Ali redacted information exempt under andlor except aS otherwise noted. Approved for Public Release

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UNITED STATES 3:132? L5H.   a




FOREIGN INTELLIGENCE SURVEILLANCE conga;  3  3-: 
WASHINGTON, DC.

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es;- GOVERNMENTS EX PARTE SUBMISSION 0E REAUTHORIZATION
CERTIFICATIONS AND RELATED PROCEDURES, EX PARTE SUBMISSION OF
ADIENDED CERTIFICATIONS, AND REQUEST FOR AN ORDER APPROVING
SUCH CERTIFICATIONS AND AMENDED CERTIFICATIONS
(SHOW In accordance with subsection 702(g)(1)(A) of the Foreign
Intelligence Surveillance Act of 1978, as amended (PISA or "the Act?), the United States

of America, by and through the undersigned Department of Justice attorney, hereby

submits ex parte- and under seal the attached certifications-

 

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-u?n

   

a

These certi?cations reauthorize

eXpire on September 10, 2014. Attached as Exhibits the targeting and minimization

procedures to be used under these certifications.1

-130 include amendments to the certi?cations bemg reauthorized, -

nd their predecessors.2 Speci?cally,

these amendments authorize the use of the minimization procedures attached herewith

as Exhibits B, D, and to in

connection with foreign intelligence information acquired in accordance with-

 

1 (SW Speci?cally, the targeting procedures to be used by the National Security Agency
(NBA) and Federal Bureau of Investigation (FBI) are attached as Exhibits A and C, respectively.
The minimization procedures to be used by NSA, the FBI, the Central Intelligence Agency (CIA),
- and the National Counterterrorism Center (NCTC) are attached as .E?iibits B, D, E, and G, 
respectively. The NCTC minimization rooedures attached as E>d1ibitG were submitted in
connection wt 11 July 31, 2013?r and
Were approved by the Court on August 30, 2013. The remaining targeting and minimization

procedures are being submitted with?

for approval by the Court. 

 

sot

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. . . 

(3), except a

hemise noted. Approved for Public Release
.- . i i


  

        

     

 

the exception of the NCTC minimization procedures attached

as Exhibit G, thetargeting and minimization procedures being wid-

 a  of We  is

targeting and minimization procedures approved for use under the predecessor

   

certifications. To aid the Court in its review of the targeting and minimization

procedures, below is a discussion of certain of these changes. Also included below is an

update to the description of the process that NSA uses to resolve - .
indicating that a tasked electronic communications?may have

been accessed from inside the United States.

 

The NCTC minimization procedures attached herewith as Exhibit (3 are identical
to the NCTC minimization procedures that already have been approved for use this Court in
connection with forei intelli ence information ac uired in accordance with

     
 
   

Thus, with respect to those
. I
procedures, no amendments are necessary.

WSW

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release

A. _l 

   

Targeting Procedures  

The NSA targeting procedures submitted as Exhibit A to-
_c0ntain anew provision that clarifies the

intended scope of the procedures. Specifically, the SA targetihg procedures state that

 

NSA is required under its current targeting proceduxes to detask
facilities from section 702 acquisitien when?, infer glitz, NSA believes that a user? of that

faCility is inside the United States or is a United States person. To date, the Government

has been applying this requirement even in circumstances 

to date the failure to detask the account prior to such access

 

has been considered a' compliance incident. Such incidents have involved,- fer example,

 

 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release
:1   In?. .-  

   

 

(-SHQGINB Section 702 permits the Director of National Intelligence (DNI) and
the Attorney General (AG) to authorize the "targeting of persons reasonably believed to
be located outside the United States to acquire foreign intelligence information,?

50 U.S.C. 1881a(a). As previously explained by the Government-the ?targeting? of a

person to acquire foreign intelligence information under section 702 is accomplished

through the tasking of a facility that he/she uses._ Sec, sag,?
_ovemment?s Mammary Responses to

Certain Questions Posed by the Court (filed Aug. 26, .2008), at 3. Such acquisitions

cannot intentionally target U.S. persons. 50 U.S.C. 1881 The

Government respectfully suggests that ivhen 

 

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herwise noted. Approved for Public Refease

The Government therefore respectfully suggests that this change

to the NBA targeting procedures is consistent with the requirements of the statute and

the Fourth Amendment.

(8) The Government does not believe that this change to targeting

procedures will affect the amount of time NSA takes to resolve-
concerning section 702?tasked electronic communications 

that may have been accessed from inside the United States. 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release
- .P - ?21- IL Lll= 

The NBA targeting procedures submitted as Exhibit A to

 

All redacted information exempt under (330(1), and Approved for Public Release



63)- Targeting Procedures

 

Ail redacted information exempt under 

I I .  
'1 - 7' 

3). and Approved for Public Release

           

 

(89?13131? Mnimization Procedures
Government has filed with the Court a proposed motion to amend
the Standard Minimization Procedures that the FBI applies in matters involving

- These proposed? amendments contain provisions governing the

 

 

provision of information to the National Center for Missing and Exploited Children

(NCMEC) and the retention of PISA?acquired information associated with litigation

matters. The FBI minimization procedures submitted as Exhibit to-
_ontain substantially similar provisions; described in more

 

 

 

All redacted information exempt under and Approved for Public Release
detail below.5

A. Dissemination to the National Center for Missingand Exploited
Children

The FBI minimization procedures submitted as Exhibit to

Certifications?peth the FBI to disseminate, for law

enforcement purposes, section 7027acquired information that reasonably appears to be

 

evidence of a crime related to child exploitation material, including child pornography,
to NCMEC. The FBI minimization procedures also permit the FBI to disclose to
CMEC, for the purposes of obtaining technical or linguistic assistance, such -
acquired information for further processing and analysis. I

Through its investigations, the Government has identified and continues
to identify section 702?acquired information the-Government has determined to be
indicative of a crime related to child exploitation materiai, including child pornography.
NCMEC, established by Congressional mandate in 19-84, is a private, nongovernmental-
organization that today works in partnership with the Government to ?help law

enforcement find missing children, eliminate child sexual exploitation, and prevent

child victimization.? About Us Congr?ssional Authorization, NCMEC,

(last visited July 17, 2014). The Government

10

 

All redacted information exempt under and Approved for Public Release
. . .- I . . - l_

 

believes it has an obligation to share with NCMEC such section 702-acquired
information as part of the Government?s Project Safe Childhood initiative, which seeks
to combat the proliferation of technology-facilitated crimes involving the sexual
exploitation of children, including through the inVestigation and prosecution of
offenders and involvement in prevention and deterrence. About Project Safe Childhood,
US. Dept of Justice, (last
visited July 17, 2014). The Government also believes it has an obligation to share such
section 702?acquired information with NCMEC as part of the Government?s National
Strategy for Child Exploitation and Interdiction, which was formulated and
implemented in response to the Providing Resources, Officers, and Technology to
EradicateCyber Threats to Our Children Act of 2008 (the Our Children
Act?). See US. Dep?t of Justice; Nat?l Strategy for Child Exploitation Prevention and
Interdiction, at 8-28, 9395 (concerning NCMEC in detail); PROTECT Our Children Act
of 2008, Pub. L. 110?401, 122 Stat. 4229 (2008). 
(SW-15413) NCMEC has partnered with the Government to prevent and interdict in
the sexual exploitation of children. One of the express purposes 'of the annual grant by
Congress supporting NCMEC is for NCMEC to "operate a child victim identification
program in order to assist the efforts of law enforcement agencies in identifying victims

of child pornography and other sexual crimes.? 42 U.S.C. 5773(b)(1)(R). 

 

All redacted information exempt under 

1), and Approved for Public Release

      

through its Child Victim Identification Program, serves as the central repository in the
United States for inforrnation that relates to child victims depicted in images and videos
that are sexually exploitative. Child Victim Identification Program, Nat?l Center for
'Missing and Exploited Children, (last visited luly 1'7,
2014:). The Child Victim Identification Program has a dual inission to (1) provide
information relevant to child pornography investigations; and (2) assist in the
identification of child victims depicted in pornographic images. Id. Law enforcement
officers submit copies of seized child pornography images to law enforcement officers
co?located at NCMEC on behalf of their respective agencies. Personnel at NCMEC
review the seized images to determine which contain previously identified child victims.
Id. NCMEC generates a Child Identification Report that includes Contact information
for the law enter-cement agency that originally identified the child. See generally
Michelle Collins (Vice President, Exploited Children Division and Assistant to the
President of CMEC), "Federal Child Pornography Offenses,? Testimony Before the
U5. Sentencing Comm?n. (Feb. 15, 2012), at 3 (describing proprietary
software), 
(last visited July 17, .
2014). retains but does not otherwise disseminate or redistribute the images.

However, with regard to any possible further disclosure by CMEC, the FBI Will advise

 

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Approved for Public Release
WW
NCIVIEC of the need to comply with the restrictions described in Section IVD of the FBI
minimization procedures. I
For the reasons provided, there is criminal investigative and analytic
merit to the FBI sharing section 702?a?cquired information with NCMEC. As 
definition of "minimization procedures? makes clear, notwithstanding general
protections afforded U.S. persons and US. person information, the minimization
procedures may ?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 also

50 U.S.C. 1821(4), 50 U.S.C. 1881a(e)(1). The Government respectfully submits that

the FBI minimization procedures submitted as Exhibit to-
?are consistent with the needs of the Government to prevent,

investigate, and potentially prosecute violations of criminal statutes, ?nd missing
children, reduce the incidence of child sexual exploitation, and prevent child
victimization.

