within the United States, and NSA is-not authorized to conduct physical searches. Of course, as the Court is aware, NBA conducts its own Court?authorized electronic surveillances within the United States. a: . (Elg??f-ipgi" surveillances and searches would continue to be conducted solely by the FBI, without direct involvement of the CIA or use.5 if the Court grants this_motion, it is anticipated that in some instances the FBI will continue to minimize and disseminate the foreign intelligence information from FISA surveillance or search of some targets. In some such instances, NSA and CIA may provide technical or linguistic assistance to the FBI, as previously approved by the Court. In other circumstances, CIA or NSA may take primary responsibility for processing, minimizing, and disseminating PISA collection from a particular target: If this motion is granted, in instances in which the CIA and NSA engage in further analysis of foreign intelligence information FBI initially has minimized and disseminated from raw data that would be subject to this motion, CIA and NBA also may make further disseminations in accordance with paragraph 9(b} of this motion (applicable to CIA and NSA), paragraphs 8(6) and 8(7) of this motion (applicable to NSA), and/or paragraphs 4(e) and 4(f) 5 Where warranted by particular operational circumstances, personnel from CIA or NSA have been, and will continue to be, detailed to the FBI in order to provide technical support to the acquisition stage of a specific FISA collection. Personnel on such details are solely under FBI direction and do not report to CIA or NSA on the results of such collection, unless directed to do so by FBI and consistent with applicable minimization procedures. -7- of Exhibit A hereto (applicable to CIA). Thus, by granting this motion the Court will provide the United States maximum flexibility to determine the appropriate aeolication of intelligence community resources to PISA ooilection directed against international terrorist targets. In support of these modified minimization procedures, the 'United States submits: First, the Attorney General, as defined at 50 U.S.C. 1801(g), has adopted these modified minimization procedures, by virtue of approval of the filing of the instant motion. Second, these modified minimization procedures satisfy the requirement of the abovewreferenced statutory definitions that minimization procedures be ?reasonably designed in light of the purpose and technique of the pertioular surveillance [or physical search], to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning 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] (electronic surveillance) and (physical search) (emphasis added). Under the current circumstances, the foreign intelligence purposes of the above~ captioned surveillances and searches encompass the detection and thwarting of planned attacks, such as those of September 11, -3- 2001, as well as the provision of foreign intelligence information to the President and other national security decisionemakers regarding how the United States might respond to" such attacks through diplomatic, military, law enforcement, and/or intelligence activities. Timely translation, analysis, assessment, and dissemination of foreign intelligence information is essential to these purposes. Under the current circumstances, the need for expedition and thoroughneso in these processes is especially acute. Congress recognized this need when it enacted Section 901xof the ?Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept~and Obstruct Terrorism Act of 2001" PATRIOT Act), Pub. L. No. 107?56, which amended 50 U.S.C. 403?3tc) to provide that the Director of Central Intelligence, in his capacity as head of the - Intelligence Community, shall ?provide assistance to the Attorney General to ensure that information derived from electronic surveillance or physical searches under is disseminated so it may be used efficiently and effectively for foreign intelligence purposes, except that the Director shall have no authority to direct, manage, or undertake electronic surveillance, or physical search operations pursuant to unless otherwise authorized by statute or executive order? (emphasis added). -Acoordingly, the United States submits that it is reasonable to authorize the immediate application of all of its analytical resources to meet the prevailing need to produce and disseminate foreign intelligence information related to international terrorism, rather than permitting CIA and NSA substantive analysis to commence only after minimization, assessment, and dissemination by the FBI. Thus, the CIA and NBA should have the same ability as the FBI to produce and disseminate appropriately minimized foreign intelligence information from the raw data obtained from PISA surveillances and searches. Moreover, authorizing CIA and NSA to process raw FBI FISH data will enhance the ability of the United States to employ effectively its overseas collection capabilities against the terrorist targets.6 -10- $17 .-: Third, these modified minimization procedures satisfy the requirement of the statutory definitions that minimization procedures ?require that nonpublicly available information, which is not foreign intelligence information as defined in [50 U.S.C. shall not be disseminated in ?a manner that identifies 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.? 50 U.S.C. 1801(h)(2) (electronic surveillance); (physical search) [emphasis added). As explained above, there are compelling reasons for the CIA and NBA to participate fully in the process whereby the United States timely identifies foreign intelligence information, assesses its importance, and ensures that appropriate action based on that intelligence can be taken. Such full participation requires CIA and NSA initially to receive United States person-identifying information as part of the raw FISH?obtained data. In applying the minimization procedures proposed herein, the CIA or NSA shall appropriately minimize United States persons' identities. Fourth, the remaining requirements of the statutory definitions of minimization procedures at 50 U.S.C. 1801(h) and are satisfied by the CIA and NBA minimization procedures proposed herein. Eigth, because the CIA and NSA are intelligence agencies with no law enforcement authorities, the significant foreign. intelligence phrpose of these searches and surveillances will not be adversely affected by permitting'CIA and NBA to receive the raw results of FISA collection and to dieseminate information from such collection under the procedures proposed herein. Indeed, providing such raw data to these intelligence agencies reflects the significant foreign intelligence purpose of these collection activities. FBI Processind Under Modified Procedurea (U) 6. Under the modified minimization procedures, the FBI will be permitted to provide to the CIA and NSA raw data from Court~authorized surveillances and searches for further processing by CIA and NBA. The FBI will also provide to the CIA and NBA the identity of the target(s) of the surveillance or search from which raw data is being provided; a statement of whether each target was identified as a 0.3. person, a non?U.S. person, or a presumed 0.3. person in the relevant Court pleadings or orders; a statement of what categories of non-pertinent .communications and/or special or particularized minimization procedures, if any; were provided for in such pleadings or 42- Swish-1 I, I orderts):7 and, where applicable, a statement that the target, or_ any other person whose communications with an attorney are likely to he*acquired through surveillance or search of the target, is known by the FBI to be under indictment.a Otherwise, the authorities regarding its handling of FISA information will not change: as it is currently, the FBI will be authorized to review' such raw data, and to log, index, retain, and disseminate foreign intelligence information or evidence of crime consistent with its applicable standard minimization procedures, as well as any. special or particularized minimization procedures that may apply_ to a particular surveillance or search. efdf CIA Processing Under Modified Procedures-+S% 7. Under the modified minimization procedures, the CIA will be permitted direct access to raw data from Courtwauthorized 7 The FBI may provide this information by giving to NBA or CIA a copy of the relevant pleadings and/or resulting orders, or of the relevant pages thereof. If the FBI knows that a target or other such person is under indictment, but is prevented from disclosing that fact to CIA or NSA because of a sealing order or other legal restrictionr the FBI shall not provide to CIA or NSA raw data that may include attorney~client communications of the person known to be under indictment, unless and until the matter is resolved on a oase~ specific basis by having a sealing order modified so that FBI may identify the indicted person to CIA and NSA, or by presenting modified, target?specific minimization procedures to this Court). .45; 43*. 'surveillances and searches. After receiving such data from the FBI, the CIA will follow the minimization procedures set out in Exhibit A hereto in its subsequent processing, retention, and. dissemination of that data and information therefrom. The minimization procedures set out in Exhibit A are adapted from procedures, approved by the Attorney General and in effect in their current form since 1987, for CIA retention and dissemination of information from electronic surveillance, including surveillance targeting United States persons abroad pursuant to Attorney General authorization under Section 2.5 of Executive Order No. 12,333.9 CIA are already familiar with these procedures through training and years of experience. Thus, the United States submits that, to the extent permitted by law, application of the same standards and procedures to the raw FISA data obtained from the FBI can be expected to result in greater consistency and quality of minimization. However, since these procedures reflect a broader definition of foreign intelligence (g?gp, by including information about international narcotics activities, as such) than FISA provides in its definition of ?foreign 9. These procedures are contained in Appendix to the Attorney General?approved Guidance for CIA Activities Conducted Outside the United States. (U) 44- {Whigs- intelligence information? at 50.U.S.C. 1801{e), the categories of information that may be retained and disseminated under the procedures in Exhibit A have been narrowed from those provided in the minimization procedures. Provisions have also been added at Paragraph 4 of the?procedures at Exhibit A to address issues of heightened concern in the context of surveillances and searches within the United States {gigir the handling of attorneyuclient communications). Finally, in applying these procedures, CIA expects to follow its customary practice for dissemination under Executive Order No. 12,333 and its implementing procedures regarding sanitization of 0.8. person identities. This practice consists of generic substitution. Where the identity is believed necessary to understand, assess, or act on the foreign intelligence information, the identity is NSA Processino Under Modified Procedures 8. Under the modified minimization procedures, the NSA also will be permitted direct access to raw data from Court~authorized surveillances and Searches. After receiving such data from the FBI, the NSA will follow its own standard FISA minimization .iS. procedures,m with the modifications set out hereinbelow, in its subsequent processing, retention, and dissemination of that data and information therefrom. These standard FISA minimization- procedures have been in effect in their current form since 199?. As is the case with the CIA and its own procedures, NSA are already trained and experienced in these NSA PISA procedures, so that their application to the raw PISA data obtained from the FBI can be expected to result in greater consistency and quality of minimization. Certain provisions of these NSA PISA procedures are directed solely to how information may be acquired, and thus will have no application to the processing of raw results it obtains from the FBI after acquisition has taken place. ?gs, Sections and Additionally, NSA will observe the following in applying these NSA FISA procedures to raw data from FISA searches and surveillances conducted by the FBI: References to Court?authorized electronic surveillance shall be understood to include Courts authorized physical search. 3 (2) References to any provision of 50 U.S.C. 1801? 1811 pertaining to Court?authorized electronic surveillance shall be understood to include a A copy of current standard minimization procedures for its own FISA collection is at Exhibit B. -16- it corresponding provision of 50 U.S.C. 1821?1829 pertaining to Court-authorized physical search. (3) References to.?communicationst shall be understood to include non?communicatiOns information obtained by Court?authorized search or surveillance. The following will be added to the end of Section 3(f) of these NSA PISA procedures: OIPR shall periodically determine that information concerning communications of or concerning United States persons that is retained meets the requirements of these procedures and the Foreign Intelligence Surveillance Act." (5) The following will be added to the end of Section 4(b) of these NSA FISH procedures: ?With respect to any other communication where it is apparent to NBA processing personnel that the communication is between a person and the person's attorney {or someone acting on behalf of the attorney) concerning legal advice being songht by the former from the latter, such communications relating to foreign intelligence information may be retained and disseminated within the U.S. Intelligence Community if the communications are specifically labeled as being privileged. However, such communications may not be disseminated outside of the U.S. Intelligence Community without the prior approval of The following will replace subsections and of Section 8: ?Nonpublicly available identity or personally identifiable information concerning United-states persons may be disseminated to foreign governments, provided that: the information to be disseminated is foreign intelligence information; and the dissemination is approved by the Attorney General or approved pursuant to such procedures as the Attorney'General may establish for the dissemination of such information by -17- (7) Regarding dissemination of evidence of a crime, Sections S(al{2} and will be superceded by the following: ?Information that.is not foreign intelligence . information, but reasonably appears to be evidence of a crime that has been, is being, or is about to be committed, may be disseminated (including United States person identities} to the FBI and other appropriate federal law enforcement authorities, in accordance with 50 U.S.C. 1806(b) and 1825(c), Executive Order No. 12,333, and, where applicable, the crimes reporting procedures set out in the August 1995 ?Memorandum of _Understanding: Reporting of Information Concerning Federal Crimes,? or any successor document.? ?+8f H93 (8) NSA will also apply the following procedures: c. Notwithstanding that the NSA standard procedures were drafted to address only surveillances, and do not expressly address the processing of non?communications information, information concerning 0.8. persons that is found in non?communications information from Court? - Bk}: -18.. authorized surveillances or searches conducted by the FBI may be retained or disseminated, but only in accordance with the standards applicable to retention and dissemination o?-foreign communicatioes of or concerning U.S. persons in Section 6 of those standard NSA procedures. Further, in applying these procedures, NSA expects to follow its customary practice of substituting in its disseminated reports a generic description for a U.S. person identity, even if that identity could appropriately be disseminated as necessary to a full understanding of foreign intelligence information. In suchl cases, usual practice is to provide the_U.S. person's identity to a recipient of the report who Specifically requests that identity in order to understand fully the disseminated foreign intelligence information. Further Provisions Regarding CIA and NBA Processing 9. In applying their respective minimization procedures, as described in paragraphs 7 and 8 above, to data from Court- authorized surveillances and searches conducted by the FBI, CIA and NBA will also: apply any Special or particularized minimization procedures identified by the FBI to CIA and NSA, in accordance with paragraph 6 above, as applicable to a particular surveillance or search. As described in their respective minimization procedures at Exhibits A and B, CIA and NBA will also apply any categories of non?pertinent communications so identified by the FBI to CIA and NSA (and NSA shall apply such categories -19- r: ~u amtinstead of those listed in Section of the NSA standard PISA minimization procedures); and regard as U.S..persons any targets identified bypersons or presumed U.S. persons, in accordance with paragraph 5 above; provided, however, that if CIA or NSA, based on analysis of data from Coortvauthorized surveillances and searches conducted by the FBI andXor other available information, determines that a target identified by the FBI as a presumed U.S. person is properly regarded as a noneU.S. person, CIA or NSA may treat that target as a non?0.5. person for minimization purposes, and shall notify the FBI and the Office of Intelligence Policy and Review United States Department of Jostice, of such determination. For example, NSA or CIA may determine that a target identified by the FBI as a presumed person is properly regarded as a non-U.S. person upon a finding that the target is located outside of the United States, unless NSA or CIA possess specific indications that the target is a U.S. person. Neither NSA nor CIA will be responsible for maintaining record copies of the raw data received from the FBI pursuant to this motion. Dissemination bv NSA and CIA (U) 10. Disseminations by CIA or NSA of information from FBI Court~anthorized electronic surveillance or physical searches to other Federal entities will bear a legend substantively identical to the following:. FISA INFORMATION: This dissemination includes FBI information from FBI PISA collection. Such information, and any information derived therefrom, may only be used in a 8.8. legal or administrative proceeding with the advance authorization of the -20- a v- . -- Attorney Any recipient interested in obtaining authorization for such use in a 0,5. legal or administrative proceeding should contact FBI Any further dissemination outside of intelligence channels and/or for law enforcement purposes must be made through FBI Headquarters. Any reproduction, dissemination, or communication but not limited to, oral briefings) of this information must be accompanied by a statement of these restrictions.? ll. Wherever feasible, CIA and NSA will-indicate which portions of documents contain information from FBI FISA collection, so that recipients of those documents, both within and outside of CIA and NBA respectively, can determine the information to which FISA~specific restrictions apply. 12. It is anticipated that CIA and NBA will disseminate foreign intelligence information from FBI PISA collection to the full range of Federal offices and agencies with responsibilities relating to international terrorism to which CIA and NSA now The applicable statutory text requires advance authorization of the Attorney General for use in criminal proceedings, see 50 U.S.C. 1806(b) and but the practice of successiVe Attorneys General has been to require authorization for use in other immigration) proceedings also. (0) While a recipient interested in'obtaining Attorney General authorization for use in a proceeding is directed to contact FBI Headquarters, it is anticipated that FBI Headquarters will consult with OIPR about obtaining the required Attorney General approval. -21- disseminate terrorism?related foreign intelligence from other sources. Depending on the content of a particular report, its recipients could include law enforcement agencies within the Department of Jostice the Immigration and Naturalization Service) or in other departments (eggp, the Secret Service), as well as the Criminal Division of the Department of Justice. NSA and CIA will simultaneously include FBI Headquarters in. disseminations of foreign intelligence information to any Federal law enforcement agency and/or the Criminal Division of the Department of Justice. NBA and CIA will not disseminate foreign intelligence information obtained or derived from FBI PISA collection directly to any United States attorney?s Office; however, NBA or CIA may disseminate foreign intelligence information to (or otherwise cell it to the attention of) FBI Headquarters, so that FBI may consider whether to disseminate such information to a united States Attorney?s Office pursuant to procedures applicable to the FBI. ear NSA and CIA, under their respective procedures, will also be authorized to disseminate evidence of a crime that may not be foreign intelligence information, pursuant to applicable crimes reporting procedures. gee NSA procedures at paragraph 8, subparagraph (7i above: proposed CIA procedures at paragraph -22- '51-?32 - aw-nn NSA and CIA will copy FBI Headquarters on all crimes reporting containing information from FBI PISA collection, and will also copy OIPR on crimes reporting to the Criminal Division of the United States Department of Justice that contains such information. a??r 13. Some of the international terrorism applications to which this motion applies contain special ?wall? procedures governing how the FBI discloses or disseminates information to criminal investigators or prosecutors. Generally, these special ?wall? procedures require approval of such disclosures or disseminations by one or more specified officials or offices within the FBI and/or the Department of Justice; - The instant motion will not affect the The current memorandum of understanding regarding crimes reporting by intelligence agencies, including the CIA and NSA, states: ?This MOU ordinarily does not require an intelligence agency or organization to report crimes information that was collected and disseminated to it by another department, agency, or organization. Where, however, the receiving agency is the primary or sole recipient of this information, or if analysis by the receiving agency reveals additional crimes information, the receiving agency shall be responsible for reporting all such crimes information in accordance with the provisions of this (U) -23- implementation of such procedures, as they now are in effect or in whatever form they may be approved in.the future. For the. following reasons, the Government submits that such ?wall? procedures should not apply to disseminations by NSA or CIA pursuant to the instant motion. Most of these ?wall? procedures were implemented before the i enactment of the USA PATRIOT Act and were designed to ensure over time that FBI surveillances and searches continued to be away conducted in furtherance of a primary foreign intelligence {21:57 left-ta? purpose.? in some circumstances, an unregulated flow of information by FBI special agents conducting an intelligence investigation to FEE criminal investigators and/or prosecutors was thought to involve a risk that, in fact or appearance, the FISA collection was primarily serving law enforcement, rather than foreign intelligence, objectives. The disseminations to Federal law enforcement agencies or prosecutors that NBA or As the Court is aware, FISA as recently amended by the USA PATRIOT Act now requires certification that ?a significant purpose? of the surveillance or search is to obtain foreign intelligence information, 50 U.S.C. 1823(a)(7)(B), and eXpressly authorizes consultation and coordination between Federal law enforcement officers and officers conducting surveillances and searches, in order ?to investigate or protect against . . . actual or potential attack or other gave hostile acts? and ?international terrorism? by foreign powers and agents of foreign powers. lg. 1806(k) 1825(k). (U) -24- may make pursuant to this motion would not present the same risk. In any dissemination by, or related interaction with, CIA, neither the prosecutors nor the agents in other law enforcement agencies would have an opportunity to direct or control Court? authorized surveillance or search, because the FBI will continue to be the agency conducting the surveillance or search. f3+~ Similarly, the Attorney General has approved procedures for the sharing of information from FBI intelligence investigations with criminal prosecutors. As the Court is aware, these procedures were submitted to the Court by a notion dated March 7: 2002. By an order dated April 22, 2002, the Court found that those procedures, modified in part, satisfied the definition of minimization procedures under PISA. These procedures, both as originally submitted and as modified by the Court, are directed solely at FBI dissemination of information to, and contacts with, the Criminal Division and United States Attorney's Offices. For the reasons stated above, the Government submits that no such procedures should be extended to the CIA or NSA. Of course, contacts between prosecutors and the FBI agents responsible for PISA collection will continue to be governed by procedures directed at the FBI. ~H?r w25. Scope of the Modified Procedures (U) 14. Nothing in the minimization procedures proposed herein shall+be understood to authorize the CIA or NSA to acquire data through Court~authorized electronic surveillance or physical search, other than by receiving from the FBI data acquired by the FBI through such electronic surveillance or physical search; or (ii) to assume law enforcement or internal security authorities .or responsibilities of the FBI. The FBI, in coordination with CIA or NBA, may decide to target particular foreign powers or - r23? iaa. saw, their agents based upon information provided by CIA or NSAL In addition, employees of the FBI, CIA, and/or NBA may work together in the review and analysis of raw data provided by the FBI to CIA and NSA pursuant to this motion (for example, to collaborate on linguistic questions; to confer on minimization?related issues; or to provide assistance from technical personnel). Such sharing of information and analysis among the FBI, CIA, and/or NSA shall not, in and of itself, be regarded as ?dissemination? by CIA or MBA under the minimization procedures described herein. CIA, NBA, and FBI may also determine that they can most effectively deploy their collective expertise and resources by having one agencx take primary responsibility for the analysis and dissemination of information from PISA collection regarding particular targets. ?g9_ 15. This motion shall apply to raw data obtained by the FBI from the above?referenced searches or surveillances since January 1, 2001. additionallyIr where there is an articulable reason to believe that or receiving raw data from the above- referenced searches or surveillances that was obtained by the FBI prior to such date may further important foreign intelligence interests of the United States, CIA or NSA may also receive such raw data pursuant to the procedures described herein. Finally, it is expected that CIA or NSA will receive raw data from the above?referenced searches and surveillances when Court authority is renewed for the above~referenced searches and surveillances, as well as when authority to initiate FISA collection regarding new international terrorism targets is obtained. In cases where the Government intends to implement the procedures described herein, renewal and initial applications to this Court shall expressly reference such procedures. din- 16. Notwithstanding the foregoing, the instant motion will not permit CIA and NBA to have access to raw data from electronic surveillances or physical searches authorized in docket numbers providing for special minimization procedures for potentially -27. . . -. Oi privileged information. Imminent Dancer to Life (U) 17. Where a person's life or physical safety is reasonably believed to be in imminent danger, and information is relevant to the danger or its prevention, reduction, or elimination, nothing in this motion or the proposed procedures shall prohibit the or NSA from: a. retaining such information for a period of time sufficient to respond to such danger. b. disseminating such information to any Federal officer or agency with responsibility for the matter. FBI Headquarters shall be simultaneously included in any such dissemination and notified of the other recipients of the disseminated information; however, if NSA or CIA reasonably believes that a simultaneous dissemination to FEE Headquarters would impede a sufficiently timely dissemination in response to the danger, dissemination to FBI Headquarters may be made as soon as possible after the initial dissemination. 0. making such other disseminations as reasonably may be necessary to respond to such danger, except that when practicable, any such disseminations within the United States shall be made in coordination with the FBI . 15 However, the Government in the future may present to the Court modified case?specific minimization procedures that would permit CIA and NBA to have access to raw data from such electronic surveillances and physical searches. .23w wag 1: r. -.-. I, .53 31$ Report to Court 18. Within 180 days.of the implementation of the modified minigization procedures proposed herein, the United States will report to the Court on how such procedures are being implemented; Hand on an? revisions that may be appropriate. WHEREFORE, the United States respectfully requests that the Court issue the proposed_order attached to this motion. (U) Respectfully submitted, Gil/t ??mes A. Baker Counsel for Intelligence Policy U.S. Department of Justice -29- VERIFICATION I have reviewed the foregoing motion and the minimization procedures set out at Exhibit A. The CIA will follow those minimization procedures, as described in the foregoing motion, with respect to information obtained from Court?authorized electronic Surveillance and physical search of the above? captioned targets. ohn E. McLaughlin Deputy Director of Central Intelligence -30.. algae VERIFICATION AI have reviewed the foregoing motion and the NBA minimization procedures described therein. IThe NSA will follow those mini?izetion procedures, as described in the foregoing motion, with respect to information obtained from Court- euthoriied electronic surveillance and-physical search of the above?captioned targets. Mi eel V. Haydenw Lieutenant General, USAF Director, National Security Agency -31_ VERIFICATION have reviewed the foregoing motion and the minimization procedures described therein. The FBI will follow those minimization procedures applicable to the FBI, described in the .foregoing motion, with reapect to information obtained from Court?authorized electronic surveillance and physical Search of the abovewcaptioned targets. 45+? Robert QC Muel er, Director, Fed ral Bureau of Investigation I find that this motion regarding electronic surveillance and physical Search of international terrorist groups, their agents, and related targets satisfies the criteria and requiremeots set forth in the Foreign Intelligence Surveillance Act of 1978, and herebf approve its filing with the United States Foreign Inteliigence Surveillance Court. .. ,fJohn Ashcroft Attorney General of the United States ldAY I 0 axm Date -33- Peso KAREN E.SUTTON.CLERK MAY 1 0 2002 U.S. Foreign Imemgence Surveillance Court FOREIGN INTELLIGENCE SURVEILLANCE COURT UNITED STATES WESHINGTUN, D. C. Docket Numbers: Multiple IN RE SURVEILLANCE AND PHYSICAL SEARCH OF INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, AND RELATED TARGETS. if?? This matter having come before the Court on the motion of the United States for amended orders to modify the minimization procedures in the above~captioned matters, the Court finds that the modified minimization procedures proposed in such motion have been adopted by the Attorney General, as defined under 50 U.S.C. 1801(g), and meet the definition of minimization procedures under 50 U.S.C. 1801(h) and 1821(4); and, such motion being well~founded, it is hereby GRANTED. Derived from: Motion of the United States in the above? cantioned matters. - FILED KAREN E. SUTTON. CLERK MAY 1 8 2002 US. Foreign Sunemancerun All other provisions of those orders shall remain in effect as originally granted or modified by prior order Of this Court. Date Filed Date Approved I, Winch . JURCH. CHEER, FISC, certify that this dowmem atma md copy A1319 original. Time Filed 'Time Approved Judge, United States Foreign Intelligence Surveillance Court CO6290977 APPROVED FOR PUBLIC RELEASE KAREN CLERK 8W . MAY 1 2002 EXHIBIT A U-S-Fowisnlmemgenca. . . Cow-1 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, o. c. IN RE ELECTRONIC SURVEILLANCE AND Docket NUmberS: Multiple PHYSICAL SEARCH OF INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, AND RELATED TARGETS. (W1) NatSecAct CIA MINIMIZATION PROCEDURES FOR INFORMATION FROM FISA ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH CONDUCTED BY THE FBI The following procedures shall apply to processing and minimization by the Central Intelligence Agency (CIA) of the raw results of electronic surveillance and physical search conducted? by the Federal Bureau of Investigation (FBI) pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801?1811, I 1821~1829 (PISA). These procedures shall be implemented as - described in the Motion for Amended Orders Permitting Modified Minimization Procedures, filed with the Foreign Intelligence Surveillance Court (F180) and captioned as above. - 1. As used herein, the terms ?Attorney General,? ?foreign power.? ?agent of a foreign power,? ?United States person,? ?person,? ?foreign intelligence information,? ?international terrorism}" and ?sabotage? have the meanings specified in 50 U.S.C. 5 1801. (U) SEC ?Xl Classified by: George J. Tenet, DCI Reason: 1.5gc1-gd} Declassify on: a; CO6290977 APPROVED FOR PUBLIC RELEASE Stonen?o 2. Information about a United States person may be retained within CIA and disseminated to authorized recipients outside of CIA if the identity of the United States person and all personally identifiable information are deleted. A generic term may be substituted which does not identify the United States person in the context of the message. If the information cannot be sanitized in such a fashion because the identity is necessary, or it is reasonably believed that it may become necessary, to understand or assess the information, that identity may be retained or disseminated outside of CIA along with the information if: a. The information falls within one or more of the following categories: (1) The information indicates that the United States person has acted or may be acting as an agent of a foreign power, including information indicating that a United States person was in contact with a foreign power under facts and circumstances indicating that he intends to collaborate with a foreign power or become an agent of a foreign power; (5) The information indicates that a United States person may be a target of intelligence activities of a foreign power; (3) The information indicates that a United States person has engaged or may be engaging in the unauthorized disclosure of properly classified national security information; (4) The information concerns corporations or other commercial organizations the deletion of which would hamper the correlation of foreign intelligence. information on the same subject: b. The information is enciphered or contains secret meaning: o. The information is needed to protect the safety of any persons or organizations, including those who are targets, victims, or hostages of groups engaged in international terrorism; . SECR X1 2 . CO6290977 APPROVED FOR PUBLIC RELEASE d. The information concerns a United States person who is or reasonably appears to be, on the basis of that or other information, an agent of a foreign power; a. The information involves a United States person who has consented to the retention or dissemination of his communications or other information concerning him; f. The information indicates that a United States person is engaged or may be engaged in international terrorism or activities in preparation therefor; g. The information is needed and retained solely to identify individuals in contact with a foreign power or an agent of a foreign power (including for purposes of this subparagraph any person, regardless of location, who engages in international terrorism or activities in preparation therefor; who aids, abets, or conspires with 3 persons to engage in such activities; or who acts as a (bx1) member of a group engaged in such activities); i. The information concerns a person or activity that poses a threat of sabotage, international terrorism, actual or potential attack or other grave hostile act, to any facility or perSOnnel of any agency with the Intelligence Community, or any department containing such an agency; The personally identifiable information concerning the United States person is publicly available. A communication_to or from, or information about, a United States person which does not qualify for retention or dissemination in accordance with this paragraph most be destroyed. $31 Nothing in paragraph 2 above shall prohibit: a. ?The retention or disclosure of information necessary for the purpose of determining whether the requirements of these procedures are satisfied, provided that the recipient under swim 3 APPROVED FOR PUBLIC RELEASE this paragraph does not retain or disclose the identity of a United States person where it is determined that the requirements.of these procedures do not permit dissemination;- b. The retention of communications necessary for the maintenance of technical data bases, so long as only collection or technical personnel have access to such data bases; c. The retention or dissemination of information concerning corporations or other commercial organizations which is limited to their identities as manufactures of equipment and related nomenclature or their locations; or d. The retention or dissemination of information required by law to be retained or disseminated. 4. CIA shall also follow the following procedures: a. Privileged communications: As soon as it becomes apparent to CIA personnel processing a communication acquired by electronic surveillance or physical search conducted by the FBI that such communication is between a person who is known to be under criminal indictment and an attorney that represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring or processing of that communication will cease and the communication shall be identified as an attorney? client communication in a log maintained for that purpose. The relevant portion of the tape, document or other material containing the privileged communication will be placed under seal and the Department of Justice, Office of Intelligence Policy and Review shall be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein. With respect to any other communication where it is apparent processing personnel that the communication is between a person and the person's attorney (or someone acing on_behalf of the attorney) concerning legal advice being sought by the former from the latter, such communications relating to foreign A intelligence information may be retained and disseminated SEfgg??ihil 4 CO6290977 APPROVED FOR PUBLIC RELEASE 3W1 within the 0.8. Intelligence Community if the communications 1 are specifically labeled as being privileged. However, such . communications may not be disseminated outside of the 0.8. Intelligence Community without the prior approval of OIPR. 43) b. Non?Dertinent Communications and Particularized Minimization Procedures: (U) Communications determined to fall within categories of non?pertinent communications provided by the FBI to CIA regarding a particular electronic surveillance or physical Search should not be retained unless they contain information that may be retained or disseminated under paragraphs 2 and 3 above. (U) (2) CIA processing personnel may review all communications, including those that initially appear to fall within established categories until they can reasonably determine that the communication cannot be retained or disseminated under paragraphs 2 and 3 above. $81 (3) Information that appears to be foreign intelligence information may be retained even if it is acquired as a part of a communication falling within a category that is generally non?pertinent. ?36 (4) CIA processing personnel shall adhere to any special or particularized minimization procedures provided to the CIA by the FBI regarding a particular electronic surveillance or physical search. un- (5) QIPR shall periodically determine that information concerning communications of or concerning United States persons that is retained meets the requirements of these i?ccedures and the Foreign Intelligence Surveillance Act. (an) SEC Tm? NatSecAct CO6290977 - APPROVED FOR PUBLIC RELEASE (no) I SEC 11x1 NatSeeAct e. Dissemination to Foreian Governments: Nonpublicly (bX1) 'available identity or personally identitiable information (bX3)hhnSecAct concerning United States persons may be disseminated to . foreign governments, provided that the information to be disseminated is foreign intelligence information, and the dissemination is approved by the Attorney General, or approved pursuant to such procedures as the Attorney General may establish for the dissemination of such information by CIA. is) f. Comnliance With Crimes Reoortina Obliqations: .Notwithstanding any of the foregoing, information'that is not foreign intelligence information, but reasonably appears to be evidence of a crime that has been, is being, or is about to be committed, may be disseminated (including United States person identities) to the FBI and other appropriate. federal law enforcement authorities, in acc0rdance with 50 U.S.C. 1806{b) and 1825(c}, ExecutiVe Order No. 12,333, and, where applicable, the crimes reporting procedures set out in the August 1995 ?Memorandum of Understanding: . Reporting of Information ConCerning Federal Crimes," or any successor document. 9% .- . ?Wu?u?H? All redacted information exempt from disclosure under him) and bug). FOR PUBLIC RELEASE ennu- STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON. D, C. STANDARD 1?41le ZATION PROQEDURES FOR ELECTRONIC SURVEILLANCE COEQUCEEQ THE NATIONAL EBCQEIEZ AGENQX Pursuant to Section 10101) of the Foreign Intelligence Surveillance Act of 19?8 {hereinafter "the Act"), the following procedures have been adopted by the Attorney General and shall be followed by the NSA in implementing this electronic surveillance: (U) Section 1 - Applicabilitv and Scope (U) These procedures apply to the acquisition, retention, use, and dissemination of non-publicly available information concerning unconsenting United States persons that is collected in the course of electronic surveillance as ordered by the United States Foreign Intelligence Surveillance Court under Section 102{b) or authorized by Attorney General Certification under Section 102(a) of the Act. These procedures also apply to non~ United States persons where specifically indicated. (U) Classified by: Allan Deputy-Cougsel for Intel i ence erations DOJ 0 PR Reason: 1:5 nd - Declessify All redacted information exempt from disclosure under b(1) and APPROVED FOR PUBLIC RELEASE 2 Section 2 - Definitions (U) In addition to the definitions in Section 101 of the Act, the following definitions shall apply to these procedures: A ?gisition means the collection by NSA through electronic means of a nonpublic communication to which it is not an intended party. (U) Communications concerning a United States Eerson include all communications in which a United States person is discussed or mentioned, except where such communications reveal only publicly available information about the person. (U) Communications of a United States Eerson include all communications to which a United States person is a party. in} Consent is the agreement by a person or organization to permit the NSA to take particular actions that affect the person or organization. To be effective, consent must be given by the affected person or organization with sufficient knowledge to understand the action that may be taken and the possible consequences of that action. Consent by an organization shall be deemed valid if given on behalf of the organization by an official or governing body determined by the General Counsel, NSA, to have actual or apparent authority to make such an agreement. (U) Fogeign communication means a communication that has at least one communicant outside of the united States, or that is entirely among: All redacted information exempt from disclosure under b(1) and APPROVED FOR PUBLIC RELEASE 3 (1) foreign powers; officers and employees of foreign powers; or (3) a foreign power and officers or employees of a foreign power. All other communications are domestic ?Igentification of a United States gerson means the name, unique title, address, or other personal identifier of a United States person in the context of activities conducted by that person or activities conducted by others thet are related to that person. A reference to a product by brand name, or manufacturer?s name or the use of a name in a descriptive sense, QAQA, "Monroe Doctrine,? is not an identification of a United States person. Processed or grocessing means any step necessary to convert a communication into an intelligible form intended for human inspection. Publicly available injormation means information that a member of the public could obtain on request, by research in public sources, or by casual obsarvation. (U) Technical data base means information retained for traffic analytic, or signal exploitation purposes. {33 United States gerson meane a United Statee person as defined in the Act. The following guidelines apply in determining whether a person whose status is unknown is a United States person: All redacted information exempt from disclosure under b(1) and (1) (2) (3) APPROVED FOR PUBLIC RELEASE eseesei- 4 A person known to be currently in the United States will be treated as a United States person unless positively identified as an alien Who has not been admitted for permanent residence, or unless the nature or circumstances of the person's communications give rise to a reasonable belief that such person is not a United States person. (U) A person known to be currently outside the united States, or whose location is unknown, will not be treated as a United States person unless such person can be positively identified as such, or the nature or circumstances of the person?s communications give rise to a reasonable belief that such person is a United States person. (U) A person known to be an alien admitted for permanent residence status as a United States person if the person leaves the united States and is-not in compliance with Title 8, United States Code, Section 1203 enabling re~entry into the United.States. Failure to follow the statutory procedures provides a reasonable basis to conclude_that the alien has abandoned any intention of maintaining his status as a permanent resident alien. (B) An unincorporated association whose headquarters or primary office is located-outside the United States is presumed not to be a United States person unless there is information indicating that a substantial number of. its members are citizens of the United States or aliens _lawfully admitted for permanent residence. (U) All redacted information exempt from disclosure under b(1) and 23(3). APPROVED FOR PUBLIC RELEASE 5 Section 3 Acggieition and Processing - General (U) Acggisition (U) The acquisition of information by electronic surveillance shall be made in accordance with the certification of the Attorney General or the court order authorizing such surveillance and conducted in a manner designed, to the greatest extent reasonably feasible, to minimize the acquisition of information not relevant to the authorized purpose of the surveillance. .. yerification (U) At the initiation of the electronic surveillance, the NSA or the Federal Bureau of Investigation, if providing operational support, shall verify that the communication lines or telephone numbers being targeted are the lines or numbers of the target authorized by court order or Attorney General certification- Thereafter, collection personnel will monitor the acquisition of raw data at regular intervals to verify that the surveillance is not avoidably acquiring communications outside the authorized scope of the surveillance or information concerning United States persons not related to the purpose of the surveillance. Monitorinc, Recordinq, and Processinq (U) Electronic surveillance of the target may be monitored contemporaneously, recorded entomatically, or both. All redacted information exempt from disclosure under b(1) and (5) APPROVED FOR PUBLIC RELEASE 6 Personnel who monitor the electronic surveillance shall exercise reasonable judgement in determining whether particular information acquired must be minimized and shall destroy inadvertently acquired commnnications of or concerning a United States person at the earliest practicable point in the processing cycle at which such communication can be identified either as clearly not, relevant to the authorized purpose of the surveillance the communication does not contain foreign intelligence information) or as containing evidence of a crime which may be disseminated under these procedures. Communications of or concerning-United States persons that may be related to the authorized purpose of the surveillance may be forwarded to analytic personnel responsible for producing