U.S. Department of Justice United States Attorney Southern District of New York 86 Chambers Street New York, New York 10007 May 29, 2015 By Electronic Mail David E. McCraw, Esq. Jeremy A. Kutner, Esq. The New York Times Company 620 Eighth Avenue New York, NY 10018 E-mail: mccrad@nytimes.com jeremy.kutner@nytimes.com Re: The New York Times Co. v. U.S. Department of Justice, 14 Civ. 3948 (VSB) Dear David and Jeremy: This Office represents the United States Department of Justice (“DOJ”), the defendant in the above-referenced matter. DOJ has completed its review and processing of documents in accordance with the schedule set forth in the Stipulation and Order Regarding Additional Processing and Briefing, dated March 30, 2015 (the “Stipulation”). With respect to paragraph 1 of the Stipulation, DOJ identified three memoranda of law, and is releasing them with redactions as three separate .pdf documents. With respect to paragraph 2 of the Stipulation, DOJ identified one memorandum of law and one order, and is releasing them with redactions, combined into one .pdf document. Information has been redacted from these documents pursuant to 5 U.S.C. §§ 552(b)(1), (b)(3), (b)(6), (b)(7)(A), and (b)(7)(E). Each redacted document being released has been marked with the applicable FOIA exemption or exemptions. With respect to paragraph 3, DOJ can neither confirm nor deny the existence of any documents responsive to categories 12 or 13 of the FOIA Request, as defined in the Stipulation. These documents will be made available to the public on Monday, June 1, 2015, on the Director of National Intelligence’s website, “IC on the Record,” at http://icontherecord.tumblr.com/, as well as at www.dni.gov. If you have any questions, please do not hesitate to contact us. Sincerely, PREET BHARARA United States Attorney for the Southern District of New York By: /s/ Emily E. Daughtry JOHN D. CLOPPER EMILY E. DAUGHTRY ANDREW E. KRAUSE Assistant United States Attorneys Telephone: (212) 637-2716/2777/2769 Facsimile: (212) 637-0033 E-mail: john.clopper@usdoj.gov emily.daughtry@usdoj.gov andrew.krause@usdoj.gov Enclosures 2 ed information exempt under andi?or except as otherwise noted. Approved for Public Release US. Department ofJustice t: . . . $3155: 1' . Nauonal frat-"fat" Often! aftite Assistant Attorney General Washington, DC, 20530 9, r. 5) his: as: do: rig-g April 20, 2007 MEMORANDUM TO: Honorable Roger Vinson, Judge US. Foreign Intelligence Surveillance Court FROM: Kenneth L. Wainstein git {h SUBJECT: Report in No. On March 21, 2007, the Government filed an application, Docket No. under the electronic surveillance provisions of the Foreign Intelligence Surveillance Act (PISA), 50 ESE. 18014811, seekin renewal of the surveillance authority for the National Security Agency granted in Docket Nob the ?meet? of the to used surveillance as ?facilities? at which the surveillance was to be directe It also proposed minimization procedures that would have required the Government to report to the Court every 30 days concerning new telephone numbers and email addresses used by NSA as foreign selectors. It did not require the Court make probable cause determination-s with respect to. individual existing or new foreign selectors. On March 29, you advised as that you had reservations about the legal theory advanced in. the Govenunent?s application. You then issued an Order and Memorandum Opinion setting forth your reasonng on April 3. In your Opinion, you did not take issue with our identi?cation of the targets of the proposed electronic surveillance as the !orei gn powers noted above. But you concluded that the facilities at which the surveillance is irected are the individual telephone numbers and e?mail addresses used by NSA as selectors and? found the application inadequate under PISA because it did not provide a probable 'cause justification for each selector. In addition, you expressed concern that our proposed reporting precedent: was contrary to the language of PISA in that it provided for after?the?fact reporting rather than prior judicial authorization. Thus, you found that our proposed minimization procedures did not meet the definition of such procedures under section identi?ed the M: Understanding our need for time to address your conce - lowed us to seek?and we obtainedwan extension of the authorization granted in N0.Wntil 5 pm. on May 31, 2007. You instructed us to ?periodically submit written reports . . . regarding [curl efforts to prepare and submit for [your] consideration a revised and supplemented application that would 1 DEW All redacted information exempt under and/or except as otherwise noted. Approved for Public Release eon?SEW meet the requirements of PISA as described in [your] order and opinion.? This memorandum constitutes the ?rst such report, which is due on or bef0re April 20, and sets forth a new proposal that we have crafted to address the concerns you expressed in your Opinion and in our meetings. New Approach: Surveillance Since receiving your Opinion, we have examined PISA closely to determine whether there are alternate approaches, anchored in the clear terms of FISA as interpreted in your Opinion, that would allow the Government the speed needed to serve the same early warning function as the surveillance authorized in No. We believe that we have developed such an approach, which is signi?cantly different from the approach contained in our prior submission. 