B.  Retention of PISA?Acquired Information for Litigation-Related
Reasons

. The FBI minimization procedures submitted as Exhibit to

certi?cations?also address the 
and the Government?s need to



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WSW I

retain certain section 702~acquired information for litigationwrelated reasons. More

specifically: the 
_I\y section 702?acqui1'ed information associated with FBI

investigative case files that the Government determines must be retained because it may

be necessary for, or potentially discoverable in, pending administrative, civil, or

criminal litigation. 

Wit-)- The FBI places FBI investigative case ?les on a "litigation hold? list-w-
thus exempting them from destruction?if those case files relate to active litigation

matters. In some instances, these investigative case files also contain information

acquired pursuant to PISA. 

notwithstanding its association with investigative case ?les subject to a

?litigation hold.? 

To permanently address this issue, the

Ail redacted information exempt under and Approved for Public Release

   

- The Department of Iustice and the FBI have deveIOped a collaborative process to

identify FISA information that should be retained for litigation?related reasons. In
addition, the Government will report to the Court once per year about any PISA
iniormation retained pursuant to this provision. 

- 


Similar to the the FBI

minimization procedures submitted as Exhibit to Certi?cations 

for the retention of section 702?acquired associated with FBI
investigative case files that there is a litigation-related reason to retain. The FBI section
702 minimization procedures exempt from?any

section 702??acquired information that may be relevant to active litigation ?matters, and
obviate the need for individual motions to the Court seeking exemption from the
destruction requirements in individual cases. Any section 702-acquired information
retained pursuant to the ?litigation hold? provision will be identified through a
collaborative process involving the Department of Justice and FBI, will be subject to

access restrictions, and will be reported to the Court once per year.

 

AH redacted information exempt under and Approved for Public Release


C. Dissemination to Private Entities and Individuals of Foreign
Intelligence Information or Evidence of a Crime Involving a Matter of
Serious Harm -

Finally, the FBI minimization procedures submitted as Exhibit to
Certifications  include a nevv provision that would allow the
FBI to disseminate information to a private entity or individual in those cases in which
that entity or individual "is capable. of providing assistance in mitigating serious
economic harm or serious physical harm to life or property.? See Exhibit D, attached
herewith, section V.I., at p. 33. This provision closely mirrors section VH. of 
section 702 minimization procedures, 1which allows for similar disseminations to private
entities and individuals who are capable of assisting in mitigating or preventing
computer intrusions or attacks. The new provision addressing serious economic harm
or serious harm to life or property has been added to allow the FBI to disseminate
information to private entities or individuals in cases other than those involving
computer intrusions or attacks, such as if the FBI discovered evidence in section 702?

acquired data of credit card theft or aplot to destroy a building or monument. The
Government submits that this dissemination provision is consistent with the need of the
United States to obtain, produce, and disseminate foreign intelligence information and
comports with the definition of minimization procedures set forth in 50 U.S.C.

1881a(e)(1). This amendment is consistent with the legislative history of PISA, which



16

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recognizes met some situations may require disclosure of FISAFacquired information
- outside of government channels. See HR. Rep. 95?1288, at 88 (1978); 8. Rep. 95-604, at
54 (1978).
(8) NBA and Minimization Procedures
(SW-E) As with the minimizetion procedures used by the FBI and discussed in
further detail above, the Government has added language to the minimization

procedures used by the NBA and CIA and submitted as Ekhibits and E, respectively,

WW

17

 redacted information exempt under andfor except as otherwise noted. Approved for Public Release

   

 

ES) The Resolution of-Indicating that a User May Be in the United

States

(8741315)- Pursuant to Section II of section 702 targeting procedures, NBA

conducts post?targeting analysis that includes routine checks of all section 702?tasked
. electronic commwucaaons_ against available-

any, of such?may have been accessed from inside the

United States. As previously described to the Court in a letter filed May 21, 2010 [noted
above, and attached as Attactment C) and various subsequent compliance notices, NSA
process to implement and prioritize routine checks of all such tasked facilities for

information indicative of potential access originating from the United States.

 

pt as otherwise noted.

Approved for Public Release
ll 

   

All redacted information exempt under andfor exce

      

 

The volume of-varies, but NSA reports that,-
_on average more than-are typically generated each day
(including from approximately lot which on average are

further prioritize-s potentially indicative of access originating from

the United States.5 It is important to note that a single facility may generate-

-and not all-are indicative of compliance incidents.7 
. i

65% SA has also implemented controls to ensure the timely and effective

resolution of the . generated through the -post?tasl<ing checks. First,- 

-  resolved as  indicative of 

 

 

5 (37 Although the number ?uctuates, NBA reports that for 2014 more than 9 0% of the-generated
were false positives, not indicative of access of the facility by a user inside the United States.

713) For example, during the first week of June 2014, a total of approximately-that were subject
to further analysis corresponded to approximately acilities, resulting in approximatel eports of
potential incidents being forwarded to the-Dep arunent of Justice and the Of?ce of the Director of

- National Intelligence.
WSW

19'

All redacted information exempt under andior exeept as otherwise noted. Approved for Public Release

of a user inside the United States are immediately detasked. Second,

 

 

 

 

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- I  -- 

 

63% More Specifically, depending on the circumstances of any given-and

the totality of circumstances supporting reasonable belief that the target remains

located outside the United States,.further analysis may include:

 

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(U) Conclusion

 

W) contain all
of the elements required by the Act, and the targeting and minimization procedures

submitted with these certifications are consistent with the requirements of the Act and

the Fourth Amendment to the Censtitution of the United States. Likewise, the amended

minimization procedures to be used in connection with foreign intelligence information

acquired in accordance with_

 
 

-are consistent with the requirements of the Act and the Fourth

Amendment to the Constitution of the United States. Accordingly, the government

respectfully requests that this Court enter orders pursuant to subsection 702(i)(3)(A) of



22

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of the targeting and minimization procedures attached thereto as Exhibits A, B, C, D, 
and in connection with acquisitions of foreign intelligence information in accordance

with those certifications; and the use of the minimization procedures attached as

Exhibits 3, D, and to _in connection

with foreign intelligence information acquired in accordance with-

 

Respectfully submitted,

John P. Carlin 
Assistant Attorney General

- Stuart J. Evans .
Acting Deputy Assistant Attorney Genera

 

Office of Intelligence
National Security Division
US. Department?of Justice

 

 andfr (M3)

 

 

 and/or 

 

 and/or 

 

 and/or 

 

 



 

 and/r 

 

 and/or 

 

 and/or 

 

(1) nd/or 

 

 and/or 

 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release

ATTACHMENT. A

,1 All redacted information exempt under andlor except as otherwise noted. 1 Approved for Public Release

US. Department of Justice i. .. a. . ..

J32. revamen Sewn ?151011 acavwltaajr area]

. 2 Fit h=51t

Washiugl?en. 110- 20530   irikiri?iili 

?l
CLERK 0i: EUURT

   

January 11, 2012

The Honorable John D. Bates 
United States Foreign Intelligence Surveillance Court
333 Constitution Avenue, NW.

Washington, 13.0. 20001

Re: Supplemental Notice of Compliance Incidents
Regarding Several Accounts Tasked Pursuant to
Section'702 of PISA 

Dear Judge Bates:

Pursuant to Rule 13(b) of the Rules of Procedure for the Foreign Intelligence
Surveillance Court, effective November 1, 2010, this letter provides additional information
regarding compliance incidents described in a letter ?led on July 29, 2011. The July 29, 201 1,
letter noti?ed the Court that the National ecurity Agency (NSA) had continued to direct

acquisitiOn under Section 702 at email accounts of non?US. can one located outside the'United

.1  I 1

Speci?cally, on June 27, 2011, NSA reported to the Nation
and the Office of the Director of National Intelligence that

    
  

- detaile in the Jul 29 letter

  

a July 2011 NBA further to - orted that

been accessed by I
These incidents had not been previously reported to or ODNI. In the July 29 letter, NSD

and ODNI preliminarily assessed that failure to detest: at least one of the dditional
facilities when it knew the account was

eeulted in a detaaking delay. In the Section 702 Quarterly Compliance Report
?led with the Court on Septeru 2011, NSD provided an update, noting that further
iIWestigation had revealed that these .additional facilities did not involve compliance

  
 

NSA tasked this account pure 0 art
collection continued pursuant 

 

   

 

 

 

All redacted information exempt under andfor except as otherwise noted. Approved for Public Release

 

incidents oceans?ll occurred prior to Section 702

tasking of these facilities. In both the July 29 letter and the Quarterly Report, NSA, NSD and

 

NSA reports that it has examined all .01" possibl
NSA be an acuirin communications ursuant to Section 702

 

The tasking of, or continued acqi?sition against, a selector used by a United States person
under the circumstances discussed above is not speci?cally addressed nor permitted under
Section 702 targeting procedures. While purging obligations would attach pursuant to
Sections 3(d) and 5 of minimization procedures to discussed above, a
compliance incident we 1 have occurred 0111 in cases where Sec 
fao?i occurred either

     
   
   

{ed facility by a United States 3 ..

 . ill . Ill

 

 

All redacted information exempt under except as othelwise noted. Appfoved for Public Release

 

is currently in process of purging Section 702?acquircd data
above-described facilities. The of Justice will advise the Court of?lc
status of all required in its next quarterly to the Court regarding Section 702
compliance occurrences. 

Respectfully submitted;

      

awn . . 
Chief, Oversight Section

Of?ce of Intelligence, NSD
U.S. Dcpar?nent of Justice

 

 

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ATTACHMENT 

 All'red'actec'i inforr??tibn exempt note-El."