intelligence information from the collected data. Such communications or information may be retained and disseminated only in accordance . with Sections 4, 5 and 6 of these procedures. Magnetic tapes or other storage media that contain acquired communications may be processed. Each COmmunication shall be reviewed to determine whether it is a domestic or foreign communication to or from the targeted premises and is reasonably believed to contain foreign intelligence information or evidence o? a cries. Only such All other communications may be processed. communications may be retained or disseminated All redacted information exempt from disclosure under b(1) and . APPROVED FOR PUBLIC RELEASE '7 only in accor?ance with Sections 5 and 6 of these procedures. ES-GGOL Magnetic tapes or other storage media containing foreign communications may be scanned by computer to identify and select communications for analysis. Computer selection terms used for scanning, such as telephone numbers, key words or phrases, or other discriminators, shall not include United States person inames or identifiers and shall be limited to those selection terms reasonably likely to identify- that are authorized for intentional collection under Executive Order 12333 implementing procedures. (7) Further processing, retention and dissemination of foreign communications shall be made in accordance with Sections 4, 6, and 7, as applicable, below. Further processing, storage and dissemination of inadvertently. acquired domestic communications shall be made in accordance with Sections 4 and 5 below. U.S. Persons Emoloyed bv the Foreiqn Power 48;? Communications of or concerning United States persons employed by a foreign power may be used and retained as otherwise provided in these procedures except that: Such United States persons shall not.be identified in connection with any communication that the person places or receives on behalf of another unless the All redacted information exempt from disclosure under 13(1) and APPROVED FOR PUBLIC RELEASE SEERET- . a identification is permitted under Section 6 of these procedures: and (2) personal communications of United States persons that could not be foreign intelligence may only be retained, used, or disseminated in accordance with Section 5 of these procedures. Destruction of Raw Data Communications and other information, including that reduced to graphic or "hard copy" form such as? retention in accordance with the standards set forth in these procedures. Communications and other information, in any form, that do not meet such retention standards and that are known to contain communications of or concerning United States persons shall be destroyed. Non?Qgrtinent CommunicationS'(U) Communications determined to fall within established categories of non?pertinent communications, such as those set forth in subparagraph (6) of this section, should not be retained unless they contain information that may be disseminated unoer Sections 5, 6 or 7. below. (U) {23 Monitors may listen to ali communications, inclu?ing thoae that initially appear to fall within established Categories until they can reasonably determine t?at the All redacted information exempt from disclosure under b(1) and (4) (9) APPROVED FOR PUBLIC RELEASE 9 communication cannot be disseminated under Sections 5, 6 or 7 below. Communications of United States persons will be analyzed to establish categories of communications that are not pertinent to the authorized purpose of_the surveillance. (U) These categories should be established after a reasonable period of monitoring the communications of the targets. (U) Information that appears to be foreign intelligence may be retained even if it is acquired as a part of a communication falling within a category that is generally non?pertinent. Categories of non?pertinent communications which may be applied in these surveillance include: Calls to and from United States Government officials; I (B) Cells to and from children; (C) Calls to and from students for information to aid them in academic endeavors: (D) Calls between family members; and (E) Calls relating solely to personal Services, such as food orders, transportation. Chance in Taroet?s Location or Status All redacted information exempt from disclosure under b(1) and APPROVED FOR PUBLIC RELEASE 10 During periods of known extended absence by a targeted agent of a foreign power from premises under surveillance, only communications to which the target is a party may be retained and disseminated. +S-Gc?li When there is reason to believe that the target.of an- 'electronic surveillance is no longer a foreign power or an agent of a foreign power, or no longer occupies the- premises authorized for surveillance, that electronic surveillance shall be immediately terminated, and shall not resume unless subsequently approved under the Act. When any person involved in collection or processing of an electronic surveillance being conducted'pursuant to the Act becomes aware of information tending to indicate a material change in the status or location of a target, the person shall immediately ensure that the NSA's Office of General Counsel is also made aware of? such information. Section 4 Acquisition and Prooessinq Special Procedures Cal Qollection Aqainst Residential Premises An electronic surveillance directed against premises located in the United states and used for residential purposes shall be conducted by technical means designed to limit the information acquired to communications that have one communicant outside the United States, The technical means employed shall consist of equipment or equipment capable of identifying All redacted information exempt from disclosure under b(1) and (3) APPROVED FOR PUBLIC RELEASE 11 international 017 other particular international communications known to be used by the targeted foreign power and its agents. Communications to or from the target residential premises that are processed through a a foreign power or agent of a foreign power located in a foreign country, or on the foreign country or foreign city telephone direct dialing codes (area codes) tor the areas in which such foreign powers or agents are located. Domestic communications that are incidentally acquired during collection against residential tremises shall be handled under Section 5 of these procedures. All redacted information exempt from disclosure under b(1) and 13(3). A APPROVED FOR PUBLIC RELEASE 12 Attorney?Client Communications As soon as it becomes apparent that a communication is between a person who is known to be under criminal indictment and an attorney who represents that individual in the matter under indictment {or someone acting on behalf of the attorneyl, monitoring of that communication will cease and the communication 'shall be identified as an attorney?client communication in a log maintained for that purpose. The relevant portion of the tape containing that conversation will be placed under seal and the Department of Justice, Office of Intelligence Policy'and Review, shall be notified so that appropriate procedures may be established to protect such communications from review or use_in any criminal prosecution, while preserving foreign intelligence information contained therein. Section 5 - Domestic Communications (U) Dissemination (U) Communications identified as domestic communications shall- be destroyed, except that: domestic communications that are reasonably believed to contain foreign intelligence information shall be dieseminated to the Federal Bureau of Investigation (including United States person identities) for possible further dissemination by the Federal Bureau of Investigation in accordance with its minimization procedures; All redacted information exempt from disclosure under b(1) and (2) APPROVED FOR PUBLIC RELEASE 13 domestic communications that do not contain foreign intelligence information, but that are reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed, shall be disseminated (including United States perSOn identities) to appropriate Federal law enforcement authorities, in accordance with section 106(b) of the Act and crimes reporting procedures approved by the Secretary of Defense and the Attorney General; and domestic communications that are reasonably believed to contain technical data base information, as defined in Section may be disseminated to the Federal Bureau of Investigation and to other elements of the U.S. SIGINT system. ?nesse.)? Retention Domestic communications disseminated to Federal law- enforcement agencies may be retained by the NSA for a reasonable period of time, not to exceed Six months (or any shorter period set by court order), to permit law enforcement agencies to determine whether access to original recordings of such communications is required for law enforcement purposes. I Domestic communications reasonably'believed to contain technical data base information may be retained for a. period sufficient to allow a thorough erploitation and to permit access to data that are, or are reasonably believed likely to become, relevant to a current or All redacted information exempt from disclosure under and APPROVED FOR PUBLIC RELEASE secess? 14 future foreign intelligence requirement. Snfficient duration mey vary with the nature of the exploitation.' moo} In the context of a effort, maintenance of technical data bases.requires retention of all communications that are enciphered or reasonably believed to contain secret meaning, and sufficient duration may consist of any period of time during which material is subject to, or of use in, In the case of communications that are not enoiphered or otherwise thought to contain secret meaning, sufficient duration is one fear unless the Deputy Director for Operations, NBA, determines in writing that retention for a longer period is required to respond to authorized foreign intelligence or counterintelligence requirements. Section 6 - Foreign Communications of or Concerning United States Persons (U) Retention (U) Foreign communications of or concerning united States persons acquired by the NSA in the Course of an electronic surveillance subject to these procedures may be retained only: 9 All redacted information exempt from disclosure under b(1) and APPROVED FOR PUBLIC RELEASE 15 if necessary for the maintenance of technical data bases. Retention for this purpose is permitted for a period sufficient to allow a thorough exploitation and to permit access to data that are, or are reasonably believed likely to become, relevant to a current or future foreign intelligence requirement. Sufficient duration may vary with the nature of the exploitation. a. 1n the context of a effort, maintenance of technical data bases requires retention of all communications that are enciphered or reasonably believed to contain secret meaning, and sufficient duration may consist of any period of time during which material is subject tothe case of communications that are not enciphered or otherwise thought to contain secret meaning, sufficient duration is one year unless the Deputy Director for Operations, NSA, determines in writing that retention tor a longer period is required to respond to authorized foreign intelligence or counterintelligence requirements; if dissemination of such communications-with reference to such United States persons would beopermitted under subsection belo?; or if the information is evidence of a crime that has been, is being, or is about to be committed and is All redacted information exempt from disclosure under 13(1) and APPROVED FOR PUBLIC RELEASE stones? 1 5 provided to appropriate federal law enforcement authorities. +s?coeL Dissemination (U) A report based on communications of or concerning a united States person may be disseminated in accordance with Section 7 if the identity of the United States person is deleted and a generic term or symbol is substituted so that the information cannot reasonably be connected with an identifiable United States person. Otherwise dissemination of intelligence.reports based on communications of or concerning a United States person may only be made to a recipient requiring the identity of such person for the performance of official duties but only if at least one o? the following criteria is also met: (1) the United States person has consented to dissemination or the information of or concerning the United States? person is available publicly; the identity of the United States person is necessary to understand foreign intelligence_information or assess its importance, the identity of a senior official in the Executive Branch; (3) the communication or information indicates that the United States person may be: an agent of a foreign power;- (B) a foreign power as defined in Section 101(a3(4) of (6) of the Act; All redacted information exempt from disclosure under b(1) and APPROVED FOR PUBLIC RELEASE _4mm$ont_ 17 residing outside the United States and holding an official position in the'government or military forces of a foreign power; (D) a corporation or other entity that is owned or controlled directly or indirectly by a foreign r; or (E) acting in collaboration with an intelligence or security service of a foreign power and the united States person has, or has had, access to- classified national security information or material. the communication or information indicates that the United States person may be the target of intelligence activities of a foreign'power; the communication or information indicates that the United States person is engaged in the unauthorizeo disclosure of classified national security information, but only after the agency that originated the information certifies that it is properly classified; the communication or information indicates that the United States person may be engaging in international- terrorist activities; the acquisition of the United States person's communication was authorized by a court order issued pursuant to Section 105 of the Act and the All redacted information exempt from disclosure under b(1) and APPROVED FOR PUBLIC RELEASE 18 communication may relate to the foreign intelligence purpose of the surveillance; (8) the communication or information is reasonably believed to contain evidence that a crime has been, is being, or is about to be committed, provided that dissemination is for law enforcement purposes and is made in accordance with section 106(b) of the not and crimes reporting procedures approved by the Secretary of Defense and the Attorney General. Section 7 - Other Foreign Cammunications Foreign communications of or concerning a non?United States person may be retained, used, and disseminated in any form in accordance with other applicable law, regulation, and policy. (U) Section - Collaboration with Foreion The sharing or exchange of foreign communications governed by tnese procedures with signals intelligence authorities of collaborating foreign governments {Second Parties} may be undertaken by the NSA only with the written assurance of the Second Party that the use of those foreign communications will be subject to the retention and dissemination provisions of these procedures. Damastic communications and communications to or from United States persons shall not be shared with second Parties. All redacted information exempt from disciosure under b(1) and APPROVED FOR PUBLIC RELEASE SECRET 1 9 Foreign plain text communications may be shared with Second Parties if they are first reviewed by NBA who shall remove references to United States persons that are not necessary to understand or assess the foreign intelligence information contained therein. Foreign enciphered or encoded communications may be shared with Second Parties without such prior review, provided that at least annually a representative sampling of those shared communications that can be deciphered or decoded is reviewed by the NBA to ensure that any references therein to United States persons are necessary to understand or assess the foreign intelligence information being disseminated. Corrective measures with respect to each target or line shall be undertaken as necessary to maintain compliance with the above dissemination standard. The results of each review shall be mede available to the Attorney General or a designee. Jazz?g?" Janey/Reno Attorney General of the United States Dat FILED KAR All redacted information exempt under and Approved forEpliIb?? amt)? JUL 2 2 2332 SI U.S. Foreign Intelligence UNITED STATES Surveillance Court FOREIGN INTELLIGENCE SURVEILLANCE COURT IN RE ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH OF INTERNATIONAL Docket Number: - TERRORIST GROUPS. THEIR AGENTS AND RELATED TARGETS. (S) ORDER This matter is before the Court on the motion of the United States. ?led by James A. Baker, Counsel for Intelligence Policy and approved by the Attorney General of the United States, to modify the minimization procedures already approved and in use in the above captioned cases since January 1, 2001; to authorize the Federal Bureau of Investigation (FBI) to dissentinate to the Central Intelligence Agency (CIA) and to the National SecurityAgency (NSA) ?raw data? unminimized information) only where the raw data relates to international Seem Classi?ed by: Derivative Reason: 1.5(c) FILED KAREN E. SUTTON. All redacted information exempt under and Approved for public release -7- JUL 2 2 1332 U5. Foreign Intetligence Surveillance Court terrorism; to include communications of or concerning United States persons collected by the FBI in electronic surveillances and physical searches authorized by this Court under the Foreign Intelligence Surveillance Act or the and to allow the CIA and NSA to review, translate, analyze. minimize. use. retain and disseminate such information pursuant to supplementary minimization procedures approved by the Attorney General and ?led with the Government?s motion. The Court has fully considered the matters presented including: a. the arguments set forth in the Government?s motion and attached exhibits; b. the proposed supplementary minimization procedures entitled Minimization Procedures for Information From FISA Electronic Surveillance and Physical Search Conducted by the and the "Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency,? as described in the Government?s morion and attached exhibits. as well as the ?Standard Minimization Procedures For Electronic Surveillance of A United States Person Agent Of A Foreign Power;" FILED KAREN E. SUTTON. All redacted information exempt under and Approval for pUblic release 3- JUL 2 2 CE U.S. Fomtgn tmelltgence Surveillance Court c. the supporting legal memoranda from the Of?ce of the Depury Attorney General dated April 5, 2002 and April 12, 200?. provided by the Government; d. the information provided by representatives of the FBI, CIA. and NSA at a hearing on July I, 2002, conducted on the record by the Court sitting en banc: and e. the current international terrorism threat. The Court makes the following FINDINGS: 3351;, this Court derives its statutory powers1 duties and responsibilities from the the FISA?pet-mits both the CIA and NSA to appear before this Court as applicant agencies seeking authorization to conduct electronic surveillances and physical searches of foreign powers and their agents; THIRD, the legislative hisrory recognizes thai in presented by the Government?s motion? where the authorized intelligence agency is unable to process and to minimize all of the collected raw information because of linguistic 0r technical limitations, sharing the raw data with cooperating U.S. FILED KAREN ESUTTON it: am All redacted information exempt under and Approved for public release 4_ 9 a. .. Lt: Surveillance Court intelligence agencies which would apply appropriate minimization procedures is permissible under FOURTH, the proposed supplementary minimization procedures to be used the Government?s motion meet the de?nition of minimization procedures in sections 1801(h) and 1821(4) of the FISA: AND 511111, in approving minimization procedures the Court is vested by FISA with discretion to determine whether the proposed procedures are ?reasonably designed? to meet their statutory purpose and to enter ex parte orders for electronic surveillances and warrants for physical searches ?as requested or as modi?ed? (50 U.S.C. 1805(a) and and ?1824(a) and (0). Upon ?ill consideration of the matters presented in the Government?s motion, it is hereby ORDERED, pursuant to the authority conferred on this Court by the Foreign Intelligence Surveillance Act. so USC isn't-1862, that the motion of the United States to use the aforementioned supplementary minimization procedures in all of the captioned electronic sun-eillances and physical searches already approved since January 1, 2001, as described in the Government?s motion, is GRANTED as modi?ed below: I-ILED KAREN E. SUTTON. CLERK All redacted information exempt under and Approved for releases: A a dab; U.S. Foreign Intelligence Surveillance Court IT IS FURTHER ORDERED. that issuance of this Order does not affect in any way this Court?s Order of? which order shall apply to the CIA and NSA in all disseminations and information sharing authorized herein; IT IS FURTHER ORDERED. that use of the aforementioned supplementary minimization procedures in the future shall be subject to the approval ofthis Court in each electronic surveillance and in each physical search where their use is preposed by the Government as provided in 50 US. C. 1804(a) (5) and 1823(3) and IT IS FURTHER ORDERED, that this matter shall be fully considered again by the Court en hanc at its annual conference in May of 2004. During the intervening period the Department of Justice shall previde to the Court every six months, or as otherwise directed by the Court, an informative report describing the GOvemment?s implementation of this Order by the FBI, CIA. and NSA. SECRET FILED KA EN . All redacted information exempt under and Approved for Pug?3 relgsg CLE r" JUL 2 2 336; US. Foreign Intelligence Suwemance Court All of the members of the Court concur in this Order. DATE COLLEEN Presiding Judge United States Foreign Intelligence Surveillance Court Docket Number: - SECRET l. Karen E. Sutton, Clerk. FISC, certify that this document is a true and correct copy ofthe original. KAH Approved for pigs: rEe'Igzgg-rON- CLERK JUL 2 2 2052 US. Foreign Intelligence All redacted information exempt under and CONCURRING IN THE ORDER: Colleen Kollar-Kotelly Presiding Judge, United States Foreign Intelligence Surveillance Court William H. Staffer Jr. Judge, United States Foreign Intelligence Surveillance Court 1. Karen E. Sutton, Clerk. certify that this document IS a true and correct copy of the All redacted information exempt under and CONCURRING IN THE ORDER: We KM Honorable Colleen Kane-Koren; Presiding Judge. United States Foreign Intelligence Surveillance Court r4134. Honor?b?a 16 Stanley S. Brotman Judge. United States Foreign Intelligence Surveillance Court 1. Karen E. Sutton, Clerk. certify that this document is a true and correct copy of the original. -, M. ., - 1k" FILED KAREN E. SUTTON. CLERK Approved for public release JUL 2 2 2333 US. Fareth Intelligence Surveillance Court FILED KAREN e914. All redacted information exempt under and Approved for public release JUL 2 2 i332 U.S. Foreign Imemgance Surveillance Coun CONCURRING IN THE ORDER: Colleen Kollar-Kotelly Presiding Judge, United States Foreign Intelligence Surveillance Court di/Harold A. Baker Judge, United States Foreign Intelligence Surveillance Court i. Karen E. Sutton. Clerk. FISC. certify that this document Is a true and correct copy of?mzo?gnaL/?? ?3 I KAREN E.SUTTON. CLERK All redacted information exempt under and Approved for raleajsea__Fo lm ance- CONCURRING IIN THE ORDER: SSUNZ-fannce?n 7 Colleen Kollar-Kotelly Presiding Judge- United States Foreign Intelligence Surveillance Court Honorable Michael J. Dan?3? Judge. United States For Intelligence Surveillance Court I. Karen E. Sutton, Clerk. certify that this document is a true and correct capy of the Iv All redacted information exempt under and CONCURRING IN THE ORDER: Colleen Kollar-Kotelly Presiding Judge. United States Foreign Intelligence Surveillance Court XI Honorable Claude M. Hilton Judge. United States Foreign Intelligence Surveillance Court 1. Karen E. Sutton. Clerk. L30, certify that this document is a true and correct copy of the original./? FILED Approved fm?lg?e??gg?ON - JUL 2 2 332 U.S. Foreign Intelligence Surveillance Cour: All redacted information exempt under and CONCURRING IN THE ORDER: . I 0? Colleen Rollar?lxotelly Presiding Judge. United States Foreign Intelligence Surveillance Court . Zane/Mk Honorable Nathaniel M. Gonon Judge. United States Foreign Intelligence Surveillance Court 1. Karen E. Sutton. Clerk. certify that this document is a true and correct copy of the original. . FILED Approved CLE RK JUL 2 2 3302 US. Foreign Intelligence Surveillance Court All redacted information exempt under and CONCURRING IN THE ORDER: 1/ Loser 1:11 a Colleen Keller-Katelly I Presiding Judge. United States Foreign Intelligence Surveillance Court Owe?? Honorable James G. Carr Judge. United States Foreign Intelligence Surveillance Court l, Karen E. Sutton. Clerk. ISC, certify that this document is a true and correct copy - of the original. Lieu FILED KAREN E. SUTTON. CLERK Approved for public release JUL 2 2 2332 U5. FOreign Intelligence Suweillance Cour. d' t' Approved for public?a?a A re acte ll'l ormalon exemp un er( KAREN CLERK- CONCURRING IN THE ORDER: JUL 2 2 2-32; US. Foreign Imelhgence Surveillance Court 1' Colleen Kollar-Kmelly Presiding Judge. United States Foreign Intelligence Surveillance Court norable John E. Conway lu ge. United States Foreign elligen l. Karen E. Sutton. Clerk. certify that this document is a true and correct copy of the original. 4 (I. . I All redacted information exempt under and CONCURRING IN THE ORDER: f?l Jag Colleen Kollar-Kotel?ly Presiding Judge. United States Foreign Intelligence Surveillance Court 71mm Honorable James Robertson Judge. United States Foreign Intelligence Surveillance Court l. Karen E. Sutton, Clerk, certify that this document is a true and correct copy of the originaly? FILED as m; JUL 2 2 2932 U.S. Foreign Intelligence Surveillance Court 4. V4 . All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT :scyyoe WASHINGTON, o.c. . STANDARD {$11 NIMI ON I PROQEQURES FOR ELE CTRONI SURVE I LQECE CONDUCTED BY THE NATIONAL SECURETY AGENCY Pursuant to Section 101(h) of the Foreign Intelligence Surveillance Act of 1978 {hereinafter "the Act"), the following procedures have bees adopted by the Attorney General and shall be followed by the NBA in implementing this electronic surveillance: (U) ?1 Section 1 Apylicabilitx and Scope (B) These procedures apply to the acquisition, retention, use, and dissemination of non~publicly available information concerning unconsenting United States persons that is collected in the course of electronic surveillance as ordered by the United States Foreign Intelligence Surveillance Court under Section 102(b) or authorized by Attorney General Certification under Section 102(a) of the Act. These procedures also apply to non- United States persons where specifically indicated. (U) 4393:3111? Classified by: Allen Coggsel for Intelligence Operations, DOJZOIER Reason: 1.5!c1 and id! Deolassify on: All redacted information exempt under andfor except as otherwise noted. Approved for Pubtio Release FILED KAREN E. SUTTON. CLERK MAY 1 4 2004 US. Foreign 1. tettigence Surveillance Court UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, o. c. IN RE ELECTRONIC SURVEILLANCE AND Docket Number: - PHYSICAL SEARCH OF INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, AND RELATED TARGETS. wee MOTION FOR CONTINUATION OF AMENDED ORDER Introduction (U) The United States of America, by'counsel, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. 1801-1811 and l821-1829 (PISA or the Act), to order the permanent continuation of its order of July 22, 2002, in the above~captioned matter. The United States seeks continuance of the order because it has been highly successful. Classified by: James A. Baker, Counsel for Intelligence Policy, OIPR, DOJ Reason: 1.4gcl-id1 Declassify on: 3; Ali redacted information exempt under andfor except as otherwise noted. Approved for Pubtic Release Because the order permits the rapid sharing of information within the United States Intelligence Community, the United States has obtained vital actionable intelligence regarding the activities, capabilities, plans and intentions of- _The U.S. Intelligence Community process for sharing information and taking action based upon such information that the July 22, 2002 Order has fostered is now a vital part of the Nation's war on terrorism. The order has permitted the U.S. Intelligence Community to produce and disseminate to policy makers (including the President of the United States) a substantial volume of intelligence reports, and has enabled the United States and its allies to locate and apprehend numerous terrorists overseas and disrupt terrorist operations. As a result, we submit that the order has enhanced the ability of the United States Government to protect national security. Moreover, because of the manner in which the U.S. Intelligence Community has implemented the order, we submit that the intrusion on the privacy interests of Americans to date has been limited. +esp On July 22, 2002, the Court authorized the Federal Bureau of Investigation (FBI) to provide to the Central Intelligence Agency (CIA) and the National Security Agency (NBA) ?raw data? 2 All redacted information exempi under andlor except as otherwise noted. Approved for Public Release unminimized information) obtained from certain searchesand surveillances of terrorist targets under the FISA. The Court's Order, described below, modified the standard minimization procedures used in international terrorism cases. The Court further ordered that the ?matter shall be fully considered again by the Court en banc at its annual conference in May of 2004.? See July 22, 2002 Order at 5.1 In this regard, on April 21, 2004, the Court directed that the Government: IS]hall file a motion requesting continuation of that order. Such motion should include a statement that the factual circumstances relied upon by the Government in seeking approval of such procedures continue (or, to the extent they have changed, why the procedures should continue to be followed under current circumstances). w??o The United States, in support of this motion, states: 1. Prior to the July 22, 2002 Order, the CIA and the NSA provided linguistic and technical assistance to the FBI in analyzing unminimized foreign intelligence information. but could only use and disseminate limited, minimized data specifically disclosed to them by the FBI. On May 10, 2002, the Government filed a motion to provide raw data directly from the FBI to the 1 The Court further ordered the Department of Justice to report every six months on the implementation of the Order. This motion incorporates information taken from the most recent report which covers the time period from September 1, 2003 to December 31, 2003. That report will be filed with the Court forthwith. sees 3 Alf redacted information exempt under andlor except as othewvise noted. Approved for Public Release CIA and the NSA, which those agencies would then minimize. The Government made this motion because of the need to disseminate pertinent foreign intelligence information rapidly to the CIA and the NBA, (ii) enable these agencies to apply their analytical skills to the data directly, and provide maximum flexibility in applying Intelligence Community resources to international terrorist targets. In its Order, the Court granted the Government's motion with modifications. see 2. The July 22, 2002 Order provided the following. The FBI may provide the CIA and the NSA raw data obtained from FBI electronic surveillances and physical searches targeting international terrorist groups and their agents, or from survsillances or searches of other targets where there is a reasonable expectation that the surveillance or search will reveal information related to international terrorism. The raw data provided may include communications of or information about - U.S. persons. The CIA and the NSA may review, translate, analyze, minimize, use, retain and disseminate such information pursuant to certain minimization procedures. The NSA is to employ the standard PISA minimization procedures that it normally uses for conducting its Court~authorized surveillances, with certain modifications. Likewise, the CIA is to use procedures All redacted information exempt under andfor except as otherwise noted. Approved for Pubiic Release similar to those it normally uses for the retention and dissemination of information from its nonvFISA electronic surveillances, with certain modifications. 3. As described below, the FBI has successfully provided unminimized FISA information to the NBA and CIA purSuant to the Court's July 22, 2002 Order. To date, this information has consisted only of the results of Court?authorized electronic surveillance and physical searches Although authorized by the July 22, 2002 Order, the FBI_has not provided NSA or CIA with unminimized information pursuant to the Order from other means of electronic surveillance or physical searches, such as es? 4. For international terrorism cases, FBI technical personnel receive and/or retrieve the data obtained from these searches and surveillances from the The FBI then forwards the data" described above 5 Ail redacted information exempt under andior except as otherwise noted. Approved for Public Release asesesasweemwem?wsaw from international terrorism searches and surveillances to the NSA and the CIA.2 Before providing the data to the CIA, the FBI NSA he FBI retains the record copy of the communications. 5. Pursuant to the Court?s Order, the FBI electronically forwards to the NSA all international terrorism - that the FBI acquires from of the data that the NSA has reviewed was obtained from electronic surveillances and physical searches of non-U.S. person targets located outside the United States. From August 2002 to present;r the NSA has issued over-intelligence reports based, at least in part, on raw FBI FISA data relating to international terrorism. The NBA has instructed its employees to include the caveat required by the July 22, 2002 Order on such 2 As described below, the CIA generally receives data that it specifically requests, rather than the entire universe of terrorism-related - ollected by FBI pursuant to FISA. 4&$He 6 All redacted information exempt under andior except as otherwise noted. Approved for Public Release reports.3 In order to ensure that its employees comply with this requirement, the NSA includes this instruction in its FISA minimization training and also has provided its employees with written reporting guidance. The recipient of the raw FISA data at NSA is NSA's - ?in the Data Acquisition Directorate, where it is formatted and placed in a database for in Office of Counterterrorism to review. at the' Office of Counterterrorism are trained.by attorneys from NSA's Office of General Counsel concerning the applicable minimization procedures and the Court?s July 22, 2002 Order before they are permitted access to the database containing the raw FISA data. On August 20, 2002, the Attorney General signed procedures governing the NSA's dissemination of F8: FISA information identifying U.S. persons to foreign governments, a copy of which was previously provided to the Court. 6? - - - The CIA also assists the FBI, at the request, with translations of communications of em 3 See May 10, 2002 Motion at 7 Ail redacted information exempt under andfor except as otherwise noted. Approved for Public Release other international terrorism targets. The CIA receives raw FISA data from the FBI On August 20, 2002, the Attorney General signed procedures governing the dissemination of FISA information to foreign governments, a copy of which was previously provided to the Court. Those procedures apply to data processed and minimized by the CIA. They also apply to data minimized by the FBI and disseminated to the CIA where CIA engages in further analysis of the data. 8 Ali redacted information exempt under andfor except as otherwise noted. Approved for Public Release - when conducting minimization reviews of NBA and CIA since implementation of the July 22, 2002 Order, OIPR has in particular focused on those agencies? handling of United States person information and, to date, has found that the agencies have acted in conformance with the applicable procedures. Thus, we have concluded that the implementation of the July 22, 2002 Order has had a limited effect on the privacy interests of 0.3. persons. 8. Representatives from OIPR visit NBA and CIA to review these agencies' implementation of the Court?s Order and adherence to minimization procedures. Both agencies appear to be handling the FESA data properly. OIPR expects to continue such visits on approximately an annual basis, and will continue to report to the Court every six months on the Government's implementation of the July 22, 2002 Order as required. OIPR also reviews the agencies? handling of raw data when it receives requests to initiate or renew PISA authority regarding I we reports that from August 2002 to present, approximately ll percent of its requests for FISA authority (for the FBI to 9 Ail redacted information exempt under andfor except as otherwise noted. Approved for Public Release conduct electronic surveillance and physical search of more than D) have been based on information obtained through Department of Justice has submitted reports to Congress as NSA's review of raw data. In addition, the required by law that have included discussions of the Court?s July 22, 2002 Order. The Department, the FBI, CIA and NBA have briefed staff members of the Senate Select Committee on Intelligence and staff members of the House Permanent Select Committee on Intelligence on the Court's Order and on ?new implementation thereof. 10 All redacted information exempt under andlor except as otherwise noted. Approved for Public Release Also in this regard, the NSA has informed OIPR that: FBI PISA data is a critical part of mission targeting international terrorists and terrorist organizations and has yielded highly significant and - _Lu-l intelli-enoe information about international terrorist arou-s I I I I. During the last four months of 2003, FBI FISA data contributed in whole or in part to approximately ll percent of all end product reporting from NSA's Counterterrorism Office. WEM?ee?wed??m 10. The factual circumstances relied upon by the Government in seeking the initial July 22, 2002 approval to provide raw data directly to the CIA and the NSA have not changed other than those relating to the modified procedures approved by this Court in its 11 AH redacted information exempt under andlor except as otherwise noted. Approved for Pubiic Release April 10, 2004 Amended Order. For this reason, the Government a permanent continuation of this authority under the procedures currently in place. meaet 11. This motion hae been reviewed for accuracy by Vito T. Potenza, Acting General Couneel, Valerie Caproni, General Counsel, and Scott W. Muller, General Counsel, CIA. (U) WHEREFORE, the United States, by counsel, moves this Court to permit the permanent continuation of its order of July 22, 2002, in the above?captioned matter. (U) A proposed order effecting this request accompaniee thie motion. (U) Respectfully submitted, ouneel for Intelligence Policy U.S. Department of Justice 12 AH redacted information exempt under andior except as othemrise noied. Approved for Public Release APPROVAL I find that this motion satisfies the criteria and requirements set forth in the Foreign Intelligence Surveillance Act of 1978, and hereby approve its filing with the United States Foreign Intelligence Surveillance Court. (U) (john Ashe rof Attorney General of the United Statee OR James B. Comey Deputy Attorney General of the United Statee Dated:?" 9% 13 Ali redacted information exempt under andfor except as otherwise noted. Approved for Pubtic Release FILED KAREN E. SUTTON. CLERK MAY 191?m? US. FOREIGN INTEUJGENCE SURVEILLANCE COURT UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D. C. IN RE ELECTRONIC SURVEILLANCE AND DOCke-t Number: - - PHYSICAL SEARCH OF INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, AND RELATED TARGETS. we? This matter is before this Court on the May 14, 2004 motion of the United States of America seeking to continue permanently the procedures approved by the July 22, 2002 Order in the above? captioned docket. Relying upon the Motion and Order issued on July 22, 2002, as well as the facts set forth in the Government's instant motion, approved for filing by the Attorney General of the United States, the Court finds that the requested permanent Derived from: Motion to USFISC in the above-captioned docket number Declassify on: g; Ail redacted information exempt under andlor except as otherwise noted. Approved for Public Reiease continuation of the procedures to the July 22, 2002 Order of this Court is warranted under the facts, and that the procedures pursuant to which the National Security Agency (NBA) and the Central Intelligence Agency (CIA) will process such material meet the definition of minimization procedures set forth in 50 U.S.C. 1801(h) and 1821(4). Accordingly, IT IS HEREBY ORDERED that the Federal Bureau of Investigation may continue to provide to the CIA and the NSA unminimized information obtained from searcheeand surveillancee of terrorist targets under FISA, as set forth in the Court's July 22, 2002 Order. I IT IS FURTHER ORDERED that all provisione of the Court?s July 22, 2002 Order in docket number -ehall remain unchanged. Filed May 14, 2004 JOISOCLM. E.D.T. Date Time Signed May/f? . 2004 l: 05 E.D.T. Date Tittle This Order is entered with the unanimous consent of the Judges of this Court. 641mm. Kit Colleen Kollar?Kotelly Presiding Judge, United States Foreign Intelligence Surveillance Court l, Karen E. Sutton, clerk, Fl 50. .oertify that this document eemem?eemawmewm is a Hue and corr ohm Gimme}, 2 :31 All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE - 2 Section 2 Definitions (U) In addition to the definitions in Section 101 of the Act, the following definitions shall apply to these procedures: Acouigition means the collection by NBA through electronic means of a nonpublic communication to which it is not an intended.partyi (U) Communications concerning a ?oited States oerson include all communications in which a United States person is discussed or mentioned, except where such communications reveal only publicly available information about the person. (U) Communications of a United States oerson include all communications to Which a United States person is a party. consent is the agreement by a person or organization to permit the NBA to take particular actions that affect the person or organization. To be effective, consent must be given by the affected person or organization with sufficient knowledge to understand the action that may be taken and the possible consequences of that action. Consent by an organization shall be deemed valid if given on behalf of the organization by an official or governing body determined by the General Counsel, NBA, to have actual or apparent authority to make such an agreement. (U) Persian communication means a cowmunication that has at least one communicant outside of the United States, or that is entirely among: 3.2" .I . All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE 3 (1) foreign powers; officers and employees of foreign powers; or (3) a foreign power and officers or employees of a foreign power. All other communications are domestic communications. if) Identification of a United Stages person means the name, unique title, address, or other personal identifier of a United States person in the context of activities conducted by that person or activities conducted by others that are related to that person. A reference to a produCt by brand name, or manufacturer?s name or the use of a name in a descriptive sense, gpg?, "Monroe Doctrine,? is not an identification of a United States persoa. W- 19) 0r means any step necessary to convert a communication into an intelligible form intended for human inspection. (U) Publicly available information means information that a member of the public could obtain on request, by research in public sources, or by casual observation. Technical data base means information retained for traffic analytic, or signal exploitation purposes. (s?cco) United States person means a United States person as defined in the Act. The following guidelines apply in determining whether a person whose status is unkn0wn is a United tates person: (U) All redacted information exempt under b(1) andlb(3). $333 APPROVED FOR PUBLIC RELEASE wk A person known to be currently in the United States will be treated as a United States person unless positively identified as an alien who has not been admitted for permanent residence, or unless the nature or circumstances of the person?s communications give rise to a reasonable belief that such person is not a United States person. (U) A person known to be currently outside the United States, or whose location is unknown, will not be treated as a United States person unless such person can be positively identified as such, or the nature or circumstances of the person?s communications give rise to a reaSonable belief that such person is a United States person. A person known to be an alien admitted for permanent residence loses status as a United States person if the. person leaves the United States and is not in compliance with Title 8, United States bode, Section 1203 enabling re?entry into the United States. Failure to follow the statutory procedures provides a reasonable basis to conclude that the alien has abandoned any intention of maintaining his status as a permanent resident alien. (U) An unincorporated association whose headquarters or primary office is located outside the United States is. presumed not to be a United States person unless there is information indicating that a substantial number of its members are citizens of the United States or aliens lawfully admitted for permanent residence. (U) . H11 All redacted information exempt under b(1) and APPROVED FOR PUBLIC 5 Section 3 - Acouisition and Processing.- Genegal (U) ?cggisition (U) The acquisition of information by electronic surveillance shall be made in accordance with the certification of the Attorney General or the court order authorizing such surveillance and conducted in a manner designed, to the greatest extent reasonably feasible, to minimize the acquisition of information not relevant to the authorized purpose of the surveillance. Verification (U3 At the initiation of the electronic surveillance, the NBA or the Federal Bureau of Investigation, if providing operational support, shall verify that the communication lines or telephone numbers being targeted are the lines or numbers of the target authorized by court order or Attorney General certification. Thereafter, collection personnel will monitor the acquisition of raw data at regular intervals to verify that the surveillance is not avoidably acquiring cemmunications outside the authorized scope of the surveillance or information concerning United States persons not related to the purpose of the surveillance. Monitorian Eecordinq. and Processino (U) Electronic_surveillance of the target may be monitored contemporaneously, recorded automatically, or both. (U) . redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE sees-es 6 Personnel who monitor the electronic surveillance shall exercise reasonable judgement in determining whether particular information acquired must be minimized and shall destroy inadvertently acquired communications of or concerning a United States person at the earliest practicable point in the processing cycle at which such communication can be identified either as clearly not_ relevant to the authorized purpose of the surveillance the communication does not contain foreign intelligence information} or as containing evidence of a crime which may be disseminated under these procedures. T?s?ff? Communications of or concerning United States persons that may be related to the authorised purpose of the surveillance may be forwarded to analytic personnel responsible for producing intelligence information from the collected data. Such communications or information may be retained and disseminated only in accordance with Sections 4, 5 and 6 of these procedures. 