3 Our proposal has two parts. First, unlike our prior submission, this new approach would require the Court, in considering the application, to make a probable cause finding that each of the telephone numbers and e-mail addresses included in the application and earns tl targeted for collection under NoFis being used or is about to be used by! ?atgets of the surveillance. Secon or numbers and addresses NSA discovers after curt grants the application, the new approach relies on those provisions of PISA, and Court practice under them, which allow the Court to authorize the Government to initiate surveillance of new facilities telephone numbers and e-mail addresses) used by the same target that the Govemment identifies aft ?nitial an ation. utho 't cunts for targets like the foreign powers here warmC When the Government uses this authority, it must comply with a statutory reporting requirement. That provision, which applies when the nature and location of the facilities at which the surveillance is directed is ?unknown? at the time of the application, requires the Government to report the new facility and the probable cause supporting the surveillance of it to the Court within ten days. Also unlike the prior approach, this approach will require the Court to make probable cause determinations with respect to each of the new telephone numbers and e?mail addresses at, or before, renewal. Should the Court agree that this approach is consistent with the statute. we will centinue to work with NSA to ensure that it can be accomplished in light of the Government?s logistical constraints and in a manner consistent with the operational purpose of the surveillance. Like the application in No- this application would seek authority to conduct surveillance of these foreign powers by tasking for collection only telephone numbers and e-mail addresses reasonably believed to be used outside the to rate . It 'zes that these owers crate in a multitude of foreicrn countries, to avoid detection. Proposed Application for A?ervecquired/Roving Authority (U) Our proposed application would be structured as follows: 2 All redacted information exempt under andior except as otherwise noted. Approved for Public Release 413W We would continue to identify the targets of the electronic surveillance as th powers noted above. (415% oreign We would identify. as your Opinion does, the ?facilities . . . at which the electronic surveillance is directed," l8D4(a)(4)(B), as the individual telephone numbers and e-mail addresses that NSA tasks for collection. For each of the foreign selectors currently under surveillance, we would submit for the Court?s review ?a statement of the facts and circumstances relied upon by the [Government] to justify [its] belief that. . . each of the facilities . . . at whic electronic Surveillance is directed is being used. or is about to be used, by?h identified foreign powers. Id. You would then review these facts and circumstances for each of the telephone numbers and e?mail addresses to determine whether probable cause exists. See id. We have sent attorneys from the National Security Division (NSD to NSA to help prepare revised and updated probable cause submissions for these-acilities. NSD attorneys are working side-by?side with NSA professionals. Together. they are working to modify existing documentation of eachjusti?cation?which in most cases was initially prepared for internal use only?for each facility. With guidance from NSD attorneys, NSA is in the process of reviewing each probable cause submission so that the necessary facts can be provided to the Court in one clear and concise statement. A sample of our probable cause submissions is attached as Exhibit A. As we did in our prior application we would submit the facts and circumstances that Underlie our conclusion that ave ot er te ep . one man are and e-mail addresses that are unknown to NSA at the time of the application, that they will acquire it surveillance Proposed OrderAnrhorizing Surveillance U) If you were satisfied that probable cause existed to conduct electronic surveillance of all or a portion of the specified known facilities and that the statutory requirements were otherwise met, you would issue an order authorizing the surveillance, as follows. See id. 1805. (U) 0 The Order would Specify ?the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known." Id. 1805(c)(1)(B). That is, the Order would specify the telephone numbers and email addresses for which the Court had found probable cause. The Order would also recognize that there are facilities used by the targeted foreign powers whose ?nature and location? is not ?known.? See id. PISA provides for just such 3 All redacted information exempt under andi?or except as othenNise noted. Approved for Public Release a circumstance. ?[Wlhere the nature and location of each of the facilities or places at which the surveillance will be directed is unknown,? FISA requires the Order to direct the Government to ?provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility . . . Id. 1805(c)(3). Such notice must include ?the nature and location of each new facility or place at which the electronic surveillance is directed? and ?the facts and circumstances relied upon by the [Government] to justify [its] belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance.? Id. The Order would direct us to provide the Court with such notice. 0- At renewal, the Court would review the facts and circumstances provided in the notice as to each surveillance and determine whether probable cause exists for each new facility and the new surveillance may continue. The Court could call for earlier review as well. Section 1805(c)(3)(C) provides that the Government may propose new minimization procedures in its notice to account for the new surveillance. The Court could require that such proposed procedures provide for a Court determination of whether probable cause exists for each new facility and thus whether surveillance may continue, without awaiting the renewal application.1 WSW Consistency with Prior Practice and the Language of the Statute U) This approach builds upon prior PISA practice and is contemplated by the plain language of the statute. both of which evince the Court?s power, in the proper case, to authorize the Government to initiate surveillance immediately upon the Government?s finding of probable cause in circumstances where it is anticipated that the target will use facilities that are unknown at the time an order is granted authorizing surveillance. As in the case of roving wiretaps in the criminal context. this authorization is critical to the Government's ability to follow the target in real time and to avoid the loss of valuable information. In order to allow for Court oversight of this authority, the statute and the Court require regular reporting after new surveillance has begun. 