. "Approval for Public ?elease   

US. Department ?of Justice

 

National Security Division 5'3? I.

 

Washelgforz. ?10. 20530      I
?t -
January 29, 2014 

The Honorable Reggie B. Walton

United States Foreign Intelligence Surveillance Court
333 Constitution AVenue, NW.

WaShJ'ngton, DC. 20001

 

- L- -- --   me?
Section 702 Targeting -

Dear Juilge Walton:

Pmsuant to?Role 13(b) of the Rules of Procedure for the Foreign -
Intelligence Surveillance Comft= effective November 1, 2010, this letter provides notice of a
compliance incident. Speci?cally, on January 14, 2014, the National Agency (N SA)
reported to the National Secmit Division SD and the Of?ce ofthe Director of National
Intelligence (ODNI)

    

 

All redacted information exempt under andior except as othelwise noted. Approved for Pubtic Release
WW

is required under its cunent targeting procedures to detaek facilities
from 702 acquisition for points in time when, inter alia, NBA is aware that the targeted
person is inside the United States or is a United States erson. The Govmiment understands this
to include points in time when the facilities will be
See, Supplemental Notice of Compliance Incidents Re 31? 
Task Pursuantto Section 702 ?led on 31111 1-1 2012.

   
  

   
  

 
  
 
 

everal Accounts

 
  
   

NSA identi?ed trailing iseues related to 5110}!
.w 

task facilities to Section 702 acquisitien were aware of the need to detask accounts tasked for
Section 3702 asquieition when the were aware the

 

 'A?u 536.50}  



 

NSA, NSD, anti ODNI are continuing to investigate this issue. The Department of
Ius?'ce will include this issue in its quarterly report to ?ie Court regarding Section 702
compliance oeeunrenees. . 

(U) NSA has reviewed this letter and con?rmed its fac?mal accuracy.

Respecf?l mbmitted,

i,
. {av/1
J. O?Connor 
?ie? Oversight Section
Of?ce of Eltelligenee, N39
US. Deparhnent of Justice

 

wees i'b'r 

 

 

Ail redacted information exempt under andlor except as othenivise noted.

ATTACHMENT 

Approved for Public Release

 

 

All redacted information exempt under andfor except as otherwise noted. Approved for Public Release

U.S. Department of Justice

 

Na?dnal Security Division

 

Washington, DC. 20530

May 21., 2010

The Honorable Mary A. McLaughlin
Judge
United States Foreign Intelligence Surveillance Court
-Washington, DC.
Dear Judge McLaughlin:

I am pleased to provide certain additional information related to'oertain issues raised and

discussed durin our meetin on Ma 17 2010. concernjn the matters currentl endin before
the Comt 

Identi?ea?on of nformation Within NSA Svstems 

As the Court is aware ?ozn the testimony provided by the government on April 22, 2010,
and from supplemental information provided to the Couxt on May 10, 2010, the National
Securi A one SA stores unmjnimized and unevaluated si als intelligence (SIGINT) data

 

    

For the reasons more fully explained in our May 10, 2010
submission, the government has proposed separate and distinct purge 1equirements for each class

of nifonnation. . 

AceOrdin to NSA certain of its stems contain multi 1e classes of information, For

    

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The Resolution oi-ES)?

On Friday, May 7, 2010, the government submitted to the Court its Supplemental Report
Regarding Post?Targeting Anal sis. Following its review of the report, the Court
expressed concern that allowingi?to go unresolved for an extended period of time me .not
consistent with tar etin rocedures which ec' 

   
 

      

 

As noted in the overnment?s Ma 7 2010 Su lemental Re 0

allows NSA to quickly identif 
of a tar;et?s resence in the US. Those

  
   

NSA recently established new deadlines in the

consistency in inane ement of this process given the diversity of targets and reasons for
T9 ensure that do not go unre for an unreasonable eriod of time NBA has
im' osed a new deadline re uirin tha

    
   

   

  
 

NSA reports

  
  
 

   
    

For exam 1e, during
selectors generated a total 0 resulting in incident (roaming) reports being
forwarded to the Department of Justice and the Of?ce 0 Director of National Intelligence.
continue to be researched. Given the procedures in place as outlined in the
_g0ve1nrnent?s Mai 7, 2010 Su lemental Re ort which are desi to identi?r, prioritize and

    
 

   
 
 

resolve those aving a a pres ence in the
United States, the government believes that reasonable. 



NSA intends to rovide the Court with further 11 dates re ardin 
o? 'o reme a purge comp ance issue on or e' ore es ay, May 26, 2010.

(5.138%

 

 

- All redacted information exempt under andfor except as otherwise noted.

Approved for Public Release



The government would like to thank both you and your staff for your 1
consideration of the govemment?s Certi?cation. Should the Court have any additional
questions, comments or concerns, please do not hesitate to contact me. (U)

Sincerely,



    

ee of Intelligence

 

Approved for Public Release

11.8. Department of Justice

 
 




5
lg'k u, i
r-I' 
5: tr

 

National Security Division 5;

Iv-
marm-

. not; are .
tut-tires :3 is. 5.
Washington, DC. 20530 to.


1? 2"


?5


    

March 13, 2014

The Honorable Reggie B. Walton

United States Foreign Intelligence Surveillance Court 
333 Constitution Avenue, NW.

Washington, DC. 20001

Re: Notice of Assessment of Purge Practices
and Discovery of Incomplete Purges

Dear Judge Walton:

65} In describing its remedial efforts regarding most compliance incidents, the
Government reports to the Court regarding when data has been purged from Government
systems. On January 16, 2014, the National Security Agency reported to the National
Security Division (N SD) and the Of?ce of the Director of National Intelligence (ODNI) that two
studies 0f purge practices (in 2011 and 2012, respectively) had identified incompletely
purged data.1 The purge studies were conducted to verify and improve purge protocol,
which was extensively briefed to the Court in 2010. The purge studies identi?ed a small
percentage of that had been added to Master Purge List (MPL), but had
not beenlpurged Jdom all relevant NSAsystems. The incomplete purges appear to have resulted

from mistakes in Spects of the purge process.

 
 
   
   
  
  
  

stud

   
   
  
 
 

 

the-Director of Compliance led a purge ve 
identi?ers that had been added to the MPL
-H er the underl ?n ob'ects had in fact been urged from
storage

b'ects from that samle that had not bee 'tially purged
Th b'ects were

associated with a total of  erent incidents Where a are was reuired.

In 201-], 




 
      
  
   
 
 
 

 

to 'den 

 


te I

    

  

i


k. 

   

  
 
 

 

NSA advises that it cannot con?rm when it completed its
reexecution of the urges to remove these-)bjects from its systems, but can con?rm that as
objects have been removed ?om NSA systems. - I I

1 report was the result of NSD follow?up questions in reference to a recommendation made in a March
2013 NSA Of?ce of the Inspector General report regarding 3 purge processes.

 

 

   

All redacted information exempt under andior except as othenNise noted. . Approved for Public Release



    
 
  
  



(S) In 2012, Oversight and Compliance section led a similar 
'u .. ple 0 unique identi?ers added to the MPL between

IL. urn I 

- I tion

   
  

        
 

    

 

       
 

OHII 

  

 
     

The communications were purged from the in

Although the communications described above were not initially purged from certain

- NSA systems as intended, the unique identi?ers of these objects were 'on MPL to prevent
use in NSA reporting, in PISA applications, or to target pursuant to Section 702.

NSA has made efforts and continues to make efforts to improve its purge processes.
Furthermore, as discussed in the Quarterly Report, in addition to its standard ur discover
process, NSA has implemented several supplemental processes to? - 

any data that
is identi?ed is removed from NSA systems upon discovery. See Quarterly Report to the Foreign
Intelligence Surveillance Court Concerning Compliance Matters Under Section 702 of the
Foreign Intelligence Surveillance Act, December 2013, n. 8; see also Semiannual Report of the

Attorney General Concerning Acquisitions Under Section 702 of the Foreign Intelligence
Surveillance Act, September 2012, n. 12. 

The Department of Justice will include this issue in its quarterly report to the Court
regarding Section 702 compliance occurrences.

Respectfully submitted,



 

Kevin J. O?Connor 
Chief, Oversight Section
Office of Intelligence, NSD
US. Department of Justice

ted information exempt under andtor except as otherwise noted. Approved for Public Release

US. Department of Justice

    

National Sec?rity Division

23th 29  ii: 

WashingtonD?. 29330 {mg HaitiKn"

May 29,2014 3

The Honorable Thomas F. Hogan

United'States Foreign Intelligence Surveillance Court
333 constitution Avenue, NW. 

- Washington, DC. 20001

Re: (UH-F696) Supplemental Notice of Assessment of Purge
Practices and Discovery of Incomplete Purges

Dear-Judge Hogan:

As partof its overall compliance program, the National Security Agency
(NSA) conducts periodic reviews to verify the ef?cacy of its compliance activities, to include the
process the Agency uses to effect purges undertaken for compliance pmposes. On March 18,
2014, the Government ?led a notice with the Court describing two NSA purge veri?cation
studies conducted in 2011 and 2012. The studies determined that some information that NSA
personnel had identi?ed for purge and placed on Master Purge List had not been
completely purged when the studies were. conducted. As described below, the information was
subsequently purged. 