494?? Magnetic tapes or other storage media that contain? acquired communications may be processed. Each communication shall be reviewed to determine whether it is a domestic or foreign communication to or from the targeted premises and is reasonably believed to contain foreign intelligence information or evidence of'a crime. Only such communications may be processed. I All other. communications may be retained or disseminated get All redacted information exempt under b(1) and'Bm.? - APPROVED FOR PUBLIC RELEASE 7 only in accordance with Sections 3 and 6 of these procedures. ESAQEH- Magnetic tapes or other storage media containing foreign communications may be scanned by computer to identify and select communications,for analysis. Computer selection terms used for scanning, such as telep?one numbers, key words or phrases, or other discriminators, shall not include United States person names or identifiers and shall be limited to those selectiOn terms reasonably likely to identify- for intentional collection uneer Executive Order 12333 implementing procedures. Further~processing, retention and dissemination of foreign communications shall be made in accordance with- Sections 4, 6, and 7, as applicable, below. Further processing, storage and dissemination of inadvertently acquired ?omestic communications shall_be made in accordanca with Sections 4 and 5 below. v.5. Persons Emoloved bv the Poreicn_Power Communications of or concerning United States persons employed by a foreign power may be need and retained as otherwise provided in these procadures except that: (1) Such United States persons shall not be identified in connection with any communication that the person places or receives on behalf of another unless the {rival Alt redacted information exempt under M1) and APPROVED FOR PUBLIC RELEASE 8 identification is permitted under Section 6 of these procedures; and (2) personal communications of United States persons that could not be foreign intelligence may only be retained, used, or disseminated in accordance with section 5 of these procedures. Destruction of Raw Data T?gi Communications and other information, including that reduced to graphic or "hard copy? form such as retention in accordance with the standards set forth in these orocedures. Communications and other information, in any form, that do not meet such retention standards and that are known to contain communications of or concerning Unite? States perSons shall be destroyed. Non?oertinent Communications (U) ,Communications determined to fall within established categories of non-pertinent communications, such as those set forth in subparagraph (6) of this section, should not be retained unless they contain information that may be disseminated under Sections 5, 6 or 7 below. (2) Monitors may listen to all communications, includi?g those that initially appear to fall within established categories until they can reasonably determine that the All redacted information exempt under b(1) and (3) (4) (S) (6) APPROVED FOR PUBLIC RELEASE 9 Communication oann be disseminated under Sections 5, 6 or 7 below. Communications of United States persons will be analyzed to establish categories of communications that are not pertinent to the authorized purpose of the surveillance. (U) These categories should be established after a reasonable period of monitoring the communications of the targets. (U) information that appears to be foreign intelligence may be retained even if it is acquired as a part of a communication falling within a category that is generall? non?pertinent. Categories of nonepertinent communications which may be applied in these surveillance include: (A) Calls to and from United States GoVernment officials; Calls to and from children; (C) Calls to and.from students for information to aid them in academic eodeavors; (D) Calls between Eamily members; and (3) Calls relating solely to personal services, such as food orders, transportation, etc. Chanqe in Taraet's Location or All redected information exempt under b(1) and (2) 36:111. ?l - APPROVED FOR PUBLIC RELEASE 10 During periods of known extended absence by a targeted agent of a foreign power from premises under surveillance, only communications to which the target is a party may be retained and disseminated. When there is reason to believe that the target of an- electronic surveillance is no longer a foreign power or an agent of a foreign power, or no longer occupies the premises authorized for surveillance, that electronic surveillance shall be immediately terminated, and shall not resume unless subsequently approved under the Act. When any person involved in collection or processing of an electronic surveillance being conducted pursuant to the Act becomes aware of in?ormation tending to indicate a material change in the status or location of a target, the person shall immediately ensure that the Office of General Counsel is also made aware of' such information. Section 4 Acquisition and Processinq - Special Procedures (U) CollectiOn Aqainst Residential Premises An electronic surveillance directed against premises located in the United States and used for residential purposes shall be conducted by technical means designed to limit the information acquired to communications that have one communicant outside the United States, The technical means employed shall consist of equipment or equipment capable of identifying All redacted information exempt under and M3) (3) APPROVED FOR PUBLIC RELEASE 11 other particular international communications known to be used by the targeted foreign power and its agents. Communications to or from the target residential premises that are processed through a of a foreign power or agent of a foreign power located in a foreign country, or on the foreign country or foreign city telephone direct: dialing codes {area codes) for the areas in which such (Er??469}? foreign powers or agents are located. Domestic communications that are incidentally acquired - during collection against residential premises shall be handled under Section 5 of these procedures. reverse);? All reda'cted information exempt under b(1) and bit)?? APPROVED FOR PUBLIC RELEASE 12 Attornev?Client Communications (21? As soon as it becomes apparent that a commuoication is between a person who is known to be under criminal indictment and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney}, monitoring of teat communication will cease and the communication shall be identified as an attorney~client communication in a log maintained for that purpose. The relevant portion of the tape containing that conversation will be placed under seal_and the Department of Justice, Office of Intelligence Policy and Review, shall be notified So that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein. 1 Section 5 Domestic Communications (U) Qisgeminetion (U) Communications identi?ied as domestic communications Shall. be promotly destroyed, except that: (1) domestic communications that are reasonably believed to contain foreign intelligence information shall be disseminateo to the Federal Bureau of Investigation (including United States person identities) for possible further dissemination by the Federal Bureau ct Investigation in accordance with its minimization procedures; mma?comr?cms?eme? rQdEicted information exempt under ha) and (2) APPROVED FOR PUBLIC RELEASE 13 domestic communications that do not contain foreign intelligence information, but that are reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed, shall be disseminated (including United States person identities) to appropriate Federal law enforcement authorities, in accordance with section 106(b) of the Act and crimes reporting procedures approved by the Secretary of Defense and the Attorney General; and domestic communications that are reasonably believed to contain technical data base information, a3 defined in Section may be disseminated to the Federal Bureau of Investigation and to other elements of the 0.8. SIGINT Retention (U) Domestic communications disseminated to Federal law enforcement agencies may be retained by the NSA for a reasonable period of time, not to exceed six months (or. any shorter period set by court order}, to permit law enforcement agencies to determine whether access to original recordings of such Communications is required for law enforcement Domestic communications reasonably believed to contain technical data base ihformation may be retained for a_ period sufficient to allow a thorough exploitation and to permit access to data that are, or are reaeonably believed likely to become, relevant to a current?or All redacted information exempt under b(1) and future foreign intelligence requirement. :1 APPROVED FOR PUBLIC RELEASE 14: ?Su?ficient duration may vary with the nature of the exploitation. in the context of a effort, maintenance of technical data bases requires retention of all communications that are - enciphered or reasonably believed to contain secret meaning. and sufficient duration may consist of any period of time during which material is subject to, or of-uee in, In the case of communications that are not enciphered or otherwise thought to contain secret meaning, sufficient duration is one year unless the Deputy Director for Operations, NBA, determines in writing that retention for a longer period is required to respond to authorized foreign intelligence or counterintelligence requirements. ?ecticn 6 Foreigg Communications of or Concerninc United States Persons (U) Retention (U) Foreign communications of or concerning United States persons acquired by the NBA in the course of an electronic surveillance subject to these procedures may be-retained only: All redacted information exempt under b(1) and (3) APPROVED FOR PUBLIC RELEASE "3.5 if necessary for the maintenance of technical data bases. Retention for this purpose is permitted for a period sufficient to allow a thorough exploitation and to permit access to date that are, or are reasonably believed likely to become, relevant to a current or future foreign intelligence requirement. Sufficient duration may vary with the nature of the exploitation. a. In the context of a effort, maintenance of technical data bases requires retention of all communications that are enciphered or reasonably believed to contain secret meaning, and sufiicient duration may consist of any period of time during which material is subject tothe case of communications that are not enciphered or otherwise thought to contain secret meaning, sufficient duration is one year unless the Deputy Director for Operations. NSA, determines in writing that retention for a longer period is required to respond_to authorized foreign intelligence or counterintelligence requirements; if dissemination of such communications with reference to such United States persons would be permitted under subsection below; or if the information is evidence oi a crime that has been{ is being; or is about to be committed and is All redacted information exempt under b(1) and M3): APPROVED FOR PUBLIC RELEASE 15 provided to appropriate federal law enforcement authorities. Disgeminat i on (U) A report based on communications of or concerning a United States person may be disseminated in accordance with Section 7 if the ioentity of the United States person is deleted and a generic term or symbol is substituted so that the information cannot reasonably be connected with an identifiable United States person. Otherwise dissemination of intelligence.reports based on communications of or concerning a United States person may only be made to a recipient requiring the identity of such person for the performance of official duties but only if at least one of the following criteria is also met: the United States person has consented to dissemination or the information of or concerning the United States- person is available publicly: (2) the identity oi the United States person is necessary to understand foreign intelligence information or assess its importance, the identity of a senior official in the Executive Branch: the communication or information indicates that the United States person may be: (A) an agent o? a foreign power; a foreign power as defined in Section lOlta){4) or of the Act.- Ti All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE (C) residing outside the ?nited States and holding an official position in the government or military forces of a foreign power; a corporation or other entity that is owned or controlled directly or indirectly by a foreign power; or (E) acting in collaboration with an intelligence or security service of a foreign power and the United States person has, or has had, access to classifie? national security information or material. the communication or information indicates that the United States person may be the target of intelligence activities of a foreign power; the communication or information indicates that the United States person is engaged in the unauthorized disclosure of classified national security information, but only after the agency that originated the information certifies that it is properly classified; the communication or iniormation indicates that the United States person may be engaging in international terrorist activities; the acquisition oi the United States person?s communication was authorized by a court order iSSued pursuant to Section 105 of the Act and the All redacted information exempt under b(1) and 5(3) (8) APPROVED FOR PUBLIC RELEASE communication may relate to the foreign intelligence purpose of the surveillance; the communication or information is reasonably believed to contain evidence that a crime has been, is being, or is about to be committed, provided that dissemination is for law enforcement purposes and is made in accor?enoe with section 105(b) of the Act and crimes reporting procedures approved by the Secretary of Defense and the Attorney General. (U) Section 7 - other Foreign Communications (U) Foreign communications of or concerning a non?United States person may be retained, used, and disseminated in any form in accordance with other applicable law, regulation, and policy. Section 8 - Collaboration with Foreign The sharing or exchange of foreign communications governed by these procedures with signals intelligence authorities of collaborating foreign governments (Second Parties) may be undertaken by the NSA only with the written aesurance of the Second Party that the use of these foreign communications will be subject to the retention and dissemination provisions of these procedures. Domestic communications and communications to or from United States persons shall not be shared with'Second Parties. ?(rs?eesa?? All redacted information exempt under b(1) and M3): APPROVED FOR PUBLIC RELEASE 19 Foreign plain text Communications may be shared with Second Parties if'they are first reviewed by NBA who shall remove references to United States persons that are not necessary to understand or assess the foreign intelligence information contained therein. Foreign enciphered or encoded communications may be shared with Second Parties without such prior review, provided that at least annually a representative sampling of those shared communications that can be deciphered or decoded is reviewed by the NBA to ensure that any references therein to United States persons are necessary to understand or assess the foreign intelligence information being disseminated. Corrective measures with respect to each target or line shall be undertaken as necessary to maintain compliance with the above dissenination standard. The results of each review shall be made available to the Attorney General or a designee. Jane Reno Attorney General of the United States Eat CO6291045 5 All redacted information exempt under b(1) and - APPROVED FOR PUBLIC RELEASE La; an: . - - Lug? . .-.A .4 EXHIBITE lo 5:111:00 . UNITED STATES we? FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D. C. I Docket Number: NatSecAct - NatSecAct CIA MINIMIZATION PROCEDURES FOR INFORMATION PROM PISA ELECTRONIC SURVEILLANCE CONDUCTED BY NBA The following procedures shall apply to processing and minimization by the Central Intelligence Agency (CIA) of the raw results of electronic surveillance conducted by the National Security Agency (NSA) pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801-1811, in the above-captioned docket number. These procedures shall be implemented as described in the application filed with the Foreign Intelligence Surveillance Court (FISC) and captioned as above. 181 T. As used herein, the tenns "Attorney General,? "foreign power," "agent of a foreign power,? "United States person,? ?person,? ?foreign intelligence htformation,? Classified by: Michael V. Hayden, Director of the CIA Reason: - Declaesify on: ?l (306291045 All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE ?international terrorism,? and ?sabotage? have the meanings speci?ed in 50 U.S.C. 1801. (U) . 2. Information about a United States person may be retained within CIA and disseminated to authorized recipients outside of CIA if the identity of the United States person and all personally identi?able information are deleted. A generic term may be substituted which does not identify the United States person in the context of the message. If the infom'ta?on cannot be sanitized in such a fashion because the identity is necessary, or it is reasonably believed that it may become necessary, to understh or assess the information, that identity may be retained or disseminated outside of CIA along with the information. if: a. The information falls within one or more of the following categories: (1) The information indicates that the United States person has acted or may be acting as an agent of a foreign power, including information indicating that a United States person-was in contact with a foreign power under facts and circumstances indicating that he intends to collaborate with a foreign power or become an agent of a foreign power; (2) The information indicates that a United States person may be a target of intelligence activities of a foreign power; (3) The information indicates that a United States person has engaged or may be engaging in the unauthorized disclosure of properly classi?ed national security information: (4) The information concerns corporations or other commercial organizations the deletion of which would hamper the correlation of foreign intelligence information on the same subject; b. The information is enciphered or contains secret meaning; CO6291045 All redacted information exempt minder b(1) and APPROVED FOR PUBLIC RELEASE c. The information is needed to protect the safety of any persons or organizations, including those who are targets, victims, or hostages of groups engaged in international terrorism; d. The information concerns a United States person who is or reasonably appears to be, on the basis of that or other information, an agent of a foreign power; e. The information involves a United States person who has consented to the retention or dissemination of his communications or other information concerning him; f. The information indicates that a United States person is engaged or may be engaged in intemational terrorism or activities in preparation therefor; g. The information is needed and retained solely to identify individuals in contact with a foreign power Or an agent of a foreign power (including for purposes of this subparagraph any person, regardless of location, who engages in international terrorism or activities in preparation therefor; who aids, abets, or conspires with persons to engage in such activities; or who acts as a member of a group engaged in such activities); h. NatSecAct i. The information concerns a person or activity that poses a threat of sabotage, international terrorism, actual or potential attack or other grave hostile act, to any facility or personnel of any agency with the Intelligence Community, or any department containing such an agency; j. The personally identifiable information concerning the United States person is publicly available. C06291045 rAIl redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE A communication to or from,_ or information about, a United States person which does not qualify for retention or dissemination in accordance with this paragraph must be destroyed. 153? I 3. Nothing in paragraph 2 above shall prohibit: a. The retention or disclosure of informationhecessary for the purpose of determining whether the requirements of these procedures are satis?ed, provided that the recipient under this paragraph does not retain or disclose the identity of a United States person where it is determined that the requirements of these procedures do not permit dissemination; b. The retention of communications necessary for the maintenance of technical data bases, so long as only collection or technical personnel have access to such data bases; c. The retention or dissemination of information concerning corporations or other commercial organizatiOns which is limited to their identi?es asmanufacturers of equipment and related nomenclature or their locations; or d. The retention or dissemination of information required by law to be retained or disseminated. 4. CIA shall also follow the following procedures: a. Privileged communications: As soon as it becomes apparent to CIA persomel processing a communication acquired by electronic surveillance conducted by NSA that such communication is between a person who is known to be under criminal indictment and an attorney that represents that individual in the matter - under indictment (or someone acting on behalf of the attorney), monitoring or processing of that communication will cease and the communication shall be identi?ed as an attorney-client communication in a log maintained for that purpose. The relevant portion of the tape; document or other material containing the privileged communication will be placed under seal and the Department of Justice; National Security Division (NSD) shall be notified so that approPriate 4 CO6291045 All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein. With respect to any other communication where it is apparent to CIA processing personnel that the communication is between a person and the person's attOrney (or someone acting on behalf of the attorney) concerning legal advice being sought by the former from the latter, such communications relating to foreign intelligence information may be retained and disseminated within the US. Intelligence Community if the communications are specifically labeled as being privileged. However, such communications may not be disseminated outside of the US. Intelligence Community without the prior approval of the NSD. 153? b. Non-pertinent Conununications and Parliculgrized Minimization Procechires (U) (1) Communications determined to fall within categories of non-pertinent communications provided by NSA to CIA regarding a particular electronic . surveillance should not be retained unless they contain information that may be retained or disseminated under paragraphs 2 and 3 above. (U) (2) CIA processing personnel may review all communications, including those that initially appear to fall within established categories until they can reasonably determine that the communication cannot be retained or disseminated under paragraphs 2 and 3 above: (ST (3) Information that appears to be foreign intelligence information may be retained even if it is acquired as a part of a communication falling within a category that is generally non-pertinent. 153/ (4) NSD shall periodically determine that information concerning communications of or concerning United States persons that is retained meets the requirements of these procedures and the Foreign Intelligence Surveillance Act. ?56 I c. Dissemination to Fereign Governments: Nonpublicly available identity or SEC CO6291045 All redacted information exempt under b(1) and APPROVED FOR PUBLIC RELEASE personally identifiable information conceming United States persons may be disseminated to foreign governments, provided that the information to be disseminated is foreign intelligence information, and the dissemination is approved by the Attorney General, or (ii) approved pursuant to such procedures as the Attorney General may establish for the dissemination of such information by CIA. In addition, to the extent authorized by the Director of, the Central Intelligence Agency (DCIA) and in accordance with DCIA directives, CIA may make such disseminations without specific Attorney General approval subject to the following procedures: NatSecAct CO6291045 All redacted information exempt under b(1) and I APPROVED FOR PUBLIC RELEASE (3) CIA will make a written record of each dissemination approved pursuant to these procedures, and information regarding such disseminations and approvals shall be made available for review by the NSD on at least an annual basis. . Compliance With Crimes Reporting Obligations: Notwithstanding any of the foregoing, information that is not foreign intelligence information, but reasonably appears to be evidence of a crime that has been, is being, or is about to be committed, may be disseminated (including United States person identities) to the FBI and other appropriate federal law enforcement authorities, in accordance with 50 U.S.C. 1806(b) and 1825(c), Executive Order No. 12,333, and, Where applicable, the crimes reporting procedures set out in the August 1995 ?Memorandum of Understanding: Reporting of I Information Concerning Federal Crimes," or any successor document. I The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal; All redacted information is exempt under and except where .l . therwise noted. Approved for public release I .- .L-l UNITED STATES as at 3- 1 is- FOREIGN INTELLIGENCE SURVEILLANCE CO (bli'lli IN RE 702(g) CERTIFICATION WE) (53 - Docket No. GOVERNMENTS PRELIMINARY RESPONSES TO CERTAIN QUESTIONS POSED BY THE COURT THE UNITED STATES OF AMERICA, through the undersigned Department of Justice attorney, respectfully submits its preliminary responses (attached hereto at Tab 1) to certain? of the questions previously posed by this Court regarding 702(g) lbll'l'}: (13.39); lIlJll'7liEl Certi?cetion and the targeting and minimization procedures submitted therewith. The Government reserves the right to supplement and/or modify these responses as appropriate during the hearing scheduled in the above?captioned matter on August 27, 2008. National Security Division United States Department Of Iustice Classified by: Matthew G. Olsen, Deputy Assistant Attorney General, NSD, Reason: 1.4(c) Declassify on: il??Arugust?ZQSL The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where g' .. gj' therwise noted. Approved for public release I i . 1. How is the mechanism permitting National Security Agency (NSA) to target additional foreign powers not listed in Exhibit consistent with the statutory requirement that the Director of National Intelligence and Attorney General certify that a signi?cant purpose of the acquisition is to acquire foreign intelligence information? a In the Attorney General and Director of National Intelligence authorized the acquisition of foreign intelligence information concerning all foreign powers that meet the statutory de?nitions in: - There are a number of constraints that operate in concert to ensure, as certi?ed by the Attorney General and Director of National Intelligence, that a signi?cant purpose of the acquisition is to acquire foreign intelligence information. 0 First, NSA cannot target "consistent with this certi?cation non?United States persons reasonably believed to be located outside the United States? unless NSA determines that the target "possesses and/or is likely to communicate foreign intelligence information" as de?ned by 50 U.S.C. 1801(6). (83' 0 Second, the "foreign intelligence information" to be acquired by such targeting must co "foreign power? as de?ned by 50 U.S.C. 1801(a) 1 ism - 1 Indeed, the concept of "foreign power" is itself integral to the "foreign intelligence information" de?nitions in 50 U.S.C. 1801(6). See, 50 U.S.C. 1801(e)(i)(A) (?Foreign intelligence inforrnation? means information that relates to, and if concerning 'a United States person is necessary to, the ability of the United States to protect Classified by: Matthew G. Olsen, Deputy Assistant . Attorney General, NSD, Reason: 1.4 (C) Declassify on: The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where othenNise noted. Approved for public release 0 NSA targeting procedures require that the foreign intelligence purpose of each tasking be documented. 683? 0 One aspect of the oversight reviews conducted by the Of?ce of the Director of National Intelligence and the Department of Justice is to check that such documentation exists. against . . . actual or potential attack or other grave hostile acts of aforeigrz power or an agent of a foreign (emphasis added.) 653The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt und Approved for public release 0 In doing those checks,-or which notice had not been given would be discovered and subject to review. {83? 1 (3 ex ee ois ote. I 5 2. The Court had several questions concerning the "abouts" collection and the IP ?lters used to effect that collection. First, which person is being "targeted" in the abouts collection? Is it still the user of the selector? Or is it one or both of the communicantsof the message containing the reference to the selector? 6118;53? In cases where NSA seeks to acquire conununications that refer to a selector used by a target that are not to and from the selector used by the target, the person being "targeted" is the user of the selector. 98% 9 Viewing the "target" of the abouts collection as the user of the tasked selector is most consistent with the statutory language: 81814819? 0 Under 702(a), the AG and DNI can authorize ?.?the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." A erson is "tar eted" by tasking an electronic comrrumications - beacon") that he uses. geese By virtue of operation of the targeting procedures, the tasked selector is believed to be used by a non?United States persOn reasonably believed to be located outside the United States. .9 The purpose of acquiring a communication containing a reference to a selector used by a target is to acquire foreign intelligence information about the target regardless of whether the communication was sent to or from a selector used by the target. 6 This is re?ected in the NSAtargeting procedures: namely, the ?abouts? collection involves ?cases where NSA seeks to acquire communications about the target that are not to or from the target.? (51181451) 9 So, the focus of the abouts collection remains "the target,? even though communications that are not sent to or from "the target" are acquired. (W849 0 Further, the Operation of the Internet Protocol (IP) address ?lters? prevents the intentional acquisition of communications "abdut" the target as to which the senders and all intended recipients are known at the time of acquisition to be located in the United States. The unredacted information, has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. Approved for public release All redacted information is exemptund 1 (3) xt here otherwis . .I I .- ente. . I . I . -.-.-..- -. 0 Thus, operation of the targeting procedures ensures that the abouts collection targets non~US persons reasonably believed to be located outside the United States and prevents the intentional acquisition of communications about the target as to which the senders and all intended recipients are known at the time of acquisition to be located in the United States. ($841849 0 Furthermore, any United States person information that is incidentally acquired through the abouts collection will be treated in accordance with the minimization procedures adopted for the certi?Cation. It is also possible to conceptualize that the foreign-based, non?US person sender or recipient of the abouts communication may also be a "target." The Government previously took a similar position with respect to the certi?cations executed under the Protect America Act of 2007 (FAA): "The person from whom NSA seeks to acquire communications in such cases is the party to the communication who is reasonably believed to be located outside the United States." However, that position was in many respects a function of the statutory language of the PAA: (W849 105B(a) the abouts collection was for the purpose of acquiring "foreign intelligence information concerning a person reasonably believed to be located outside the United States" the user of the tasked selector). ($874184) 9 105A the abouts collection was not "electronic surveillance" because it was "directed at a person reasonably believed to be located outside the United States.? 0 However, this interpretation is less satisfactory under the new statute, which contains. no requirement that the acquisition be "directed at" a person reasonably believed to be located outside the United States. (11814819 To the extent that the targeting procedures retain the "directed at? language," it is for the purpose of making clear that that the "target" is in no event a person located in the United States. Second, what has NSA's experience been with the IP ?lters? Have they been effective in limiting the collection to communications with at least one communicant located outside the United States? {$874819? a Yes, they have been effective in limiting the collection to communications with at least one communicant located outside the United States. NSA is not aware of a case where an about collection resulted in the acquisition of a communication where both ends were inside the United States. The unredacted information has been unSealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt udr 1 ad 3 extwhere oterwise noted. . Approved for public release - .H- . a. - - tare .. -. Z- v- 3. The Court wants to know why the presumption re?ected in the third paragraph of the subsection dealing with the assessment of the non-US person status of the target is reasonable as a general matter and in particular when the location of the individual is unknown. The Court also wants to know what measures are taken to locate information that could otherwise undermine the presumption. a It is important to note that the use of the presumption is only one aspect of a broader range of information upon which a targeting determination is made. Targeting decisions under the targeting procedures are made ?in light of the totality of the circumstances based on information available with respect to [the new target]." 0 Thus althou the actual location of the tar et ma be unknown In such an instance, the actual location of the recipient/new target is unknown. ?65% a As this Court has recognized, it is reasonable to presume that a non?US person located overseas communicates most frequently with other, non?United States persons overseas. ?This Court sees no reason to question the presumption that the vast majority of persons who are located overseas are not United States persons and that most of their communications are with other, non-United States persons, who are also The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. Approved for public release All redacted information is exemptu nd located overseas.? Mem. 0p. and Order, In re Certi?catio- at 87 (FISA Ct. Jan. 15, 2008). ?89? er 1 and b(3 exce . I :2 i gt: .1 where otherwise noted. a I - til: e- "This common sense presumption is embodied in the Department of Defense procedures governing the collection of information about United States persons, which state, 'a person known to be currently outside the United States, or whose location is not known, will not be treated as a United States person unless the nature of the person's communications or other available information concerning the per-son give rise to a reasonable belief that such person is a United States citizen or pennanth resident alien.?? 15:1, at 87 n81 (emphasis added). The presumption contained in the NSA targeting procedures is same as the "common sense resum tion" uoted the Court. . The presumption is also contained in the NSA PISA Standard Minimization Procedures, which were adopted by Attorney General Reno in 1997 and which have been used in numerous NSA PISA applications approved by the Court since that time. ~659? 0 Thus, although the actual location of the new target may unknown in a particular instance, NSA may reasonably believe, based on the totality of the circumstances, that the new target is located overseas and, therefore, may be presumed to be a non?United States person. 6 NSA takes several steps designed to locate any information in its possession that would undermine the presumption: f3)? The unredacted information has been unsealed by the Foreign intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exemptudr 1 ad (3 exere oteisnte. Approved for public release 4. Section I. of the targeting procedures list-ty es of information that NSA anal examine when makin a forei nness determination -- 9 In addition, a second level of review takes place prior to tasking, which includes a review of the tasking analyst's basis for reasonably believing the target is located outside the United States and the source document(s) supporting that reasonable belief. 5. The discussion of the post-targeting analysis done by NSA describes the-checks as being done "routinely." Are those checks done for each targeted selector? How often are these checks done? What criteria does NSA employ to determine if and/or how often 'such checks should be done? The checks are done for each selector. The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt udr 1 ad 3 extere oteisente. Approved for public release 9 In all cases, remain responsible for following their target?s locations and for the validity of Continued acquisition of information regarding that target. 7. In the Documentation section, there's no requirement that NSA document the source(s) of the information containing the information upon which NSA determined that the target is a non-US person. Was that inadvertent or intentional? {83- The omission of this requirement was intentional, for the following three reasons: 0 First, the cited source of the information upon which the foreignness determination for the target was based may also contain information bearing on the non?US-person status of the target, making a separate citation unnecessary. (-59: Second, oftentimes the basis for NSA's determination that a target person rests on the reasonable presumption, discussed above, that Inasmuch as the targeting procedures already requlre Cltations to the sources of information upon which a foreignness determination is based, a separate citation to those same sources would be unnecessary. 0 Third, checks to determine whether a selector has been used from the United States are required in all cases; thus, requiring a notation that a check was done in each case would be? unnecessary. 8. The noncompliance reporting requirement doesn't include a requirement that the intentional targeting of a US person be reported (though information acquired as a result of such targeting is required to be purged). The Court wants to know why. The reporting requirement also focuses more narrowly on noncompliance incidents involving improper tasking decisions rather than all types of noncompliance incidents. The Court wants to know why. The failure to include the reporting of intentional targeting of U.S. person was an oversight. Intentional tasking of a U. S. person is an incident of noncompliance and Will be reported to DOJ, ODNI OGC and ODNI CLPO Within 7 days learning of such an incident. The reporting requirement focuses on improper tasking decisions, rather than all types of noncompliance incidents, because there are types of purely "technical" incidents of noncompliance that do not result in a tasking decision that is inconsistent with the statute. These "technical" incidents of noncompliance are often discovered during The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exemp Approved for public release routine oversight visits. Further, as these "technical" incidents are identi?ed, corrective action is taken a previously omitted source citation is added to the tasking documentation). NSA fully intends to discuss all issues of noncompliance with its procedures with and DNI representatives during routine oversight visits, which are intended to take place at least every 60 days. +83? 9. With respect to Section of the NSA minimization procedures, the first sentence is written in the passive voice. The Court wants to know who makes the determination discussed in that sentence. The Court also wants to know what the "such communications? in the second sentence refers to. The intelligence analyst makes the determination. 9 "Such communications" refers to communications containing foreign intelligence or evidence of a crime. 10. Generally, why is the ?ve years retention period in the NSA. minimization procedures reasonable? 68% I The nature ofNSA's foreign intelligence targets, particularly regarding its counterterrorism targets, is such that it can take data gathered over an extended period of time may be required to understand its foreign intelligence value and to connect seemingly unconnected things. I a This retention period has ap eared in other minimization procedures approved by the Court docket numbers and . 11. With respect to Section 5 of the NSA minimization procedures, can the Director of NSA delegate the decision making required by this provision? 9 The decision may be made by the Director of NSA or the acting Director of NSA ODIY- The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exem j_ Ly .: - - ohe te. Approved for public release 12. The penultimate sentence of the Federal Bureau of Investigation (FBI) minimization procedures included as Exhibit to the certi?cation states: "The FBI will implement these non-US. Person Standard Minimization Procedures, as modi?ed above, in accordance with FBI Policy Directive o. 0100N (effective June 30, 2008) as appropriate." (emphasis added.) What is the meaning of "as appropriate" in this sentence? Will the "case ownership" model re?ected in the policy generally (through the desi 1 nation of "case coordinators" and the provisions of the a olicy directive applicable to ("hm (hm: (hm cases in particular, he applied to unminilnized communications obtained by the The addition- of "as appropriate" to the end of the sentence above is intended to re?ect that only certain provisions of FBI Policy Directive No. 0100N may be applicable to information acquired pursuant to section 702 of the Act. revision of the olic directive is Section 10 which lit"): (bll3): (bliTllE) 9 Speci?cally, the most pertinent concerns information ac - uire 0 Ifread narrowly, Section 10 could be into reted not to a 1 here because acuisitions rp (bll1l' {mm micro under section 702 of the Act are not strictl seakin However because acuisitions conducted under section 702 of the Act are similar (mm: thBJ; (brace it is "appropriate" that Section 10 apply to information acquired under section 702 of the Act. Section 10 expressly requires the designation of case coordinators who shall be responsible for such information. 65+ 9 Furthermore, Section 10 itself expressly exempts rom a number of other provisions of the policy directive. Those same exemptions would apply to acquisitions conducted under sectioni702 of the Act. ES). The unredacied information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exemp Approved for public release 13. The NSA minimization procedures included as Exhibit to the certi?cation require that a determination by the Director of NSA to retain certain types of information must be made in writing. The CIA minimization procedures included as Exhibit to the certi?cation likewise require the Director of the CIA to make such a determination in writing. However, although the FBI minimization procedures attached as Exhibit to the certification require that such a determination must be made by the Director of the FBI, that determination is not required to he in writing. Was the omission of that requirement from the FBI minimization procedures intentional and, if so, for what purpose was that requirement omitted? The omission of an express requirement that the FBI Director must determine in uniting that certain types of information may be retained was not intended to suggest that the process by which the FBI Director reaches that determination would be any less rigorous than that of the Director of NSA or the Director of the CIA. fS?~ a The FBI has represented that any such determination by the Director would be made in writing, even if not expressly required by the minimization procedures. The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under sealAlppreved for public release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE _3 WASHINGTON, DC. IN RE 702(g) CERTIFICATION - Docket NO. NOTICE OF FILING (sa? NOTICE IS HEREBY GIVEN that the United States Of America, through the undersigned Department of Iustice attorney, submits its analysis Of 50 U.S.C. 1806(i) (attached hereto at Tab 1). National Security Division United States Department Of Justice The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. -SEGRE5F- Approved for public release Question: Whether 50 U.S.C. 18066) requires that the Attorney General ?nd that information acquired from a person targeted under section 702 of FISA while that person, reasonably believed to be outside the United States, is in the United States ?indicates a threat of death or serious bodily harm? before the National Security Agency may retain such information. (U) Answer: No. Because NSA has intentionally acquired the information, section 1806(i) does not apply and NSA may retain the information without such a determination. 0 Under section 702 of FISA, as amended, the Attorney General and the Director of National Intelligence ?may authorize jointly . . . the targeting of persons reasonably believed to be outside the United States to acquire foreign intelligence information.? (U) - The reasonable belief standard allows for an inadvertent erroneous determination of location and recognizes that a target?s location may change before the Government learns of the movement. (U) 0 Of course, the reasonable belief standard (as well as separate provisions of section 702) preclude the Government from ?intentionally target[ing] any person known at the time of the acquisition to be located in the United States," section 702(b)(2), and from ?intentionally acquir[ing] 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 State5,? section 702(b)(4). (U) 0 Thus, provided that, at the time of the acquisition, the target was reasonably believed to be outside the United States (and thus not ?known? to be here), the acquisition is authorized by section 702. (U) 0 Subsection 1806(1) provides no limitation on the use of the information because the acquisition remains intentional even where the target is mistakenly, but reasonably, believed to be outside the United States. - Subsection 1806(i) provides that circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance devise of the contents of any communication, under circumstances in which-a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within in the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicates a threat of death or serious bodily harm to any person.? (U) Classified by: Matthew G. Olsen, Deputy Assistant Attorney General, NSD, Reason: 1.4(c) Declassify on: 27 August 2033 The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. Approved for public release 0 The provision originally covered only radio communications, but was recently amended to cover all communications to make it technology neutral. See 154 Cong. Rec. S6133 (daily ed. June 25, 2008). (U) 0 The plain language of subsection 18066) demonstrates that it only applies to ?unintentional acquisition?.? (U) The legislative history of this provision as originally enacted indicates that it was meant to restrict the Government?s use of unintentionally acquired private domestic radio Communications. Congress concluded that section 1806(i) was needed because ?electronic surveillance? of radio communications, as de?ned in section 1801(t)(3), covered only the intentional acquisition of the contents of private domestic radio communications. Members had expressed concern that unless the use of unintentionally acquired communications was restricted,- the Government mightsidestep PISA by acquiring domestic communications without intentionally targeting any particular communication. Subsection 1806(i) minimized this possibility by restricting the use of any information acquired in this manner to only the gravest of circumstances, where the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person. H. Rep. 95?1283 (June 8, 1978) at 94. (U) The legislative history also suggests that subsection 18060) was intended to address the risk inherent in radio collection of intercepting domestic S. Rep. 95-701 (Mar. 14, 1978) at 36. (?Thus, intelligence collection may be targeted against foreign or international communications but accidentally and unintentionally acquire the contents of communications intended to be totally domestic?) 0 In contrast, the acquisition, which targeted a person reasonably believed to be outside the United States, is intentional and remains so even if the person'has, unbelmownst to the NSA, moved here. - 0 Thus, section 18060) Simply does not apply to information acquired under section 702 when the target, who is reasonably believed to be outside the United States is, in fact, here. (U) 0 Accordingly, the domestic communications carve?out in the minimization procedures adopted by the Attorney General in consulta his; lg) the Director of National I Intelligence in 702(g) Certi?cation which is intended to apply to domestic communications acquired alter a target has entered the US. but before NSA knows that the target has entered the US, is consistent with section 18066). 0 Section 1806(i) would apply, however, to unintentional acquisitions under section 702(3) such as a circumstance where a selector for targeting under section 702(a) was incorrectly identi?ed to an electronic communications service provider (cg, as a result of a typographical error) or where a technical error resulted in the acquisition from The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. - Approved for publlc release a non-targeted selector. In those circumstances, the acquisition of the content of a communication would be accidental and unintentional. ?ij? In addition, that the acquisition is authorized by section 702 (under the reasonable belief standard) renders inapplicable section 109?s general prohibition on ?the disclo[ure] or use [oi] information obtained under color of law by electronic surveillance? with the knowledge or the reason to know ?that the information was obtained through electronic surveillance not authorized by this Act . . (even assuming that the section 702 acquisition would constitute electronic surveillance). (U) The electronic surveillance would indeed be ?authorized by this Act? where the target was reasonably, even if mistakenly, believed to be outside the United States. (U) The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otheryvise noted. Approved for public release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT 5; WASHINGTON, DC. mm: (bio); . (7i Docket No. IN RE 702(g) CERTIFICATION NOTICE OF CLARIFICATION AND CORRECTION (U) THE UNITED STATES OF AMERICA, through the undersigned Department of Justice attorney, submits the following clarifications and corrections related to certain documents previously submitted to this Court in the above-referenced matter: (U) I. CLARIFICATIONS (U?l National Security AgencgtI Targeting Procedures 1. The second paragraph under the heading ?Assessment of the Non-United States Person Status of the Target? on page 4 of targeting procedures, provides: {59 Furthermore, in order to prevent the inadvertent targeting of United States persons, NSA WOW Classified by: Matthew G. Olsen, Deputy Assistant Attorney General, NSD, Reason: 1.4(c) Declassify on: 4?Septembee2033? The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where othenNise noted. Approved for public release WW The term inadvertent, as used in this provision of the NSA targeting procedures, refers to the erroneous determination of the non-United States person status of a target. This provision of the targeting procedures does not implicate 50 U.S.C. 1806(i), because the provision relates to the US. person status of the target and not whether the acquisition by NSA was intentional or unintentional. 