63:5 The Court has a long-standing practice of authorizing the Government, without first returning to the Court for prior approval, to conduct surveillance of telephone members, e?mail addresses, and vehicles that the Government later learns are being used by the target of the surveillance. Alternatively, the Court could authorize the initial surveillance for a period of less than 90 days and review the probable cause underlying the surveillance of the new facilities at that earlier time. 4 All redacted information exempt under andlor except as otherwise noted. Approved for Public Release As noted above, section provides that an Order need not Specify the nature. or locatic?m of facilities that are not ?known.? Id. It thus recognizes the Court?s power to authorize surveillance directed at facilities for which the Government learns of probable cause after the initial order. In such circumstances, FISA establishes a reporting mechanism to ensure that the Court can conduct infonned oVersight of the G0vernment?s use of this authority. See id. 1805(c)(3). Although the legislative history of the reporting provision indicates that it was enacted to provide a mechanism for Court oversight of the authority granted by the USA PATRIOT Act in section 1805(c)(2)(B), where the ?person.? who must provide assistance to the Government is unknown at the time of the order, nothing in the language of the statute restricts it to that context only. Rather, it applies whenever ?the nature and location of each of the facilities or places at which the surveillance will be directed is unknown.? Id. 1803(c)(3). That is the case here. In order to conduct the surveillance of the speci?ed foreign powers effectively, the Government must be able to add new telephone numbers and e?mail addresses, which are unknown at this time, as they are discovered? 2111 developing this new approach, we have discovered that prior applications have not read section 1805(c)(3) to regulate reporting in the traditional after-acquired context, th at is, when the Government can identify in the application all of the ?speci?ed persons? to whom the secondary orders would be issued. In addition, these applications have read section 1805(c)(3) to apply only when the Government knows neither the ?nature? nor the ?location? of the new facility or premiSes. We believe that this reading of the ?nature and location" phrase as including two disjunctive requirements both of which must be met is erroneous. The provision uses singular form of the verb "to be??with respect to the term ?nature and location.? Id. 1805(c)(3). Thus, the term is a unitary concept that refers to whatever identi?ers are necessary to specify the facility or place at which the surveillance will be directed. These identi?ers will vaty according to the. type of the facility or place. Because this reporting provision applies whenever the Government does not know the. nature andfor location of each of the facilities or places at which the surveillance will be directed, going forward, the Government will follow the 5 All redacted information exempt under and/or except as otherwise noted. Approved for Public Release Moreover, this approach is consistent with the language of section 1805(c)(2)(B) and the practice thereunder. This section was amended by the USA PATRIOT Act to allow the Court ?in circumstances where the Court finds, based upon Specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a speci?ed person? whose assistance is required to effect the surveillance to direct that person to provide such assistance. See id.3 When this provision applies, the identity of the directed person is not contained in the application or Order because it is not known at the time. The Government is then provided with the authodty to identify that person and require his assistance without first returning to the Court. Under this revision, the Court has authorized the Government ithin meaning of section 180 (c . target was not the subscri or to the num er serviced by the unspecified provider, the FBI in exigent circumstances was authonzed to serve a secondary order on the provider for up to 72 hours, after which time the surveillance would have had to have ended unless an OIPR attorney had attested in writino that there was probable cause to believe that the target was using or about to use the If the FBI obtained the attestation, the surveillance could continue, subject to a 10?day report to the Court. We recognize that the authority we seek to conduct this after?acquiredfrovin surveillance, although founded in both the plain language of PISA and the Court?s prior practice, would allow such surveillance on a greater scale than in the past. In addition, the Government would be given broader discretion than in roost prior cases to initiate surveillance of a new facilit related to the target, that is, the authorization would not be tied to, eg. Our proposal, however, does contain significant safeguards and the discretion required stems from the very reason for this program. The surveillance would be only of the targets? telephone numbers and e-mail addresses reasonably believed to be used outside the United States; the Court would have reviewed the probable cause underlying the surveillance of all initial facilities (which would encompass the large majority of the facilities targeted for