We the March 2014- notice, the Government explained that the
purge veri?cation studies conducted in 2011 and 2012 were done by taking a sample 0

unique identifiers that had been added to the MPL between certain time 'ods to id 
whether the underl 'n ob'ects had in fact been purged ?om

storage systems. Subsequent to the ?ling of the
March 2014 notice, the Court requested that the Government provide an explanation as to why
the studies were conducted in 2011 and 2012, but the noti?cation to the Court regarding the
incomplete purges was delayed until March, 2014. This supplemental notice responds to the
Court?s question, as well as provides additional information regarding the 2011 and 2012 purge
veri?cation studies and informs the Court of the results of the additional purge'veri?cation
studiesNSA?s Signals Intelligence Directorate Of?ce of OVersight and Compliance has 
conducted. 

 
  
 

All redacted information exempt under (b)(1)andfor xcept as otherwise noted. Approved for Public Release -
.. 31'; .. - -. . 

         

By Way ofbackground, NSA created the MPL and its internal
purge process to provide'reasonable'assurance that NSA purges information consistent with its

authorities and representations to the Court, as well as to ensure that personnel do not rely on
information that was supposed to?have been purged when preparing SIGINT reports or
applications to the Court. See, NSA Memorandum to the Assistant Attorney General,
National Security Division (N SD), Department of Justice, as ?led with the Court on March 16(UHF-GHQ) Following Februa 2011 the Court,
the Director of Compliance initiated a activity
designed to further study the effectiveness of existin internal controls for purge. From a sample
size of unique identi?e 
were list on the MPL.

        
 
 
 

  

   

I designed and
cond using statistical sampling in accordance with industry standards for internal auditing.
The id not represent an exhaustive review of the purge process, or of purge
improvement activities, but rather was a study to provide reasonable assurance that NSA is
purging data in compliance with governing laws and policies.

on
a
co

313,.
CD
523
on

 

report also noted that additional checks provide a reasonable assurance that
iompletely purged objects are prohibited from further use. NSA has advised that each of the
identi?ed objects were purged as of September 2013. 

 

 

All redacted information exempt under andlor xcept as otherwise noted. Approved for Public Release

   

(SW addition to the -:onducted by Director of
Compliance, 0&0 section conducts Compliance studies to verify the continued ef?cacy
of, and, where appropriate, improve cempliance processes, to include the purge process.
NSA conducted purge veri?cation studies in 2012, 2013, and 2ill4.3 The 2012 through 2014
purge veri?cation studies concluded that there have been im roverne 4

   
 
      
     

 

 

SA did not identify any incomplete purges during this 2013 study
and again concluded that the purge process was working and had improved.

 

 

addition on r.

  

I


   

- veri?cation study of the I
reviousl described to the Co is

. Wm March 2013, Of?ce Of the Ins ector General issued
a report that, among other things, identi?ed several ins ?s urge
recesses could potentially-result in inco'rnplete purges recommended
purge processes. In response to that report, in March 2013, NSD requested
further information from NSA- regarding whether NSA had identi?ed any instances of purge
completions that have been reported to the Court where the underlying information was later
identi?ed to not have been fully purged from Following subsequent inquiries from
NSD and ODNI, NSA responded to question in January 2014, and reported to NSD and
ODNI the purge veri?cation study information that was described in the March 18, 2014, notice
to the Court.5 In response to this Court?s question asking why NSA had not previously informed

211 ofthe purge studies item 2012, 2013, and 2014 included -

4

 

 

NSA provided the 2011-2014 reports to NSD on May 16, 2014. Therefore,NSD and
the Of?ce of the Director of National Intelligence (ODNI) are continuing to review the results of the reports with
NSA and will provide additional updates to the Court as appropriate. 

II 5 On January 31, 2014, NSD and ODNI sent a draft notice to NSA regarding the 2011 and 2012 purge
veri?cation studies. NSA sent comments to NSD and ODNI regarding that draft notice on March 13, 2014. NSA

WW



 

. NSD of these incomplete purges, NSA advises that, since it had not identi?ed any instance 
where items listed on the MPL had been used in a manner contrary to prior 
representations, NSA'personnel did not think there was a compliance issue that needed to be

- reported to the Court. Rather, it appeared the safeguards built into the purge process had worked

as intended since the studies did not identify any improper use of material that was subject to a

purge requirement. NSA has committed to providing NSD with details about any

instances in whichNSA discovers incomplete purges so that NSD can notify the Court.

Wares-swim will continue to keep NSD, ODNI, and the Court

infonned of its efforts to verify and improve the purge process and will more advise
NSD and ODNI of such efforts. In addition, NSD and ODNI will continue to review the results
of the 2011 through 2014 purge veri?cation studies with NBA. NSA has reviewed this letter and
con?rmed its accuracy. -

Respect  lly submitted,

      

   

J. O?Connor
Oversight Section
?ce of Intelligence, NSD
.S. Department of Justice

 

advised that between January 21, 2014 and March 13, 2014, NSA was con?rming the facts ofthe 2011 and 2012
purge results. 

 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release
at" U.S. Department of Justice

 

National Security Division



Washington. D. C. 20530

July 25, 2014

The Honorable Thomas F. Hogan

United States Foreign Intelligence Surveillance Court
333 Constitution Avenue, NW.

Washington, DC. 20001

Re: Notice Regarding NSA Purge Practices

Dear Judge Hogan:

 This letter provides information regarding gaps in the process
by which the National Security Agency (NSA) has effectuated purges. Speci?cally, in April and
May, 2014, NSA reported to the National Security Division (NED) and the Of?ce of the Director

of National Intelligence (ODNI) inconsistencies in the manner in which NSA ur ed data from
NSA ttieettettee ttet had been ee 

(598W As previously described to the Couit, any system designated by NSA -
ust employ a purge protocol to verify that information is purged when the system
receives a request to destroi SIGINT information that NSA is not authorized to retain. See, eg,

In re Certification Docket of the Director of NSA,
filed on May 10, 2010. In the following activities, undertaken as part of ongoing efforts
to identify and resolve iSSues with its purge process, NSA identified speci?c objects that were
subject to compliance purges but were not purged from

or before NSA identi?ed an issue with respect to how
information was being purged fr01

   
 

     
   

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WSW

NSA corrected this

Gavel-{meat will further 11 date the Court on the root causes of the incom late purges

 

 

2 NSD noti?ed the Court of this?



 



All redacted information exempt under andlor except as otherwise noted. Approved for Public Release

purge activities, NSA discovered

NSA has corrected the -error and has

NSA is certain that Obj ects

 

the extent that NSA identi?es any data subject to purge used in any of
these ways, NSA will notify NSD and ODNI.

 

All redacted information exempt under andior except as otherwise noted. Approved for Pubiic Release

311W

NSA has reviewed this letter and con?rmed its accuracy. The Department-
of Justice will continue to provide further information to the Court regarding these matters.

Respectfully submitted,

     

evm . onnor
Chief; Oversight Section
Of?ce of Intelligence, NSD I
U.S. Department of Justice

 

- Ail redacted information exempt under and Ebi(7)(E). Approved for Public Release

 

AFFIDAVIT 0F JAMES B. COMEY
DIRECTOR, FEDERAL BUREAU OF J3,

 

702(g} Certification-

Pursuant to subsection 702(g)(2)(C) of the Foreign Intelligence Surveillance Act of
1978, as amended (PISA or "the Act"), and in support of 702(g} Certi?cation
af?rm the following is true and accurate to the best of my knowledge and belief:

  

1.  The National Security Agency CNSA) has represented to the Federal Bureau of
Investigation (FBI) that, in accordance with the NSA targeting procedures attached

herewith as Exhibit NSA may identify certain electronic communications
("Designated Accounts") that are used by non?United
tates persons reasona reved to be outside the United States and which are

reasonably believed to contain foreign intelligence informatio

 
   
    
  

2. The FBI's acquisition of _pursuant to request is

consistent with section 702 of the Act because, inter alter the acquisition will be
conducted in compliance with the limitations set forth in subsectio 702 .e Act; the
a uisition will involve obtaining foreign intelligence informatim?
belectronic communication service providers; and a
signi?cant purpose of the acquiSition is to obtain foreign intelligence information.

3. In conducting the acquisition ofmws requested by NSA,
- the FBI will use the procedures attached erew1 as 1 1 0 determine that the

requested acquisition targets non?United States persons reasonably believed to be located
outside the United States.

4. The FBI will. convey any?t acquires pursuant to the

above-referenced certi?cation to NSA in unininimized form without performing any
further processes or procedures to ensure that the user of the Designated Account is a
non-United States person reasonably believed to be located outside the United States. If
directed by NSA, the FBI will also convey the of speci?ed 
Designated Accounts from the electronic communication service provider to the Central

   
  
 

Ail redacted information exempt under and 

 

Approved for Public Release

Intelligence Agency (CIA) in minimized form without performing any further
processes or procedures to ensure that the user of the Designated Account is a non?United
States person reasonabl believed to be located outside the United States. NSA and CIA
shall process any_received from the FBI in accordance with the
NSA and CIA minimization procedures, respectively, adopted by the Attorney General,

in consultation with the Director of National Intelligence, pursuant to subsection 702(e)
of the Act.

 

The minimization procedures that the FBI will use with respect to any-
it acquires pursuant to the above~refcrenccd certi?cation are attached
herewith as Exhibit D.