2. The ?fth paragraph under the heading (U) OVERSIGHT AND on page 9 of the targeting procedures, provides: In the event that NSA concludes that a person is reasonably believed to be located outside the United States and after targeting this person learns that the person is inside the United States, or if NSA concludes that a person who at the time of targeting was believed to be a non-United States person was in fact a United States person, it will take the following steps: 1.Terminate the acquisition without delay and determine whether to seek a Court order under another section of the Act. If NSA inadvertently acquires a communication sent to or from the target while the target is or was located inside the United States, including any communication where the sender and all intended recipients are reasonably believed to be located inside the United States at the time of acquisition, such communication will be treated in accordance with the applicable minimization procedures. (emphasis added) The term ?inadvertently,? as used in this provision of the NSA targeting procedures, refers to the erroneous determination ?of the location of the target. The term does not refer to decision to target a person reasonably believed to be outside the United States to acquire foreign intelligence information under section 702 of FISA. SEER-WSW 2 The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release As noted in the Government?s section 1806(i) analysis submitted to this Court on August 28, 2008, under section 702, the Attorney General and the Director of National Intelligence "may authorizejointly . . . the targeting of persons reasonably believed to be outside the United States to acquire foreign intelligence information.? This reasonable belief standard-allows for an inadvertent erroneous determination of location and recognizes that a target?s location may change before the Government learns of the movement. The reasonable belief standard (as well as separate provisions of section 702) preclude the Government from ?intentionally target?ng] any person known at the time of the acquisition to be located in the United States,? section 702(b)(2), and from "intentionally acquirling] any comlnunication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States,? section 702(b)(4). Thus, provided that, at the time of the acquisition, the target was reasonably believed to be outside the United States (and thus not ?known? to be here), the acquisition is authorized by section 702. Section 1806(i) provides no limitation on the use of the information because the acquisition remains intentional even Where the target is mistakenly, but reasonably, believed to be outside the United States. National Security Agency Minimization Procedures 3. Section 3(b) (1) of the minimization procedures at page 3 provides: Personnel shall exercise reasonable judgment in determining Whether information acquired must be minimized and shall destroy inadvertently SEW 3 The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release SW acquired communications of or concerning a United States person at the earliest practicable point in the processing cycle at which such communication can be identified either: as clearly not relevant to the authorized purpose of the acquisition the communication does not contain foreign intelligence information); or, as containing evidence of a crime which may be disseminated under these procedures. Inadvert[e]ntly acquired communications of or concerning a United States person may be retained no longer than five years in any event. The communications that may be retained include electronic communications acquired because of limitations on NSA's ability to filter communications. 655(51)- (emphasis added) This provision relates to minimization and does not implicate section 1806(i). Section which immediately precedes section imposes a general requirement to conduct the authorized acquisition in ?a manner designed, to the greatest extent reasonably feasible, to minimize the acquisition of information not relevant to the authorized purpose of the acquisition.? Section relates, to the minimization of communications of or concerning US. persons that are neither relevant to the foreign intelligence purpose of the acquisition nor evidence of a crime. The phrase "inadvertently acquired? in this context refers to an acquisition of such a communication notwithstanding reasonable steps taken "to minimize the acquisition of information not relevant to the authorized purpose of the acquisition.? In this connection, the ?inadvertence? does not relate to the intentional or unintentional character of the acquisition as described in the Government?s analysis of section 1806(i). Nor does it relate to the correctness of the Government?s belief that the target is a non? US. person located overseas. The minimization requirement of section applies SW 4 The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release seem equally to all communications acquired and retained by the Government whether the collection is intentional or unintentional, and Without regard to the correctness of the Government?s belief as to the location or US. person status of the target. (5,4151)? For example, this provision would apply with equal force to: a communication unintentionally acquired based on a typographical error but retained in the discretion of the Attorney General pursuant to section 18066) because the contents indicates a threat of death or serious bodily harm; (ii) a communication intentionally acquired pursuant to section 702(a) where the sender and all intended recipients are in fact located in the US. at the time of acquisition, but Where the Government did not know at the time of acquisition that it was intentionally acquiring a purely domestic communication, which is retained in the discretion of the Director of the NSA for any of the reasons provided in section 5 of the minimization procedures; and a foreign communication of a non?US. person intentionally acquired pursuant to section 702(a). in sum, the use of the phrase ?inadvertently acquired? in section of the minimization procedures relates strictly to minimization, and does not implicate section 1806(i). {5,4519? 4. Section of the minimization procedures at page 4 provides: Further processing, retention and dissemination of foreign communications shall'be made in accordance with Sections 4, 6, and 7, as applicable, below. Further processing, storage and dissemination of inadvertently acquired domestic communications shall be made in accordance with Sections ii and 5 below. (emphasis added) SEW 5 _The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release SEER-WW The term "inadvertently". as used in this provision of the NSA minimization procedures, refers again to the erroneous determination of the location of the target. Accordingly, for the same reasons set out in paragraph 2 above, acquisition is authorized by section 702 and section 18066) provides no limitation on the use of the information, because the acquisition remains intentional even where the target is mistakenly, but reasonably, believed to be outside the United II. CORRECTIONS National Security Agency Minimization Procedures 5. At Tab 1 to this Notice, the Government respectfully submits a substitute page 3 of the NSA minimization procedures for the purpose of correcting two typographical errors found in paragraph The corrections include: adding the word ?not? in the sixth line of paragraph between the words ?as containing"; and replacing the misspelled word "Inadvertantly? With its correct spelling "Inadvertently" in line 7 of the paragraph. Federal Bureau of Investigation Minimization l?rocedures Ed- 6. At Tab 2 to this Notice, the Government respectfully submits a substitute first page to the FBI minimization procedures for the purpose of correcting the following typographical error: the removal of the included word "not"between the words "is a? in the last line of paragraph SEW 6 The unredacted information has been unsealed by the Foreign intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release WSW Central Intelligence Agency Minimization Procedures {53? 7. At Tab 3 to this Notice, the Government respectfully subntits a substitute first page to the CIA minimization procedures for the purpose of including the omitted word ?communications?. between the words ?unminimized the" in the first line of the first paragraph. (U) Respectfully submitted, (130(5) National Security Division United States Department of Justice The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release WW Section 3 - Acquisition and Processing - General (U) Acquisition (U) The acquisition of information by targeting non?United States persons reasonably believed to be located outside the United States pursuant to Section 702 of the Act shall be effected in accordance with an authorization made by the Attorney General and Director of National Intelligence pursuant to subsection 702(a) of the Act and shall be conducted in a manner designed, to the greatest extent reasonably feasible, to minimize the acquisition of information not relevant to the authorized purpose of the acquisition. {sme? Monitoring, Recording, and Processing (U) (1) Personnel shall exercise reasonable judgment in determining Whether information acquired must be minimized and shall destroy inadvertently acquired communications of or concerning a United States person at the earliest practicable point in the processing cycle at which such communication can be identi?ed either: as clearly not relevant to the authorized purpose of the acquisition (cg, the communication does not contain foreign intelligence information); or, as not containing evidence of a crime which may be disseminated under these procedures. lnadvertently acquired communications of or concerning a United States person may be retained no longer than five years in any event. The communications that may be retained include electronic communications acquired because of limitations on ability to ?lter communications. (2) Communications of or concerning United States persons that may be related to the authorized purpose of the acquisition may be forwarded to analytic personnel responsible for producing intelligence information from the collected data. Such communications or information may be retained and disseminated only in accordance with Sections 4, 5, and 6_ of these procedures. (3) Magnetic tapes or other storage media that contain acquired communications may be processed?68?)? (4) As a communication is reviewed, a determination shall be made as to whether it is a domestic or foreign communication to, from, or about a target and is reasonably believed to contain foreign intelligence information or evidence of a crime. Only such communications may be processed. All other communications may be retained or disseminated only in accordance with Sections 5 and 6 of these procedures. (5) Magnetic tapes or other storage media containing communications acquired pursuant to Section 702 may be scanned by computer to identify and select communications for analysis. Computer selection terms used for scanning, such as telephone numbers, key words or phrases, or other discriminators, shall not include United States person Weenies? 3 The unredacted information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where othenNise noted. I Approved for public release EXHIBIT MINTMIZATION PROCEDURES USED BY THE FEDERAL BUREAU OF INVESTIGATION IN CONNECTION WITH ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION PURSUANT TO SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1973, AS AMENDED These Federal Bureau of Investigation (FBI) minimization procedures apply to the acquisition, retention, use, and dissemination of non?publicly available information concerning unconsenting United States persons that is acquired by targeting non-United States persons reasonably believed to be located outside the United States pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended (?the Act"). (U) With respect to any unrninimized communications acquired pursuant to section 702 of the Act, the FBI will apply its standard minimization procedures as described in the Standard Minimization Procedures for Electronic Surveillance of a non?US Person Agent of a Foreign Power (approved September 17, 1.997) and its Standard Minimization Procedures for Physical Search of a non?US. Person Agent of a Foreign Power (approved January 20, 1995) ("non-US. Person Standard Minimization Procedures"), as amended by the Amendment to the Standard Minimization Procedures for Electronic Surveillance and Physical Search (approved September'iZQ, 2006), with the following modi?cations: (S) a. References to "non-United States person agent of a foreign power? shall be understood to refer to non-United States persons reasonably believed to be located outside the United States. (U) b. In determining whether an individual is a non?United States person, the following presumptions apply: (SHNF) 1. If an individual is known or believed to be located outside the United States, he or she should be presumed to be a non?United States person unless the individual is identi?ed as a United States person or circumstances give rise to the reasonable belief that the individual is a Unites States person. c- Any communication acquired through the targeting of a person who at the time of targeting was reasonably believed to be a non?United States person located outside the United States but is in fact located inside the United States at the time such communication is acquired or is subsequently determined to be a United States person - shall be removed from FBI systems upon recognition, unless the Director of the FBI determines that such communication is reasonably believed to contain signi?cant foreign intelligence information, evidence of a crime that has been, is being, or is The unredacted'information has been unsealed by the Foreign Intelligence Surveillance Court. The redacted information remains under seal. All redacted information is exempt under and except where otherwise noted. Approved for public release EXHIBIT MINIMIZATION PROCEDURES USED BY THE CENTRAL INTELLIGENCE AGENCY IN CONNECTION WITH ACQUISITIONS OF FOREIGN INTELLIGENCE INFORNIATION PURSUANT TO SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978, AS AMENDED With respect to unminimized communications the Central Intelligence Agency (CIA) receives from the National Security Agency (N SA) or the Federal Bureau of Investigation (FBI) that are acquired pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended ("the Act"), the CIA will follow the following minimization procedures: (U) 1. As used herein, the terms "Attorney General," "foreign power," "agent of a foreign power," "United States person," "person," "foreign intelligence information,? "international terrorism," and "sabotage" have the meanings speci?ed in sections 101 and 701 of the Act. (U) 2. Information about a United States person may be retained within CIA and disseminated to authorized recipients outside of CLA if the identity of the United States person and all personally identi?able information are deleted. A generic term may be substituted which does not identify the United States person in the context of the message. If the infonnation cannot be sanitized in such a fashion because the identity is necessary, or it is reasonably believed that it may become necessary, to understand or assess the information, that identity may be retained or disseminated outside of CIA along with the information if: a. The information is foreign intelligence information. Such information includes, but is not limited to, information falling within one or more of the following categbries: the information indicates that the United States person has acted or may be acting as an agent of a foreign power, including information indicating that a United States person was in contact with a foreign power under facts and circumstances indicating that he intends to collaborate with a foreign power or become an agent of a foreign power; (2) the information indicates that a United States person may be a target of intelligence activities of a foreign power; - (3) the information indicates that a United States person has engaged or may be engaging in the unauthorized disclosure of properly classified national security information; or APPROVED FOR PUBLIC RELEASE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. IN RE CERTIFICATION. Docket Number ORDER For the reasons stated in the Memorandum Opinion issued contemporaneously herewith, and in reliance on the entire record in this matter, the Court ?nds, in the language of 50 U.S.C. the ?certi?cation submitted in accordance with [50 U.S.C. 1881a(g)] contains all the required elements and that the targeting and minimization procedures adopted in accordance with [50 U.S.C. are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States.? Accordingly, it is-hereby ORDERED, pursuant to 50 U.S.C. 18813(i)(3)(A), that such certi?cation and the use of such procedures are approved. "?03 ENTERED this i day of September, 2008, in Docket No. a . WMM MARYCA. 5? Judge, United States Foreign Intelligence Surveillance Court Mount}! Clerk FESC, certify t. at is document is a true and correc of the enginew I All nedacted information exempt under and except where othenNise noted Approved for public release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. IN RE CERTIFICATION.) Docket Number . MEMORANDUM OPINION This matter is before the Court on the ?Government?s Ex Parte Submission of Replacement Certi?cation and Related Procedures and Request for an Order Approving Such Certi?cation and Procedures,? ?led on August 5, 2008 (?Ex Parte Submission?). For the reasons stated below, the government?s request for approval is granted. 1. BACKGROUND A. Section 702 of the Foreign Intelligence Surveillance Act The government ?led the Ex Parte Submission pursuant to Section 702 of the Foreign Intelligence Surveillance Act which was enacted as part of Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (Jul. 10, 2008) and is new codi?ed at 50 U.S.C. 1881a. Subsection of Section 702 permits the government to authorize, ?for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.? 50 U.S.C. 1881a(a). The implementation of any authorization under Section 702 must conform to the Page 1 All redacted information exempt under and except where othemise noted Approved for public release limitations enumerated in subsection which provides that acquisition authorized under subsection (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to belin the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire 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; and (5) shall be conducted in a manner ponsistent with the fourth amendment to the - Constitution of the United States. 50 U.S.C. 1881a(b). Absent exigent circumstances, before implementing any authorization under Section 702, the Attorney General and the Director of National Intelligence must provide the Foreign Intelligence Surveillance Court with a written certi?cation, accompanied by targeting and minimization procedures, and must obtain the Court?s approval of the certi?cation and the procedures. l_d. '1881a(a), In the certi?cation, the Attorney General and IDNI must attest that: (1) there are procedures in place that are ?reasonably designed? to ?ensure that an acquisition authorized under subsection 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?; Page 2 All redacted information exempt under and except where otherwise noted Approved for public release (2) ?the minimization procedures to be used with respect to such an acquisition . . . meet the de?nition of minimization procedures under [50 U.S.C. 18010:) or as appropriate? and either ?have been approved, have been submitted for approval, or will be submitted with the certi?cation for approval by the (3) the Attorney General and DNI have adopted ?guidelines . . . to ensure compliance with the limitations in subsection [of Section 702] and to ensure that an application for a court order is ?led as required by (4) the targeting procedures, minimization procedures, and guidelines adopted by the government ?are consistent With the Fourth Amendment?; (5) ?a signi?cant purpose of the acquisition is to obtain foreign intelligence information?; (6) ?the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communications service provider?; and (7) ?the acquisition complies with the limitations in subsection 50 U.S.C. 1881a(g)(2)(A). - The certi?cation must be accompanied by targeting and minimization procedures adopted pursuant to Section 702(d) and respectively, and it must ?be supported, as appropriate, by the af?davit of any appropriate of?cial in the area of national security who is . . . appointed by the President, by and with the advice and consent of the Senate,? or the head of an element of the intelligence community.? 50 1881a(g)(2)(B) and Additionally, Section 702,. as applicable here, requires that the certi?cation include ?an effective date for the authorization that is at least 30 days after the submission of the written certi?cation to the court.? id, 1881a(g)(2)(D)(i)- Page 3 All redacted information exempt under and except where otherwise noted Approved for public release B. ?Judicial Review The FAA provides the FISC with jurisdiction to review the certi?cation, the targeting and minimization procedures, and any amendments to those procedures. 50 U.S.C. 1881a(i)(1)(A). That review, however, is limited. The role with respect to the certi?cation is merely to ?determine whether [it] contains all the required elements.? 15L 1881a(i)(2)(A). The Court reviews the targeting procedures to ?assess whether the procedures are reasonably designed to - ensure that an acquisition authorized under subsection is limited to targeting persons reasonably believed to be located outside the United States; and (ii) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the I acquisition to be located in the United States.? ILL 1881a(i)(2)(B). As for the minimization procedures, theCourt must ?assess whether such procedures meet the de?nition of minimization procedures under [50 U.S.C. 1801(h) or as appropriate." 1d.? 1881a(i)(2)(C). Section 702 requires the FISC to enter an order apprOving the certi?cation and the use of the targeting and minimization procedures if the Court ?nds that the certi?cation contains all the required elements, and that the targeting and minimization procedures are consistent with the requirements of 50 U.S.C. 1881a(d)(1) and and with the Fourth Amendment. 50 U.S.C. 1881a(i)(3)(A). Should the Court conclude that it cannot make those ?ndings, it must direct the government either to correct any de?ciency or to refrain from implementing the authorization for which the certi?cation was submitted. Iii; 1881a(i)(3)(B). Any order entered under Section 702 must be accompanied by ?a written statement of reasons for the order.? Id 1881a(i)(3)(C). The FISC must complete its review and issue an order not later than 30 days after the mm Page 4 All redacted information exempt under and except where othenNise noted Approved for public release submission of its certi?cation and procedures, unless the Court ?extends that time as necessary for good cause in a manner consistent with national security.? 1881a(i)(l)(B), C. The Govermnent?s Ex Parte Submission The government?s Ex Parte Submission includes 702(g) Certi?cation-? which was executed by the Attorney General and the DNI on -2008, and which authorizes the targeting of certain non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information (the ?Certi?cation?). Accompanying the Certi?cation are the supporting affidavits of the Directors of the National Security Agency the Central Intelligence Agency and the Federal Bureau of Investigation Also included in the govermnent?s EX. Parte Submission are two sets of targeting procedures (one set to be used by the NSA and the other by the FBI), and three sets of minimization procedures (one set each for the NSA, the FBI, and the CIA). Following the Court?s preliminary review of the Ex Parte Submission, the FISC staff met with counsel for the government to communicate the Court?s questions regarding the proposed targeting and minimization procedures. Thereafter, on August 26, 2008, the government submitted its ?Preliminary Responses to Certain Questions Posed by the Court? (?Govt Responses?). On August 27, the Court held a hearing during which the government answered additional questions and provided additional information about the scope and meaning of the proposed procedures. Following the hearing, the government made two supplemental submissions addressing, among other things, an issue of law itraised with the Court shortly before the hearing. The government has also submitted a copy of the guidelines adopted by the Attorney General and the DN1 for ensuring Page 5 All redacted information exempt under and except where otherwise noted Approved for public release compliance with the limitations set forth in 50 U.S.C. This Memorandum Opinion relies on the entire record before the Court, including each of the above-referenced submissions and information received at the August 27 hearing. II. ANALYSIS A. The Certi?cations Contain All the Required Elements. The Court is required to review the Certi?cation ?to determine whether [it] contains all the required elements.? 50 U.S.C. 1881a(i)(2)(A). After examining the Certi?cation, the Court ?nds that: (I) it has been made under oath by the Attorney General and the DNI, as required by 50 U.S.C. 1381a(g)(1)(A), Certi?cation (?Cert?) at 4-5; (2) it contains each of the attestations required by 50 U.S.C. 1881a(g)(2)(A) and enumerated at pages 2?3 supra, Cert. at 1-2; (3) as required by 50 U.S.C. 1881a(g)(2)(B), it is accompanied by the applicable targeting procedures2 and minimization procedures;3 1 The Ex Parte Submission and accompanying materials provided by the government consist largely of classi?ed information. At the government?s request, the Court has conducted its review ex parte and in camera. S_e? 50 U.S.C. 1881a(k)(2). 2 Procedures Used by the NSA for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of ISA, as Amended Targeting Procedures?) (attached to the Certi?cation as Exhibit Procedures Used by the FBI for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Targeting Procedures?) (attached as Exhibit C). 3 Minimization Procedures Used by the NSA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended (continued. ..) Page 6 All redacted information exempt under and except where otherwise noted Approved for public release it is supported by the af?davits of appropriate national security of?cials, as described in 50 U.S.C. and - (5) it includes an effective date for the authorization in compliance with 50 U.S.C. 1881a(g)(2)(D). Cert. at 3.5 Accordingly, the Court ?nds that the Certification ?contains all the required elements.? 50 U.S.C. 1 881a(i)(2)(A). B. The Targeting Procedures and the Minimization Procedures Are Consistent With the Applicable Statutory Requirements With respect to the targeting procedures and minimization procedures, the Court is required to assess Whether they conform to the applicable statutory requirements. 50 U.S.C. 1881a(i)(3)(A). 1. The Targeting Procedures Satisfy the Requirements of Section 1881a(d)Ll The government has submitted two sets of targeting proceduresthe FBI. Each set of procedures is discussed in turn, .continued) Minimization Procedures?) (attached as Exhibit Minimization Procedures Used by the FBI in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of ISA, as Amended Minimization Procedures?) (attached as Exhibit Minimization Procedures Used by the CIA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Minimization Procedures?) (attached as Exhibit E). 4 See Affidavit of Lt. Gen. Keith B. Alexander, US. Army, Director, NSA (attached at Tab Af?davit of Robert S. Mueller, Director, FBI (attached at Tab Af?davit of Michael V, Hayden, Director, CIA (attached at Tab 3). 5 The statement described in 50 U.S.C. 1881a(g)(E) is not required in this case because there has been no ?exigent circumstances? determination under Section 1881a(c)(2). Page 7 All redacted information exempt under and except where otherwise noted Approved for public release a. Overview of the NSA Targeting Procedures NSA seeks to acquire foreign intelligence information from communications that are to, from, or about a targeted person. NSA Targeting Procedures at 2; Transcript of Proceedings on August 27, 2008 (?Trans?) at 19-22, It does so by tasking for acquisition a telephone number or electronic communications account (generically-referred to as ?selectors?) believed to be used by a I targeted person. NSA Targeting Procedures at 3; Trans. at 24. Pre-Taraeting Determination NSA is required to determine ?whether a person is a non?United States person[5] reasonably believed to be outside the United States? before that person is targeted for acquisition. NSA Targeting Procedures at 1. NSA makes this determination ?in light of the totality of the circumstances based on the information available with respect to that person, including - For every such determination, NSA must? 6 ?United States person? (hereinafter person?) is de?ned as a citizen of the United States, an alien lawfully admitted for permanent residence . . ., an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or association which is a foreign power, as de?ned in [50 U.S.C. 1801(a)(1), (2), or 50 U.S.C. 18010) and 1881(a). Page 8 All redacted information exempt under and except where otherwise noted Approved for public release NSA examine the same categories of information, in the manner described above, in assessing Whether the proposed target is a non~U.S. person. NSA Targeting Procedures at 1. In addition, prior to each tasking, w? in order to ?ascertain whether NSA has 7 Although the government ?reserve[d] the right to supplement and/or modify these responses? at the August 27, 2008 hearing, Govt. Responses at 1, nothing at the hearing detracted from the responses cited herein. 8 Page 9 All redacted information exempt under and except where otherwise noted Approved for public release reason to believe? that the proposed selector is being used by a U.S. person. at 4. This step is taken to avoid targeting United States persons. See NSA may avail itself of the following presumption regarding the nationality of a proposed target: NSA invokes the presumption only after have exercised ?due diligence? in attempting to ascertain the person?s location under the NSA Targeting Procedures. Trans. at 5-6. Moreover, even in cases where ?the actual location of the target may be unknown,? (ii) Post-Targeting Analysis NSA is also required to conduct post-targeting analysis ?to detect those occasions when a person who when targeted was reasonably believed to be located outside the United States has since entered the United States? and to ?enable NSA to take steps to prevent the intentional acquisition of 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, or the intentional targeting of a person who is inside the United States.? NSA Targeting Procedures at 6. In the event that NSA concludes that a target is Page 10 All redacted information exempt under and except where otherwise noted Approved for public release within the United States, or ?that a person who at the time of targeting was believed to be a non United States person was in fact a United States person,? it will ?terminate the acquisition without delay? and report the incident to the Department of Justice and the Of?ce of the DN1. l; at 9. - This post-targeting analysis includes ?routinely? comparing each selector- _0r indications that a tasked selector may be used inside the United States. at 6-7; Govt. Responses at 7. NSA reviews the results of these comparisons- - Govt. Responses at 7. The post?targeting analysis also includes examination of the content of communications obtained through surveillance of a tasked selector for indications that a targeted person is now in, or may enter, the United States. NSA Targeting Procedures at 6-7. There is no set schedule for this form of analysis, and its timing can depend on the intelligence priorities attached to a particular target. Govt. Responses at 7?8; Trans. at 8. At the outermost limit, the analyst responsible for a particular tasking is required to conduct an annual review of the target, though in practice such reviews usually occur more frequently. Trans. at 8. 46.9 9 See also 50 U.S.C. 1881 (requiring annual review of acquisition ?to determine whether there is reason to believe that foreign intelligence information has been or will be obtained?). Page 11 All redacted information exempt under and except where otherwise noted Approved for public release WW Documentation and Oversight At the time of targeting, are required to ?document in the tasking database a citation or citations to the information that led them to reasonably believe that a targeted person is located outside the United States.? NSA Targeting Procedures at 8.?3 This documentation facilitates later oversight of how the procedures are implemented. Internally, NSA oversight personnel ?conduct periodic spot checks of targeting decisions.? NSA Targeting Procedures at 8. In addition, personnel from the Department of Justice and the Of?ce of the DN1 conduct reviews of implementation of its targeting procedures ?at least once every sixty days.? NSA is also obligated within seven days to report to the Department of Justice and the Of?ce of the DNI ?any incidents of non-compliance? resulting in ?the intentional targeting of a person reasonably believed to be located in the United States or the intentional acquisition of any communication in which the sender and all intended recipients are known at the time of acquisition to be located within the United States.? l_d. at 8-9. NSA similarly will report any incident of intentionally targeting a person. Govt. Responses at 8. ?Any information acquired by intentionally targeting a United States person or a person not reasonably believed to be outside the United States at the time of such targeting will be purged from NSA databases.? NSA Targeting Procedures at 9. 1? There is no requirement to record the basis for the reasonable belief that the target is not a US. erson. However, the cited sources re ardin the tar et?s location, in con'unction with a will often provide the grounds for reasonably presuming or concluding that the target is not a US. person. See Govt. Rte-Spouses at 8. Page 12 All redacted information exempt under and except where otherwise noted Approved for public release (iv) Emergency Departure The NSA Targeting Procedures contain the following emergency provision: If, in Order to protect against an immediate threat to national security, the NSA determines that it must take action, on a tenmorar?,r basis. in apparent departure from these procedures and that it is not feasible to obtain a timely modi?cation of these procedures from the Attorney General and [the NSA may take such action and will report that activity to [the Department of Justice and the Of?ce of the Under such circumstances, the Government will continue to adhere to all of the statutory limitations set forth in subsection 702(b) of 1d, at 10 (emphasis added). The government expects that this departure provision will be invoked only under ?very extreme circumstances,? Trans. at 17?18, and in fact is not likely to be used at all. at 19.? If it should be used, the government anticipates that such use would involve a relaxation of documentation requirements if_s unavailable at the time of the emergency, or a modi?cation of the schedule for oversight reviews in the event that personnel must be redeployed to respond to the emergency. 1; at 18. b. Targeting Procedures Cornpr With so U.S.C. 8813( 1) and Are Reasonably Designed to Prevent the Targeting of US. Persons. Section 1881a(d)( 1) requires: targeting procedures that are reasonably designed to (A) ensure that any acquisition . . . is limited to targeting persons reasonably believed to be outside of the United States; and A similar provision was included in the NSA procedures previously adopted for acquisitions under the Protect America Act of W, 121 Stat. 552 (Aug. 15, 2007). ,S_ee In re 105B Certifications emorandurn Opinion and Order entered January 15, 2008,_at 22. That provision has never been implemented. Trans. at 18. Page 13 All redacted information exempt under and except where otherwise noted Approved for public release (B) prevent the intentional acquisition of any as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States. 50 1881a(cl)(1). Section 1881a(d)(i) does not, by its terms, require that the targeting procedures seek to prevent the targeting of United States persons, as distinct from persons located in the United States. Nonetheless, another provision of the statute states that, pursuant to Section 1881 21,]2 the government ?may not intentionally target any person known at the time of acquisition to be located in the United States,? and also ?may not intentionally target a United States person reasonably believed to be located outside the United States.? _S__ee 50 U.S.C. 1881a(b)(1) and (emphasis added). Moreover, as discussed above, see, pages 8-11 supra, the targeting procedures adopted under Section 1881a(d) require government to assess whether a proposed target reasonably appears to be a US. person, as part of the same process whereby they ascertain Whether a proposed target reasonably appears to be located outside the United States. Because the limiting of acquisitions to non-US. person targets is important to the Court?s Fourth Amendment analysis, pages 3364, 37?38 infra, the Court will also assess how the NSA Targeting Procedures apply to determinations of US. person. In assessing the NSA Targeting Procedures, it is useful to consider separately the acquisition of communications that are to or from a tasked selector (?to/from communications? and the ?2 Other sectiOns of FISA provide separate means of authorizing electronic surveillance and physical search of targets in the United States, see 50 U.S.C. 1804?1805, 1823?1824, and of targeting U.S. persons outside the United States. 1881b-18810. I E. m: Page14 All redacted information exempt under and except where otherwise noted Approved for public release acquisition of communications that contain a reference to a tasked selector (?about communications?). To/From Communications For that are to or from a tasked selector, targeting procedures will satisfy both prongs of Section 1881a(d)(1) if they are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside the United States. For purposes of Section 1881a(d)(1)(A), the persons targeted by acquisition of to/from communications are the users of the tasked selectors: their communications are intentionally selected for acquisition, whereas the communications of other persons are incidentally obtained only when they are communicating with the users of tasked selectors. And because a user of a tasked selector is a party to every to/from - communication acquired by NSA, a reasonable belief that the users of tasked selectors are outside the United States will ensure that NSA does not intentionally acquire any to/from 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. 1881a(d)(1)(B). The Court ?nds that the NSA Targeting Procedures are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside the United States. are required in every case to consider- in assessing the target?s location. They are also trained to review Prior to targeting, an NSA analyst must form a reasonable belief that the user of a proposed selector is outside the United States. The basis for that belief is reviewed by a second analyst prior to tasking. Page 15 All redacted information exempt under and except where otherwise noted Approved for public release After targeting, additional analysis is conducted to ascertain whether the user may later be present in the United States. Moreover, implementation of these procedures is subject to regular review and evaluation by NSA, the Department of Justice, and the Of?ce of the DN1. Finally, the provision permitting NSA to depart-hem these procedures temporarily to respond to an emergency is, as explained by the government, suf?ciently narrow in scope that it does not undermine the Court?s general assessment of reasonableness. record of implementation of comparable procedures for acquisitions under the Protect America Act of 2007, Pub. L. No. 110?55, 121 Stat. 552 (Aug. 15, 2007) supports this conclusion. With over-targeting decisions made, Trans. at 43, cub-instances of improper targeting had been identified through May 9, 2008. Ld_. at 13. Most instances of non- compliance have involved inadequate documentation or delayed reporting, rather than improper targeting decisions. at 1 1, 13-14. The Court further ?nds, as a predicate of its Fourth Amendment analysis, see pages 32-41- m, that the NSA Targeting Procedures are also reasonably designed to ensure that the users of tasked selectors, the targets of acquisition for to/from communications, are reasonably believed to be non?US. persons. NSA perform the same steps in assessing the US. person status of the prospective target as they do in assessing location, as well as an additional pre-tasking step to ascertain whether the proposed selector is known to be used by 'a U.S. person. Moreover, as explained by the government, the presumption of non-US. person status that NSA may make based Page 16 All redacted information exempt under and except where otherwise noted Approved for public release on the overseas location of the target, page 10 ma, logically follows from the proposition, previously accepted by the FISC, ?that the vast majority of persons who are located overseas are not United States persons and that most of their cornmmiications are with other, non~United Stat-es persons, who are also located overseas.? In re Directives, Docket No. 07?01 Memorandum Opinion entered Aprii 25, 2008, at 87 (footnote omitted), eff?d, Docket No. 08-01 (FISA Ct. Rev. Aug. 22, 2008).13 (ii) About Communications For tasked electronic communications accounts, the NSA also acquires conununications that contain a reference to the name of the tasked account.[4 The government asserts that, for purposes '3 The minimization procedures contain similar presumptions regarding non?US. person status, ?e NSA Minimizatidn Procedures at 2; FBI Minimization Procedures at 1, which the Court ?nds reasonable on the understanding that they will be applied in the manner described for the presumption in the NSA Targeting Procedures. 14 These about communications fall into .categories ?rst described to the in prior proceedings. Trans. at 40-41. Those categories are as follows (for ease of reference, the tasked account is called Page 17 All redacted information exempt under and except where otherwise noted Approved for public release of Section 1881a(d)(1)(A), the person being ?targeted? by such an acquisition is the user of the tasked account, not other persons who are parties to the acquired contirnunieation.?S Govt. Responses at Trans. at 24. The Court accepts this conclusion. It is natural to regard the user of the tasked account as the ?target? of the acquisition, because the government?s purpose in acquiring about communications is to obtain information about that user. Trans. at 24.16 The communication is not acquired because the government has any interest in the parties to the communication, other than their potential relationship to the user of the tasked account; indeed, the government may have in re 105B Certi?cations entered January 15, 2008, at 17 n.18. ?5 In some cases the user of the tasked account may also be a arty to an acquired about communication; for exam Trans. at 20. ?6 For purposes of FISA surveillances conducted under 50 U.S.C. 1804?1805, the ?target? of the surveillance ??is the individual or entity . . . about whom or from Whom information is sought.? In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002) (quoting HR. Rep. 95- 1283, at 73 (1978)). There is no reason to think that a different meaning should apply here. . Page 18 All redacted information exempt under and except where othenNise noted Approved for public release no knowledge of those parties prior to acquisition. See ii at 19?20. And parties to an acquired about conuntmication do not become targets of acquisition unless and until they are separately vetted under the NSA Targeting Procedures and a selector used by them is separately tasked. at 26?27. Of course, anyone assessed to be a US. person or to be inside the United States cannot be targeted at all. See pages 8?11 31pm. Having concluded that this mode of acquisition targets the users of tasked selectors, and that the NSA Targeting Procedures are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside the United States, pages 15?16 m, the Court finds that the NSA Targeting Procedures satisfy Section 1881a(d)(1)(A). Similarly, based on the discussion at pages 16-17 $11112, the Court ?nds that the NSA Targeting Procedures are reasonably designed to prevent the targeting of US. persons in the acquisition of about communications. A separate analysis is required of whether, in conformance with Section lSSlaCd)(l)(B), the NSA Targeting Procedures are reasonably designed to prevent the intentional acquisition of about communications ?as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.? For each acquisition of an about communication, NSA relies on _means of ensuring that at least one party to the communication is outside the United States; will-mploy an Internet Protocol ?lter to ensure? that at least one party to a communication is outside the United States NSA Targeting Procedures at 2. Page 19 All redacted information exempt under and except where otherwise noted Approved for public release The Court ?nds that these measures are reasonably designed to prevent the intentional acquisition of communications as to which all parties are in the United States. 17 c. The FBI Targeting Procedures In addition to NSA, the FBI may also conduct acquisitions under the certi?cation, in conformance with the FBI Targeting Procedures. The FBI will apply its procedures ?in acquiring foreign intelligence information, in the form by targeting electronic communications accounts ?designated by the FBI Targeting Procedures at 1. Prior to requesting the FBI to _for an account, NSA will have followed its own targeting procedures in determining that the user of the account ?is a person reasonably believed to be located outside of the United States and is nota United States person.? Id, Thus, the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures, whenever- acquired. Because the FBI is only involved in the acquisition of to/from communications, Trans. at 32, the FBI Targeting Procedures will satisfy Section 1881a(d)(1) if they are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside of the United States. Egg page 15 supra. Because the Court has found that the NSA Targeting Procedures meet this ?7 The government has represented that these measures have prevented the acquisition of wholly domestic communications under the PAA. Trans. at 28? Govt. Res cases at 5. With regard to Internet Protocol IP ?lters the Court on standst at Trans. at 28-29. Although it acquiredofWNm not aware of this actually happening. at 29?3 1. Page 20 All redacted information exempt under and except where otherwise noted Approved for public standard, see pages 15-16 sum, and also are reasonably designed to prevent the targeting of U.S. persons, pages 16-17 m, it should readily follow that the FBI Targeting Procedures, which provide additional assurance that users of tasked accounts are non-US. persons located outside the United States,18 also pass muster. The Court has reviewed the FBI Targeting Procedures and found that they satisfy these criteria also. 2. The Government?s Minimization Procedures Satis 50 U.S.C. 1881a . Section 18813(e)(1) requires the government to ?adopt minimization procedures that meet the de?nition of minimization procedures? under 50 U.S.C. 1801(h) or ?1821(4), ?as apprOpriate.? Those de?nitions are substantively identical for purposes of this case,19 and de?ne ?minimization precedures? 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 ?9 They differ only in referring to electronic surveillance 1801(h)) or physical search 1821(4)), and to the procedure for emergency approval for those respective modes of collection in a context that does not apply to this case. Page 21 All redacted information exempt under and except where otherwise noted Approved for public release 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; [20] (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 identifies 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. 