collection); the Government would be required to report its probable cause findings for new surveillance to the Court within a short period of time; and the Court would review these ?ndings either at, or before, the time of the subsequent renewal application. In light of the size of this program, the scale of the surveillance authorized under any new approach will be unprecedented. And the Government?s discretion to begin surveillance on any new facilities is necessary to any program that will provide the Government the needed flexibility to move rapidly to detect the targets? terrorist plots and to foil their attempts at secrecy and evasion. reporting requirement in all applications that seek authorization to initiate surveillance of facilities or premises discovered after the Court?s authorization, regardless of whether this surveillance requires the assistance of a ?person? different from the coals) Speci?ed in the order. 3 This provision does not a directl in this context. Althouvh the tenets here the Gmernment will not he Government can All redacted information exempt under and/or except as otherwise noted. Approved for Public Release Under our approach, any new surveillance would come under the Court?s oversight in a matter of days and it would remain supervised thereafter. WW 5? We would like to discuss with you the approach set forth above. We believe that it addresses the concerns you expressed to us, is consistent with FISA and the Court?s prior practice, allows the Government the speed and agility it needs to Operate this early warning system, and provides for the judicial oversight FISA envisions. We remain committed to deveIOping an approach that satisfies these conditions. Because of the time constraints on pursuing this or other options, we respectfully request that the Court provide us its views on this approach as quickly as possible. {?T?Sv??sm All redacted information exempt under andfor except as otherwise noted. Approved for Public Release All redacted information exempt under andlor except as dtherwise noted. 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Approved for Public Release All redacted information exempt unoer andfor (bxq). except as otherwise noted. Approved for Public Release All redacted information exempt under andlor except as otherwise noted. ?1 Approved for Public Release All redacted information exempt under and/or except as othemise noted. Approved for Public Release All redacted information exempt under andlor except as othenrvise noted. TOP 123' Approved for Public Release i(I? .. All redacted information exempt under and/or except as othemise noted. Approved for Public Release if m. g; All redacted information exempt under andfor except as othemise noted. Approved for Public Release All redacted information exempt under andlor except as otherwise noted. 1? Approved for Public Release All redacted information exempt under andlor except as otherwise noted. Approved for Public Release All redacted information exempt under andfor except as otherwise noted. a Approved for Public Reiease All redacted information exempt under andlor except as otherwise noted. Approved for Public Release All redacted information exempt Approved for Public Release 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 Ail redacted information exempt under andror exce ta therwise -i mi. Approved for Public Release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. Docket Number: EXHIBIT MEMORANDUM OF LAW IN SUPPORT APPLICATION FOR AUTHO CONDUCT ELECTRONIC SURVEILLANCE 0F Derived from Application of the United States to. the Foreign Intelligence Surveillance Court 'in the above-captioned matter . Declassify only upon the "determination of the President All redacted information exempt under andlor except as otherwise noted. Approved for Public Release The Govemment submits this memorandum of law in support of its application for collection of a particular type of electronic conununications, ?abouts? or ?referred to? communications. These are communications that relate toe targeted email facility used by the foreign power targets of this surveillance where the targeted email address does not appear in the ?to? or ?from? ?elds of the In the Court?s previous Order and . Memorandum Opinion related to this surveillance, the Court instructed that, if ?the govemntent continues to seek authority for. [this] type of surveillance . . . its further submissions shall include an analysis of the extent to which such surveillance is directed at selector e?mail addresses, and the extent to which it is directed at e-mail addresses that send or receive communications that are acquired because they refer to a'selector email address.? Order and Memorandum Opinion, In No. .(Apr. 3, 2007), at 21?22. The Government does seek authority to continue such surveillance, which was requested in the ?rst application in No- .and is currently conducted under the authority granted in No.- The collection of this information is critical to the continued success of the ?early warning? system.2 Types of ?Abouts? Before analyzing the collection of this type of communications under the electronic surveillance provisions of the Foreign Intelligence Surveillance Act (PISA), 50 U.S.C. 1801- 1811, it" is necessary to set forth the different categories of communications that fall within the Although the Government?s application seeks to Conduct surveillance of'e?mail addresses and telephone nmnbers used by the foreign power targets of this surveillance, the type of authority addressed in this memorandum is relevant only to email addresses. '9 . . . . The National Security Agency. has this memorandum of law for accuracy. 