. Under the FBI minimization procedures attached herewith as Exhibit D, the FBI
may provide the National Counterterrorism Center (NCTC) with access to terrorism?
related FISA-acquired information, including minimized information obtained pursuant
to section 702 of the Act, through the general indices (such as the Automated Case
Support System (ACS), Sentinel, or successor systems). NCTC does not have a law
enforcement ?mction, and therefore the FBI is not permitted to disseminate FISA-
acquired information to NCTC that is solely evidence of a crime and not foreign
intelligence information. The minimization procedures that NCTC will use with respect
to any section 702-deriyed information that it obtains from FBI that is evidence of a
crime, but not foreign intelligence information, which are attached herewith as Exhibit G,
were submitted for a roval to the Forei Intelli ence Surveillance Court FISC) in
connection with on July 31,
2013, and were approved by the FISC on August 30, 2013. NCTC will not collect any
information pursuant to FISA, and the attached minimization procedures do not permit
NCTC to receive unminimized information acquired pursuant to section 702 of the Act.

 

- All redacted information exempt under and Approved for Public Release

i declare ?nder penalty of perjury ?nat the foregoing is 11116 and correct.


Signed this day of July, 2014.

 

 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Retease



r1}.
. i i;

Iva




  
 

iHiELt
 as -:  w:
AFFIDAVIT OF RICHARD H. LEDGETT, JR., ACTING -- - 
NATIONAL SECURITY AGENCY mm ?8 
z- u? 

I 

Pursuant to subsection 7 of the Foreign Intelligence Surveillance Act of 1978, as
amended ("the Act"), and in support of 702(g) Certi?cation-I af?rm that the
following is true and accurate to the best of my knowledge and belief:

1. WThere are reasonable procedures in place that the National Security Agency
(N SA) will use to ensure that any acquisition under this certi?cation is limited to
targeting non-United States persons reasonably believed to be located outside of the
United States. In addition, these targeting procedures are reasonably designed 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.
These targeting procedures are attached herewith as Exhibit A.

2. As described below, NSA's acquisition of foreign intelligence information
pursuant to this certi?cation involves obtaining foreign intelligence infonnation from or
With the assistance of electronic communication service providers, as that term is de?ned
in subsection 701(b)(4) of the Act. 

3. WSW NSA seeks to acquire foreign intelligence information

  

All redacted information exempt Under andlor except as otherwise noted. Approved for Public Release

Furthennore, NSA seeks to a uire foreign intelligence informatio

5. WPursuant to the abOVe- -

'intelli ence information concemin

NSA belieVes that the non?United. States
persons reasonably believed to be located outside the United States who will be targeted

2

 

All redacted information exempt under andror except as othenryise noted. Approved for Public Release

for acquisition under this certi?cation possess, are expected 1?01? are likely
to communicate foreign intelligence information conceming Thus, a

signi?cant purpose of this acquisition is to obtain:
(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 

the national defense or the security of the United States; or

b. - the conduct of the foreign affairs of the United States.

If NSA seeks to ac uire forei intelli ence information concernin

     

NSA may target an or is certi cation non?Unite tates persons reasona 
believed to be located outside the United States who possess, are expected to
receive, andfor are 'kel to communicate foreign intelligence information
concerning?provided that NSA noti?es the Attorney General and
Director of National Intelligence within ?ve business days of implementing such

targeting. Such noti?cation will include a descri tion of the factual basis for

6. (-Sf?i-F?-With respect to the information NSA acquires pursuant to the above~referenced
certi?cation, NSA will follow the minimization procedures attached herewith as Exhibit
B. -

 
 

7. (SW NSA may provide to the Central Intelligence Agency (CIA) unminimized
acquired pursuant to the choirs-referenced certi?cation. CIA will
identify to NSA the targets for which NSA may provide unminimized to
CIA. CIA will process any such unminimized communications received from NSA in
accordance with the CIA minimizati on procedures adopted by the Attorney General, in
consultation with the Director of National Intelligence, pursuant to subsection 702(e) of
the Act. -

8. (5798-1?- NSA may provide to the Federal Bureau of Investigation (FBI) unminirnized
conununications acquired pursuant to the above?referenced certi?cation. The FBI will
identify to NSA the targets for which NSA may provide unininimized communications to

.
3

All redacted information'exempt under andlor except as othemise noted. Approved for Public Release

the FBI. The FBI will process any such unminimized communications received from
NSA in accordance with the FBI minimization procedures adopted by the Attorney
General, in consultation with the Director of National Intelligence, pursuant to subsection
702(e) of the Act.

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All redacted information exempt under andfor except as oiherwise noted. Approved for Public Release

.1

   
 

(U) I declare under penalty ofpelqi Dry that the foregeing is true and correct.
Signed this ofJuJy, 201.4.

  

 

?rm-mm H.  3R.
Acting Director, National Security Agency

  

Al! redacted information exempt under andior (exill as otherwise noted. Approved for Public Release
in - 
.4 

Pursuant to subsection 702(g)(2)(C) of the Forei Intelli once Surveillance Act of
1978, as amended ("the Act"), and in support of&, I af?rm

the following is true and accurate to the best of my knowledge and belief:

1. As Director of the Central Intelligence Agency (CIA), I am responsible for the
collection of foreign intelligence through human sources and by other appropriate means. These .
functions are carried out by and through CIA. mission includes the collection, production,
and dissemination of foreign intelligence and counterintelligence, including information not
otherwise obtainable. This includes the conduct of clandestine espionage or counterintelligence
activities abroad.

2. (438% Pursuant to the above-referenced certi?cation, the National Security Agency OJSA)

 

and Federal Bureau of Investiiation  mai aciuire unminirnized communications,-

 

IAII redacted information exempt under andior as othemise noted. Approved for Pubiic Release

 

5. (U) I have reviewed the minimization procedures attached herewith as Exhibit E. CIA will
follow these minimization procedures with respect to any unrninimized communications it
receives from NSA and FBI acquired pumuant to the above?referenced certi?cation.

The remainder of this page intentionally Ze? blank 

Alt redacted information exempt under andlor except as otherwise noted.

 

I declare under penalty of p?lj?i'y that the. foregoing.  true and correct.

I Me 
Signed this  day of July; 2014.

f}
if a fr}
.   

 

0333'?: gt 

g" X?irector, Central. 'nteltigence Agency



 

Approved for Public Release

All redacted information exempt under except as otherwise noted. Approved for Public Release
   
13?; I I -. I.  

 . [liner

CERTIFICATION OF THE DIRECTOR OF NATIONAL INTELLIGENCE 5.13.3.1?"
ATTORNEY GENERAL PURSUANT To SUBSECTION 702(g) OF THE FOREIGN

INTELLIGENCE SURVEILLANCE ACT OF 1978, As AMENDED it1-.- 5 451.: tr!  

   

702(g) Certi?cation-

In accordance with subsection 702(g) of the Foreign Intelligence
Surveillance Act of 1978, as amended ("the Act"), and based on the representations made in the i
supporting af?davits of Richard H. Ledgett, In, Acting Director of the National Security Agency
(NSA), James B. Comey, Director of the Federal Bureau of Invesngation (FBI), and John 
Brennan, Director of the Central Intelligence Agency (CIA), in the above-referenced matter, the
Director of National Intelligence and the Attorney General, being duly sworn, hereby certify that:
(0-68} there are procedures in place that will be submitted with this certi?cation for
approval by the Foreign Intelligence Surveillance Court] that are reasonably designed
..
a. ensure that an acquisition authorized pursuant to subsection 702(3) of the Act is
limited to targeting persons reasonably believed to be located outside the United
States; and
I). prevent the intentional acquisition of any communication as to which the sender

and all intended recipients are known at thetirne of acquisition to be located in

the United States;

 

1% Speci?cally, the NSA and FBI targeting procedures attached herewith as Exhibits A and C,
respectively, will be submitted for approval by the Court.



Classi?ed by: The Attorney General
Reason: 1 
Declassify on: 24 July 2039

All redacted information exempt under (130(1) andior except as otherwise noted. Approved for Public Release

(2)63) the minimization procedures with respect to such acquisition 

a. meet the de?nition of minimization procedures under subsections 101 and
301 (4) of the Act; and I

b. have been approved2 or will be submitted with this certi?cation for approval by
the Foreign Intelligence Surveillance Court;3

(3) {83? guidelines have been adopted in accordance with subsection 702C) of the Act to
ensure compliance with the limitations in subsection 702(b) of the Act and to ensure
that an application for a court order is ?led as required by the Act;

(4) 65} the procedures and guidelines referred to in sub?paragraphs (1), (2), and (3)
above are consistent with the requirements of the fourth amendment to the
Constitution of the United States;

a signi?cant purpose of the acquisition is to obtain foreign intelligence
information;

(6) (83- the acquisition involves obtaining foreign intelligence information from or with
the assistance of an electronic communication seririce provider; and

(7) (Si- the acquisition complies with the limitations in subsection 702(b) of the Act.

(SW As described in the above-referenced affidavit of Acting Director Ledgett,

the foreign intelligence information to be acquired pursuant to this certi?cation concerns -

2 Mergers} Speci?cally, the National Counterterrorism Center (NCTC)  
herewith as Exhibit were submitted for approval by the Court in connection wi
_n July 3 20 and were approved by the Court on ugust .

3.48% Speci?cally, the NBA FBI, and CIA minimization procedures attached herewith as Exhibits B, D,
and B, respectively, will be submitted for approval by the Court. 

 

   
 
  
 


2

All redacted information exempt under andior except as otherwise noted. Approved for Public Release

If NSA seeks to acquire foreign intelligence information concerning additional-
may 
consistent with this certi?cation non?United States persons reasonably believed to be located
outside the United States who possess, are expected to receive, and/or are likely to communicate
foreign intelligence information concerning _provided that NSA noti?es
the Attorney General and Director of National Intelligence within ?ve business days of
implementing such targeting. Such noti?cation shall include a description of the factual basis for
determination that 
On the basis of the foregoing, the targeting of non-United States persons
reasonably believed to be located outside the United States to acquire foreign intelligence
information, as described above, is authorized, and such authorization shall be effective on
August 28, 2014, or on the date upon which the Foreign Intelligence Surveillance Court issues an
order concerning this certi?cation pursuant to subsection 702(i)(3) of the Act, whichever is later.