50 U.S.C. 1801(h); see alsoicL? 1821(4). 20 ?Foreign intelligence information? is defined 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 of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to - (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. 50 U.S.C. 1801(e) and 1881(a). Page 22 All redacted information exempt under and except where otherwise noted Approved for public release In this case, there are three sets of minimization procedures that have been adopted by the Attorney General: a set of procedures for each of the two agencies that will conduct acquisitions, the NSA and the FBI, and a third set of procedures for the CIA, which may receive from those agencies the raw data from acquisitions. NSA Minimization Procedures at 8; FBI Minimization Procedures at 2. Each of these sets of procedures closely resembles minimisation procedures that have been found by judges of this Court to meet the de?nition of minimization prosedures under section 1801(h) in the context of cases that have a signi?cantly greater likelihood of acquiring communications to, from, or about United States persons. See, Docket Nos-(In re Various Known and Unknown Agents of (In re - and- (In (mo The targeting of communications pursuant to Section 702 is designed in a manner that I diminishes the likelihood that U.S. person. information will be obtained. page Ella. Yet, the protection to U.S. persons afforded by the proposed minimization procedures nearly replicates the protection afforded such persons in cases involving search or surveillance intentionally targeting U.S. persons. Procedures that have been found to be reasonably designed for the purpose of surveillance targeting U.S. persons should be reasonable for the acquisition of communications targeting non-U.S. persons abroad. The Court?s review of the minimization procedures con?rms that they are reasonable in the context of this case. Although the procedures proposed by the government are-not identical to these previously approved procedures, the differences, as discussed below, do not undermine a ?nding that they meet Page 23 All redacted information exempt under and except where otherwise noted Approved for public releaSe the de?nition of minimization procedures under the statute. Therefore, for the reasons stated below, the Court ?nds that each set of minimization procedures is reasonably designed to minimize the acquisition and retention, and prohibit the dissemination, of private US. person information, consistent with the foreign intelligence needs of the government, and otherwise conforms to the statutory de?nition. a. Cross-cutting Issues Some issues worthy of discussion are presented by more than one agency?s minimization procedures.21 Special Retention Provisions All three sets of minimization procedures permit the head of the agency, under certain circumstances, to authorize retention of information from communications acquired when the government reasonably believed that the target was a non?US. person outside the United States, when in fact the target was a US. person or was inside the United States.22 For example, the CIA Minimization Procedures state: Any communication . . . acquired through the targeting of a person who at the time of targeting was reasonably believed to be a non-United States person located outside 2? The NSA and FBI minimization procedures include presumptions of non-US. person status based on a person?s location outside the United States. NSA Minimization Procedures at 2; FBI Minimization Procedures at 1. The Court understands that those presumptions apply in the same manner as the analogous presumption in the NSA Targeting Procedures, which is discussed above. See page 10 Mg. 011 that understanding, the Court ?nds that the minimization presumptions comport with the statutory de?nitions. 22 For purposes of applying the NSA Minimization Procedures, such communications are treated as ?domestic communications.? NSA Minimization Procedures at 4. Page 24 All redacted information exempt under and except where otherwise noted Approved for public release the United States but is in fact located inside the United States at the time such communication is acquired or was in fact a United States person at the time of targeting shall be destroyed unless the Director of the determines in writing that such cemmunication is reasonably believed to contain: signi?cant foreign intelligence information; evidence of a crime that has been, is being, or is about to be committed; or information retained for traf?c analytic, or signal exploitation purposes. CIA Minimization Procedures at 6.23 In addition to these categories of information, the Director of NSA may also authorize retention upon a ?nding that ?the communication contains information I pertaining to a threat of serious harm to life or property? or ?information necessary to understand or assess a communications security vulnerability.? NSA Minimization Procedures at 5-6. For ease of reference, the Court Will refer to these provisions collectively as ?special retention provisions.?24 For the following reasons, the Court ?nds that the special retention provisions are reasonable and consistent with the statutory definition of minimization procedures. First, the Court concludes that the government is authorized to acquire communications When it has a reasonable, but mistaken, belief that the target is a non-US. person located outside the United States. The Certi?cation authorizes ?the targeting of non?United States persons reasonably believed to be located outside the United States? in accordance with the targeting procedures. Cert. at 3; see also 50 U.S.C. 1881 a(a) (?the Attorney General and the may 23 Corresponding provisions are in the FBI Minimization Procedures at 1-2 and the NSA Minimization Procedures at 5-6. 24 Although the agencies? special retention provisions use somewhat different language to describe the form of approval, the government has explained that, for all three agencies, the agency head will make such determinations in writing on a case?by-case basis. Govt. Responses at 11; Trans. at 36-37. Page 25 All redacted information exempt under and except where othemise noted Approved for public release authorize jointly . . . the targeting of persons reasonably believed to be outside the United States?). There may be cases where, after properly applying the targeting procedures, the government reasonably believes at the time it acquires a communication that the target is a non-U.S. person outside the United States, when in fact the target is a U.S. person and/or is in the United States. The acquisition of such communications is properly authorized under Section 1881a, notwithstanding the fact that the government is prohibited from intentionally targeting U.S. persons or any persons inside the United States, or intentionally acquiring a communication when it is known that all parties thereto are inside the United States}25 The Court also ?nds that 50 U.S.C. 18060) does not require the destruction of information from such communications. Section 1806(i) provides that, in the case of the unintentional acquisition . . . of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a- warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person. 25 The government may not: (1) ?intentionally target? any person ?known at the time of acguisition to be located in the United States;? ?intentionally target a United States person,? even if such person is ?reasonably believed to be located outside the United Statesf? or (3) ?intentionally acguire 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.? 50 U.S.C. 1881a(b)(1), (3), and (4) (emphasis added). ?Any information acquired by intentionally targeting a United States person or a person not reasonably believed to be outside the United States at the time of such targeting will be purged from NSA databases.? NSA Targeting Procedures at 9. WW Page 26 All redacted information exempt under and except where othemise noted Approved for public release Wm 50 U.S.C. 1806(i) (emphasis added).26 The goverrunent argues that, by its terms, Section 18060) applies only to a communication that is unintentionally again:de7 not to a communication that is intentionally acquired under a mistaken belief about the location or non?US. person status of the target or the location of the parties to the communication. ?e_e Government?s ?ling of August 28, 2008. The Court ?nds this analysis of Section 18066) persuasive, and on this basis concludes that Section 1806(i) does not require the destruction of the types of communications that are addressed by the special retention provisions?"a Having concluded that such communications are within the scope of authorized acquisition, and that Section 18060) does not apply to such communications, the only remaining question is whether the special retention provisions comport with the statutory definition of minimization procedures. The Court concludes that they do. Once an agency head has made a case-Speci?c, written determination that certain information falls within one of the categories speci?ed in the 26 Prior to the FAA, this subsection had only applied to radio communications. See FAA 106, 122 Stat. 2462 (replacing ?radio communication? with ?communication? in this subsection). 2'7 A communication would be unintentionally acquired, for purposes of Section 1806(i), if, for example, the acquisition resulted from a technical malfunction or an inadvertent mis- identi?cation of a selector. 2? In approving other minimization and targeting provisions that refer to ?inadvertently? acquired communications, the Court relies on the government?s representations that those provisions will be implemented in accordance with the explanations provided in the government?s Notice of Clari?cation and Correction, ?led September 2, 2008. So understood, those provisions of the minimization procedures do not implicate Section 1806(i). Page 27 All redacted information exempt under and except where otherwise noted Approved for public release WW special retention provisions, continued retention and appropriate dissemination of such information do not con?ict with the requirements of Sections 1801 and (ii) Technical and Linguistic Assistance from Foreign Governments The NSA and CIA minimization procedures provide for the sharing of raw data with foreign governments for ?technical and linguistic assistance.? NSA Minimization Procedures at 8-10 CIA Minimization Procedures at-4-5 (permitting such sharing with foreign governments generally).30 Access to this raw information is restricted to foreign government personnel involved in rendering the necessary assistance to NSA or CIA, and the foreign government may not permanently retain or otherwise make use of information so received. NSA Minimization Procedures at 9?10; CIA Minimization Procedures at 4-5. Given these tight restrictions, the PISC 29 Speci?cally, evidence of a crime may be retained and disseminated for law enforcement purposes under Sections 1801(h)(3) and ?[S]ignif1cant foreign intelligence information? may be retained and, as appropriate, disseminated under Sections and ?[I]nformation retained for traf?c analytic, or signal exploitation purposes? which NSA refers to as ?technical data base? information, NSA Minimization Procedures at 2 may not, once fully processed, be identi?ed as foreign intelligence information, but the Court is satis?ed that retention of information for such purposes, and subject to other minimization requirements, is permissible as ?consistent with the need of the United States to - obtain, produce, and disseminate foreign intelligence information.? 50 U.S.C. 1801(h)(1) and Finally, in the context of acquisitions under this Certi?cation, ?information pertaining to a threat of serious harm to life or property? and ?information necessary to understand or assess a communications security vulnerability? can reasonably be regarded as information to be retained under the abovewquoted provisions of Sections 1801(h)(1) and 30 Previously, the FISC has authorized disseminations of raw PISA information to forei overnments on a more limited basis. See, e. ., Docket No. All redacted information exempt under and exCept where otherwise noted Approved for public release finds that such information-sharing comports with the requirements of Sections 1801(h) and 1 821 (4). b. NSA Minimization Procedures The NSA Minimization Procedures in this matter are substantially similar to other sets of minimization procedures employed by NSA in the conduct of electronic surveillance in other contexts. The procedures propOsed herein borrow from four sets of procedures: (1) the NSA Standard Minimization Procedures adopted by the Attorney General for use in nearly all NSA requests for electronic surveillance sought pursuant to Section 1804 and authorized by judges of this Court in accordance with Section 1805 (2) the procedures adopted by this Court in Lam Electronic Surveillanbe and Physical Search of International Terrorist Groups. Their Agents, and Related Targets, Order, No.- (May 2002), as extended and modi?ed by orders of this Court, most recently on December 6, 2007 (?Raw Take Motion?); (3) the procedures proposed by the government and approved by several judges of this Court in several dockets captioned, In re Various Known and aim most recently in Docket-?Domestic Selector ProCedures?); and (4) the procedures adopted by the government for use in acquisitions authorized pursuant to the PAA 3? Unlike the other sets of minimization procedures, the PAA Procedures have never been presented to a judge of the FISC for a determination as to whether they meet the de?nition of minimization procedures in Section 1801(11). However, a judge of this Court considered the minimization procedures as a factor that supported ?nding that certain directives issued in accordance with Certi?cations satis?ed the reasonableness requirement of the Fourth (continued. .) Page 29 All redacted information exempt under and except where othenNise noted Approved for public release Prior to now, any deviation from the SMP was made by asking the Court to adopt the SMP with speci?ed modi?cations. Thus, to assess such minimization procedures, a judge needed to review the SMP as well as the proposed modi?cation. The NSA Minimization Procedures in this matter, however, are drafted as a stand alone set of procedures, complete unto themselves. Notwithstanding the changed verbiage, the NSA Minimization Procedures at issue here are substantially the same as the Domestic Selector Procedures and the PAA Procedures.32 The most signi?cant difference involves the special retention provisions discussed at pages 24-28 Ema. Other differences appear to be of less moment. The NSA Minimization Procedures at issue here adopt the previously approved ?ve?year period of retention for ?inadvertently acquired information,? information acquired ?notwithstanding reasonable steps taken to minimize the acquisition of information not relevant to the authorized purpose of the acquisition.? Government?s submission of September 2, 2008, at 4 (internal quotations omitted)??3 The NSA Minimization Procedures at issue here, however, extend the period of time for which NSA may retain technical Amendment. In re Directives, Docket No. 1058(g): 07~Ol, Memorandum Opinion entered April 25, 2008, at 88-89, 94. . - 32 For example, it is the Court?s understanding that Section of the NSA Minimization Procedures at issue here is meant to convey the same meaning as Section of the SMP, as modi?ed in the Domestic Selector Procedures and the FAA Procedures to permit retention for ?ve years. 33 NSA Minimization Procedures at 3 (?inadvertently acquired communications of or concerning a United States person may be retained no longer than five years . . . see also note 28 so ra. WW - Page 30 All redacted information exempt under and excapt where otherwise noted Approved for public release data base information from one year to ?ve years.34 For the reasons presented by the government, both in its written submissions and in the hearing, and consistent with the ?ndings of other judges of the FISC, the Court-?nds an outside retention period of five years, even for the technical data, to be reaSonable. - c. FBI Minimization Precedures The FBI Minimization Procedures are the standard FBI minimization procedures for a non- U.S. person agent of a foreign power, subject to certain modi?cations. They shall be implemented in accordance with a recent FBI policy directive, FBI Minimization Procedures at 2, and in the same manner in which that policy directive applies in cases where the FBI Govt. Responses at 10. In many orders authorizing? the FISC has found that those standard FBI minimization procedures, implemented in conformance with that policy directive, comply with the applicable statutory de?nition. Nothing in the case-speci?c modi?cations to those procedures presents any additional concern. 3'4 The NSA Minimization Procedures also include an additional category of technical information that may be retained for this period - information necessary to understand or assess a communications security vulnerability. NSA Minimization Procedures at 5-6. Page 31 All redacted information exempt under and except where otherwise noted Approved for public release d. CIA Minimization Procedures The CIA Minimization Procedures are also similar in many respects to procedures previously approved by the They include a new category of US. person information expressly authorized for retention and dissemination: information that ?concerns a US. Government of?cial acting in an official capacity.? CIA Minimization Procedures at 2. The Court ?nds that this category is reasonable and complies with the statutory de?nition, on the understanding that CIA will disseminate this category of information, and other information disseminated pursuant to Paragraph 2 of the CIA Minimization Procedures, in a manner consistent with Section 1801(h)(2) that nonpublicly available information that is foreign intelligence information as defined at Section 1801(e)(2) ?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.? C. The Targeting Procedures and the Minimization Procedures Are Consistent With the Fourth Amendment. The Court is also charged with assessing whether the targeting procedures and minimization procedures ?are consistent . . . with the fourth amendment to the Constitution of the United States.? 50 U.S.C. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 35 Various Unknown Agents of Docket No. CIA Minimization Procedures (Exhibit to Application) (including substantively identical provisions for retention of certain categories of information (1i handling of privileged communications (11 4a); and dissemination of intelligence reporting to foreign governments 4c). LEW Page 32 All redacted information exempt under and except where otherwise noted Approved for public release Warrants shall issue, but upon probable cause, supported by Oath or af?rmation, and particularly describing the place to be searched, and the persons or things to be seized. US. Const. amend. IV. There is no question that the government?s acquisition of private telephone calls can constitute a ?search? or ?seizure? Within the meaning of the Fourth Amendment. egg Kata v. United States, 389 13.8. 347, 353 (1967). Although the scope of Fourth Amendment protection for email communications is not settled,36 the Court will assume that, at least under some circumstances, the acquisition of electronic communications other than telephone calls can also result in such a ?search? or ?seizure.? The Court concludes that the Fourth Amendment does not require the government to obtain a warrant for acquisitions under the procedures at issue, and that the procedures are reasonable and consistent with the Fourth Amendment. I. The Government Is Not Required to Obtain a Warrant for Acquisitions Pursuant to the Procedures in Question. The applicable targeting procedures are reasonably designed to con?ne acquisitions to targeting persons reasonany believed to be outside the United States. go pages 15?21 supra. They also are reasonany designed to avoid targeting U.S. persons. pages 16-17, 20-21 supra. 35 David S. Kris J. Douglas Wilson, National Security Investigations Prosecutions 7:28 (2007). 49W Page 33 All redacted information exempt under (axe), and except where otherwise noted Approved for public release Because there is no reason to think that these procedures will be implemented in bad faith,37 the acquisitions can generally be expected to target non-US. persons located outside the United States. Under these circumstances, it can be questioned whether the Warrant Clause of the Fourth Amendment has any application at all, insofar as the targets of acquisitions under the procedures are non-US. persons located overseas.38 However, to the extent that the Warrant Clause might otherwise apply, the Court concludes that acquisitions under these procedures fall within an exception to the warrant requirement recognized by the Foreign Intelligence Surveillance Court of Review in In re Directives, Docket No. 08-01, Opinion at 28 (FISA Ct. Rev. Aug. 22, 2008) (hereinafter ?In re Directives?). That case, like this one, involved the warrantless acquisition of communications targeting persons reasonably believed to be outside the United States. lane, Directives at 3. Unlike this case, In re Directives involved acquisitions that targeted U.S. Dersons reasonably believed to be outside the United States. See id; at 25-26 (discussing requirements for targeting U.S. persons). In that case, the Court of Review found that an exception to the warrant requirement applied to ?surveillance'undertaken for national security purposes and directed at a 37 Qt; In re Directives, Docket No. 08-01, Opinion at 28 (PISA Ct. Rev. Aug. 22, 2008) (?Once we have determined that protections suf?cient to meet the Fourth Amendment?s reaSOnableness requirement are in place, there is no justi?cation for assuming, in the absence of evidence to that effect, that those prophylactic procedures have been implemented in bad faith?). 33 United States v. Verdugo-Urqidez, 494 US. 259, (I990) (observing that a warrant ?would be a dead letter outside the United States? and holding that ?the Fourth Amendment ha[d] no application? where reSpondent ?was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico?); id, at 278 (?the Fourth Amendment?s warrant requirement should not apply in Mexico as it does in this couatry?) (Kennedy, ., concurring); id, at 279 do not believe the Warrant Clause has any application to searches of noncitizens? homes in foreign jurisdictions because American magistrates have no power to authorize such searches?) (Stevens, ., concurring in the judgment). Page 34 All redacted information exempt under and except-where otherwise noted Approved for public release foreign power or an agent of a foreign power reasonably believed to be located outside the United States.? In; at 15?16.39 The acquisitions at issue here fall within the exception recognized by the Court of Review. They target persons reasonably believed to be located outside the United States, see pages 15?21 sum, who will have been assessed by NSA to possess andfor to be likely to communicate foreign intelligence information concerning a foreign power authorized for acquisition under the Certi?cation. Cert. at 2~3; NSA Targeting Procedures at 4; Govt. Response-s at Alexander Af?davit at 3.40 And the acquisitions are conducted for national security purposes, with a ?signi?cant purpose . . . to obtain foreign intelligence information.? Cert. at 2. Moreover, the Court of Review?s reasons for recognizing and applying a foreign intelligence exception in In re Directives apply with equal force here. First, the government?s purpose in conducting the acquisitions in'this case ?goes well beyond any garden-variety law enforcement 39 In so doing, the Court of Review analogized to cases in which the Supreme Court ?excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment Of that purpose." 1; at 15 (citing, among other cases, Vernonia Sch. Dist. 47.] V. Acton, 515 U.S. 646, 653 (1995)). 40 Page 3 5 All redacted information exempt under and except where otherwise noted Approved for public release objective. It involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security,? a circumstance ?in which the government?s interest is particularly intense.? In re Directives at 16. Second, the Court of Review relied on the high degree of probability that requiring a warrant would hinder the government?s ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake. . . . Compulsory compliance with the warrant requirement would introduce an element of delay, thus frustrating the government?s ability to collect information in a timel manner. In some cases, that delay might well allow the window in whichh or information is available to slam shut before a warrant can be secured. at 18. This case similarly involves targets who are attempting to conceal their communications, thereby presenting the same concerns that weigh against requiring the government to obtain a warrant.? Moreover, the government tasked over-overseas selectors for acquisition under the FAA, Trans. at 43, and it is reasonably anticipated that the government will seek to task -selectors under Section 1881a certi?cations. Subjecting .umber of targets to a warrant process inevitably would result in delays and, at least occasionally, in failures to obtain perishable foreign intelligence information, to the detriment of the national security. For these reasons, the Court concludes that the government is not obligated to obtain a warrant before conducting acquisitions under the procedures in question. Page 36 All redacted information exempt under and except where otherwise noted Approved for public release WW 2. Acquisitions Conducted Under the Procedures in OueStion Are Reasonable Under the Fourth Amendment. The Court of Review opinion in In re Directives also provides the analytical framework for analyzing reasonabieness under the Fourth Amendment. A reviewing 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). The court must balance the interests at stake. If the protections that are in place for individual privacy interests are suf?cient in light of the governmental interests at stake, the constitutional scales will tilt in favor of upholding the govermnent?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. 1d, at 20 (citations In conducting this balancing test, the court must consider the totality of the circumstances, In re Directives at 19; Samson v. California, 547 US. 843, 848 (2006), rather than rigidly apply a set of pie-determined factors. In re Directives at 20?2 1; Ohio v. Robinette, 519 US. 33, 39 (1996). The government?s national security interest in conducting these acquisitions ?is of the highest order of magnitude.? at 20.43 On the other side of the balance, the targeting procedures reasonably con?ne acquisitions to targets who are non-US. persons outside the United States. Such persons are not protected by the Fourth Amendment. United States v. Verdugo-Uroidez, 494 U.S. 42 Accord In re Sealed Case. 310 F.3d at 742 (describing ?a balance of the legitimate need ?of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens?). 43 Accord Haig v. Agee, 453 US. 280, 307 (1981) (there is no governmental interest more compelling than the security of the nation). Page 37 All redacted information exempt under and except where otherwise noted Approved for public release 259, 274-75 (1990). As a result, the acquisitions will intrude on interests protected by the Fourth Amendment only to the extent that (1) despite the operation of the targeting procedures, U.S. persons, or persons actually in the United States, are mistakenly targeted; or (2) US. persons, or persons located in the United States, are parties to communications to or from tasked selectors (or, in certain circumstances, communications that contain a reference to a tasked These circumstances present a real and non?trivial likelihood of intrusion on Fourth Amendment-protected interests, but they do not, by?themselves, render the procedures unreasonable under the Fourth Amendment.? Indeed, the extent of such intrusion will be less in this context than in cases involving the intentional targeting of persons protected by the Fourth Amendment or otherwise lacking comparable targeting procedures. Weighing the government?s national security interest in conducting the acquisitions against the degree of intrusion on Fourth Amendment-protected interests, the Court ?nds that the procedures are reasonable under the Fourth Amendment. In addition to the targeting procedures, which limit the extent of Fourth Amendment intrusion as described above, the Court relies on the following protections in reaching this assessment. Foreign Intelligence Assessments: Prior to conducting acquisitions for a new target, NSA assesses whether the person to be targeted ?possesses and/or is likely to communicate foreign 4? It is reasonable to presume that most persons in communication with a non-US. person target located overseas are themselves likely to be non-US. persons located overseas. gee page 17 SUE a. 45 In re Directives, at 28 (?the fact that there is some potential for error is not a suf?cient reason to invalidate the surveillances?), 30 (?incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful?). Page 38 Ail redacted information exempt under and except where otherwise noted Approved for public release intelligence information? concerning a foreign power authorized under the Certi?cation. NSA Targeting Procedures at 4; Cert. at 3; Alexander Af?davit at 3. In making these assessments, NSA considers several factorsa?' In In re Directives, the Court of Review examined similar factors46 and found that they were ?in conformity with the particularity shouting contemplated by [the Fourth Amendment reasonableness analysis in] Sealed Case.? In re Directives at 24. The corresponding provisions of the NSA Targeting Procedures at issue here likewise direct the government?s acquisitions toward communications that are likely to yield the foreign intelligence information soughtf?7 and thereby ?6 A comparison of the factors identi?ed in the NSA Targeting Procedures with those at issue in In re Directives, see FISC Docket No. 1053(g): 07-01, Classi?ed Appendix submitted February 20, 2008, at page reVeals that the two sets of factors are substantively identical, except for the references to the pertinent forei r1 owers and the inclusion an additional factor in the NSA Tar etin Procedures re ardin NSA Targeting roce ures at It is fairly obvious why communications to and from targets identi?ed under these procedures would be expected to contain foreign intelligence information. The Court has received Page 39 All redacted information exempt under and except where otherwise noted Approved for public release afford a degree of particularity that is reasonable under the Fourth Amendment. Qt; In re Directives at 21 (rejecting suggestion that, to satisfy the Fourth Amendment, the government?s procedures ?must contain protections. equivalent to the three principal warrant requirements: prior judicial review, probable cause, and particularity?). Minimization Procedures: As previously stated, ?g pages 21?32 mg, the minimization procedures used by the NSA, FBI, and CIA are ?reasonath designed . . . to minimize the acquisition and retention, and prohibit the dissemination,? of US. person information, ?consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.? 50 U.S.C. 1801(h)( 1). These procedures constitute a safeguard against improper use of information about U.S. persons that is inadvertently or incidentally acquired, and therefore contribute to the Court?s overall assessment that the targeting and minimization procedures are consistent with the Fourth Amendment. ?ee In re Directives at 29?30. The Court recognizes that there are differences between the procedures at issue here and those at issue in In re Directives. Most prominently, in In re Directives, the government followed procedures adopted under section 2.5 of Executive Order No. 12,333, requiring the Attorney General to ?nd probable cause to believe that a US. person to be targeted for acquisition was an agent or an employee of a foreign power, and limiting the duration of an authorization for a US. person target to 90 days. In re Directives at 25-26. In this case, the government?s procedures testimony that acquiring communications enables the government to discover additional accounts used by targets, and to identify previously unknown persons who are associated with targets and may be involved in or possess information regarding targets? activities. Trans. at 20?2 1 . Page 40 All redacted information exempt under and except where otherwise noted Approved for public release 46W provide for no comparable probable cause determination, presumably because U.S. persons cannot be intentionally targeted at all. A probable cause determination by a high-level of?cial is not an indispensable component of reasonableness in the circumstances of targeting non-US. persons overseas for foreign intelligence purposes. United States v. Bin Laden, 126 F. Supp.2d 264, 281 (S.D.N.Y. 2000) (under Supreme Court decision in Verdugo, government not required to obtain a warrant or section 2.5 approval in order to conduct surveillance of non-US. persons? phone comn'nunications in Kenya). Where, as here, the government has ??special needs, beyond the normal need for law even suspicionless searches can be reasonable under the Fourth Amendment. In re Sealed Case, 310 F.3d at 745 (quoting Vernonia School Dist. 47] v. Acton, 515 US. 646, 653 (1995)). In this case, the assessment under its targeting procedures of the likelihood of obtaining foreign intelligence information provides a reasonable factual predicate for conducting the acquisitions, in View of the gravity of the governmentis national security interests and the other safeguards embodied in the targeting and minimization procedures. CONCLUSION Based on the foregoing statement of reasons and in reliance on the entire record in this matter, the Court ?nds, in the language of Section 1881a(i)(3)(A), that the certi?cation ?submitted in accordance with [Section 1881a(g)] contains all the required elements and that the targeting and minimization procedures adopted in accordance with [Section are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United Page 41 All redacted information exempt under and except where otherwise noted Approved for public release States.? A separate order approving the certi?cation and the use of the procedures pursuant to Section 1881a(i)(3)(A) is being entered contemporaneouSIy herewith. +35 ENTERED i day of September, 2008, in Docket No. MARY 21. (I Judge, United States Foreign httelligenoe Smeillance Court Page 42 Deputy Cierk FISC, cent} .a is document is a true and eorrec the originalW All redacted information exempt under and except where otherwise noted Approved for public release 53" UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTONELECTRONIC SURVEILLANCE, PHYSICAL SEARCH, AND OTHER ACQUISITIONS Docket Numbers: TARGETING INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, AND RELATED TARGETS. SUBMISSION OF AMENDMENTS TO STANDARD MINIMIZATION PROCEDURES FOR FBI ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH CONDUCTED UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT AND SUBMISSION OF REVISED MINIMIZATION PROCEDURES FOR THE NATIONAL COUNTERTERRORISM CENTER AND MOTION FOR AMENDED ORDERS PERMITTING USE OF AMENDED MINIMIZATION PROCEDURES By this motion, the United States of America, through the undersigned Department of Justice (DODattorney, seeks to amend previous Orders and Warrants Classified by: Tashina Gauhar, Deputy Assistant Attorney General, NSD, Reason: 1.4m) Declassify on: 15 April 2037 All redacted information exempt under and except where otherwise noted Approved for public release (?Orders?) of this Court, as described below, to incorporate amendments, adopted by the Attorney General, to the Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act (FBI SMPs), on file with this Court.1 The amendments would permit the FBI to provide to the National Counterterrorism Center (NCTC) unminimized, or ?raw,? data acquired through electronic surveillance, physical search, or other acquisitions2 authorized by this Court pursuant to the Foreign Intelligence Surveillance 1 This motion seeks to amend the FBI SMPs and to replace current minimization procedures. The scope of information FBI will share with NCTC will be the same that this Court has authorized FBI to share with the National Security Agency (NBA) and Central Intelligence Agency (CIA) in docket number_ Herein, the Government?s May 10, 2002 motion in docket number is referred to as the ?Raw Take Motion.? This Court?s July 22, 2002 Order, as made permanent by Court?s May 19, 2004 Order and as modified, is referred to as the "Raw Take Order.? The Government?s Motion to make the Raw Take Order permanent, filed May 14, 2002, is referred to as the ?2004 Raw Take Motion,? and the Court?s May 19, 2004 Order granting that motion is referred to as the "2004 Raw Take Order.? The NCTC?related amendment to the FBI SMPs replaces the current Section IV.G, which permits FBI to allow NCTC to access the Automated Case Support (ACS) data system. Section IVE. of the FBI SNIPS ermits FBI to provide raw FISA-acquired data to SA and CIA as provided in docket number i. The Attorney General amendments and this motion do not seek to modify Section IVE or docket numbe- except as specifically set forth herein. The Government does not seek to incorporate the amendment discussed herein, or the NCTC minimization procedures, into the Raw Take Order. Rather, the Government seeks to replace the existing FBI SMPs provision governing sharing FISA?acquired information with NCTC, and to replace existing minimization procedures governing PISA?acquired information received from FBI. While the analysis set forth herein relies largely on this Court? 5 opinions and orders in docket number matters governing sharing information with NCTC have previously been docketed under docket number_ captioned above. 2 As indicated above, and "PISA-acquired? herein do not refer to Section 702 of PISA (50 U.S.C. 1881a). The FBI SMPs, by their terms, apply to Titles I and of FISA (50 U.S.C. 1801?1812 1821?1829). Currently, when FBI receives authorization to acquire information pursuant to Sections 704 or 705(b) of FISA (50 U.S.C. 1881c, 1881dfb)), this Court orders FBI to apply the FBI SMPs to such information. Accordingly, to the extent that such authorities are governed by the FBI SNIPS, the 2 All redacted information exempt under and except where othemise noted Approved for public release Act, 50 U.S.C. 1801-1812, 1821?1829, 1881c, 1881d(b) (FISA or the Act) (PISA-acquired information), in cases targeting: (1) foreign powers as defined at 50 U.S.C. 1801(a)(4); (2) agents of such foreign powers; and (3) other targets when the electronic surveillance, Physical search, or other acquisitions targeting such targets is reasonably expected to yield foreign intelligence information related to international terrorism (hereinafter collectively, ?terrorism?related cases"). The proposed amendments also make changes to the FBI SMP provisions regarding -the retention provisions regarding attorney?client communications, non-pertinent and sensitive categories of communications, and extension of retention time limits. A clean copy of the FBI SMPs as revised is attached as Exhibit A. A copy with the changes described herein highlighted is attached as Exhibit B. ij? will be required to apply to raw PISA?acquired data provided by FBI the Revised NCTC Standard Minimization Procedures (NCTC SMPs), which are submitted amendments to the FBI SMPs discussed herein will be incorporated into the minimization procedures governing information FBI acquires or has acquired pursuant to Sections 704 and 705(b). Therefore, the proposed revised NCTC SMPs would apply to raw information FBI provides to NCTC that FBI has acquired pursuant to Title I, Title Section 704, or Section 705(b) of As with the rest of the FBI SMPs, references to t"electronic surveillance? and "physical search? in the amendments to the FBI SMPs include any other acquisitions conducted by FBI pursuant to Sections 704 and 70503) that are governed by the FBI This motion does not seek authorization for any agency other than FBI to share information with NCTC. f3)? 3 WW Atl redacted information exempt under and except where otherwise noted West? Approved for public release with this motion as Exhibit C3 The Attorney General has approved the FBI SMP amendments and the NCTC SMPs, which satisfy definition of minimization procedures set forth at 50 U.S.C. 1801(11) and 1821(4). {53? The amendment to the FBI SMPs permitting FBI to provide to NCTC data in terrorism?related cases would apply retroactively to January 1, 2001.4 The other amendments to the FBI SMPs, discussed below, would apply retroactively in the same marmer as the FBI SMPs generally. See Opinion and Order, In re Electronic Surveillance and Physical Search of Foreign Powers and Agents of Foreign Powers and In re Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Under the Foreign Intelligence Surveillance Act, Docket Nos. Multiple and?(Oct. 31, 2008). 3 The minimization procedures currently governing NCTC access to FBI systems, which were filed on October 2, 2008, will be superseded by the Revised NCTC SNIPS submitted with this motion. The Revised NCTC SMPS are referred to as the NCT SMPs herein. The October 2, 2008 procedures are referred to as the ACS Procedures herein. 4 The amendment permitting raw sharing with CTC would be incorporated into the FBI SMPs that became effective on November 1, 2008, and would apply to all Orders and Warrants that incorporate those Procedures. In addition, that amendment would permit FBI to share with NCTC raw FISA- acquired information collected on or after January 1, 2001, the same date to which the Raw Take Order applies retroactively. As discussed below, counterterrorisrn mission would benefit from this retroactive application because of the foreign intelligence information it will receive. In addition, retroactive application will maintain consistency among and access to such information. Of course, while the amendment would be incorporated into all Orders and Warrants, it would only permit sharing in the categories of cases listed in the amendment. The FBI SMPs themselves apply retroactively, except for Section IVE (incorporating the Raw Take Order, which contains unique limitations on applicability). See Opinion and Order, In re Electronic Surveillance and Physical Search of Foreign Powers and Agents ofl-"oreign Powers and In re Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Under the Foreign Intelligence Surveillance Act, Docket Nos. Multiple and (Oct. 31, 2008) 5MP Order"), at 7, 10?11, 13. The Government accordingly requests that the modifications to the FBI SNIPS other than the NCTC sharing provision, and other than the addi?on of Section IV.E.1, be applied retroactively as well. 4 All redacted information exempt under (pm and except where otherwise noted Approved for public release The Government is not seeking retroactive application of the newly inserted sub section 1 to FBI SW8 Section IVE, which Raw Take Motion. The modification merely recites notice obligations to NBA and CIA set forth at 12 to 13 of the Raw Take Motion, discussed below, and expands the scope of the required notice from cases involving communicants who are indicted for a crime to those involving communicants who are charged with a crime. The amendments separately modify Sections IVA and IV.C of the FBI SMPS, governing dissemination of information. First, in both the domestic and foreign dissemination provisions, they explicitly permit FBI to disseminate information that is necessary to understand foreign intelligence information or to assess its importance. Second, they allow FBI to disseminate foreign intelligence information, or information necessary to understand or assess the importance of foreign intelligence information, to officials and agencies with a national security mission that requires access to foreign intelligence information. Third, they permit FBI to disseminate, for law enforcement purposes, evidence of a crime that is not foreign intelligence information to foreign law enforcement agencies. In addition, the proposal modifies Section IV.E to include an FBI notification requirement under the Raw Take Order. The amendment modifying Section proposes to remove the requirement that FBI notify the Court of non?pertinent All redacted information exempt under and except where otherwise noted Approved for public release WSW categories of communications in individual FISA applications. Section as amended would continue to require that FBI, in determining whether PISA?acquired information meets the FBI 5MP retention standard, pay particular care when applying the SMPs to certain sensitive communications that fall within the categories delineated in that section. The amendments to Sections and addres_ and time limits for retention of raw FISA~acquired information. FBI and NCTC have confirmed the facts set forth in this motion. (U) I. Introduction. (U) The Attorney General has adopted amendments to the FBI SMPs that permit FBI to provide to Government?s primary organization for counterterrorism analysis, coordination, and planning?raw data acquired by the FBI pursuant to FISA in terrorism-related cases. The amendment is necessary to allow NCTC timely access to and use of information vital to its mission and to the United States Government?s counterterrorism efforts. The Attorney General has also adopted revised NCTC SMPs . governing receipt, retention, and dissemination of PISA?acquired information. In'addition, the Attorney General has amended the FBI SMFs to clarify the general scope of authority to disseminate information, and to specifically permit AII redacted information exempt under and except where otherwise noted Approved for public release -FBI to disseminate to foreign officials and agencies information that is necessary to understand or assess the importance of foreign intelligence information, or is evidence of a crime. 11. Amending the FBI SMPs?tolPermit Sharing of Raw Data with NCTC will Contribute to National Security, and the NCTC SMPs Satisfy the Act?s Requirements. I As the Government?s leading organization for the integration and analysis of all terrorism? and counterterrorism?related information, NCTC has a compelling need for the information included in the raw systems. While NCTC can currently access terrorism?related PISA?acquired information in ACS data system, that access is limited to data that the FBI has reviewed, determined to meet the standard set forth in the FBI SMPs, and summarized in a document that has been uploaded to ACS. The amendment to the FBI described herein will permit FBI to provide to NCTC raw . information acquired pursuant to PISA in terrorism?related cases. The NCTC SW3 will subject retention and dissemination of FISA?acquired information to limitations similar to those governing FBI, NBA, and CIA. As set forth below, the FBI and NCTC procedures comport with PISA, including de?nition of ?minimization procedures? in 50 U.S.C. 1801(11) and 1821(4). All redacted information exempt under (120(3), and except where otherwise noted Approved for public release A. Amendment to the FBI SMPs. (II) Section IVE (Access by the National Counterterrorism Center to the Automated Case Support Database) is replaced in its entirety with the following: Disclosure to the National Counterterrorism Center (NCTC) of Information Acquired in Cases Related to Terrorism or Counterterrorism. - 1. In addition to other disclosures permitted in these procedures, the FBI may provide to NCTC: a. raw FISA~acquired information acquired on or after January 1, 2001 by FBI through electronic surveillance or physical search authorized under the Foreign Intelligence Surveillance Act targeting: foreign powers de?ned at 50 U.S.C. 1801(a)(4); (ii) agents of such foreign powers; and other targets Where the surveillance or search is reasonably expected to yield foreign intelligence information related to international terrorism; and b. information in FBI general indices, including the Automated Case Support (ACS) system and any successor system, previded that such access is limited to case classifications that are likely to contain information related to terrorism or counterterrorism. receipt of informatiOn described in and above is contingent upon application of NCTC minimization procedures approved by the Foreign Intelligence Surveillance Court with respect to such information. {53? 