1 All redacted information exempt under andior except as otherwise noted? Approved for Public Release general category of ?abouts? or ?referred to? collection, the acquisition of communications where the targeted e-mail address does not apear in the ?to? or ?from? ?elds. All redacted information exempt under andIor except as otherwise noted. Approved for Public Release Mod?party ?abouts Third?party ?abouts? are communications relating to a. facility at which NSA is not directing surveillance that contain a targeted Captun'ng these communications would not only providethe Govemment with the information contained in the text of the communication itself, but would also help to identify previously unknown terrorist associates and accounts. Third?party ?abouts? include electronic communications between two 3 All redacted information exempt under andfor except as otherwise noted. Approved for Public Reiease third~party, newtargeted facilities that contain {he targeted e?mail address in the contents of that communication. Thus, even wl'len an email is not to or from the targeted e?mail address, NSA would (re?ect the communication as long as the contents ofthe- comnmnicaiion Legal An alysis 4 Ail redacted information exempt under (hm) andfor xcept as oihemise noted. Approved for Public Reiease All redacted information exempt under andfor except as othelwise noted. Approved for Public Release Third-paw}! ?abouts A- legal issue is raised by the acquisition of conrlmunications that. fall within. the category of third?party ?abouts,? i. where the e?mail _appears in the All redacted information exempt under andlor except as otherwise noted? Approved for Public Release body of an e?mail neither sent nor received by an account at which surveillance is already the communication is captured because it contains the?but it cannot be said that the surveillance is ?directed at? the targeted account because, with respect to that particular communication, the targeted account is not ?being used or about to be used? by the foreign power target. Rather, for the puiposes of PISA, the surveillance is ?directed at" the facilities that sent and received the communication. Nevertheless, acquisition of the conununication is consistent with the statute because, at the time of acquisition, NSA has probable cause to believe. that the facilities at which NSA is directing the surveillance the previously unknown email accounts) are! being used by the foreign power target. All redacted information exempt under andfor except as otherwise noted. Approved for Public Release forwarding an email from that account to a third account provides probable cause to believe that either the account that is forwarding the e-mail from the targeted address or that which is receiving it is also being used by the foreign poWer target. And there is probable cause to believe that at least one party to a communication that mentions the c-mail address used by the target (as opposed to simply using the name of the target or of an individual associated with the target,?) is himself a member or agent of the target. It is important to note, however, the limits of such surveillance. NSA will not rely on the fact that it acquired the one communication, to begin automatically to monitor all communications of the facilities from which it acquired the communication. Rather, it will determine whether,? ?there is still probable cause to believe that the facilities are being used or are about to be used by the target of this surveillance. To be sure, regardless of Whether NSA continues to collect communications of the facilities which sent and All redacted information exempt under andlor except as otherwise noted, Approved for Public Release received the acquired communication containing the targeted- NSA will have directed surveillance at facilities whose ?nature and location . . . [are] unknown? at the time of the application. For this reason, NSA will include those facilities as part ofthe reporting scheme described inthe application. I Accordingly, the authority the Government seeks in the application includes the authority to conduct. the surveillance described above, and the acquisition of such communications is consistent with FISA. Respectfully submitted, Dated: May 24, 2007 ?We - 57/\ Matthew G. Olsen Deputy Assistant Attomey General (W6) Senior Counsel to the Assistant Attorney General (W5) Attorney Adviser National Security Division US. Department of Justice All redacted information exempt undr 1 andlo except as otherwise noted. Approved for Public; Retease UNITED STATES - I n, FOREIGN INTELLIGENCE SURVEILLANCE COURT i II 5?37 WASHINGTON, DC. IN Docket Number: - (U) MOTION TO AMEND The United States of America, through the undersigned Department of Justice attorney, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, Title 50, United States Code (U.S.C.), 1801-4 811,- (PISA or the Act), for an amended order in the above-captioned docket number for the purpose of Clarifying the scope of the electronic surveillance authority granted by the Court. 1. WW Upon consideration of an application by the United States, on May 31, 2007, the Honorable Roger Vinson of this Court issued an Order in the above~captioned docket number authorizing electronic surveillance of-telephone . 9- Classi?edby: .Marearet A. Skellquolen. ActineCounsel for Intelligence Policy, NSD. DOJ Reason: 01 Declassify on: 273141}; 2032 All redacted information exempt under andior except as othenuise noted. Approved for Public Release .. - In the Order, the Court authorized the National Security Agency (NBA) to conduct electronic surveillance of, inter alia, "telephone numbers or e-mail ?the nature and location of which are not specified [in the Order] because they were unknown to the NSA as of May 24, 2007 (the date the numbers and e?mail application was filed), where there is probable cause. to believe that each additional telephone number or email?is being used, or is about to. be used" by the targeted foreign powers. Order, sub~paragraph at 11. The Court limited this authOrity to surveillance of additional telephone numbers and e?mail _that the NSA reasonably believes are being used, or are about to be used, by non?United States persons located Outside the United States. 