Such targeting is authorized for a period of one year from the effective date Of this authorization.

    
    

This authorization reauthorizes 702( g) Certi?cation

hich became

effective on September 10, 2013.

Amendments to Cer?r

Est/0W) Furthermore, in accordance with subsection of the Act,

We we certi?cation?are hereby

amended. Speci?cally, the use of the NSA, FBI, and CIA minimization procedures attached

herewith as Exhibits B, D, and B, respectively, in connection with foreign intelligence

SW
3

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release 1

information acquired in accordance with 702(g) Ce1ti?cations_
,-is authorized.?4 Such authorization, as amended, shall beleffective I

on August 28, 2014, or on the date upon which the Foreign Intelligence Surveillance Court

issues an order concerning these amendments pursuant to subsection 702(i)(3) of the Act,

Whichever is later. All other aspects of 702(g) Celti?cations?
as amended, remain unaltered and are incorporated herein.

m~ he remainder ofrhz?s page intentionally left blank 

 

4484961515313- As certi?ed above, these minimization procedures meet the de?nition of minimization procedures
under subsections 10 1 and 301(4) of the Act, will be submitted for approval by the Foreign Intelligence
Surveillance Court, and are consistent with the requirements of the fouIth amendment to the Constitution of the
United States.

All redacted information exempt under andlor except as otherwise noted. Approved for Public Retease



(U) VERIFICATION

I declare under penalty of pezjury that the facts set forth in the foregoing certi?cation

  
 

 

   

true and correct to the best efmy knowledge and
Belief:  further declare under penalty of ezjury that the facts set forth in the foregoing
amendments to DNUAG 702(g) Certi?cations?

-are true and correct to the best of my kilowledge and belief. Executed pursua?t to I

28 I746 on this we day omy, 2014.

 
     
 
 



H. Holder, -
Attorney General of the United Stat

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release

 

(U) memcmm?

 I declare under penalty of that the fac?s set fo?h in the foregoing corti?m?o?

702(g} Corti?oation - are time and correct to the- best of my knowledge mad
belie? I Met declare under penalty ofpelj?ury that the fact: set ibr?: it} the ibmgoing
amendments to DNUAG 7 02(3) Certi?ca?ons?
.113: true and correct to the best ofmy knowledge and belief. Executed pursuant to
23 U513. 1746 on this?day of ?Iully, 2014-.

 

Director of National Intelligence

 

Approved for Public Release

1) andlor except as otherwise noted.

All redacted information exempt under 

EXHIBIT A

PROCEDURES USED BY THE NATIONAL SECURITY AGENCY FOR TA
NON-UNITED STATES PERSONS REASONABLY BELIEVED TO BEEAOCATEU
OUTSIDE THE UNITED STATES TO ACQUIRE FOREIGN 
INFORMATION PURSUANT TO SECTION 702 CE TIIE FOREIGN 
SURVEILLANCE ACT OF 1978, AS AMENDED

 

 531 HERE A 
- i

Ail redacted information exempt under erwise noted. Approved for Public Release

 

Approved for Public Release

 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release
an: y- - -

 

All redacted information exempt under andior except as otheiwise noted. Approved for Public Release



 

All redacted information exempt under Approved for Public Release

 

All redacted information exempt under andior except as otherwise noted. - Approved for Public Release



 

Approved for Public Release

 

All redacted information exempt under andfor (b (3), except a Approved for Public Release

 

Alf redacted information exempt under and Approved for Public Release

EXHIBIT 

n-  I ?t 
at), mid, 4:8 PE 3: 

PROCEDURES USED BY THE FEDERAL BUREAU OF INVESTIGATION ?93
TARGETING STATES PERSONS REASONABLY 
LOCATED OUTSIDE THE UNITED STATES TO ACQUIRE 
INTELLIGENCE INFORMATION PURSUANT TO SECTION 702 OF THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978, AS AMENDED

 

 

All redacted information exempt under and Approved for Public Release

SW i

SW
2

 

AH redacted informatioh exempt under and Approved for Public Release

SEW

 

All redacted information exempt under and Approved for Public Release

 

All redacted infofmation exempt under and Approved for Public Release



 

All redacted information exempt under andlor except as otherwise noted. Approved for Public Release

WW

EXHIBIT 

 

All redacted information exempt under andior except as otherwise noted. Approved for Public Release

WW

 

Ail redacted information exempt under andlor except as otherwise noted. Approved for Public Release

WW

 

Ali redacted information exempt under andlor except as otherwise noted. Approved for Public Release



 

Deciassi?ed by James R. Clapper, DNI 1 June 2015



  

-3Erw


.

WNIMIZATION PROCEDURES USED BY THE NATIONAL 
CENTER IN CONNECTION WITH I i -
BUREAU OF INVESTIGATION PURSUANT TO SECTION I  I - - - 

INTELLIGENCE SURVEILLANCE ACT OF 1978, 1'

 
  
 
 
   
    
 

     

(U) GENERAL PROVISIONS

?fSLWith respect to information Obtained by the National Counterterrorism Center 
{tom the Federal Bmcau (FBI) mid acquired pursuant to section 702 of
the Foroigl intelligence Surveillance Act Of 1978, as amended (PISA or ?the Act"), NCTC will
follow the procedures ect fonh below. '1?liese procedures do not a?thorize NCTC to directly
acquire Oi: cOHcot inibrmation pursuant to the Act. The Attorney General has adopted the
procedures set fo?h below after concluding that the}r setisfy the requiremeitts of minimization.
procedures, as de?ned in the Act at 50 1801(11) and 1821(4).

II. INFORMATION IN FBI GENERAL INDIGIES

respect to section 702-acquired internist-ion that the FBI has determined.
satis?es the applioable retention and dissemination requirements set forth in the FBI Section 702
Mnhnica?on Procedures, and that. the FBI has uploaded 01' otherwise placed into FBI general
indices {such as the Automated Case Suppmt (AC8) system or successor systems) under case
classi?catiOns that are reasonably likely to contain i?fonnation related to terrorism or
countertono?sm, the following provisions shall apply. None of the following provisions shall
a?oat additional restrictions that the FBI may impose on the retention, use, or dissemination of

such information:

   

by; The Attorney G31

Declassi?ed by James R. Clapper, DNI 1 June 2015



1. For the purpose of these procedures, NCTC may consider all section 702~ 
acquired inforr?ation that it accesses in FBI general indices, and that reasonably appears
to be foreign intelligence infonnation, necessary to understand foreign intelligence
information, or necessary to assess the importance of foreign intelligence information, to
have been disseminated by FBI to NCTC in accordance with the FBI Section 702
Minimization Procedures. 

2. accesses section 702?aoquired information in FBI general indices that
is evidence of'a crime, but (ices not reasonably appear to be foreign intelligence 
information or necessary to understand or assess the'importance of foreign intelligence
information, NCTC may not retain, use, or disseminate this infonnation.

3. ingests or transfers section 702-acquiredinfor1nation from FBI general
indices into NCTC systems before reviewing such information, NCTC may presume that
Such information reasonably appears to be foreign intelligence information, is necessary
to understand or assess the importance of foreign intelligence infonnation, or is evidence
of a crime. If NCTC discovers any section 702?acquired information transferred from
FBI general indices to NCTC systems that NCTC determines is evidence of a crime, but
does not reasonably appear to be foreign intelligence information or necessary to
understand or assess the importance of foreign intelligence information, NCTC shall
remove such information from all NCTC systems. -

4. WCTC personnel may only access FBI general indices, or review section 702;
acquired information from FBI general indices that has been ingested or transferred into
NCTC systems, if they ?rst receive training regarding these limitations.

(U) INTERPRETATION 

(U) NCTC shall refer all signi?cant questions relating to the interpretation of these

procedures to the Department of Justice, National Security Division.

    
 

 
    
 

Attorney General of the United es



   

 

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(Sj-National Counterterrorism Center Standard Minimization Procedures for Information
Acquired by the Federal Bureau of Investigation Pursuant to Title I, Title or Section
704 or 705(b) of the Foreign Intelligence Surveillance Act

(5-) With respect to the retention, processing, and dissemination of raw information the
National Counterterrorism Center WCTC) receives from the Federal Bureau of Investigation
(FBI) that is acquired pursuant to Title I, Title or Section 704 or 705(1)) of the Foreign-
Intelligence Surveillance Act of 1978, as amended (PISA or ?the Act?), 50 U.S.C. 1801?1812,
1821 -l 829, 18 810, 1881d(b), NCTC will follow these minimization procedures. These .
procedures do not authorize NCTC to directly acquire or collect information pursuant to the Act.

Exec as rovided in Section below

   
 

A. (.9) GENERAL PROVISIONS

1. The Attorney General has adopted these procedures after concluding that they meet
the requirements of minimization procedures, as de?ned in the Act at Title 50, United
States Code, Sections 1801(h) and 1821(4). In accordance with Title 50, United States
Code, Section 403?1 the Director of National IntelligenCe (DNI) has provided
assistance to the Attorney General with resPect to the dissemination procedures set forth

herein so that FISA-acquired information may be used ef?ciently and effectively for
foreign intelligence purposes.