2. Nothing in this Section shall prohibit or otherwise limit authority under other provisions of these procedures to disseminate to NCTC information acquired pursuantto the Act and to Which governing minimization procedures have been Nothing in this Section shall preclude FBI from requiring NCTC to apply procedures in addition to Court-authorized minimization procedures, provided that such additional procedures do not relieve NCTC of the 8 All redacted information exempt under and except where otherwise noted 459? Approved for public release obligation to apply any part of the Court-approved NCTC minimization procedures. fS}~ 4. For every surveillance or search from which FBI discloses raw information to NCTC, FBI shall also provide to NCTC: a. the identity of the target(s); b. a statement of whether each target was identified as a U.S. person, a non?US. person, or a presumed US. person in the relevant Court pleadings or orders; c. a statement of What special or particularized minimization procedures, if any, wereprovided for in such pleadings or orders; and d. where applicable, a statement that the target, or any other person .Whose communications with an attorney are likely to be acquired through surveillance or search of the target, is known by FBI monitors or other personnel with access to such PISA?acquired search or surveillance to be charged with a crime in the United States. The notification requirements in subparagraph 4 of this paragraph track closely obligation, set forth at pages 12 to 13 of the Raw Take Motion, to provide information to CIA and NBA to facilitate their minimization of raw PISA?acquired information. As previously reported to this Court in notices dated November 5, 2010, and November 15, 2011, regarding docket number- FBI had not been in compliance with two of these requirements, in that FBI did not advise NSA or CIA of categories of non?pertinent communications and/or special or particularized minimization procedures for specific orders, or that a target of an order, or any other All redacted information exempt under and except where otherwise noted Approved for public release person whose communications with an attorney are likelv to be acquired pursuant to an order, was known by FBI to be under indictment.5 As described in those notices, FBI had routiner advised NBA and CIA of the other two categories of information - (1) the identity of the target(s) of the surveillance or search from which raw data is being provided and (2) a statement of whether each target was identified as a US. person, a non?US. person, or a presumed US. person in the relevant court pleadings or orders. 4.39? .The Office of Intelligence (OI) and FBI worked tOgether to'develop a process to aid compliance with these notification requirements. As described in the November 15, 2011, notice, beginning on October 24, 2011, FBI began providing NBA and CIA with the information described above, with the exception of categories of non- pertinent communications. FBI would provide these same categories of information to NCTC if the Court approves this motion. In addition, as described herein, the proposed amendments to the FBI SMPs would require the FBI to provide special or particularized minimization procedures to CIA, NBA, and NCTC, but not categories of non?pertinent communications.6 5 See Letter from Kevin J. O?Connor, Chief, Oversight Section, Office of Intelligence, National Security Division, US. Department of Justice, to the Honorable Iohn D. Bates, United States Foreign Intelligence Surveillance Court, dated Nov. 15, 2011. (U) 5 Special or particularized minimization procedures may relate to acquisition, retention, and/or dissemination of FISA-acquired information. Because FBI is the agency conducting the acquisition in 10 All redacted information exempt under and except where othenrvise noted Approved for public release WW As described in the November 15, 2011 notice, FBI and OI worked with the Office of the Director of National Intelligence (ODNI) to provide NSA and CIA with electronic access to the above-described categories of information. For as long as the Raw Take Motion has been implemented, the electronic feed from FBI to NBA and CIA of raw information acquired pursuant to FISA has included, and continues to include, the target?s identity and United States person status. In addition, ODNI established a secure ?Sharepoint? site that will store information regarding particularized minimization procedures and criminal charges for individual targets Personnel at NBA and CIA currently have access to this site, and be granted access to the site if the Court approves this motion.7 As noted in the November 15, 2011, notice, FBI has populated the Sharepoint site vvith information regarding applications approved by the Court beginning on October 24, 2011, and to which the Raw Take Order applies. FBI has also populated the site with information provided by DOI regarding previous indictments relevant to the cases covered-by the Raw "fake Order. This historical - information only references federal indictments as provided by to FBI. As noted these matters, FBI generally will notbe advising NSA, CIA, or NCTC of special or particularized minimization procedures relating to acquisition-r69)? 7 As noted in the November 15, 2011, notice, based on the design and testing of the Sharepoint site, the Government fully expects it to provide an effective means of compliance with reporting obligations described above. The Government may modify or replace that means of compliance as necessary to ensure efficiency and efficacy. In addition, the electronic feed to NCTC will include the identity and US. person status information referenced above. 11 All redacted information exempt under and except where otherwise noted Approved for public release above, under the proposed amendment to the FBI SMPs, FBI will be required to provide notice to NBA, CIA, and NCTC if the target, or any other person Whose communications with an attorney are likely to be acquired through surveillance or search of the target, is known by FBI monitors or other personnel with access to such FISA?acquired search or surveillance to be charged with a crime in the United States. ?53- Section IVE of the FBI SMPs, which memorializes the Raw Take Order, will be amended to incorporate provisions tracking sections 2 (which will appear at Section IV .132) and 4 (which will appear at Section IV.E.1) of Section IV.G. As noted above, the Government does not seek retroactive application of the new Section IV.E.1. B. NCTC SMPs. ~459- The N-CTC SMPs generally consist of provisions adapted from the FBI SMPs and procedures governing and minimization of information received pursuant to the Raw Take Order (CIA and NBA Raw Take Procedures, or or Section 702 of FISA. They contemplate that NCTC will ingest into NCTC systems raw information acquired by FBI pursuant to the Act in terrorism-related cases and apply minimization procedures, as CIA and NBA currently do under the Raw Take Order.9 3 The Raw Take Order modi?ed standard minimization procedures for communications NSA acquires pursuant to Title I of FISA (NSA SMPS) to apply to raw information NSA receives from FBI pursuant to the Raw Take Order. See Raw Take Motion at 15?23. Those modified procedures constitute NSA's RTPs. {sess? 9 Pursuant to this Court?s previous authorization in docket number NCTC personnel currently may access terrorism?related case classifications in ACS. All PISA-acquired information in ACS 2 WW All redacted information exempt under and except where otherwise noted Approved for public release C. Permitting FBI to Provide Raw Data Acquired in Terrorism-Related Cases to NCTC will Enhance National Security. 1. NC TC ?3 Critical Role in Counterterrorism Efforts NCTC is the nation?s primary organization for analyzing and integrating all terrorism? and counterterrorism?related intelligence possessed or, acquired by the United States Government. 50 U.S.C. 4040(d)(1). The Director of NCTC has broad authority and responsibility to "provide strategic operational plans for the civilian and military counterterrorism efforts of the United States Government and for the effective integration of counterterrorism intelligence and operations across agency boundaries, both inside and outside the United States." Id. 4040(f)(1)(B). The NCTC Director also is assigned "primary responsibility within the United States Government for conducting net assessments of terrorist threats.? Id. 40do(f)(1)(G). Accordingly, NCTC produces a wide range of analytic and threat information for the President, cabinet officers, senior policy-makers, military commanders, and other components of the government. Staffed by employees of multiple agencies, NCTC is able to draw on diverse backgrounds, disciplines, and experience. This unique environment enables NCTC to bring a broad, interdisciplinary perspective and innovative analysis to bear on information related to terrorism and counterterrorisrn. (U) NCTC and FBI will agree to permit NCTC to ingest Wholesale the same case classifications into NCTC systems Without prior FBI review. 13 WW All redacted information exempt under and except where otherwise noted Approved for public release The Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108?458 (Dec. 17, 2004) (IRTPA) amended the National Security Act of 1947, 50 U.S.C. .401 et seq. (1947 Act) to mandate the creation of NCTC within the Office of the Director of National Intelligence (ODNI). 50 U.S.C. 4040(a). The missions of NCTC, as set forth by Congress, include: (1) To serve as the primary organization in the United States Government for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism; (2) To conduct strategic operational planning for counter-terrorism activities, integrating all instruments of national power, including diplomatic, financial, military, intelligence, homeland security, and law enforcement activities within and among agencies; (3) To assign roles and responsibilities as part of its strategic operational planning duties to lead Departments or agencies, as appropriate, for counterterrorism activities that are consistent with applicable law and that support counterterrorisrn strategic Operational plans, but shall not direct the execution of any resulting operations; (4) To ensure that agencies, as appropriate, have access to and receive all? source intelligence support needed to execute their counterterrorism plans or perform independent, alternative analysis; - (5) To ensure that such agencies have access to and receive intelligence needed to accomplish their assigned activities; [and] (6) To serve as the central and shared knowledge bank on known and suspected terrorists and international terror groups, as-well as their goals, strategies, capabilities, and networks of contacts and support. 14 All redacted information exempt under and except where otherwise noted Approved for public release Id. ?404o(d) (emphasis added). In addition, the 1947 Act as amended requires that the Director of National Intelligence (DNI), of whose office NCTC is a component, ?shall have access to all national intelligence and intelligence related to the national security which is collected by any Federal department, agency, or other entity, except as otherwise provided by law or, as appropriate, under guidelines agreed upon by the Attorney General and the Director of National Intelligence."10 Id. 403?103). (U) In addition, in the wake of the attempted terrorist attack on board Northwest Flight 253 on December 25, 2009, the President directed NCTC to "[e]stablish and resource appropriately a process to prioritize and to pursue thoroughly and exhaustively terrorism threat threads, to include the identification of appropriate follow-up action by the intelligence, law enforcement, and homeland security communities.? Memorandum on the Attempted Terrorist Attack on December 25, 2009: Intelligence, Screening, and Watchlisting System Corrective Actions, Daily Comp. Pres. Doc. DCPD201000009 (Ian. 7, 2010). Through this direction, as well as through others given in the memorandum, the President intended to ensure that the reforms enacted A 1? In 2008, the Attorney General and DN I executed a Memorandum of Agreement (MOA) regarding access, retention, use, and dissemination of "terrorism information contained within datasets identified as including non?terrorism information and information pertaining exclusively to domestic terrorism? pursuant to 50 U.S.C. Section 4040(e). The NCTC SMPs, not the NCTC MOA, will govern retention, use, and dissemination of raw MBA-acquired information received from FBI. 15 WW All redacted information exempt under and except where othenNise noted Approved for public release WW following the attacks of September 11, 2001, are ?appropriately robust to address the evolving terrorist threat facing our Nation in the coming years.? Id. (U) As the ODNI component designated as the center for terrorism and counterterrorism analysis and integration, mission requires it to pull together information from across government agencies. NCTC thus possesses substantial counterterrorism analytical resources and a mandate to receive and analyze counterterrorism from all legally permissible sources. Greater access to information- enhances all?source ability to produce counterterrorism foreign intelligence information With current access to AC8, NCTC can only access FISA~acquiredinformation after FBI personnel have not only reviewed it and determined that it meets the standard. set forth in FBI SMPs 111C. 1,1but also summarized the information in a document and then uploaded that document to AC8.11 45% That-access has been extremely valuable. The proposed ingestion of raw - acquired information from terrorism-related cases, however, will enhance abilities by permitting NCTC personnel to: review such data in its original form, or a form closer to the original,- draw their own analytical judgments rather than 11 Notably, it is not uncommon for the document uploaded to AC8 to summarize, or even merely reference, particular FISA-acquired communications, while the communications themselves are not uploaded. 459?- 6 redacted information exempt under (him. and except where othemise noted Approved for public release relying on those of FBI-reviewers; View data as soon as it enters raw systems, rather than wait for it to be reviewed, identi?ed as meeting applicable standards, analyzed, summarized, and uploaded by FBI personnel into and apply analytical tools in the context of all information in NCTC systems, including information received from a wide variety of federal and other agencies. As described below, two recent threats of international terrorism exemplify the benefit of NCTC access to FBI raw systems-(Si? 2. TC ?5 Use Access, and Previous Threats Illustrating the Value of Permitting FBI to Provide Raw Data to CTC. +89? The potential value of receipt of raw PISA?acquired information is demonstrated by use of its access to minimized FlSA?acquired information in In addition, FBl?s need to devote substantial analytical resources in two investigations?which involved Court-authorized electronic surveillance and physical I search of multiple targets and facilities?-pr?sents an example of the benefit that providing raw PISA?acquired information to NCTC would yield. Receiving raw acquired information would thus enhance abilities both to fulfill its own - counterterrorism mission and to support FBI in times of urgent need. {Si- a. TC ?5 Use Access for its Central Counterterrorism'Mission. 48)? Since October 8, i008, NCTC has been permitted to access terrorism? and counterterrorism?related case classifications in ACS, which includes FlSA-acquired 17 . All redacted information exempt under and except where otherwise noted Approved for public release information that FBI has determined reasonably appears to be foreign intelligence information, is necessary to understand foreign intelligence information or assess its importance, or is evidence of a crime. ACS has provided NCTC personnel with access to information underlying formally disseminated reports. There have been numerous benefits from this access. I First, ACS access has given NCTC added insight into the meaning of disseminated FBI intelligence products. According to NCTC ACS provides "crucial context? for FBI intelligence reporting and has had a significant impact on analytical priorities and reporting in the Presidential Daily Briefing (PDB) and the National Terrorism Bulletin (NTB). Second, NCTC have relied on details obtained from case files in ACS, combined with terrorism information from other sources, to develop analytic products of their own. Details gleaned from continuous review of ACS case files have provided the basis for a number of long?term strategic products. NCTC has also used data from ACS case files as starting points for the of foreign intelligence from other US. Intelligence Community (USIC) agencies, providing the basis for finished NCT intelligence products. Finally, NCTC has used information obtained from ACS in furtherance of its mission to provide terrorism analysis to senior policy makers in the US. Government. 18 AII redacted information exempt under and except where otherwise noted Approved for public release As the designated mission manager for counterterrorism,12 director has the- responsibility to disseminate ?terrorism information, including current terrorism threat analysis? to senior members of the Executive Branch, including the President and Vice President.13 NCTC report that access to ACS has provided a significant source of information for several high?level NCTC intelligence products, including the PDB and the NTB. {Sf Permitting NCTC to receive FBI?collected PISA-acquired data would enhance many of the benefits that NCTC currently derives from access to AC5. As noted above, receiving raw PISA?acquired information would expand NCTC ability to draw meaning from, and add context and value to, such information. This would aid NCTC in setting analytical priorities, facilitate alternative interpretations of significant foreign intelligence information, and identify significant foreign intelligence information that may have gone unnoticed or for which context was lacking. NCTC, in turn, could that information into more meaningful and timely intelligence products for senior policy makers in the US. Government and initiate the thorough and exhaustive pursuit of developingterrorism threat threads. access to ACS has allowed NCTC personnel to review more information than FBI formally reports, and to review 12 Director of National Intelligence, Intelligence Community Directive 900: Mission Management D.1.b (Dec. 21, 2006). (U) 13 50 use. (U) 19 WOW- All redacted information exempt under and except where otherwise noted Approved for public release information presented with less analysis and in a form closer to the original than a finished intelligence product. Access to raw PISA-acquired information would take this process a vital step further. It would provide to NCTC the original data underlying the minimized documents in Of course, it would also provide to NCTC raw data that has not been entered into AC8 at all. NCTC could interpret or use either type of data differently than an FBI case agent, given different mission, structure, unique access to information from a broad range of sources, and resources. {53- h. TC ?5 Demonstrated Ability to Provide Support to FBI Counterterrorism Operations, which Receipt of Raw Date would Enhance. receipt of raw PISA?acquired data will not only improve understanding of FBI intelligence reporting, but will also allow FBI to call upon the analytic expertise of NCTC to assist in the evaluation of raw FlSA?acquired information. As this Court is aware, in FBI conducted two simultaneous large, wide?ranging, and rapidly developing counterterrorism investigations, (W3): 14 These investigations involved Court? authorized electronic surveillance and physical search of multiple targets and facilities. All redacted information exempt under and except where otherwise noted Approved for public release FBI was not authorized to provide raw PISA-acquired information to NCTC in those investigations. To be sure, NCTC personnel detailed to FBI could access such information. Detailees, however, could not continue to access other NCTC systems, and thus could not avail themselves of the information or analytical tools in those systems. In contrast, permitting NCTC personnel to review raw PISA?acquired information in their capacity as NCTC personnel would allow these trained, specialized counterterrorism both to accelerate the review of incoming raw information and to apply their analytical expertise and resources in determining the foreign intelligence value of that information-(SW3? Although case file information from ACS was of great value to NCTC during (W1): - NCTC could not contribute to effort to rapidly review raw information. Moreover, NCTC was delayed in receiving foreign intelligence information regarding these terrorism threats and hence could not fully execute its statutory missions, as described above.15 Permitting FBI to provide raw PISA?acquired information to NCTC, in contrast, would establish a cadre of with training in PISA minimization procedures and computer systems used to process FISA-acquired information, as well as expertise in and current knowledge of 15 Of course, if additional NCTC personnel were detailed to FBI, they would no longer function as NCTC employees. Thus, while they would gain access to raw PISA-acquired information in FBI systems, they would lose the ability to cross?reference that information with other data in NCTC systems and systems of other agencies to which NCTC has access. 21 All redacted information exempt under and except where otherwise noted Approved for public release international terrorist threats. These NCTC could immediately provide a surge of support in counterterrorism investigations, without requiring FBI to rely on FBI or other-agency detailed personnel who may lack prior training in counterterrorism, PISA minimization procedures, or relevant computer systemsfamiliar as NCTC with particular threats. In addition, NCTC has determined that permitting FBI to share raw acquired information acquired on or after January 1, 2001 will fulfill the national security purpose of the proposed sharing. First, as noted above, the Raw Take Order applies to information acquired on or after that date; Maintaining the same rule for CIA, NBA, and NCTC will prevent confusion and ensure that the agencies can share raw information freely in their joint analytical effort. Second, NCTC assesses that information relevant to al Qaeda?s planning prior to the September 11, 2001 terrorist attacks is reasonably likely to exist in data acquired on or after January 1, 2001. Because the threat of al Qaeda and associated groups and individuals persists, and based on the analytical value of drawing connections among data points over time, receiving this information would greatly enhance counterterroriSm efforts. (87- In sum, receipt of raw PISA?acquired information?will greatly enhance execution of its own missions to provide strategic counterterrorism analysis 22 All redacted information exempt under and except where othenNise noted Approved for public release SECRETH and to conduct thorough and exhaustive pursuit of developing terrorism threat threads, and will enable it to surge expert resources to support FBI when urgent crises arise. isl? D. The CTC SMPs and Amendment to the FBI SMPs Satisfy Definitibn of Minimization Procedures. - - Collection of information pursuant to FISA may only be authorized if the Government?s proposed minimization procedures satisfy the Act?s requirements, and MBA?acquired information may only be used or disclosed consistent with Court? approved minimization procedures. 50 U.S.C. 1805(a)(4), 1824(a)(4), 1806(a), 1825(a). PISA sets forth basic requirements for minimization procedures. First, specific procedures must be adopted by the Attorney General and be 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 use. 1801(11)(1), (U) In addition, minimization procedures must ensure that nonpublicly available informatiOn that is not foreign intelligence information, as defined in 50 U.S.C. 1801(e)(1), "shall not be disseminated in a manner that identifies any United States erson Without such erson?s consent unless such erson?s identi is necessar to I 23 All redacted information exempt under and except where otherwise noted Approved for public release understand foreign intelligence information or assess its importance.? '50 U.S.C. (U) Finally, notwithstanding the requirements set forth in subsections (1) and (2), 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.? Id. 1801(li)(3), (U) I. Receipt ofRow PlSA~Acqnired Information is Reasonable and Consistent with the Need of the United States to Produce and Disseminate Foreign Intelligence Information. 457)? The proposed amendments will permit FBI to provide raw PISA?acquired information to NCTC, which in turn will be required to apply Court?approved minimization procedures to such information. This Court has previously approved such disclosures when the Government has demonstrated that they serve an important national security interest and that the ultimate recipient of raw information will be responsible for applying Court-approved minimization procedures to that information. Memorandum Opinion, In Re Electronic Surveillance and Physical Search ofPoreigri Powers and Agents ofPoreign Powers, Docket No. Order") (FISA Ct. Oct. 8, 2008),: Raw Take Order. Similar to the Raw Take Order, the proposed disclosure will substantially enhance the ability of NCTC both to assist FBI in assessing PISA-acquired 24 WW AII redacted information exempt under and except where otherwise noted WSW Approved for public release information and to fulfill central analytical, planning, and pursuit functions, while? protecting the privacy of United States persons consistent with the Act. The Government?s need to permit FBI to share raw data with NCTC, paired with the proposed NCTC SMPs, render the proposed sharing program consistent with PISA. The Act requires minimization procedures to ?prohibit the dissemination[] of nonpublicly available information concerning United States persons,? but only to the extent "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.? 50 U.S.C. 1801(h)(1). As discussed above, the information?sharing program proposed herein directly serves that need by allowing NCTC to review raw information critical to its central analytical role. Indeed, part of unique mission is. to compare a wide variety of data setsw?to which other agencies may not have access?to identify pieces of information that other agencies may have overlooked, or the significance of which may not have been fully appreciated. 45)? In addition, NCTC, as discussed above, is the Government?s primary organization for counterterrorism analysis, integration, and planning, and possesses unique analytical abilities and perspectives. Its responsibilities span agency boundaries andencompass foreign and domestic threats arising from international terrorism. NCTC depends on, and is charged with facilitating, the sharing of terrorism? and 25' Wow? redacted imma?on _9Xe{?pt under (mm. mm. and except where otherwise noted Approved for public release counterterrorism-related information across agencies. As further discussed above, own counterterrorism analysis is substantially enhanced by its timely access to potential foreign intelligence information. Precisely because NCTC has access to I multiple sources of international terrorism information, it is in an excellent position to assist FBI and other USIC agencies in understanding and assessing the importance of the information FBI collects pursuant to FISA in terrorism?related cases. Moreover, as set forth in detail below, proposed minimization procedures meetthe definition of minimization procedures in a manner similar to the procedures this Court has approved for CIA and NBA.36 f5)- As reflected in the Act?s legislative history, Congress did not intend Section 1801(h)(1) to prevent the type of sharing that the amended FBI SMPs and NCTC SMPs vvould facilitate. Rather, Congress intended for "a significant degree of latitude [to] be given in counterintelligence and counterterrorism cases with respect to the retention of 16 In the FBI and NCTC SMPs, some sharing of information is specifically labeled as "dissemination," while other sharing is referred to as a "disclosure." This distinction is intended to avoid confusion in implementation by agency personnel, who may not be attorneys or experts in PISA. Accordingly, in the proposed amended FBI SMPs, the title of Section IV has been changed from "Disseminatiori?.? to "Dissemination and Disclosure.? Changes of ?dissemination? to ?disclosure? in the modified FBI SMPs submitted with this motion are not intended to modify FBI's authorization to share information, and the scope of authorization under the proposed NCTC SMPs to share information is intended to track the FBI SMPs. . Regardless of Whether sharing of raw information between agencies, subject to the ultimate recipient?s application of Court?approved minimization procedures, constitutes a ?dissemination? of information, this Court has found that such sharing is consistent with the Act. For the same reason, in the amended FBI SMPs, ?Disclosure? replaces "Dissemination" in the titles and text of FBI SMFs Sections IVD, IVE, and WC. (U) 26 All redacted information exempt under and except where otherwise noted WW Approved for public release information and the dissemination of information between and aiming counterintelligence components of the Government.? HR. Rep. No. 95-1283, 95th Cong, 2d Seas, pt. 1, at 59 (1978) (emphasis added).17 Congress recognized that "bits and pieces of information . . . may together or over time take on significance" that is not immediately apparent, and stressed that "[n]othing in this de?nition is intended to forbid the retention or even limited dissemination of such bits and pieces before their full significance becomes apparent.? Id. at 58. Congress included Section 1801(11)(2) in the definition of minimization procedures to ?protect individual United States persons from dissemination of information which identifies them in those areas in which the Government?s need for I I their identity is the least established and Where abuses are most likely to occur." Id. at 61. By contrast, the analysis and integration of terrorism and counterterrorism information is an area in which the Government?s need to identify potential actors? both United States persons and non?United States persons?is well~established. Moreover, based on mission, it is anticipated that the foreign intelligence information NCTC is most likely to identify, retain, and disseminate Will meet the 17 'T[G]iven this degree of latitude," the report notes, it is "imperative that with respect to information concerning us; persons which is retained as necessary for counterintelligence or counterterrorism purposes, rigorous and strict controls be placed on the retrieval of such identifiable information and its dissemination or use for purposes other than counterintelligence or counterterrorism." Id. Of course, receipt of raw data is expressly for a counterterrorism purpose. 45)? 27 .I All redacted information exempt under and except where otherwise noted Approved for public release definition set forth at 50 U.S.C. 1801(e)(1), and thus will not implicate 50 U.S.C. 1801(li)(2). In any event, receipt of raw PISA?acquired information is fully consistent with the Congressional intent to allow robust analysis of such information, and the NCTC SMPs satisfy the Congressional mandate that US. person information that has no foreign intelligence value be protected. 2. The CTC SMPs Protect the Privacy Concerning Uiiconsenting United States Persons while Facilitating the Production and Dissemination of Counterterrorism Foreign Intelligence Information. The NCTC SMPs are designed to permit the most effective use of foreign intelligence information While protecting the privacy of United States persons. Because CTC, similar to FBI, is tasked in part with analyzing information acquired in the United States and relating to United States persons, many of the NCTC 5MP provisions I are based on analogous proviSions in the-FBI SMPs. Similar to CIA and NSA, however, NCTC does not have an operational law enforcement mission. Accordingly, the NCTC procedures treat privileged communications and crimes reporting in a manner similar to the CIA and NBA RTPs. In addition, the NCTC SMPs contain provisions that either re?ect updates to other sets of procedures or are related to particular mission and requirements?{57413139? 28 All redacted information exempt under and except where otherwise noted Approved for public release NCTC will not collect any information pursuant to PISA, so the initial paragraph of the NCTC SMPs states that NCTC will not engage in acquisition.18 The following paragraph makes clear that the procedures do not apply to information that FBI disseminates to NCTC under the FBI SMPs, except for disseminations effected through access to ACS.19 Under ?General Provisions,? Sections AH) and (2) recite the authority and scope of the procedures. Section incorporates the definitions in the Act, and sets forth definitions relevant to the procedures. ?Information,? defined in Section includes all data and content acquired by FBI under Titles I or or Section 704 or 70503) of the Act, including ?contents? as defined in the Act. The NCTC SMPs adopt the FBI SMP definitions of ?metadata,? ?raw information,? and "third? party information? (modified Corirpere NCTC (h)_witlr FBI SMPs 111C, The NCTC SMP definitions of "nonpublicly available information? and ?United States person identity? are adapted from definitions in the NSA RTPs, modified to make clear that the reference to ?context? in Section does . 13 The Raw Take Motion distinguished and NSA's receipt of raw PISA-acquired information from Court-authorized "acquisition" of information for the purposes of the Act. See Raw Take Motion at 6-7 (CIA and NBA are "permitted to receive raw data from the FBI, but [are not] permitted to acquire information from Court-authorized electronic surveillance or physical search independently. Thus . . . at the acquisition stage, surveillances and searches would continue to be conducted solely by the FBI. . . 19 As reflected in the referenced NCTC SMP paragraph, "dissemination" in this context refers to transmission or disclosure of information by FBI to NCTC after FBI determines such information is foreign intelligence information, necessary to understand foreign intelligence information, or necessary to assess the importance of foreign intelligence informaticm in accordance with minimization procedures applicable to 29 All redacted information exempt under and except where otherwise noted Approved for public release not modify the "name, unique title, or address? of a United States person.20 Compare NCTC SMPs with NSA RTPs see HR, Conf. Rep. No. 95?1720, 95th Cong, 2d Sess, at 23 (1978); HR. Rep 92-1283 at 5'7. The NCTC definition of ?technical database? is adapted from the reference to technical databases in the CIA RTPs, compare NCTC SMPs with CIA RTPs ?g and explicitly separates I technical databases from all personnel engaged in intelligence analysis. The NCTC definition of employee" is derived from the Raw Take Motion]21 Compare NCTC SMPs with Raw Take Motion at 6 n3. Finally, the definition of ?review? of information was added to clarify when the age?off provisions set forth at Section 13(2), discussed herein, are triggered. See NCTC SMPs f5}. 2? The definition of "United States person identity? is identical to the corresponding provision in the procedures governing and minimization of information acquired pursuant to Section 702 of PISA, submitted to this Court on April 20, 2011. 21 The definition of employee? encompasses detailees from other agencies, including FBI. FBI detailees to NCTC will apply the NCTC SMPs when accessing raw PISA?acquired data in CTC systems. If they access raw PISAuacquired data in FBI systems, they will apply the FBI SMPs when accessing such data in FBI systems?(8} 22 NCTC advises that, when an e?mail message contains one or more attachments, the message itself is referred to as the "parent" document, while each attachment is referred to as a "child." Although NCTC possesses the technical ability to treat a child document as a separate communication from the parent, such a practice would generally make no more analytical sense than would separately reviewing different paragraphs of an individual message. Accordingly, NCTC in its data systems will process a parent document together with all associated child documents, and when any part of a message or attachment is. "reviewed," NCTC will consider the parent and all associated children to have been reviewed. 30 All redacted information exempt under and except where otherwise noted Approved for public release The NCTC SMPs require the same presumptions set forth in the FBI SMPs regarding US. person status,23 and contain essentially the same provisions for departures from the procedures, Compare NCTC SMPs A04), (5) with FBI SMPs I.C, D. Similar to the CIA RTPs, the NCTC SMPS explicitly state that they do not prohibit certain actions. The provision regarding maintenance of technical databases is similar to the analogous CIA RTP provision. Compare NCTC SMPs with CIA RTPs Section provides for the use of emergency backup systems, restricts access to such systems, and requires the application of the SMPs to data restored to analytical systems. Section clarifies that the NCTC SMPs do nothing to impede access to FISA?acquired information that FBI, -NSA, or CIA'could otherwise disseminate to NCTC. Section adopts the CIA RTP provision permitting retention, processing, or dissemination as specifically required by other legal authorities, but tailors this provision more narrowly than the CIA RTPs. Compare NCTC SMPs with CIA RTPs The intent is to permit NCTC to deviate from the SMPs in response to direct and speci?c responsibilities, including-but not limited to applicable Constitutional disclosure requirements and judicial orders. Executive Branch orders or All redacted information exempt under and except where otherwise noted Approved for public release WW directives will not trigger this provision, nor will general Congressional directives that are not specific to information NCTC receives pursuant to this motion. Section (ii) facilitates lawful oversight of handling and use of PISA?acquired information. section of the NCTC SMPs tracks the CIA RTP provision permitting crimes. reporting, see CIA RTPs and Section is designed to facilitate compliance and oversight by explicitly requiring NCTC to identify in all records, systems, documents, and products PISA?acquired information that it received in raw form from FBI. Section- requires NCTC to adhere to supplemental minimization procedures specific to particular Orders of this Courth Section reserves the ability for FBI to require NCTC to comply with additional restrictions or obligations relating to the FISA-- acquired information FBI provides, without incorporating such Executive Branch policy requirements into the procedures. The retention periods for raw data are the same for NCTC as for FBI, including the amendments to the FBI SMPs discussed below. Compare NCTC SMPs with FBI SMPs The NCTC SMPS also explicitly require raw PISA?acquired information to be identified as such, to be accessible only by trained NCTC employees, and to be maintained in a manner that permits marking or identification of information that 14 This tracks a similar requirement in the Raw Take Order. See Raw Take Motion at 19-20. 32 All redacted information exempt under and except where otherwise noted Approved for public release satisfies the retention standard.25 See NCTC SMPs Section provides in general terms for the retention of information that meets the retention standard, which tracks the standard in FBI SMPs in a manner that does not restrict access or provide for further marking, but that still requires the information to be identified as FBI?collected PISA?acquired informationP??fsa? The provisions governing access to and queries of raw data, the requirement that queries be subject to review by DOTS National Security Division (NSD), and the treatment 0- information are the same as the corresponding FBI rules. Compare NCTC SMPs (2), (4) with FBI SMPs HID, B5, C2. Section regarding metadata, tracks FBI SMPs HID, with the added requirement that FISA?acquired metadata received from FBI be identified as such, to facilitate compliance with minimization and other requirements. Also consistent with the FBI SMPs, the NCTC SMPs list categories of sensitive communications as to which reviewing personnel must pay special care. Compare NCTC SMPs FBI SMPs 25 As noted above, for analytical purpOses NCTC will process as a single communication a "parent" e?mail message and all attached ?child? documents. Accordingly, if one document is marked for retention, the parent and associated children will all be retained together. f5)? 26 The NCTC SMPS provide for retention and dissemination of information that is evidence of a crime, but not foreign intelligence information. NCTC may only retain or disseminate such information for a law enforcement purpose. As this Court is aware, NCTC is not a law enforcement agency. authorization to retain and disseminate evidence of a crime that is not foreign intelligence information? for law enforcement purposes only?is intended to provide NCTC, like CIA and NSA, with the ?exibility to handle such information as necessary to fulfill its crimes reporting obligations, and to respond to any unanticipated need to retain or disseminate such information, While remaining consistent with 50 U.S.C. 1801(hx3). 3 3 All redacted information exempt under and except where otherwise noted Approved for public release As noted above, however, the NCTC procedures for handling attorney? client privileged communications are more similar to corresponding provisions in the CIA and NSA RTPs than the more detaileleBl SMP privilege provisions, which are designed in part to avoid eXposing a criminal investigative and prosecuting team to such information.28 Compare NCTC SMPs with CIA RTPs 4(a) and NBA RTPs cf. FBI SMPs {33 In addition, Section of the NCTC SMPs is designed to facilitate compliance with, and oversight lot, applicable privilege rules. With the exceptions discussed below, the rules governing dissemination and disclosure track other procedures previously approved by this Court.29 Section. which permits dissemination, is phrased similarly to RTPs 2, but applies the standard set forth in FBI SMPs IVA, including the amendment to FBI SMPs IVA proposed below.30 It also explicitly states that NCTC may only disseminate PISA- 27?This motion seeks to amend FBI SMPs As set forth below, the amended section retains the provision regarding sensitive communications, but eliminates the requirements relating to categories of non?pertinent communications-f5}- 23 While the CIA and NSA RTPs apply to communications of a person who is known to have been indicted for a crime in the United States, the NCTC SMPs apply to communications of a person who is known to have been chargeduby complaint, indictment, or other instrument?in the United States. {87415311} 29 The proposed NCTC SMPs incorporate the modifications made to Sections IVA and NC of the FBI SMPs, which are discussed separately herein. 3? FBI and NCTC may enter into an agreement regarding the coordination of disseminations of FISA?acquired information. Any such agreement is not intended to be incorporated into the FBI SMPs or NCTC 34 . All redacted information exempt under and except where otherwise noted Approved for public release acquired information as provided in the NCTC SMPs. Section providing for dissemination of information that is evidence of a crime, but is not foreign intelligence information, is derived from 50 U.S.C. 1801(hx3) and FBI SMPs IV.B. Section regarding disseminations to foreign governments, tracks FBI SMPs IV.C.1 and 2.31 Section explicitly authorizes NCTC to disclose raw PISA?acquired information to FBI, which collected the information, and to CIA and NBA, which are eligible to receive the same information under the Raw Take Order. Any raw information NCTC shares under this provision must be clearly identified as raw FBI-collectedFISA?acquired information, to ensure that the receiving agencies handle it properly. Section allows NCTC to obtain technical and linguistic assistance from federal agencies, and closely tracks32 the corresponding FBI provision. See FBI SMPs IVD. Section of the NCTC SMPs incorporates substantially the same caveat requirement for disseminations as the Raw Take Order. See Raw Take Motion at 20?21. Section provides for disseminations by NCTC under circumstances in which the source, method, or legal authority through which information was collected 31 It is not necessary for the NCTC SMPs to include a provision analogous to FBISMPS 1V.C.3, regarding the use of information in foreign proceedings, because requests for such use will be processed through FBI. In addition, a provision analogous to FBI SMPs IV.C.4, requiring the maintenance of records of foreign disseminations, would be superfluous because NCTC will be required to maintain records of all disseminations. See NCTC SMPs 13(4) . 32 The NCTC SMPs omit references to providing media, such as tapes or hard drives, to assisting agencies. 35 All redacted information exempt under and except where otherwise noted Approved for public release WW may not be disclosed for security or other'reasons. It is intended to ensure that NCTC will be able to disseminate terrorism-related foreign intelligence information when necessary, but will be able to prevent the further use of that information?particularly in any proceeding?without the approval of the Attorney General. Of course, if NCTC disseminates information to any recipient for a law enforcement purpose, or without the total prohibition on further use, such information will bear the caveat required by Section and 50 1806(b). Section incorporates 50 U.S.C. 1806(b), and Section tracks the amendment to minimization procedures governing FBI, NBA, and CIA approved by this Court?s December 6, 2007 Order in docket number -- or Section governs receipt of information residing in FBI general indices, currently consisting of ACS. See Submission Regarding Application of Existing Minimization Procedures to Certain Data Systems of the Federal Bureau of Investigation, In Re Applications to the Foreign Intelligence Surveillance Court, Docket No. - at 33?36 (filed June 16, 2006). Currently, pursuant to this Court?s authorization, FBI permits NCTC users to access case classifications in ACS that are related to terrorism or counterterrorism. All PISA?acquired information in these AC8 case. classifications has either been assessed to be foreign intelligence information I relating to terrorism or counterterrorism, or has been assessed to be evidence of a crhne 36 All redacted information exempt under and except where otherwise noted Approved for public release that is not foreign intelligence information. Currently, access to ACS is subject to the Court?authorized AC8 Procedures, which require NCTC users to disregard PISA- acquired information in ACS that is evidence of a?crime, but does not reasonably appear to be foreign intelligence information?3 See AC5 Procedures 13(4). Similarly, Section 13(1) of the NCTC SNIPS submitted with this motion permits NCTC to consider as having been disseminated to NCTC all foreign intelligence information in these case classifications. Section prohibits NCTC from retaining or otherwise using information that is evidence of a crime, but not foreign intelligence information, except for a law enforcement purpose. These provisions preserve the legally required core of the existing minimization procedures governing access to AC5, while leaving policy?based coordination requirements for intra?Executive Branch agreements. They impose essentially the same requirements as Section 13(3) of the NCTC SMPs, which regulates retention of information received from FBI in raw form. Unlike the ACS Procedures, the NCTC SMPs permit NCTC to retain or I disseminate evidence of a crime that is not foreign intelligence information, but only for a law enforcement purpose. While NCTC does not anticipate engaging in such 33 The ACS Procedures also contain provisions governing coordination between CTC and FBI, and adopting internal NCTC procedures. The Government submits that such provisions are more appropriate to mire-Executive Branch memoranda and agreements than to Orders of this Court. f3)" 37 All redacted information exempt under and except where otherwise noted Approved for public release retention or dissemination, this allowance will provide ?exibility if a relevant need arises, and satisfies a statutory requirement. See 50 U.S.C. 1801(11)(3). Sections and (4) anticipate that, in the future, NCTC may ingest data from ACS without first reviewing that data, and review the ingested information, including FlSA?acquired information, in NCTC systems rather than in ACS itself. 