1d? sub-paragraph at.11~12. 2. Court further ordered that notice of any additional telephone number or e-rnail-at which electronic surveillance is directed pursuant to the authority granted in sub-paragraph Lb. of the Order shall be provided to the Court, in accordance with 50 U.S.C. 1805(c)(3), within twenty~one days of the date on which such surveillance begins. Order at 16. The Court ordered that the first such report shall be submitted "on Wednesday, June 13, 2007, and that the report shall provide notice of additional telephone numbers and e-mail- All redacted information exempt under andlor except as otherwise noted. Approved for Public Release -for which electronic surveillance was initiated from May 24, 2007, through June 2, 2007. Subsequent reports shall be submitted on a weekly basis and shall cover surveillance initiated during an earlier one-week period. 1d; The Court further ordered that all such reports shall include: (A) the nature and location of each new facility or place at which electronic surveillance is directed; (B) the facts and circumstances relied upon by the United States to justify its belief that the new facility or place at which electronic surveillance is directed is or was being used, or is about to be used, by a target of surveillance; (C) a statement of any preposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the. facility or place at which the electronic surveillance is directed; and (D) the total number of electronic surveillances that have been or are being conducted under the authority of this Order. gel, at 16?17. 3. ?Q?WQC-?s?i?d?v To date, the Government has submitted seven reports to the C0urt concerning the Government use of the electronic surveillance authority granted in sub-?paragraph Lb.- of the Order. In response to the ?rst report, which the Government ?led on June 13, 2007, the Court (Judge Kazan) issued an order on June 22, 2007, expressing concern that "the descriptions of the. targeted email ?[discussed in the June 13 report] suggest that many of the newly initiated email-may have been known to the All redacted information exempt under andlor (b (3 except as otherwise noted. Approved for Public Release e- r. . u-h? a National Security Agency prior to May 24, 2007." The same concern was raised by the orders of July 6, 2007 (Judge Bates), July 6, 2007 (Judge Benson), July 13, 2007 (Judge Scullin), and July 20, 2007 (Judge Kollar-Kotelly) regarding subsequent reports filed by the Government. These orders have raised the question of what it means for a facility "at which the electronic surveillance will be directed" to be "unknown," a question that the Government did not address in the supplemented and revised application filed in the above~daptioned docket number on May 24, 2007. 4. in support of this motion is a memorandum of law that addresses the question of what it means for the "nature and location of the facility or place at which electronic surveillance will be directed" to be to the NSA. For the reasons set for in the memorandum of law, the Government requests that the Court amend its May 31 Order to clarify that the NBA may initiate electronic surveillance of a facility in accordance with the May 31 Order if the NSA, or the FBI at the request or recommendation of the NSA, had not as of May 24, 2007: applied to this Court for authority to conduct electronic surveillance of that facility under 50 USC. 1804(a) as a facility used by one of the foreign power targets of this surveillance or by one of their agents; obtained authority to conduct electronic surveillance of that facility under 50 U.S.C. 1'805(f) as a facility used by one of the foreign power targets of this surveillance or by one of their agents; or tasked that facility for collectiOn under the Terrorist Surveillance Program as of DeCernber 31, 2006, or under the authority granted . . 4., . Atl redacted information exempt under andror except as otherwise noted. Approved for Public Release I a by this Court in docket number - All other provisions of this Court's original orders, dated May 31,. 2007, will remain unaffected, indoding the date and time of expiration of the electronic surveillance. Wa/mww WHEREFORE, the United States of America, through the undersigned attorney, m0ves this Court to issue an amended Order. A proposed order effecting this regarding Respectfully submitted, Matthew G. Olsen Deputy Assistant Attorney'General Acting Deputy Assistant Attorney General (W5) Attorney~Advisot National Security Division US. Departtnent of Justice All redacted information exempt under (1) andlor except as otherwise noted. Approved for Public Release will?leSEG?l? (U) APPROVAL I and that regarde? satisfies the criteria and requirements set forth in the Foreign Intelligence Surveillance Act of 1978, as amended, and hereby approve its filing with the United States Foreign Intelligence Surveillance Court. .?we Kenneth L. Wainstein Assistant Attorney General for National Security 2 [2.71 Date 6- All redacted information exempt under (mg) andtor except as otherwise noted. Approved for Public Release 3., UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. Docket Number: - MEMORANDUM OF LAW IN SUPPORT OF MOTION TO AMEND The Government submits this memorandum in support of its motion to amend the Order of May 31, 2007, in In I- This memorandum addresses an issue raised by subsequent orders of the Foreign Intelligence Surveillance Coult ?Court? ooneemin electronic surveillance of telephone numbers and enmai?initiated after the Government?s second application.1 Speci?cally, these orders have raised the question of what it means for a facility ?at which the electronic surveillance will be directed? to be a question that the Government did not address in its application. As set forth more fully I ,Sge Orders of June 22, 2007 (Judge Kazan), July 6, 2007 (Judge Bates), July 6, 2007 (Judge Benson), July 13, 2007 (Judge Scuilin), and July 20, 2007 (Judge Kollar-Kotelly). In light of the clari?cation requested by this motion and the requirements of the FISA as explained in this memorandum, the Government requests relief from that part of the Order of vemment to "con?rm when NSA first knew of the existence of each 0 discussed in the report ?led on June 13, 2007. Order of June 22, 2007, at . ovemment W1 owever, provide the Court with a statement con 3 . as of May 24, 2007, NSA did not know that it would direct. Classified by: Margaret A. Skelly?Nolen, Acting Counsel for Intelligence_Pol.i.cvi.NS.D.