2. (S9?Pursuant to Title 50, United States Code, Sections 1806(a) and 1825(a), no
information acquired pursuant to ISA may be used or disclosed by Federal of?cers or
em lo ees exce for lawful purposes. Information from electronic surveillance, -

conducted under PISA concerning United States persons may
be used and disclosed by NCTC employees without the consent of such United States
persons only in accordance with these minimization procedures and any modified or
supplemental minimization procedures that may apply. These procedures do not apply to
publicly available information concerning United States persons, and do not apply to
information that is acquired, retained, or disseminated with a United States person?s
consent. Except for the provisions set forth below regarding attorney?client 
communications, the use of FISAwaoquire-d information in proceedings in the United
States and foreign countries, the disclosure of raw FISA-acquired information, and the
use of caveats and other markings on PISA?acquired or FISA?derive'd information, these
procedures do not apply to information solely concerning non-United States persons.


Classi?ed by: Eric H. Holder, Jr.

Attorney General
Reason: . 1.4(0)

Declassify on: 15 March 2037

 

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3. ES) De?nitions. ?These procedures adopt all de?nitions set forth in 50 U.S.C. 1801
and 1821, including those for the terms ?foreign intelligence information,? ?United States
person,? and ?Attorney General.? In addition, as used herein:

a. ?information? herein means all data and content acquired by FBI pursuant to the Act

and provided to NCTC, including contents as de?ned in 50 U.S.C. 1801(n).

?metadata? means dialing, routing, addressing, or signaling information associated
with a communication, but does not include information concerning the substance,
purport, or meaning of the communication.

employee? means individuals directly employed by NCTC, (ii) personnel
detailed to NCTC from other departments or agencies who work under NCTC
management and supervision in a manner substantially the same as individuals
directly employed and contractors working under NCTC management
and supervision who are authorized to perform services in support of NCTC on 
related matters. - -

??ionpublicly available information? means information that a member of the public
could not obtain on request, by research in information generally available to the
public, or by casual observation.

?raw? information is FISA?aequired information that is in the same or substantially
the same format as when FBI acquired it, or (ii) has been processed only as necessary
to render it into a form in which it can be evaluated to determine whether it
reasonably appears to be foreign intelligence information or to be necessary to
understand foreign intelligence information or assess its importance.

?review? of information occurs when an NCTC employee actually accesses
information. 

 

?United States person identity? means (1) the name, unique title, or address of a
United States person, or (2) other personal identi?ers of a United States person when
appearing in the context of activities conducted by that person or activities conducted 

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by others that are related to that persbn. A reference to a product by brand name or
manufacturer?s name, or the use of a name in a descriptive sense, ?Monroe
Doctrine,? is not a United States person identity.

(S3 Presumptions. For the purposes of these procedures:

 

 

a. If an individual is known to be located in the United States,

 
        
 

or we 
presumed to be a United States person . ess in 1V1 ua IS 1 enti?ed as an alien
who has not been admitted for permanent residence, or unless the totality of
circumstances gives rise to the reasonable belief that the individual is not a United
States person. 

   

If an individual is known or reasonably 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 the totality of circumstances gives
rise to the reasonable belief that the individual is a United States person.

In if it is not known whether an individual is'located in or
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 the totality of
circumstances gives rise to the reasonable belief that the individual is a United States

- person. NCTC shall only a ly this presumption in cases that FBI has identi?ed to
NCTC as 

5. Departures. I

a. If NCTC believes that a situation requires it to act inconsistently with these
procedures to protect the national security of the United States, or to protect life or
property from serious harm, NCTC will contact the Of?ce of Intelligence of
the National Security Division (N SD) of the Department of Justice (DOJ) to request
that these procedures be modi?ed. NCTC will notify FBI of any such 
request. The United States may obtain modi?cations to these procedures with the
approval of the Attorney General and a determination by the F180 that the modi?ed
procedures meet the de?nition of minimization procedures under PISA.

. If NCTC determines that it must take action in apparent departure from these
procedures in order to protect against an immediate threat to human life and that it is
not feasible to obtain a timely modi?cation of these procedures, NCTC may take such
action immediately. NCTC will report the action taken to NSD and FBI.
NSD Will notify the Foreign Intelligence Surveillance Court (FISC) of any
such activity. - .

 

 

 

   

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6. Nothing in these procedures shall prohibit:

a. The retention or processing of information necessary for the maintenance of technical
databases, so long as only administrative or technical personnel have access to such
databases;

b. The retention or processing of information in emergency data backup systems,
provided that only administrative or technical personnel have access to such systems.
In the event that information from such systems must be used to restore lost,
destroyed, or inaccessible data, NCTC shall apply these procedures to the transferred
data; 

c. access to PISA-acquired information that FBI, CIA, or NSA may
di'SSeminate to NCTC pursuant to their respective FIS C-authorized minimization
procedures; or

d. The retention, processing, or dissemination of information reasonably necessary to 
comply with specific constitutional, judicial, or legislative mandates, or (ii) conduct
lawful oversight of retention, processing, or dissemination of information
under any section of PISA. 

7. 65-) Compliance With Crimes Reporting Obligations. 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 Title 50, United States Code, Sections 1806(b) and 1825(0), Executive
Order No. 12333 (as amended), and any other applicable crimes reporting requirements

 

 

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a. 

1. NCTC may maintain raw information. Raw information must be maintained in a
manner that clearly identi?es it as raw information collected by FBI pursuant to FISA,
only permits such information to be accessed by NCTC employees who have received
training in applying these procedures to raw PISA?acquired information, and (0) enables
NCTC to mark or otherwise identify communications orother information that meet the
standard set forth in paragraph herein. The retention provisions herein apply
notwithstanding other Attorney General guidelines governing retention of
information. 

2. (-5-) Subject to the above:

 

3. 68% Nonpublicly available information concerning a nnconsenting United States person
that an NCTC employee responsible for applying these procedures has determined
reasonably appears to be foreign intelligence information, to be necessary to understand
foreign intelligence information or assess its importance, or to be evidence of a crime
may also be retained and used for further analysis without the limitations set forth in
paragraph B(l) above. Such information shall be clearly identi?ed in NCTC systems and
records as infonnation that was collected by FBI pursuant to PISA and that is subject to
these procedures. These procedures do not limit the time period for which NCTC may
retain such information. Information that is evidence of a crime that has been, is being,

 

 

 

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or is about to be committed, but is not foreign intelligence information, may only be
retained ordisseminated for law enforcement purposes.

C. PROCESSING

1.

 

2. NCTC may make raw FISA?acquired information available to authorized NCTC
personnel on a continuin basis for review, translation, analysis, and use in accordance
with these rocedures.

    

3, NCTC may find, extract, and analyze metadata associated with all corrununications
received from FBI, regardless of whether such communications are determined to satisfy
the standards set forth in these procedures for retention or dissemination. NCTC may use
such metadata to analyze communications and may upload or transfer some or all of such
inetadata to NCTC electronic and data storage systems for authorized foreign intelligence
purposes. FISA-acquired metadata received from FBI shall be identi?ed as such in
NCTC data repositories. 

- 4. (Sa- Third?Party Information. NCTC may retain and use third?party information in
accordance with these procedures if such information meets the standard set forth in
Section of these procedures, and:

- a. is a communication made or received on behalf of the target(s);

1). concerns activities in which the target(_s) is or may be involved; or

0. concerns a serious threat of injury, loss of life, damage to property, or damage to the
national security of the United States. 

. rl?hird-party information that meets the standard set forth in Section 13(3) of these
procedures but does not satisfy any of the above criteria may be retained in accordance
with these procedures, but may not be disseminated or otherwise used. If NCTC believes

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that such information should be disseminated or otherwise used, it shall. proceed in
accordance with Sections or of these procedures.

(-53 Sensitive Information. Particular care should be taken when reviewing information
that is sensitive information, as de?ned below. No sensitive information may be used in
an analysis or report unless it is ?rst 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
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: I

a. Religious activities of United States persons, including consultations with clergy;

b. Educational and academic activities of United States persons, including consultations
among professors or other teachers and their students;

0. Political activities of United States persons, including discussions with Members of
Congress and their staff, and other elected of?cials;

d. Activities of United States persons involving the press and other media;
e. Sexual and other highly personal activities of United States persons;
f. Medical, or activities of United States persons; and

g. Matters pertaining to United States person minor children, including student requests
for information to aid in academic endeavors.

6. 653 Privileged Communications.

 

 

 

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With respect to any other communication where it is apparent to NCTC 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 15.8. Intelligence Community if the
communications are speci?cally labeled as being privileged. Such communications
may not be disseminated outside of the US. Intelligence Community without the
prior approval of the Attorney General or Attorney General?s designee.

If FBI informs NCTC that particular communications are privileged, NCTC will
adopt conclusion that such communications are privileged. If FBI informs
NCTC that particular communications, categories of communications, or
communications acquired from particular facilities may contain privileged
communications, NCTC will maintain a record of such notice and will maintain such
communications in a manner that alerts personnel accessing the communications that
they may contain privileged content.