'This would permit NCTC to assess such information using analytical tools and in the context of other information in NCTC systems. Access to minimized PISA-acquired information in this manner would greatly enhance ability to produce and disseminate foreign intelligence information. Because potentially large volumes of data?data that FBI has already assessed to meet applicable standards in the FBI SMPs ?would be shared with NCTC, it would not be practicable or advisable for NCTC to review such information before it enters NCTC systems. rafter all, most of the information would have already been assessed to be foreign intelligence information, and NCTC would be searching through it for the rare piece of non-foreign intelligence evidence of a crime, in which NCTC has no interest. Still, NCTC may not retain . information that is evidence of a crime but not foreign intelligence information for purposes other than law enforcement. The NCTC SMPs therefore require NCTC to destroy any such information after discovering it and determining it not to be foreign intelligence information or necessary to understand. or assess the importance of I 38' All redacted. information exempt under and except where otherwise noted WW Approved for public release foreign intelligence information, unless NCTC intends to use it for a law enforcement purpose. Thus, whether NCTC receives FISA-acquired information in raw form, through accessing ACS, or through ingesting data directly from AC5, it will not be permitted to retain information that is not foreign intelligence information, other than evidence of a crime retained for a law enforcement Section is intended to ensure compliance with these procedures by training NCTC personnel on their requirements. See FBI SMPs VB. NCTC will be required to consult with NSD regarding this traming, and NSD and NCTC intend for NSD to participate in NCTC training, particularly in the initial stages of receipt of raw data. Section incorporates the general principles of FBI SMPs 1113.24, and Section correSponds to FBI SMPs Section tracks FBI SMPs providing for Broad NSD oversight, and adds a specific requirement for NCTC to maintain and make available for review copies of all disseminations of nonpublicly available information concerning non?consenting United States persons. Finally, Seetion similar to FBI SMPs VI, requires NCTC to consult with NSD regarding significant questions regarding the interpretation of the NCTC SMPs. Moreover, in general, NCTC will consult closely with NSD as it develops systems, processes, and procedures for receiving, retaining, processing, and disseminating information in accordance with these 39 made? information exempt under and except where otherwise noted Approved for public release E. Initial Implementation Procedures. (U) When the Government submitted the Revised FBI SMPs in 2008, this Court agreed with the Government?s representation that ?it would be ?impractical? to calculate time periods for destruction? under the new retention provisions based on expiration dates for cases that expired prior to the new procedures? effective date. FBI 5MP, Order at 6. Accordingly, the ?Court acceptled], as a reasonable means of transition to the new retention regime . . . the government?s proposal that prior cases be deemed," for the purpose of calculating retention periods, to have expired on the effective date of'the new procedures. Id. The Government respectfully submits that?the same logic applies here, and requests that all data NCTC receives under the sharing regime described herein that FBI acquired pursuant to Orders that expired prior to the effective date of the NCTC SMPs be deemed, for purposes of calculating the retention, period under NCTC SMPs SEQ), to have been acquired pursuant to an Order that expired on the effective date of the NCTC SMPs. {Sir 40 All redacted information exempt under and except where otherwise noted Approved for public release WSW Amendments to Other FBI Provisions. (U) A. Section (Categories of Non-Pertinent and Sensitive Information). This section is amended to delete ?Categories of Non-Pertinent and? from the title, and to replace the text preceding the enumerated list of sensitive categories with the following: Particular care should be taken when reviewing information that is sensitive information, as defined below. No sensitive information may be used in an analysis or report (such as an Electronic Communication unless it is first determined that such information reasonably appears to be foreign intelligence information, necessary to understand foreign intelligence information or assess its importance, or evidence of a crime. Information that reasonably appears to be foreign intelligence information, necessary to understand foreign intelligence information, or necessary to assess the importance of foreign intelligence I information may be retained, processed, and disseminated in accordance with these procedures even if it is sensitive information. Information that reasonably appears to be evidence of a crime may be retained, processed, and disseminated for law enforcement purposes in accordance with these procedures, even if it is sensitive information. Sensitive information consists of: In?addition, the text after the enumerated list is deleted, and f?United States person? is added to subsection as, The amendment eliminates obligation to identify and report to. the Court categories of non-pertinent information acquired pursuant to this Court?s authorities. In effect, the current requirement, does not impose any additional responsibility on FBI in its retention and use of such information. Currently, FBI can use such information for further investigation and analysis if it meets the standard in the SMPs for retention 41 I All redacted information exempt under and except where otherwise noted Approved for public release and dissemination of information. The amendment removes a requirement that has no legal effect, and emphasizes the need to pay particular care to sensitive communications. 45% B. Sections and Retention ofAttomeyClient Communications). These sections are amended to re?ect the following insertions and deletions: procedure to ensure the While FBI generally cat. I a 42 All redacted information exempt under and except where otherwise noted Approved for public release C. Section Ill.G.1.a (Time Limits far Retention). This section is amended to reflect the following insertions and deletions: FISA~acquired information that has been retained but never reviewed shall. be destroyed five years from the expiration date of the docket authorizing the collection unless specific authority is obtained from an Assistant Director of the FBI a_n_d NSD, smiths?PEG to retain the material, and the FISC approves a new retention period upon a ?nding that such modification is consistent with the applicable statutory definition of ?minimization procedures. Section Ill.G.1.b is similarly modified. f3)? These amendments state the standard by which the Court evaluates Whether an extension is warranted, and provide for an extension period to be set. (U) D. Section IVA (Dissemination of Foreign Intelligence Information to Federal, State, Local and Tribal Of?cials and Agencies). This section is amended to read as follows: The FBI may disseminate FISA?acquired information that reasonably appears to be foreign intelligence information or is necessary to understand foreign intelligence information or assess its importance. in accordance with Sections IV.A.1 and IV.A.2 to federal, state, local and tribal officials with responsibilities relating to national security that require access to foreign intelligence information A 1~nn?11r run inf-an {an '1'an Hn? 1?14 (1 4?n inn Ai?nnmi?ni-nrl autumn. LU A. '11 LJ. ll.- I. FLUKUUMLA. LU UL. (U) 1. Need of the US. Government to Disseminate Foreign Intelligence Under the Proposed Standard. (Ll) - . The first insertion is consistent with 50 U.S.C. 1801(h)(1) and (2), and corrects an omission. The second insertion, which changes the scope of permissible recipients of disseminations, addresses FBI and responsibilities under legal authorities and policies requiring the Intelligence Community to share foreign intelligence information 43 WW All redacted information exempt under and except where othenrvise noted Approved for public release to the fullest extent permitted by law. The current FBI 5MP standard, which limits dissemination to federal, state, local, and tribal officials and agencies with ?responsibilities directly related to the information proposed to be disseminated" (emphasis added), is not consistent with the Government?s need to obtain, produce, and disseminate foreign intelligence information. The current FBI SMP dissemination standard requires the FBI to determine in advance of the dissemination which potential recipients need the particular information. In practice, this standard undermines ability to fulfill its responsibility under Executive Orders 12333 and 13388 to share foreign intelligence information, including terrorism information, among agencies. The current FBI standard requires FBI to determine to whom it should "push" foreign intelligence information and perpetuates operationallydirniting "need?to?know? information sharing, which was criticized in the Final Report of the National Commission on Terrorist Attacks Upon the United States ("9/11 Commission Report?). The proposed standard, in contrast, would enable FBI to apply to PISA?acquired information more contemporary dissemination methods, which allow appropriately cleared consumers of foreign intelligence information to search for and ?pul acquired foreign intelligence information that they require to perform their official duties-(534 44 All redacted information exempt under and except where otherwise noted Approved for public release FBI and NCTC have submitted declarations describing in detail their need for the proposed dissemination rule. See Declaration of Eric Velez?Villain Assistant Director, Directorate of Intelligence, FBI, dated March 19, 2012 Declaration?) (attached as Exhibit Declaration of Andrew Liepman, Principal Deputy Director, National Counterterrorism Center, dated March 21, 2012 Declaration?) (attached as Exhibit E). It is widely recognized that information sharing among U.S. intelligence and law I enforcement agencies is critical to national security?4 For example, Congress in IRTPA directed the President to "create an information sharing environment for the sharing of terrorism information in a manner consistent with national security and with applicable legal standards relating to privacy and civil liberties.? Pub. L. 108458, 1016(b)(1)(A). The Foreign Intelligence Surveillance Court of Review noted in 2002 that ?effective counterintelligence, we have learned, requires the wholehearted cooperation of all the. government?s personnel who can be brought to the task. A standard which punishes such cooperation could well be thought dangerous to national security.? In re Sealed Case, 310 F.3d 717, 743 (FISA Ct. Rev. 2002); see also Exec. Order No. 13,388, 70 Fed. Reg. 62023 (2005) 2; 9/11 Commission Report at 399?400, 408, 416. The 9/11 Commission Report in particular noted in its discussions of ?lost opportunities" to 34 State, local, and tribal authorities (herein referred to as "non-federal" authorities) are essential to this effort. See NCTC Declaration para. 8. (U) 45 All redacted information exempt under and except where otherwise noted Approved for public release detect the 9/11 plot that ?no one was firmly in charge of managing the case and able to draw relevant intelligence from anywhere in the government, assign responsibilities across the agencies (foreign or domestic), track progress, and quickly bring obstacles up to the level where they could be resolved.? 9/11 Commission Report at 400 (emphasis added). The 9/11 Commission emphasized the need for joint intelligence work and the "importance of integrated, all?source analysis,? because no single agency "holds all the relevant information.? Id. at 408. (U) As detailed in the FBI Declaration, the current FBI standard for dissemination undermines its ability to make PISA-acquired information available for and other users to ?pull? as needed. Currently, an FBI analyst who wishes to disseminate PISA?acquired foreign intelligence information as widely as legally permitted must identify all potential recipients with responsibilities directly related to the specific information. This requires a sufficiently broad and detailed knowledge of the mission, roles, and responsibilities of "not only every 1C agency, task force and, in some cases one or two individuals within an agency, but also that same understanding of all entities that support national security missions or consume foreign intelligence in fulfillment of their official duties. Further, the area of expertise expected of the information originator must extend not only to the authorities, missions and capabilities of the potential recipient agency, but also to a detailed and expansive 46 All redacted information exempt under and except where otherwise noted WW Approved for public release understanding of the information itself" -?which indeed may not be possible in the absence of input from other subject matter experts within the IC. 5g FBI Declaration para. 15. In contrast, under the ?pull? method, disseminating foreign intelligence information no longer need to try to identify all potential agencies or government of?cials who require that information. Rather, they can identify a few appropriately secure and access-controlled information repositories in which to place the information. This permits self-guided, cleared users to search for, find, and pull that information which is relevant to their official duties. Examples of such information repositories could include Intelink, INCTC CURRENT, or the Library of National Intelligence (LNI). Once reports are loaded into such repositories, they are discoverable and retrievable by authorized users, who query the repositories for national security-related documents relevant to their official duties. See FBI Declaration paras. 10, 16, 20; NCTC Declaration para. Access to some electronic repositories may be as broad as access to the Joint Worldwide Intelligence Communications System comparable to a Top Secret/Sensitive Compartmented Information version of the Internet, or the Secret Internet Protocol Router Network (SIPRNET), comparable to a Secret version of the Internet. Access to others may be limited based on agency or user pro?les. Some 47 WSW All redacted information exempt under and except where otherwise noted Approved for public release repositories can limit access to certain classes of documents based on user profiles, and others currently cannot. All, however, are only accessible by appropriately cleared personnel who have been giyen access based on their work duties in the field of national security. According to ODNI, such personnel are not limited to U.S. Intelligence Community employees.35 ODNI concurs, however, that it is reasonable to conclude that the decision to give an agency or individual user access to IWICS, SIPRNET, LNI, or other similar system or repository is based on the agency?s or user?s need to access the information in those systems or repositories to fulfill a national security-related responsibility. Moreover, as set forth in the NCTC Declaration at para. 39, the searchable electronic repositories discussed herein (or the systems through which users access those repositories, such as an agency?s system that is connected to 35 Under certain circumstances, _ma receive limited SIPRNET access. When such users access SIPRNET, at cre ent1 5 id If a site or document has been identified by the owner or administrator as users of SIPRNET are not iermitted to access it. Similarly, if a site or document has been marked as releasable to one or more of the isted above, _to which the site or document is releasable m'a ccess it on SIPRNET. The De artment of Defense, which is res onsible for SIPRNET, confirms that no other? employees have access to SIPRNET. (S) According to IWICS site, no non-United States users have access to operates at the level." In general, the agency disseminating a particular report is responsible for marking it appropriately, and recipients of disseminations are responsible for handling them in accordance with the markings and caveats they bear. For example, if NCTC disseminated a report that was only cleared for recipients of agencies of the United States or jurisdictions within the United States it would be marked If NCTC disseminated a re ort that was releasable to_it would be marked as releasable to? If the reports were then placed onto a site on disseminated to any agency?access to, or handling of, those reports would be subject to the marking. 48 All redacted information exempt under and except where otherwise noted Approved for public release WW JWICS) generally are subject to access policies requiring that users only use the systems in fulfillment of their official duties. For eXample, the lntelink terms of use state that use of lntelink ?is limited to of?cial government business,? and that use of Intelink services "for personal/non?official use casual browsing is prohibited.35 In addition, individuals? use of these systems is also generally subject to audit. See NCTC Declaration paras. 19, 39. Accordingly, while users of an electronic repository such as NCTC CURRENT could potentially View a wide variety of intelligence reporting, the requirement that users only access or use the systems in performance of their official duties necessarily requires users to only search the systems with queries reasonably designed to discover information relevant to their work responsibilities. {Si- The practice of making foreign intelligence information available in such repositories is based upon the premise that a user, who has been granted a security clearance and access to secure systems containing national security information based on his or her mission needs, is in the best position to determine what information he or she needs to fulfill his or her responsibilities. An analyst at one agency can better find and pull needed information than can a reporting agency identify all that might, based on their training, mission, and other resources, assist them. 566 9/11 36 See Intelink Services Terms of Use (last modified August 2011) (5) 49 WW All redacted information exempt under and except where otherwise noted Approved for public release . Commission Report at 417 (criticizing the assumption that "it is possible to know, in advance, who will need to use" information). Consistent with that premise, and with statutory information-sharing legislation such as the IRTPA provisions quoted above, ODNI and NCTC have provided means such as Intelink, LNI, and NCTC CURRENT to which agencies can contribute foreign intelligence information and from which users can locate and pull the information they need. As re?ected in the NCTC Declaration, the "availability of foreign intelligence reporting from diverse sources and disciplines in a common repository offers the substantial added bene?t of allowing users to enter a search, review the results of that search, and assess each piece of information in the context of the others.? NCTC Declaration para. 40. Significantly, other FISAerelated minimization procedures do not impose the mission-based requirement found in the FBI SMPs. For example, the Court-approved CIA and NBA RTPs, which govern and treatment of FBI?collected data that CIA and NBA minimize, contain no mission?based restriction on dissemination. The CIA RTPs simply state that US. person information that meets the procedures? standard for retention and dissemination "may be retained within CIA and disseminated to - authorized recipients outside of CIA RTPs 2. The NBA RTPs permit NSA to 50 All redacted information exempt under and except where otherwise noted Approved for public release disseminate reports based on foreign?"7 communications of or concerning United States persons ?in accordance with other applicable law, regulation, and policy? if the United States person identities in such communications are deleted.? If an NBA report contains unredacted information that identifies a United States person, that report may only be disseminated to a recipient requiring that identity "for the performance of of?cial duties,? and if specific additional standards are met.39 NSA RTPs 7. As a result of the unique dissemination requirement in the FBI SMPs, then, when FBI collects BSA?acquired information in matters relating to international terrorism and provides CIA and NSA that information pursuant to the Raw Take Order, CIA and NSA may identify the foreign intelligence information it contains and disseminate that foreign intelligence information, through Intelinlc and otherwise, to recipients to Whom FBI could not itself disseminate under its own SMPs. 37 The NSA and RTPs limit dissemination of domestic communications, due to focus on foreign communications, NSA SNIPS 33 To be sure, the Raw Take Motion stated that it ?anticipated that CIA and NSA will disseminate foreign intelligence information from FBI PISA collection to the full range of Federal offices and agencies with responsibilities relating to international terrorism to which CIA and NSA now disseminate terrorism-related foreign intelligence from other sources." See Raw Take Motion at 21?22 (emphasis added). 35' The additional standards relate, for example, to the foreign intelligence value of the identifying information, and not to the mission of the recipient. f5)? 51 All redacted information exempt under 1), and except where othemise noted Approved for public release Accordingly, as re?ected in the authorities that created NCTC, and in the FBI and NCTC Declarations attached hereto, the Government assesses that permitting appropriately cleared personnel with national security responsibilities to conduct research in electronic repositories of foreign intelligence information is a highly effective way of disseminating such information from collectors to consumers. A rule that fails to permit this practice is not consistent with the Government?s need to obtain, produce, and disseminate foreign intelligence information. The current rule requires the originator of information to make a product?by?product determination as to what officials require each report, rather than permitting dissemination through searchable repositories. The proposed amendment, in contrast, permits dissemination to repositories, so long as access to the repositories is limited to officials who need access to foreign intelligence information for national security mission?based reasons. Of course, the proposed rule also permits direct transmission of foreign intelligence information to officials with such a mission-based need. In short, although the current FBI 5MP dissemination standard requires the FBI to engage in the sometimes impossible task of identifying in advance the full range of agencies and officials that require each particular dissemination of foreign intelligence information to fulfill their national security responsibilities, the proposed new language would still require FBI to determine that proposed recipients have a national security mission. For all practical 52 WSW All redacted information exempt under and except where otherwise noted Approved for public release purposes, under the proposed standard, even if FBI does not determine in advance of the dissemination to an electronic repository which agencies and officials have responsibilities directly related to the information being disseminated, a user of one of these electronic repositories who designs his/her queries consistent with the electronic repository?s terms of use would likely only discover and retrieve PISA?acquired information that was relevant to that user?s work responsibilities. 2. Sharing with State, Local, and Tribal Agencies and O??icials Under the Revised Dissemination Standard. (LI) Federal agencies charged with national security have recognized the critical role played by state, local and tribal officials as partners in protecting the United States. Key to the efficacy of that partnership is the sharing of information so that each entity may benefit from the others? unique knowledge and access to information so that threats may be stopped before they materialize.40 In the terrorism context, the 9/11 Commission Report concluded that one of the most serious weaknesses leading to the attacks was a breakdown in information sharing among federal agencies and with state, 4? In a recent hearing of the Subcommittee on Counterterrorism and Intelligence of the United States House of Representatives Committee on Homeland Security entitled, "Federal Government Intelligence Sharing with State, Local, and Tribal Law Enforcement: An Assessment 10 Years After 9/11,? FBI Assistant Director, Directorate of Intelligence testified: ?As threats are increasingly conceived and carried out entirely within our borders, our reliance upon our state, local, and tribal partners has never been more critical. It?s almost certain that before an FBI agent comes fact?to-face with a threat actor, a state, local, or tribal police of?cer or deputy will most likely encounter them first. They must know what we know in order to do their jobs.? Oral testimony, Eric Velez?Villar, Assistant Director, Directorate of Intelligence, Federal Bureau of Investigation Oral Testimony?), February 28, 2012 Hearing Transcript (Exhibit I), at 10 (emphasis added). (U) 53 All redacted information exempt under and except where otherwise noted Approved for public release local and tribal governments. 9/11 Commission Report at 400. Since that report was issued, the United States has endeavored to create a new information sharing, and partnership, paradigm in which state, local and tribal officials have the information they need to fulfill their critical partnership roles.41 Critical to this approach are the Executive Branch?s strict standards for restricting access to classified information and protections for privacy and civil liberties. Currently, there are only approximately 4,000 state, local and tribal officials who hold security clearances, which, as discussed below, are required for access to any classified information.42 Oral Testimony, Scott McAllister, Deputy Under Secretary for State Local Program Office, Office of Intelligence and 41 IRTPA implemented many of the 9/11 Commission?s recommendations, and prioritizes information-sharing, where appropriate, with state, local, and tribal entities?as well as the private sector?through the use of policy guidelines and technologies, while protecting privacy and civil liberties. IRTPA 1016(b)(2)(A), (H). IRTPA directs the Information Sharing Environment (ISE) Program Manager to, inter alia, "address and facilitate information sharing between Federal departments and agencies and State, tribal, and local governments." Id. The President must report to Congress "the extent to which State, tribal, and local officials are participating in the Id. 1016(g)(4)(F). The ISE was mandated by IRTPA. It was envisioned as "an approach that facilitates the sharing of terrorism information, which approach may include any methods determined necessary and appropriate for carrying out [Section 1016, "Information Sharing?] IRTPA 1016(a)(2). IRTPA left open the possibility that the ISE would be expanded to include other intelligence information. Id. 1016(e)(9), In 2007, Congress added "weapons of mass destruction information? to the definition of "terrorism information." Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. 110-53 5; 504 (Aug. 3, 2007) ("9/11 Act?). (U) 42 This number was reported by DHS and presumably does not include, for example, military reservists or SLTs detailed to the FBI for service on ITTFs. (U) The description of procedures relating to classi?ed information, including how such information is shared with SLT officials, is provided to illustrate processes currently in place. While the Government will continue to protect classified information, specific procedures may change, as may the cited figures?for example, there is no authority that sets a specific number of SLT officials with security clearances. The fact that only 4,000 clearances have been granted, however, demonstrates the care and parsimony with which the federal government determines which SLT officials need, and warrant, access to classified national security information. (U) 54 All redacted information exempt under and except where othem'ise noted Approved for public release WOW Analysis, Department of Homeland Security Oral Testimony), February 28, 2012 Hearing Transcript at 17. (U) Recognizing the need to share information outside the federal government, and to properly safeguard that information, the President issued Executive Order 13549 ("Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities?) on August 18, 2010. It set forth the following critical principles, among others: (U) SLT personnel are only eligible for access to classified information if they are nominated by a federal agency. Id. Agencies sponsoring SLT personnel and facilities for access to and storage of classified information must periodically ensure that there is a demonstrated, foreseeable need for such access. Id. E5 By default, 5LT personnel will only be eligible for Secret clearances. Id. SLT facilities Where classified information is stored or used are subject to fedoral inspection, accreditation, and compliance monitoring. Id. Access to information systems that store, process, or transmit classified information shall be enforced by the rules established by the agency that controls the system. Access must be consistent with controls that originators apply to information. Id. All determinations of eligibility for access to classified information, and all security accreditations of facilities, predating the Order that do not meet the standards in the Order must be reconciled with those standards. Id. 1.36). DHS is the Executive Agent for the program and has management and oversight responsibilities, including training. Id. 2, 4c; see id. 4(c) (additional oversight by the Office of the Director of National Intelligence). 55 All redacted information exempt under and except where otherwise noted Approved for public release WW On March 1, 2012, the Secretary of Homeland Security issued a detailed Implementing Directive under the Executive Order. It recognized the need to share ?actionable, timely, and relevant classified information? with SLT partners as "self? evident,? as well as the need for consistency in procedures relating to sharing, accessing, and safeguarding classified information. See Implementing Directive, Classified National Security Information Program for State, Local, Tribal and Private Sector Entities, Department of Homeland Security (March 1, 2012) Directive?) (Exhibit F), Foreword and 1?100, 1?101. In general, the directive permits federal agencies to sponsor SLT individuals for security clearances and access to classified information if the requirements of the DHS directive are met. Some key provisions of the directive include: a The directive applies to all SLT personnel who have been sponsored for or granted a security clearance for access to claSsified information by a federal agency under the prograrn?13 and each federal agency that sponsors SLT personnel for such a clearance. It also applies to all 5LT facilities that store classified information Id. a All information provided to SLT officials remains under control of the federal government. Id. 1?105. a All federal agencies sharing classified information with SLT entities must report to regarding implementation of the program. Id. 17103(b). a Each federal agency that sponsors an SLT individual for a security clearance is I responsible for maintaining "security cognizance? over such individual 'unless that obligation is transferred to DHS. Id. 43 Parts of the referenced program regulate sharing with private?sector entities as well as 3LT. (U) 56 All redacted information exempt under and except where otherwise noted Approved for public release WW I DHS is responsible for security cognizance of BLT-owned or ?operated facilities that store classified information. Id. 0 BLT personnel receiving classified information must safe guard that information, agree to certain procedures, complete security training, and agree to report security incidents. Id. a Security clearances for SLT officials must be issued consistent with policies and procedures governing federal employee security clearances. 5LT officials undergo the same investigative and adjudicative scrutiny as federal employees. Id. 2?10303). - SLT officials selected for security clearances must have a demonstrated an foreseeable need? for access to classified information and "be in a position to capitalize on the value? of the classified information. Id. 2?101 0 BLT law enforcement, public health, and first responder officials are only eligible for clearances if they are participating in a federally Sponsored board, committee, task force, fusion center, or similar entity and the sponsoring federal agency determines there is a need for access to classified information.? Id. a Physical security requirements, including inspection, certification, and oversight by DHS or a sponsoring federal agency. Id. 3-101 103,: see particularlyg 3- 103(b)(4) (classified information technology systems). I SLT officials are required to protect all classified information and are subject to dissemination rules. Id. 4?101 108. The principle means by which the government directly shares national security information with state, local, and tribal partners is through fusion centers,45 which are 44 Governors, mayors, and senior homeland security, law enforcement, fire, public health, and emergency officials are also eligible. Id. 2401(4), (U) 45 In 2007, Congress was sufficiently concerned regarding the impact on national security of insufficient information sharing with non?federal entities that it included a title in the 9f11 Act under the heading, "Improving Intelligence and Information Sharing Within the Federal Government and with State, Local, and Tribal Governments." 9/11 Act, Title V. Congress lauded the development of State, local, and regional Fusion Centers, and directed DHS to establish a DHS State, Local, and Regional Fusion Center Initiative to partner with and support fusion centers. Id. 511; 9/11 Act 511. In particular, DHS was directed to support efforts to include the fusion centers into the ISE. 9/11 Act 511(b)(2). Congress considered the Fusion Center Initiative to be "key to Federal information sharing efforts? and took note of "the blossoming State and local intelligence community.? HR. Rep. No 110?259 511. Accordingly, it directed DHS to act "quickly, thoroughly, and cooperatively? to provide ?maximum support" to the fusion centers. Id. (U) 57 WW All redacted information exempt under and except where otherwise noted Approved for public release ?owned? by state or local authorities, and receive federal support.46 See Statement for the Record, Federal Bureau of Investigation, February 28, 2012 Hearing (Exhibit G), at 12; Statement for the Record, United States Department of Homeland Security, February 28, 2012 Hearing (Exhibit H), at 4. Fusion centers contribute to federal national security efforts by providing critical information made available by the combination of BLT officials? knowledge, expertise, and information. The FBI, in turn, provides 5LT officials at fusion centers with a national perspective on regional threats and trends to better inform decision-makers at all levels. The FBI assesses that the exchange of intelligence in fusion centers aids other intelligence and law enforcement organizations, including the IITFs, in their investigative operations. See FBI SFR at 2. DHS has undertaken efforts to include fusion centers in the intelligence cycle. See DI-IS SFR at 4. FBI and DHS assess that well?informed SLT officers may be best positioned to detect early signs of terrorist activity. See FBI Oral Testimony, February 28, 2012 Hearing Transcript, at 10,: DI-IS Oral Testimony, February 28, 2012 Hearing Transcript at 6. (U) To be recognized and certified by the federal government, fusion centers are required to meet certain baseline capabilities. This includes implementing a privacy 45 Information also is shared through FBI?run Joint Terrorism Task Forces UTTFs), which are operational counterterrorism squads that incorporate non-FBI personnel who are detailed to the and Field Intelligence Groups (FIGS), which are FBI analytical units that are focal points for information? sharing. (U) 58 WN All redacted information exempt under 1), and except where otherwise noted Approved for public release protection policy that "cover[s] all center activities and [is] at least as comprehensive as the requirements set forth in the Privacy Guidelines, 28 CPR. Part 23] and Department of Justice guidelines.47 There are currently 79 fusion centers.48 According to DHS, certain fusion centers and certain non~fusion center SLT- officials in NY have restricted access to Secret-level federal information systems.49 Id. at 17. t3)- The US. Government?s primary non-defense, Secret?level classified information network available to SLT officials is the l-lomeland Secure Data Network (HSDN). See DHS Directive HSDN is a secure communications infrastructure provided. by DHS to fusion centers and limited other 5LT officials or entities. See generally gov. The purpose of HSDN is to provide SLT officials with controlled access to certain sites available on SIPRNET. HSDN is essentially a web portal to certain sites on SIPRNET and also provides users with secure e?mail capability. According to information provided by DHS to in March 2012, DHS has provided 47 Sea Fusion Process Technical Assistance Program and Services, Fusion Center Privacy Policy Development, Privacy, Civil Rights, and Civil Liberties Template (April 2010), available at 81. (U) 43 The DHS website lists 77 fusion centers. See Fusion Centers and Contact Information, (last updated Feb. 22, 2012). DHS advised the Department of Justice that as of March 2012, the number of recognized centers has reached 79. (U) 49 According to DHS, it has not provided IWICS access to SLT officials at fusion centers. DHS has provided a JWICS connection to limited senior level leadership of the New York City Police Department (NYPD), but this access is limited to secure e-mail communications. 59 Ail redacted information exempt under and except where otherwise noted Approved for public release approximately 64 fusion centers with user workstations that are connected to and only limited personnel within one of these fusion centers would have access to HSDN. The HSDN terminals are housed in secure conditions at the fusion centers and other locations in New York. Any SLT officials with access to HSDN have received the appropriate security clearance and are bound by the rules regarding the handling of classified information, as detailed above and as provided by Executive Order 13549. f5)? Significantly, HSDN does not provide SLT officials with full access to SIPRNET. Rather, it provides access to certain sites on SIPRNET. According to DHS, those sites include ones that DHS and the Department of Defense mutually agree to allow SLT of?cials access, as well as individual sites to which individual SLT of?cials may seek access from the federal agency that administers the site. For example, SLT officials may receive access to NCTC which contains disseminated foreign intelligence information acquired pursuant to PISA, as described in the NCTC Affidavit paras. 31, SLT officials who are assigned to fusion centers and who have received security clearances may thus access classified foreign intelligence information, potentially including disseminated PISA?acquired information, through HSDN. In addition, 5LT 5? According to information provided by DHS in March 2012, DHS has also provided HSDN terminals to NYPD and the New York City Fire Department. There are limited officials at these agencies who have security clearances and who have been authorized to have access to HSDN. 60 WSW All redacted information exempt under and except where otherwise noted Approved for public release WSW officials receive broadly disseminated intelligence products. For example, according to DHS, DHS issues a Daily Intelligence Bulletin that is emailed to SLT officials at fusion centers who have security clearances and authorized access to HSDN. The Daily Intelligence Bulletin is an analytical document compiled by DHS that includes foreign intelligence information disseminated by other federal agencies; the Bulletin includes intelligence that is relevant to the BLT officials and may include FISA?derived information. For example, NCTC may disseminate to NCTC CURRENT-S derived foreign intelligence information that FBI disseminated to NCTC. DHS, in turn, has access to CURRENT-S and may choose to include that FISA-derived foreign intelligence information in its Daily Intelligence Bulletin if it has some relevance to SLT officials?ES} The restrictions of the current FBI dissemination standard would prevent the FBI from disseminating ISA?derived foreign intelligence information to NCTC S, a repository that is accessed by both federal and SLT officials, because the FBI does not know in advance of the dissemination the identity or re3ponsibilities of every official who has access to the repository. The FBI thus cannot assess Whether every potential reader has responsibilities to which a particular dissemination directly relates. Indeed, as discussed above in the context of dissemination to federal partners, a 61 All redacted information exempt under and except where otherwise noted Approved for public release recipient may not even know that a dissemination will be relevant to his or her responsibilities until discovering it and reading it. (U) In addition, under the current FBI standard, FBI may not be able to issue to fusion centers across the country an analytical document containing finished intelligence, like the DHS Daily Intelligence Bulletin described above, because FBI would not be able to determine whether every cleared person at the fusion centers had responsibilities ?directly? related to the information being disseminated. The fusion center personnel may, for example, have responsibilities related to homeland security, preventing WMD proliferation and cyber attacks, and combating terrorism but may not have reaponsibilities directly related to the particular FISA?derived information being disseminated. As outlined in the FBI Declaration at paragraphs 23-25, given the important role that SLT officials and entities play in combating terrorism, assisting in homeland security, preventing crippling cyber'attacks on localor state government infrastructure, countering WMD proliferation, and otherwise maintaining public safety and security, it is critical that the FBI and NCTC be able to disseminate foreign intelligence information?which has been fully evaluated under applicable minimization procedures?either to secure, access?controlled electronic repositories or through other dissemination vehicles to enable properly cleared SLT officials to protect their regions and assist the federal government in its investigations. 62 WSW All redacted information exempt under and except where otherwise noted Approved for public release WSW Notably, as set forth in the FBI Declaration at paragraphs 2425, while the need to disseminate to state, local, and tribal officials under the proposed standard will likely be more frequently and routinely applied to counterterrorism information, the FBI, based on its experience and expertise, may determine that dissemination under the proposed standard of particular information other than counterterrorism information may be necessary to national security. The FBI thus seeks the ?exibility to do so when the need to engage in such dissemination?to state, local, and tribal officials with national - security responsibilities and federal security clearances at the appropriate level? outweighs countervailing considerations. (U) As noted above, SLT officials are critical national security partners. When sharing any classified information with SLT officials, the federal government takes great care to ensure that that information is handled with the same security and privacy controls it is accorded Within the federal system. Executive Order 13549 and the DHS Directive mandate that SLT officials? eligibility for security clearances is limited and need-based. SLT personnel and facilities are subject to the same security requirements as federal personnel and facilities, and are subject to federal oversight. While some SLT officials may be involved in other sharing or access arrangements, see, Directive all classified information is subject to security restrictions. See, 63 All redacted information exempt under and except where otherwise noted Approved for public release WSW Executive Order 13526 4.1 (general restrictions), 4.2 (distribution controls), (preventing unnecessary access). (U) E. Section IV.C (Dissemination of Foreign Intelligence Information Concerning United States Persons to Foreign Governments). This section is amended as follows: the title of the section will read "Dissemination to Foreign Governments.? The following underlined text will be inserted into the first sentence: "The FBI may disseminate acquired information concerning United States persons, which reasonably appears to be foreign intelligence information, is necessary to understand foreign intelligence information or assess its importance, or is evidence of a crime being disseminated for a law enforcement purpose, to foreign governments as follows?. In addition, the following underlined text is inserted into Section IV.C.2: (5) The amendment tracks the first insertion to Section IVA above, and consistent with 50 U.S.C. adds authority for FBI to disseminate evidence of a crime to foreign governments. This corrects an omission in the FBI SMPs. To facilitate the dissemination of evidence of a crime to foreign governments, the amendments permit 64 All redacted information exempt under and exoept where otherwise noted Approved for public release F. Section IVE Disclosure Under Docket Nmnbei-l. In addition to the title change discussed above, this section is amended to add the following: 1. For every surveillance or search from which FBI discloses raw information to CIA or MBA, FBI shall also provide: a. the identity of the target(s); b. a statement of whether each target was identified as a US. person, a non?US. person, or a presumed US. person in the relevant Court pleadings or orders; c. a statement of what Special or particularized minimization procedures, if any, were provided for in such pleadings or orders; and d. where applicable, a statement that the target, or any other person whose communications with an attorney are likely to be acquired through surveillance or search of the target, is known by FBI monitors or other personnel with access to such FISA?acquired search or surveillance to be charged with a crime in the United States. 2. Nothing in this Section shall prohibit or otherwise limit authority under other provisions of these procedures to disseminate to CIA or NSA information acquired pursuant to the Act and to which governing minimization procedures have been notice obligations to CIA and NSA under the Raw Take Order are currently set forth only in the Raw Take Motion. The amendment adds them to the FBI SMPS. See United States Foreign Intelligence Surveillance Court Rules of Procedure, Rule 12. 65 All redacted information exempt under and except where othenrvise noted Approved for public release G. Section VII (Review of Procedures). This section has been modified to re?ect that the date by which the. FBI SMPs will be reviewed remains five years from the date on which those procedures were initially adopted. V. Conclusion. (U) The Government respectfully submits that the FBI SMPs, with the amendments approved by the Attorney General, meet the definition of minimization procedures under 50 U.S.C. 1801(h) and 1821(4). As set forth above, based on articulated need, the Government requests that FBI be permitted to share raw acquired information acquired in terrorism?related cases on or after Ianuary 1, 2001. The remaining amendments to the FBI SMPs, except the insertions to Section IVE, modify provisions that themselves apply retroactively, pursuant to this Court?s Order, and the Government requests that those amendments apply with the same retroactivity. Accordingly, the Government respectfully requests that the Court issue the proposed Order attached hereto, which applies the amended procedures retroactively, to previously issued Orders and Warrants of this Court. The Government further submits that the NCTC SMPs meet the definition of trunimization procedures cited above?63)? 66 All redacted information exempt under and except where otherwise noted Approved for public release WHEREFORE, the United States of America, by counsel, files with this Court the attached amendment to the FBI Standard Minimization Procedures and respectfully moves to amend all Orders and warrants issued by this Court governed by those Procedures. A proposed Order to that effect is attached hereto. The United States further files the attached Revised NCTC Standard Minimization Procedures. Respectfully submitted, Lisa O. Monaco Assistant Attorney General Tashina Gauhar Deputy Assistant Attorney General Kevin J. O?Connor Chiefr Oversight Section 67 All redacted information exempt under and except where otherwise noted Approved for public release VERIFICATION I have reviewed the foregoing motion and the National Counterterrorism Center (N CTC) Standard Minimization Procedures described therein. NCT-C will follow those minimization procedures with respect to informstion acquired by FBI pursuant to Court~authorized electronic surveillance, physical search, or other acquisitiOn and provided to NCTC by FBI. {Si- 2! 92/2, Date Andrew Liepman Principal Deputy Director National Counterterrorism Center 68 All redacted information exempt under and except where othemise noted Approved for public release VERIFICATION I have reviewed the foregoing motion and the Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act described therein. The FBI will follow those minimization procedures applicable to the FBI, as described in the foregoing motion. (U) . Date Mark F. Giulian? Executive Assistant Director National Security Branch Federal Bureau of Investigation v- 69 All redacted information exempt under and except where otherwise noted Approved for public release WW I hereby approve the filing of this Motion regarding the sharing of PISA?acquired information between FBI and NCTC and the attached proposed Order with the United States Foreign Intelligence Surveillance Court. Eric H. Holder, Ir. . Attorney General of the .. Date: Qt? \Br" 70 All redacted information exempt under and except as otherwise noted. Approved for public release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DO IN RE ELECTRONIC SURVEILLANCE, Docket Numbers PHYSICAL SEARCH, AND OTHER ACQUISITIONS TARGETIN I INTERNATIONAL TERRORIST GROUPS, THEIR AGENTS, AND RELATED TARGETS MEMORANDUM OPINION AND ORDER In a submission made on April 23, 2012 (?April 23, 2012 Submission?), the government proposed new standard minimization procedures for the National Counterterrorism Center (N CTC) and various amendments to the standard minimization procedures used by the Federal Bureau. of Investigation Both the NCTC procedures and the amendments to the FBI procedures were approved by the Attorney General on April 20, 2012. The primary objective of these proposed procedures is to permit the FBI to provide to NCTC information relating to international terrorism in raw form, and to permit NCTC to review, retain, and disseminate such information, subject to procedures that comply with the requirements of the Foreign Intelligence Surveillance Act (PISA), 50 U.S.C. 1801-18850. The government?s proposal also encompasses a number of changes to the standard minimization procedures that do not directly bear on receipt and use of such information.2 I SQ Docket Nos. - Government?s Submission of Amendments to Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act, and Submission of Revised Minimization Procedures for the National Counterterrorism Center, and Motion for Amended Orders Permitting Use of Amended Minimization Procedures, ?led on Apr. 23, 2012. 