~ D01 Reason: I I Deolassify on: Joly 2032 All redacted information exempt under andlor (axe), except as otherwise noted. a Approved for Public-Release below, the Government requests that the Court amend its May 31 Order to clarify; that the NSA may initiate electronic surveillance of a facility in accordance with the May 31 Order. if the. NSA, or the FBI at the request or recommendation of the NSA, had not as of May 24, 2007: applied to this Court for authority to conduct electrOnic surveillance of that facility under 50 U.S.C. 1804(a) as a facility used by one of the foreign power targets of this surveillance or by one of their agents; obtained authority to conduct electronic surveillance of that facility under 50 U.S.C. 1805(f) as a facility used by one of the foreign power targets of this surveillance or by one of their agents; or tasked that facility for collection under the Terrorist Surveillance Program as of December 31, 2006, allowed the or under the authority granted by this Court in docket numbe The electronic surveillance that the Court approved in No. Govcmment to continue surveillance vital to the nation?s security under the terms of FISA, as interpreted in the Court?s Order and Memorandum Opinion of April 3, 2007. In part, the May 31 Order allowed the Government to initiate surveillance of new email addresses and telephone numbers during the period of authorized surveillance and to report this initiation to the Court. This authority was critical to allowing the Government to continue the surveillance with the speed and agility necessary for its effective Operation. Specifically, the Order authorized the Government, when it had the requisite probable cause, ?to conduct electronic surveillance of any other telephone numbers or e- mail? the nature and location of which are not speci?ed herein because they were unknown to the NSA as of May 24, 2007 (the date the application was ?led) . . . The Court limited this authority to those facilities reasonably believed to he used by non?UnitedStates persons outside the United States. The authority was predicated on section l805(c)(1)(13), which states that the order authorizing electronic surveillance shall specify ?the nature and location of the facilities or places at which the electronic surveillance will be directed, {f'kuowa.? 1d. (emphasis added). This language is mirrored in the section l805(c)(3)(B) reporting requirement, which applies ?where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown. . . Id. erase/swam Pursuant to this reporting requirement and the Court?s May 31 Order, the Government submitted its first report on 13, 2007. The Court (Judge Kazan) then 2 All redacted information exempt under andlor except as otherwise noted. Approved for Public Release :1 issued an order on June 22 expressing concern that ?the descriptions of the targeted e? mail suggest that many of the newly initiated e?mail may have been known to the National Security Agency prior to May 24, 2007.? The same question was raised'by the orders of July 6, 2007 (Judge Bates), July 6, 2007 (Judge Benson), July 13,2007 (Judge Scullin), and July 20, . 2007 (Judge Kollar~Kotelly). The Government submits this memorandum to address the question of what it means for the ?nature and location of the facility or place at which electronic surveillance will be directed? to be The terms of PISA indicate that what NSA must not know at the time of the application is that it will direct electronic surveillance authorized by the order at the particular facility or place that it later adds to the surveillance. The terms ?if known? in section l805(c)(1)(B) and ?unknown? in section 1805(c)(3)(B) refer to the immediately preceding phrase, ?the nature and location of the facility or place at which the electronic surveillance will be directed.? The words ?at which the electronic surveillance will be directed? qualify the meaning of ?nature and location of the facility or place.? has, what must be not ?known? or ?unknown? to NSA is that it will direct ?the electronic surveillance? at the facilities. The phrase ?the electronic surveillanCe,? intiu'n, refers back to electronic surveillance approved under FISA in that particular order. Id. 1805(c)(l) (?An order approving an electronic surveillance under this section shall i specify. . . the nature and location of each of the facilities at which the electronic surveillance will be directed,.if known . . . Under the terms of PISA, then, NSA. may direct surveillance at a new facility provided that it did not know, at the time of the application, that it would do so as part of the surveillance authorized by the order. There are a variety of reasons why the NSA might not know at the time of the application that it would not direct electronic surveillance at a particular facility. Firet, the NSA might never have come across the telephone number or email address. For Second, the NSA might have had the e-mail address stored in a database but have lacked reason or the probable cause required to initiate surveillance. 