2 The Court initially approved the current version of the standard minimization procedures in 2008. ?g Docket No. Submission of Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search (?2008 FBI ?led on Oct. 23, 2008; Opinion and Order SMPs Opinion?), issued on Oct. 31, 2008. This initial approval was WW For the reasons stated below, the Court ?nds that the minimization procedures proposed by the government satisfy the applicable requirements of FISA. I. The Applicable Statutory Requirements The government intends the new procedures to apply to information obtained through certain electronic surveillances, authorized pursuant to 50 U.S.C. 1801w1812, and physical searches, authorized pursuant to 1821 ?1 829, as well as to certain acquisitions of foreign intelligence information authorized pursuant to 1881c. April 23, 2012 Submission at 2-3 n.2.3 ISA requires that information obtained through these forms of collection be handled in granted in the context of a motion to amend all prior FBI search and surveillance orders so that the 2008 FBI SMPs would thereafter govern the handling of information previously acquired pursuant to those orders. FBI SMPs Opinion, at 3?7. In that motion, the government proposed, and the Court accepted, that it was sensible to modify how certain provisions of the 2008 FBI SMPs would apply to information acquired before November 1, 2008, or pursuant to orders issued before November 1, 2008. See i_d. at 4-6, 10-11. To the extent warranted, some of these modi?cations are further discussed below. At the same time, the government presented a second motion that sought to exempt speci?ed FBI data storage systems ??om certain marking and notice requirements embodied in the 2008 FBI SMPs. The Court granted this motion also. SE E. at 7?9, 11?12 (exempting speci?ed systems from the marking requirements of Section and Section and the electronic noti?cation requirements of Section and Section Since then, the Court has approved the use of the 2008 FBI SMPs, subject to the same exemptions, in many individual cases. Because the government describes its current proposal as involving amendments to the 2008 FBI SMPs, s_e_e, April 23, 2012 Submission at 2?3, and those amendments do not affect the provisions of the 2008 FBI SMPs that are implicated by the above-described modi?cations and exemptions, the Court understands the government to intend these modi?cations and exemptions to remain in force. That approach is reasonable. and in conformance with minimization requirements. The continued effect of these modi?cations and exemptions is speci?ed at page 20. 3 The government further intends to use the new procedures for information obtained pursuant to certain authorizations made by the Attorney General pursuant to Section 1881d(b). 5% April 23, 2012 Submission at 2?3 n.2. The Court does not review minimization procedures under Section 1881d(b). WEE-WW 2 TOP accordance with minimization procedures.4 The statute de?nes ?minimization 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 information;[5] 4 ?ag 1805 (when authorizing electronic surveillance, Court must ?nd that the minimization procedures satisfy the applicable statutory de?nition and direct that the procedures be followed); 1824(a)(3), (same for physical search); 1881c(c)(1)(C) (when authorizing acquisition of foreign intelligence information pursuant to Section 18810, Court must ?nd that the ?dissemination provisions? of the minimization procedures comply with the statutory de?nition of ?minimization procedures? for electronic surveillance or physical search, ?as appropriate?). 5 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 of a 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 of the United States; or (continued. ..) (2) procedures that require that nonpublicly available information, which is not foreign intelligence information [as de?ned in 50 U.S.C. 1801(e)( 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. 50 U.S.C. 1801(h) (electronic surveillance); 1821(4) (physical search).6 The issue presented is whether the proposed amendments to the FBI procedures and the new NCTC procedures comply with this de?nition. In order to analyze this issue, the Court ?rst will examine the proposed sharing of raw information with NCTC, subject to applying a new set of standard minimization procedures. The Court will then examine the proposed revisions to the standard minimization procedures that do not relate directly to sharing raw information with NCTC, as well as the corresponding provisions of the new NCTC minimization procedures. II. Sharing of Raw Information with NCTC The proposed procedures would authorize the FBI to provide to NCTC raw PISA-acquired information acquired on or after January 1, 2001 by FBI through electronic surveillance or physical search[7] targeting: foreign powers (B) the conduct of the foreign affairs of the United States. 6 The de?nitions of ?minimization procedures? for electronic surveillance and physical search are substantively identical (although the de?nition for physical search at refers to ?the purposes . . . of the particular physical search?). For ease of reference, subsequent citations refer only to the de?nition for electronic surveillance at 1801(h). 7 It is the government?s practice to propose use of the standard minimization procedures for electronic surveillance and physical search in certain applications for acquisition 4 mm as de?ned at 50 U.S.C. 1801(a)(4) [groups engaged in international terrorism or activities in preparation therefor]; (ii) agents of such foreign powers; and other targets where the surveillance or search is reasonably expected to yield foreign intelligence information related to international terrorism. - Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the FISA (?Proposed FBI at 33, attached as Exhibit A to the April 23, 2012 Submission. This proposal is similar to information-sharing that the Court has previously approved for the National Security Agency (N SA) and the Central Intelligence Agency An order that was originally issued in 2002 and extended in 2004 permits NSA and CIA to receive raw information from FBI electronic surveillance and physical search of terrorism-related targets, subject to Court-approved minimization procedures for those agencies. ?e_e Docket No. - Order issued on July 22, 2002; Order issued on May 19, 2004. NCTC do not presently have access to the raw FISA information that their counterparts at FBI, CLA, and NSA work with. Instead, under a separate order issued in 2008, NCTC is authorized to receive certain FISA-derived information ?'om terrorism cases that FBI has uploaded to its Automated Case System (ACS) database. ACS does not contain raw FISA information. Rather, it contains FBI investigative reports and other work product, some of which contain FISA information. As a result, FISA-derived information regarding U.S. persons that NCTC personnel can access via ACS has already been subject to minimization by the FBI. The Court approved procedures in 2008 that permit the FBI to make information in ACS available to NCTC without further review, provided that such access is limited to classi?cations of cases that are likely to contain information related to terrorism or counterterrorism and that NCTC applies its own Court-approved minimization procedures to such information. Docket No. - Memorandum Opinion Opinion?) issued on Oct. 8, 2008, at 3?6. The of foreign intelligence information pursuant to Section 1881c. In such cases, when reviewing the dissemination provisions of those procedures pursuant to Section 1881c(c)(l)(C), the Court understands references within those procedures to information obtained through electronic surveillance and physical search to include information obtained through Section 18810 acquisitions. 3 The Court has authorized FBI to share with CIA and NSA raw FISA information from the above-described categories of cases, only if the FBI acquired the information on or after January 1, 2001. FBI SMPs Opinion, at 6?7, ii. The government does not seek authorization for the FBI to share raw information acquired before that date with NCTC, CIA or NSA. See April 23, 2012 Submission, at 4 n.4. WW 5 Court found that such access was ?consistent with the need of the United States to obtain, produce and disseminate foreign intelligence information? under 1801(h)(l). NCTC Opinion at 3. In broad terms, the current proposal would put NCTC on the same footing as CIA and NSA with regard to terrorism?related information obtained by the FBI under FISA: NCTC would be authorized to receive and analyze raw data prior to FBI review and evaluation, and to use and disseminate the results of its analysis in accordance with its own Court-approved minimization procedures. The government argues persuasively that permitting NCTC to receive and work with raw FISA information would substantially contribute to the ability to produce and disseminate terrorism-related foreign intelligence information. NCTC is ?the primary organization in the United States Government for analyzing and integrating all intelligence . . . pertaining to terrorism and counterterrorism,? excepting exclusively domestic matters. 50 U.S.C. Its responsibilities include ?ensur[ing] that agencies, as appropriate, have access to and receive all?source intelligence support needed to execute their counterterrorism plans? and ?disseminat[ing] terrorism information, including current terrorism threat analysis, to the President? and other executive branch of?cials, as well as ?the appropriate committees of Congress.? 4040(d)(4), It also has ?primary responsibility within the United States Government for conducting net assessments of terrorist threats.? 4040(i)(1)(G). In 2010, the President directed NCTC to establish a process to prioritize and exhaustively pursue terrorism threats. Declaration of Andrew Liepman, Principal Deputy Director, NCTC Declaration?), at 5, attached as Exhibit to the April 23, 2012 Submission. The government reports that, since 2008, ability to access information from terrorism-related cases in ACS ?has been extremely valuable.? April 23, 2012 Submission at 16. For example, review of information in ACS ?provided the basis for a number of long- term strategic products,? and ?access to ACS has provided a signi?cant source of information for several high-level NCTC intelligence products,? including the President?s Daily Brief. Id. 18~19. Providing NCTC with access to raw FISA information is expected to provide greater bene?ts. Under the current arrangement, NCTC cannot have access to FISA information before it is reviewed by FBI personnel and put into a report or other form of work product that is then uploaded into ACS. The government?s proposal would permit NCTC to receive and work with the raw information directly, without delay. 3. at 17. It would also permit NCTC to analyze information in its original (or closer?to-original) form, rather than ?ltered through the analytic judgments of FBI personnel. E. at 16?17. ?[G]iven different mission [and] unique access to information from a broad range of sources,? it is anticipated that NCTC personnel will sometimes be able to interpret or use raw FISA information differently than an FBI agent would. 4W 6 at 20; see also NCTC Declaration at 17 (describing case where FBI analyst who was working at NCTC reco nized the si ni?cance of a iece of raw FBI FISA information In short, the Court is persuaded that bringing expertise and resources to bear on the immediate analysis of raw PISA data, in comparison with its working with derivative reporting after it is prepared by the FBI, will enhance the government? 5 ability to identify, extract, and exploit counterterrorism information. providing this information to NCTC will be, in the language of Section 1801(h)(1), ?consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.aalo For this reason, procedures that permit the sharing of raw data with NCTC can be consistent with the requirements of Section 1801(h)(1). The Court further ?nds that Section 1801 does not prohibit the proposed transmittal of raw information from the FBI to NCTC. Section 1801 applies to dissemination of FISA information that is neither foreign intelligence information as de?ned at Section 1801 nor evidence of a crime disseminated under Section 1801(h)(3). For information within its scope, Section 1801 requires minimization procedures to prohibit disseminations that identify a U.S. person ?unless such person?s identity is necessary to understand foreign intelligence information or assess its importance.? For the reasons stated above, the proposed sharing of raw data may be regarded as necessary for NCTC to understand, and assess the importance of, the 9 The government further notes that experience in recent high-intensity international terrorism investigations suggests that such cases would substantially bene?t from being able to support the FBI with a cadre of experienced counterterrorism who can help review raw FISA information, while also drawing on other counterterrorism resources. April 23, 2012 Submission at 20-22. 10 As set out above, Section 1801(h)(1) requires procedures that are ?reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination,? of U.S. person information,? consistent with foreign intelligence needs. 1801(11)(1) (emphasis added). The government suggests that the passage of raw FISA information from one agency to another may not be a ?dissemination? in circumstances where the receiving agency will be required to apply its own FISA-compliant minimization procedures to that information. Sgt; April 23, 2012 Submission at 26 n.16; see also NCTC Opinion at 5. The Court need not decide whether passing raw information to NCTC constitutes a dissemination. The discussion in the text assumes arggendo that the passage of raw information from FBI to NCTC constitutes a ?dissemination,? and the Court ?nds that the procedures permitting that ?dissemination? nonetheless comply with Section 1801 7 WW foreign intelligence information it is seeking to identify and extract. Because the transmittal of raw data necessarily includes any US. person identities embedded within the data, the FBI may transmit such US. person identities to NCTC, in the manner proposed by the government, without violating Section 1801(h)(2). Moreover, there is reason to think that Section 1801(h)(2) may not apply at all to the proposed transmittal of raw information to NCTC. The language of this provision suggests that it is directed at the transmittal of ?nished reporting, which is the context in which the foreign intelligence signi?cance of US. person identities can be evaluated.? If there is any ambiguity on this point, the legislative history con?rms that Section 1801(h)(2) does not prohibit the transmittal of unreviewed information that may contain US. person identities: Because minimization is only required with respect to information concerning U.S. persons, where communications are encoded or otherwise not processed . . . there is no requirement to minimize . . . until their contents are known. Nevertheless, the minimization procedures can be structured to apply to other agencies of the Government, so that if [another] agency . . . decodes or processes the communication, it could be required to minimize the retention and dissemination of information therein concerning U.S. persons. H.R. Rep. 95?1283, pt. 1, at 57?58. Consequently, the Court concludes that the FBI may transmit raw FISA information to NCTC, provided that NCTC handles the raw information in accordance with minimization procedures that comport with Section 1801 The Adequacy of Minimization Procedures Under Section 1801(h) The government proposes to replace 3 current minimization procedures with a new set of procedures. SE NCTC Standard Minimization Procedures for Information Acquired by the FBI Pursuant to Title I, Title or Section 704 or 705 of the FISA attached as Exhibit to the April 23, 2012 Submission. Most of the substantive provisions of the NCTC SMPs closely resemble provisions of the 2008 FBI SMPS or of the minimization 11 Also, as noted above, Section 1801(h)(2) does not apply to dissemination of foreign intelligence information as de?ned at Section 1801(e)(1), which includes counterterrorism information. Because the FBI will only share raw information with NCTC if it has been acquired in terrorism-related cases, one would expect that much of the foreign intelligence information gleaned from this data will fall within Section 1801(e)(1). WW 8 collections, as approved in Docket No. A number of these parallel provisions are procedures now in effect for handlini of raw information from FBI terrorism?related identi?ed below. The NCTC SMPs will govern the retention, use, and dissemination of information received from the FBI in raw form, see NCTC SMPs Preamble, at 1, as well as FBI information from terrorism-related cases that appears in ACS or other FBI general indices, id. E, at 11- 12.12 In addition to the NCTC SMPs, NCTC personnel will be required to follow any Court- approved special or particularized minimization procedures that FBI provides to regarding a particular case. ?e_e id. A9, at 4.13 NCTC will be obliged to specially mark FISA information received from the FBI, whether it is in raw or derivative form. NCTC SMPs A.8, at 4; B.1, at 5. Only appropriately trained NCTC personnel will have access to raw FISA information. Q. B.1, at 5; F.2, at 12. Queries of the raw ISA data ?must be reasonably designed to ?nd and extract foreign intelligence information.? E. C.1, at 6. ?Metadata? ?dialing, routing, addressing, or signaling information associated with a communication? that is not ?information concerning the substance, purport, or meaning of the ?2 NCTC may take action ?in apparent departure from these procedures in order to protect against an immediate threat to human life,? provided ?that it is not feasible to obtain a timely modi?cation of these procedures? from the Attorney General and the Court. NCTC SMPs A.5.b, at 3. If such action is taken, the Court must be noti?ed m. The current FBI procedures contain a substantively identical provision. 2008 FBI SMPs {5 LE, at 3. 13 For its part, FBI will be required to communicate to NCTC case?speci?c information including the identity and U.S. person status of the target and applicable case-speci?c minimization procedures when it makes raw ISA information available to NCTC. Proposed FBI SMPs 1V.G.4, at 34. These requirements generally track the current obligations to provide case-speci?c information to CIA and NSA when it shares raw FISA data with those agencies. See Docket No- Motion for Amended Orders Permitting Modi?ed Minimization Procedures, ?led on May 10, 2002, at 12-13. One of the proposed amendments to the 2008 FBI SMPs makes these obligations an explicit part of the provision of the FBI standard minimization procedures that governs information sharing with CIA and NSA pursuant to Docket Number- Proposed FBI SMPs NE, at 32. After a period of non-compliance, the government has established a process for FBI to provide such case-speci?c information and procedures to CIA and NSA, and the FBI will use a similar process to provide them to NCTC. April 22, 2012 Submission at 9?12. WW 9 communication,? id. A.3.b, at 2 may be retained inde?nitely for intelligence analysis purposes. C3, at 6. All other raw information, including the substantive contents of communications, is subject to a speci?c retention schedule. Unless a modi?cation is approved by the Court, raw information that has not been reviewed must be destroyed within ?ve years of the expiration date of the authorization pursuant to which it was acquired, id. B.2.a, at 5, and information that has been reviewed, but not found to be pertinent,l4 is sub'ect to hei ened access controls after rom such date and must be destroyed after Id. at 5.IS This retention schedule, including the authority to retain metadata inde?nitely, is in accord with the retention provisions of the current FBI SMPs. SQ 2008 FBI SMPs at 25-26. As a general rule, NCTC may use information that is revi (1 found to be geninent; however, additional restrictions apply to information concerning _s_ee NCTC SMPs A.3.h, at 2, C.4, at 6-7, and attorney-client communications, see id. . at 7-8. These provisions substantively track provisions of the current FBI and CIA procedures, respectively. 16 1? For ease of reference, this Opinion and Order uses the phrase ?not found to be pertinent? to describe data that has been reviewed, but not found to be information that reasonably appears to be foreign intelligence information, that is necessary to understand foreign intelligence information or assess its importance, or that is evidence of a crime. 15 The government proposes that, for purposes of calculating retention periods under NCTC SMPs B.2, information ?that FBI acquired pursuant to Orders that expired prior to the effective date of the NCTC SMPs be deemed . . . to have been acquired pursuant to an Order that expired on the effective date of the NCTC April 23, 2012 Submission at 40. The Court approved a similar means of transitioning to a new retention schedule when the current version of the FBI SMPs was adopted in 2008. 5% FBI SMPs Opinion, at 6. The Court approves this approach because the resulting retention periods are reasonable as applied to a body of information that is newly available to NCTC. ?6 see 2003 FBI SMPs 111.02, at 13-14 Docket No. - CIA Minimization Procedures for Information From FISA Electronic Surveillance and Physical Search Conducted by the FBI Minimization Procedures?) 4.a, at 4-5 (attorney-client communications), attached as Exhibit A to the Motion for Amended Orders Permitting Modi?ed Minimization Procedures ?led on May 10, 2002; see also note 27 regarding how NCTC will handle attorney-client communications. 10 49W When disseminating foreign intelligence information NCTC must remove the identities of US. persons, unless an identity is necessary to understand foreign intelligence information or assess its importance. NCTC SMPs D.1, at Otherwise, the requirements for disseminating information to federal, state, tribal, and local officials, and to foreign governments, are largely patterned after corresponding provisions of the 2008 FBI SMF's.lg Any signi?cant differences are discussed mm at pages 12?17. NCTC personnel also may retain, process or disseminate information when reasonably necessary to ful?ll speci?c legal requirements or to conduct lawful oversight of its handling of FISA information. NCTC SMPs A.6.D, at 4; compare 2008 FBI SMPs LF, at 3 (?Nothing in these procedures shall restrict the performance of lawful oversight ?mctions of its CIA Minimization Procedures 3.d, at 3-4 (general standards for retention and dissemination do not prohibit ?retention or dissemination of information required by law to be retained or disseminated?) . The Court finds that the NCTC SMPs are ?speci?c procedures . . . that are reasonably designed in light of the purpose and technique of the particular [collection], to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need . . . to obtain, produce, and disseminate foreign intelligence information,? within the meaning of Section 1801(h)(1). As noted above, the NCTC SMPS are substantially patterned on procedures that the Court has previously found to comport with Section 1801(h)(1), when applied by other agencies to the same set of terrorism-related information. The fact that, under the current proposal, NCTC will be handling the information is not, in and of itself, a cause for added concern. While certain provisions, which correspond to proposed amendments to the 2008 FBI SMPS, merit additional discussion, sg: infrg pp. 12-19, the Court is satisfied that the NCTC SMPS, taken as a whole, satisfy Section 1801 Likewise, the Court ?nds that Section D.1 of the NCTC SMPs, which regulates the dissemination of US. person identities, comports with Section 1801(h)(2). ?7 Under the terms of Section D. 1 this requirement to remove US. person identities applies to foreign intelligence information falling under either subsection of the de?nition at Section 1801 18 Compare NCTC SMPS DJ, 3, at 8-9 2008 FBI SMPs at at 27-30. Similarly, the provisions for disclosing raw information in order to obtain technical or linguistic assistance from another federal agency are substantively identical for NCTC and the FBI. Compare NCTC SMPs D.5, at 10 wit_h 2008 FBI SMPs 4.D, at 30-32. 11 As noted above, Section 1801(h)(3) speci?es that minimization procedures shall ?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 A.7 of the NCTC SMPs satis?es this requirement.19 IV. Amendments to FBI SMPs (and Corresponding Provisions of the NCTC SMPs) The government also seeks to amend the current FBI SMPs in several respects that are not directly related to sharing raw FISA information with NCTC. For the most part, as noted below, the corresponding provisions of the proposed. NCTC SMPs track these amendments to the FBI SMPS.20 A. Expansion of Authorities to Disseminate Information Most signi?cantly, the Proposed FBI SMPs seek to expand the authority to disseminate reportng based on FISA information to federal, state, local, and tribal of?cials and agencies.21 First, the Proposed FBI SMPs revise the description of what information the FBI may 19 Notwithstanding other provisions of these minimization procedures, information that is not foreign intelligence information, but reasonably appears to be evidence of a crime that has been, is being, or is about to be committed, may be retained and disseminated (including United States person identities) to the FBI and other appropriate federal law enforcement authorities, in accordance with [50 U.S.C. 1806(b) and Executive Order No. 12333 (as amended), and other applicable crimes reporting requirements or procedures. NCTC SMPs A.7, at 4. 2" For ease of reference, the agency handling information will generally be referred to as ?the even when the discussion pertains equally to NCTC when operating under the corresponding provision of its proposed procedures. 21 With regard to foreign governments, the Proposed FBI SMPs explicitly provide for dissemination of evidence of a crime for law enforcement purposes, in addition to foreign intelligence disseminations. S_eg Proposed FBI SMPs IV.C, at 28-30. The Court ?nds this provision to be reasonable and in conformance with Section 1801(h), and makes the same 12 disseminate to federal, state, local, and tribal recipients. Under the Proposed FBI SMPs, the FBI may disseminate ?PISA-acquired information that reasonably appears to be foreign intelligence information or is necessary to understand foreign intelligence information or assess its importance.? Proposed FBI SMPs IVA, at 27 (emphasis added). The corresponding provision of the 2008 FBI SMPs refers only to ?FISA-acquired information that reasonably appears to be foreign intelligence information.? 2008 FBI SMPs IVA, at 27.22 The Court ?nds that this revision is reasonable and comports with Section and makes the same ?nding with regard to the corresponding language in the NCTC SMPs. ?e NCTC SMPs D.1, at 8.23 The Proposed FBI SMPs also expand the range of federal, state, local, and tribal recipients to whom such foreign intelligence disseminations may be made. The 2008 FBI SMPs state that the FBI may make such disseminations ?to federal, state, local and tribal of?cials and agencies with responsibilities directly related to the information proposed to be disseminated.? 2008 FBI SMPs 4.A, at 27 (emphasis added).24 In contrast, the Proposed FBI SMPs permit foreign intelligence disseminations to ?federal, state, local and tribal of?cials and agencies Em responsibilities relating to ?nal security that require access to foreign intelligence information.? Proposed FBI SMPs IVA, at 27 (emphasis added). finding with regard to the corresponding provision of the NCTC SMPs. S_ee NCTC SNIPS 53' D3, at 8-9. 22 A separate provision addresses dissemination of evidence of a crime to federal, state, local, and tribal officials and remains unchanged. ?re 2008 FBI SMPs IV.B, at 28; Proposed FBI SMPS IV.B, at 28. 23 The amendments to the FBI procedures also change certain references to ?dissemination? of information to ?disclosure? of information. Compare, 2008 FBI SMPs IV.D, at 30 _W_'11l_1 Proposed FBI SMPs IV .D, at 30. The government advises that this change in terminology is not intended to alter the substance of these provisions. See April 23, 2012 Submission at 26 n.16. 2? Section IVA of the 2008 FBI SMPs further provides that ?[i]nf0rmation that reasonably appears to be foreign intelligence information not directhr related to responsibilities of such agencies may be disseminated incidental to the dissemination of information [that is] directly related? to those responsibilities. (Emphasis added.) This language is stricken by the proposed amendments to the FBI procedures and rendered super?uous by the expanded dissemination standards sought by those amendments. MW 13 This expansion of recipients implicates Section requirement of ?speci?c procedures . . . that are reasonably designed . . . to 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? (emphasis added). While both versions of Section IVA contain a general statement that ?information may be disseminated only consistent with [such] need,? the 2008 FBI SMPs contain a speci?c requirement that serves to ensure that authorized disseminations are responsive to that need namely, that the recipients have responsibilities that are directly related to the information they receive. Under the Proposed FBI SMPs, the required nexus between recipient and information is more general the receiving of?cial need only have ?responsibilities relating to national security that require access to foreign intelligence information,? not further specified. Thus, for example, the duties of a Coast Guard of?cial may include guarding against a waterborne terrorist attack, which would constitute national security-related responsibilities that require access to certain categories of foreign intelligence information, as de?ned at Section however, those duties might hear no relation to intelligence about a cabinet re-shuf?ing in a foreign government, even though such information could qualify as foreign intelligence information under Section 1801(e)(2)(B). The difference between foreign intelligence information that directly relates to an of?cial?s responsibilities, and foreign intelligence information generally, is likely to be especially pronounced for state, local, and tribal of?cials, whose responsibilities Will typically be limited to a particular jurisdiction, as well as by subject matter. The government justi?es this revision as necessary for the FBI to ensure that foreign intelligence information reaches all governmental personnel with a legitimate need for it. The 2008 FBI SMPs implicitly assume that FBI personnel can and will identifyr those of?cials across the federal government, and within state, local, and tribal governments, who have a need for particular foreign intelligence information. Declaration of Eric Velez-Villar, Assistant Director, Directorate of Intelligence, FBI Declaration?), at 6-7, attached as Exhibit to the April 23, 2012 Submission. But the ability to do so is limited. Sometimes, FBI personnel may be unaware that a particular agency or of?ce has a legitimate need for information on a given subject. FBI Declaration at 9?1 1. On other occasions, FBI personnel may not, at the time of dissemination, have fully ascertained the signi?cance of a piece of information. 1d. at 11. In either case, the distribution list formulated by the FBI will be under-inclusive. The government contrasts this mode of dissemination, in which an analyst ?pushes? reporting out to particular recipients, with disseminations in which recipients have access to a body of reporting, stored on classi?ed information repositories, and ?pull? out of it particular information that they identify as responsive to their current needs. April 23, 2012 Submission at 46?47. Intelligence agencies in recent years have increasingly employed the ?pull? model of dissemination. _S_ge_ FBI Declaration at 5?7. The government contends that intelligence consumers are better acquainted with their information needs than the originators of the reports 14 that are uploaded onto these information repositories. April 23, 2012 Submission at 49-50. The risk of under-inclusive distribution is therefore reduced. The government further points to the substantial added bene?t of allowing users to enter a search, review the results of that search, and assess each piece of information in the context of the others. This is essential to ability to discern connections between data points and understand the relevance of facially disparate reports . . . . Thus, in addition to permitting wider sharing of information, the proposed dissemination standard would also permit recipients to make more effective use of that information. NCTC Declaration at 14. As for non-federal recipients of information, the government notes that ?[s]tate, local and tribal governments are considered critical partners in national counterterrorisrn efforts,? including ?dissemination of information and intelligence.? Id. at 3. The government further asserts that, although the need to disseminate foreign intelligence information to such governments occurs most frequently in counterterrorism cases, it is not limited to counterterrorism. ?Indeed, state, local, and tribal of?cials are engaged, for example, in cybersecurity and weapons of mass destruction (WMD) preparedness. They also regulate, police, or otherwise interact with sites containing nuclear, radiological, chemical, or biological hazards.? FBI Declaration at 17. These threats do not ?fall exclusively under counterterrorism.? m. The Court is persuaded that exclusive reliance on a ?push? model of dissemination involves a substantial risk of under?inclusion and could impede efforts to assemble fragments of information from different sources into a coherent whole. These disadvantages signi?cantly militate against a finding that FISA can countenance only this manner of disseminating intelligence reporting. 9f. In Re Sealed Case, 310 F.3d 717, 743 (FISC Rev. 2002) (per curiam) (?effective counterintelligence, we have learned, requires the wholehearted cooperation of all the government?s personnel who can be brought to the task?). But that is not the end of the Court? 3 analysis. Having recognized a foreign intelligence need to allow for ?pull? disseminations to federal, state, local, and tribal of?cials, the Court must assess under Section 1801(h)(1) Whether the government?s proposal is reasonably designed to prohibit the dissemination of US person information, consistent with that need. First, the Court is mindful that the information in question is not raw FISA information. Rather, insofar as it concerns U.S. persons, information disseminated under this provision will at a minimum have been determined to ?reasonably appear[ to be foreign intelligence information or [to be] necessary to understand foreign intelligence information or assess its importance.? Proposed FBI SMPs IVA, at 27. While it is not permissible to disseminate any foreign intelligence reporting to any conceivable recipient, US. person information contained within Wm 15 ?nished reporting is likely to be less sensitive than U.S. person information embedded within raw FISA information, and may properly be disseminated in a range of circumstances. Moreover, it is notevVorthy that the balance that the government seeks to strike for operational and security reasons achieving broad availability of information needed by trusted users to perform their jobs, while avoiding unwarranted access by other persons or for other purposes is at least roughly comparable to goal of restricting disseminations of U.S. person information to cases where there is a foreign intelligence or law enforcement need. The Court also ?nds helpful the government?s explanation of how ?pull? disseminations are effected in practice. Access to such systems is limited ?to those users who have the necessary security clearance, whose agency has determined that they require access to particular systems to ful?ll their work responsibilities, and (0) who retrieve specific disseminated products in response to queries in the course of their of?cial duties.? FBI Declaration at 7-8.25 In the judgment of the Of?ce of the Director of National Intelligence, ?it is reasonable to conclude that the decision? to grant access to such a system is based on a ?need to access the information in those systems . . . to ful?ll a national security?related responsibility.? April 23, 2012 Submission at 48. The FBI, for its part, will decide on an individualized basis which information repositories should receive a particular intelligence product, based on an analysis of factors such as ?the sensitivity of the information, . . . U.S. person privacy concerns, . . . and the value of the information.? FBI Declaration at 16. In the Court?s view, it is important that there be effective protections against indiscriminate or otherwise improper aceessing of information concerning U.S. persons on these systems. Avoiding such practices is the difference between a system of dissemination that is no broader than necessary for full exploitation of foreign intelligence information and one that permits unwarranted disseminations. At the same time, however, the Court recognizes that the potential recipients of such disseminations are scattered across a large number of agencies at various levels of government. It would be awkward, if not unworkable, to regulate the behavior of all potential recipients through minimization procedures that are predominantly directed at the FBI and NCTC. In view of these considerations, the Court is prepared to rely on the government?s representations of how FISA information will be disseminated on these classified information systems in its assessment of the proposed dissemination provisions. 25 See also id. at 11 (referring to ?rules requiring users to only use systems in ful?llment of their of?cial duties?); NCTC Declaration at 13 (?searchable repositories . . . generally are subj eet to access policies that require users to use systems only in ful?llment of their of?cial duties. Individuals? use of these systems is also generally subject to audit?) . 16 For these reasons, and based on the representations summarized above, the Court ?nds that Section IVA of the Proposed FBI SMPs, and the corresponding provision at Section D.1 of the NCTC SMPs, satisfy the requirements of 50 U.S.C. In view of the Court?s reliance on factual representations that are extrinsic to the procedures themselves, the government is directed to report on the implementation of this authorization of ?pull? disseminations. S_ee_ i_n_f_r_a p. 21. B. Other Amendments to the FBI SMPs (and Corresponding Provisions of the NCT SMPs) Categories of Sensitive Information: Section of the 2008 FBI SMPS requires FBI personnel to continually analyze collection results and establish case-speci?c categories of non- pertinent information. The government is also required to describe these categories in renewal applications. The proposed amendment would eliminate these requirements in favor of emphasizing the need for particular care in reviewing identi?ed categories of sensitive information information about religious, educational, and political activities of U.S. persons) and to prohibit the use of sensitive information in an analysis or report unless it reasonably appears to be foreign intelligence information, necessary to understand foreign intelligence information, or evidence of a crime. S_ee_ Proposed FBI SMPs at 14~15. The current practice of generating case-speci?c categories is not legally required, so long as there are other safeguards for U.S. person information that bring the procedures into compliance with Section 1801(h). Because such safeguards are present, the Court has no dif?culty in approving this amendment, as well as the corresponding provision of the NCTC SMPs. Se_e NCTC SMPs (3.5, at 7. FISC Role in Extension of Retention Periods: The 2008 FBI SMPs provide that the retention periods for unreviewed information, as well as for reviewed information that has not been found to be pertinent, may be extended if ?speci?c authority is obtained from an Assistant Director of the FBI the Department of Justice?s National Security Division (N SD), and the Foreign Intelligence Surveillance Court (FISC). S_e_e 2008 FBI SMPs 3.G.1.a-b, at 25-26. The proposed amendments would permit such extensions if ?Speci?c authority is obtained from an Assistant Director of the FBI (AD) and NSD to retain the material, and the FISC approves a new retention period upon a finding that such modi?cation is consistent with the applicable statutory de?nition of ?minimization procedures.? Proposed FBI SMPs 3.G.1.a~b, at 24- 25. Because the new language merely describes more precisely the Court?s statutory role in 17 reviewing minimization procedures, the Court approves this amendment, as well as the corresponding provision of the NCTC SMPS. NCTC SMPs B.2.a?b, at 5.26 Certain Privileged Communications: The 2008 FBI SMPs have detailed requirements for handling attorney-client communications in various contexts. In cases where a target is under federal criminal charges, the FBI is required to establish a team of persons who have no role in the prosecution to conduct the initial review of acquired information. see 2008 FBI SMPs at 17. As soon as that review team identi?es ?a privileged communication concerning the charged criminal matter between the tar et and the attome re resentin the tar et in that matter the FBI is required ?ensure that whenever any user revrews 1n ormatlon or commumca lens acqurre search or surveillance, which are in an FBI electronic and data storage system containing raw PISA-acquired information, he receives electronic noti?cation that attorney-client communications have been acquired during the search or surveillance,? so that other users know ?that they may encounter privileged communications.? at 18-19. In other cases involving the acquisition of communications between a client under criminal charges and an attorney re resentin the client in that matter, the FBI is re uired, at a minimum, to implement process of the type escrr a ove. retain all of these protections. The 2008 FBI SMPs also require that, when the FBI determines that an attorney-client communication within one of the above?described categories has been identi?ed, the FBI shall 25 When these FBI retention periods were ?rst approved in 2008, the Court permitted the FBI to ?treat any information acquired pursuant to [previous orders] as if that information? had been found to be pertinent, provided that such information previously ?had been marked ?pertinent? in FBI systems, or had otherwise been found to meet the logging or indexing standards of the FBI standard minimization procedures previously applicable to such information.? FBI SMPs Opinion at 11. The Court approved this approach in view of the ?undoubted burdens that a comprehensive re-review [of information reviewed before November 2008] would involve.? I_d. at 6. The government has not proposed any change in this way of handling information reviewed before November 1, 2008. Without comparable relief, this information would present the same practical dif?culties under the corresponding provision of the Proposed FBI SMPs. Accordingly, the Court approves treating information reviewed before November 2008 in the same manner as was approved in the FBI SMPS Opinion. 18 the Court ?nds that these provisions, as a whole, provide adequate protection for privileged communications in criminal matters.27 For the foregoing reasons, the Court ?nds that the Proposed FBI SMPs and the NCTC SMPs, implemented in the manner described in the April 23, 2012 Submission, in conjunction with any case?speci?c minimization procedures applicable under prior orders that reference the 2008 FBI SMPs, satisfy the de?nitions of ?minimization procedures? at 50 U.S.C. 1801(h) and 1821(4). It is accordingly ORDERED that: (1) Effective May 18, 2012, all prior orders of the FISC that authorized the FBI to conduct electronic surveillance or physical search, and all prior orders of the FISC that authorized acquisitions of foreign intelligence information under 50 U.S.C. 1881c and that approved the use of the dissemination provisions of the 2008 FBI SMPs (collectively ?Prior Orders?), are amended as follows: Subject to the exceptions and modi?cations speci?ed in subparagraphs through (1) below: the acquisition, retention, and dissemination of information acquired pursuant to Prior Orders shall be governed by the Proposed FBI SMPs, in lieu of the 2003 FBI and (ii) retention and dissemination of information acquired 27 The attorney-client provisions of the proposed NCTC procedures are significantly different from those in the FBI procedures. For example, when NCTC encounters a privileged communication between a criminal defendant and his attorney in that matter, monitoring of the communication will cease and ?[t]he relevant portion of the tape, document, or other material . . . will be placed under seal or otherwise sequestered within NCT be noti?ed so that appropriate procedures may be established,? - ?gs NCTC SMPs C.6, at 7. Given that NCTC personne are muc ess 1 an FBI personnel to be active participants in criminal investigations and prosecutions, the Court ?nds that the NCTC attorney?client procedures to be reasonable and appropriate for that agency. MW 19 pursuant to the Prior Orders shall be governed by the NCTC SMPs, in lieu of the NCTC minimization procedures approved in Docket No-dinirnization requirements of Prior Orders, other than those requirements embodied in the 2008 FBI SMPS or the NCTC minimization procedures approved in Docket No. -, shall remain in effect in accordance with the terms of those Prior Orders. For purposes of calculating retention periods pursuant to NCTC SMPs B.2, Prior Orders that expired before May 18, 2012, shall be deemed to have expired on May 18, 2012. For purposes of calculating retention periods pursuant to Proposed FBI SMPs Prior Orders that expired before November 1, 2008, shall be deemed to have expired on November 1, 2008. The FBI may treat any information acquired pursuant to Prior Orders as if that information reasonably appeared to be foreign intelligence information, to be necessary to understand foreign intelligence information or assess its importance, or to be evidence of a crime, provided that, prior to November 1, 2008, such information had been marked ?pertinen in FBI systems, or had otherwise been found to meet the logging or indexing standards of the FBI standard minimization procedures previously applicable to such information. This amendment of Prior Orders does not authorize sharing of tut-minimized information acquired before January 1, 2001, with CIA or NSA pursuant to the minimization procedures approved in Docket Number - or with NCTC pursuant to the minimization procedures approved herein. Certain FBI data storage systems shall remain exempt from the marking requirements of Section and Section of the Proposed FBI SMPs, and from the electronic noti?cation requirements of Section and Section of the Proposed FBI SMPs, as described and explained in the FBI SMPs Opinion at 7-9, 11-12. (1) As is currently the case under the 2008 FBI SMPs, the government is not required to conduct minimization brie?ngs as described by Section V.C of the Proposed FBI SMPs pursuant to Prior Orders issued before November 1, 2008. SE FBI SMPs Opinion at 6, 10. (2) The amendment described in paragraph (1) is effective as of May 18, 2012. Actions taken prior to that date with respect to information acquired pursuant to Prior Orders shall remain governed by, and evaluated under, the minimization procedures applicable to that information at the time that action was taken. 20 (3) Henceforward, NCTC shall apply the Ps approved herein to information it has received from the FBI pursuant to Docket No. in lieu othion procedures for NCTC previously approved by the FISC in Docket No. (4) The government shall describe how foreign intelligence information has been disseminated, pursuant to the procedures approved herein, to federal, state, local, and tribal recipients under circumstances where such recipients have been granted the ability to access information that is not directly related to their responsibilities (??pull? disseminations,? as described s_u_pr_a at pages 14?16). Such a description shall be provided in the report to be submitted to the Court pursuant to Section VII of the Proposed FBI SMPs and in the report to be submitted to the Court pursuant to Section of the NCTC SMPs. (5)111 addition, and separate from the reports described in paragraph (4) above, the government shall report to the Court in writing any material change in, or deviation from, the controls and policies governing how other federal, state, local or tribal recipients access FBI or NCTC reporting that includes ISA information concerning U.S. persons via ?pull? disseminations, as those controls and policies have been represented to the Court in this matter. ENTERED at l: 330 . on this may of May, 2012. your, 4 . mama?x MARY Judge, Un ted States Foreign Intelligence Surveillance Court a r" uDLal {hi3} a