1 Third, the NSA may have had reason to initiate surveillance under another of its All redacted information exempt under andl'or except as otherwise noted. Approved for Pubiic Release programs outside FISA, but did not know at the time of the application that the telephone number was linked to the foreign power targets of this authorized collection. In this case, for instance later analysis and collection could have revealed that the number was used by-T here may be other circumstances as well in which NSA will not have known at the time of the application that it will direct surveillance at a facility it later wants to include. In some of these cases, the phone number or e?mail ill be known to NSA generally and in others the phone will not be known to NSA. But in all of number or e-mail these cases, NSA did not know at the time of the application that it would direct electronic surveillance at this facility. Moreover, in many instances, when an NSA analyst decides to initiate suweillance of a facility under this Order, the analyst will simply not know whether the facility was the subject of previous collection in another of Other interpretations of section 1805(c)(l)(B) and 1805(c)(3) would not only be inconsistent with their plain terms, but would be unworkable for NSA. Requiring that no part of NSA had ever known of the existence of the email address or telephone number would ignore that the complete phrase that immediately precedes ?unknown? and ?if known" is ?the nature and location of the facility or place at which the electronic surveillance will be directed,? not just "the nature and location of the facility or place.? wee/esteem? In other types of surveillance where the Govenunent uses the authority that triggers the section 1805(c)(3) reporting requirement, this reading of PISA would have absurd results. For instance, the Court authorizes the to conduct mobile audio surveillance although the ?nature and location of each of the facilities or places at All redacted information exempt under andior . except as otherwise noted. Approved for Public Release which the electronic surveillance will be directed? is unknown at the time of the I. application. The Government may then use this authority to conduct surveillance of the target in a park. It then reports to the Court that it directed the surveillance at that park. Of course, the Government knew of the park at the time of the application. But what it did not know is that it would be directing surveillance authorized by the order at that park. .In the same way, the NSA may know of an email?or telephone number, but not know, at the time of the application, that it would be directing surveillance at that facility under the Court?s order. Such a requirement would also mean that NSA would have to check multiple databases concerning all of its other programs to ensure that it had not come across the e- mail address or telephone number previously. If it had, NSA could not utilize the authority. More seriously, NSA is not able to undertake this burdensome task of veri?cation. Because NSA can not ensure that it never previously kneel of the facility through any of its surveillance programs, the implication of any such requirement would be that NSA could not utilize the authority envisioned by PISA and granted by the Court?~an authority necessary to conduct the surveillance with the speed and agility needed to protect the nation?s security. newsroom Although PISA requires only that NSA not have known that it would direct surveillance at a facility as part of the authorized surveillance, the Government requests a more limited use of this authority. In order to ensure that NSA complies with this statutory requirement in a manner that is easy to administer, the requests that the Court amend its order to make clear that the NSA may use the authority to initiate electronic surveillance of a facility if the NSA, or the FBI at the-request or recommendation of the NSA, had not as of May 24, 2007: applied to this Court for authority to conduct electronic surveillance of that facility under 50 U.S.C. 1804(a) as a facility used by one of the foreign power targets of this surveillance or by one of their agents; obtained authority to conduct electronic surveillance of that facility under 50 U.S.C. 1805(f) as a facility used by'one of the foreign power targets of this surveillance or-by-one of- their agents; or tasked that facility for collection under the Terrorist Surveillance Program as of December-3 1 2006,0r under-the authority granted by this All redacted information exempt under andt'or except as otherwise noted. Approved for Public Release @939?er f! w. . Court in docket This authority would be consistent with but ni?ore limited than that allowed by FISA, because NSA could not use the authority even if it did not know at the time of the application that it would want to direct the surveillance authorized by the Court in-at the facility. But the limitation the proposes makes the determination an objective one that is easier for the Government to administer and the Coui't to verify. ?(seesaer For the reasons set forth above, the Government respectfully requests that the Court grant its motion for clari?cation and to amend. (U) Respectfully submitted, Olsen Deputy Assistant Attorney General young Eeputy !531stant Attorney General Atton1ey~AdVi301? National Security Division US. Department of Justice 3 Several of the facilities at which NSA directed surveillance using the authority discussed in this memorandum were facilities that had previously been tasked under FISA. See '13 June Report Pursuant to so [13.0. 1805(c)(3), AttachmentB Bates Nmnbers?. For the reasons explained above, this surveillance was consistent with PISA. Nevertheless, their continued tasking would be inconsistent with the clari?cation the Government now proposes. Therefore, the Government will discontinue conducting surveillance of these facilities using tins-authoriw.