D. DISSEMINATION AND DISCLOSURE

l. 68-} NCTC may disseminate to federal, state, local, or tribal agencies or of?cials with
responsibilities relating to national security that require access to foreign intelligenCe
information any nonpublicly available information concerning an unconsenting United
States person that reasonably appears to be foreign intelligence information, necessary to
understand foreign intelligence information, or necessary to assess the importance of
fOreign intelligence information, if the United States person identity is deleted or
otherwise sanitized to prevent the search, retrieval, or review of the identifying
information. A generic term may be substituted which does not identify the United States
person in the context of the data. If the information cannot be sanitized in such a manner
because such person?s identity is necessary to understand foreign intelligence information
or assess its importance, NCTC may disseminate that identity. NCTC may only
disseminate PISA-acquired or FISA?derived information received from FBI in raw form
as provided herein. -

(5-) Information that is-evidence of a crime that has been, is being, or is about to be
committed, but is not foreign intelligence information, may only be retained or 
disseminated for law enforcement purposes. As to all such disseminations, see Section
0) above regarding additional agreements between NCTC and FBI.

 

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SEW

 

4. (SM In addition to disseminations otherwise permitted by these procedures, NCTC
may disclose to I, the Central Intelligence Agency (CIA), and/or the National Security
Agency (NSA) raw information, provided that the receiving agency handle such raw
information in accordance with FISC~appr0ved minimization procedures applicable to
that agency. All disclosures of raw information under this paragraph shall be conducted
in a manner that clearly indicates to the receiving agency or agencies that the disclosed
information is raw FISA-acquired information collected by FBI.

 

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5. (55* Procedures for technical or linguistic assistance. NCTC may receive information
or communications that, because of their technical or linguistic content, may require
further analysis by other federal agencies (collectively, ?assisting federal agencies?) to
assist NCTC in determining their meaning or significance. Consistent with the other
provisions of these procedures, NCTC is authorized to disclose FISA-acquired
information to assisting federal agencies for further processing and analysis. The
following restrictions apply with respect to any materials so disseminated:

a. Disclosure to assisting federal agencies will be solely for translation or analysis of
such information or communications. Assisting federal agencies will make no use of
any information or any of or concerning any persdn except to provide
technical or linguistic assistance to NCTC. 

b. Disclosure will be only to those personnel within assisting federal agencies involved
in the translation or analysis of such information or communications. The number of
such personnel shall be restricted to the extent reasonably feasible. There shall be no
further disclosure of this raw data within assisting federal agencies. 

0. Assisting federal agencies shall make no permanent agency record of information or
communications of or concerning any person referred to in FlSA?acquired
information disclosure by NCTC to assisting federal agencies, provided that assisting
federal agencies may maintain such temporary records as are necessary to enable
them to assist NCTC with the translation or analysis of such information. Records
maintained by assisting federal agencies for this purpose may not be disclosed within
the assisting federal agency, except to personnel involved in providing technical
assistance to NCTC. 

d. Upon the conclusion of such technical assistance to NCTC, all copies in any form of
the FISA?acquired information will either be returned to NCTC or be destroyed, with
an accounting of such destruction made to NCTC. 

e. Any information that assisting federal agencies provide to NCTC as a result of such
technical assistance may be disseminated by NCTC in accordance with the applicable
minimization procedures. 

6. (8-) Caveats.

a. Disseminations pursuant to Section or (2) by NCTC of FBI-collected PISA-
Iacquired or PISA-derived information to federal, state, local, or tribal agencies or
of?cials of or within the United States will bear a legend 'indicating,'in sub stance, that:
the dissemination includes PISA-acquired or FISA~derived information collected
by the (ii) the information, and any information derived therefrom, may only be
used in, or in connection with, a domestic or foreign legal or administrative
proceeding with the advance authorization of the Attorney General; any recipient
interested in obtaining such authorization should contact FBI Headquarters; and (iv)
any reproduction, dissemination, or communication (including but not limited to oral

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brie?ngs) of the disseminated information must be accompanied by a statement of
these restrictions. Wherever feasible, NCTC will indicate which portions of
documents contain FBI-collected PISAnacquired or FISA-derived information, to
permit recipients to identify the information to which the FISAnrelate'd restrictions

apply.

. All disseminations pursuant to Section by NCTC of FBI?collected 
acquired information will bear a legend indicating that the disseminated information
may not be used or disseminated for any purpose by the recipient without the advance
authorization of the Director of NCTC. Such legend need not indicate that the
information was collected by FBI or was acquired pursuant to NCTC shall
refer any request for authorization to use or disseminate FBI?collected FlSA-acquired
information to FBI Headquarters. This caveat and authorization process may also be
substituted for the caveat and process in paragraph for specific disseminations
under circumstances security concerns) that require nondisclosure of the agency
that collected the disseminated information, or nondisclosure of the authority
pursuant to which the disseminated information was acquired.

Any dissemination made for a law enforcement purpose must bear a caveat stating, in
substance, that the disseminated information may only be used in a legal or
administrative proceeding with the advance authorization of the Attorney General. 

In addition to disseminations otherwise authorized under these procedures, NCTC
may disseminate foreign intelligence information as de?ned at 50 U.S.C. 1801(e) to
federal, state, local, territorial, and tribal authorities, foreign officials and entities, and
private sector entities that have a substantial bearing on homeland security for the
purposes of and in accordance with Homeland Security Presidential Directive 6 and
the Memorandum of Understanding on the integration and Use of Screening
Information to?Protect Against Terrorism and applicable addenda thereto.
Disseminations made pursuant to this provision are not subject to the caveat

re uirements set forth above in sections and 

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F. (53 TRAINING, DATA STORAGE AND ACCESS, AND OVERSIGHT

l. (8-) In consultation with NSD, NCTC will develop and deliver training regarding the
applicable?procedures to ensure personnel responsible for applying these procedures
understand their responsibilities under these procedures. 

2. 68-) NCTC will ensure that raw information is only accessible to NCTC employees (as 
de?ned above) who have received the required training. NCTC will maintain logs or
records of users authorized to access the raw information. NCTC will ensure that the
marking, moving, or other identi?cation of information received in raw form as meeting
the standard set forth in paragraph 13(3) is tracked and auditable, and that a user who
moves a particular communication is identi?able.

3. All USA?acquired information retained by NCTC will be retained under
appropriately secure conditions that limit access to such information only to authorized
users and recipients in accordance with these procedures. The retention procedures
herein apply to PISA-acquired information retained in any form. NCTC electronic and
data storage systems may permit multiple authorized users to access the information.

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simultaneously or sequentially and to share or transfer PISA-acquired information
between systems.

4. 65-} compliance with these procedures shall be subject to periodic review by
NSD. NSD shall be permitted access to all information and materials necessary to 
evaluate compliance with these procedures, consistent with the need to protect
the security of NCTC sources and methods. NCTC shall maintain copies of
disseminations of nonpublicly available information concerning unconsenting United
States persons and make such disseminations available for review by NSD.

5,?65} NCTC shall refer all signi?cant questions relating to the interpretation of these
procedures to NSD.

G. (U) REVIEW or PROCEDURES

The Attorney General, or a- designee, in consultation with shall review these
procedures and determine whether they remain appropriate in light of the technology and
practices used by NCTC no later than ?ve years from the date these procedures are signed,
and every ?ve years thereafter. A written report of such review shall be provided to the
Court within six months of the completion of the review.

  
 

Date . Holder  SQ
Attorney General of the United 3

l3

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US. Department of Justice

   
  

EELS. 
new,
National Security grit-3ft?   

 

2.53111 JUL 30 Pit it: 

 


20?" a turns Hati-
esrnarn pang,
an. 
July 30, 2014

The Honorable Thomas F. Hogan

United States Foreign Intelligence Surveillance Court
333 Constitution Avenue, NW.

Washington, DC. 20001

Re: 689-Update Regarding Compliance Incidents
Reported in the December 2013, March 2014, and
June 2014 Section 702 Quarterly Reports

Dear Judge Hogan:

689 On July 17, 2014, representatives from the National Security Division (N SD) met
with Court staff to discuss certain compliance incidents reported in the December 2013, March
2014, and June 2014 Section 702 Quarterly Reports. Below is the requested informatidn.

1. (S) Facilities That Remain Tasked Pursuant to Section 702 While Questions are
Resolved Concerning Documentation and/or Foreignness Issues

There are occasional instances in which the National Security Agency?s (N SA)
post?tasking checks or review of tasking sheets reveals a potential issue?with the pre~

tasking foreignness checks performed by the analyst. For exam Ie the June 2014 uarterl
Report identi?ed the following issue with respect to -

 
 

 


116742, 103444,118965

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The June 2014 uarterl Re ort also identi?ed a similar issue with res act to

Approved for Public Release

    

 

 

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As with any other possible compliance incident, if there is. an issue with the pre?
tasking foreignness justi?cation, the Government immediately starts to investigate the possible
instance of non-compliance. If the Government discovers that the pre~tasking foreignness
justi?cation was suf?cient, that potential incident is closed. If, however, the pre?tasking record
was incomplete (a documentation error) or the pre~tasking checks were not properly conducted

(a tasking error), the incident will he reportedfdocumented to the Court. 

 

 

 

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ES) Subsequent to the June 2014 Quarterly Report, NSA advised?

3. (U) Noti?cation Delays

ES) targeting procedures require NSA to report certain incidents to NSD and
ODNI even if these incidents do not involve noncompliance with the targeting procedures.
eci?cally, NSA is required to terminate acquisition and noti?r NSD and ODNI if

   

ES) During the July 17, 2014, meeting with the Court, it was noted that there had been a
signi?cant improvement in the timeliness of NSA reporting of these incidents. The below
information responds to the Court?s request for certain metrics regarding the noti?cation delays.
Speci?cally, in the December 2013, March 2014, and June 2014 Quarterly Reports, the -
Government identi?ed-instances res ectivel in which NSA did not provide
N81) and ODNI the required noti?cation within ?During the time periods
covered by the December 2 3 and June 2014 Section 702 Quarterly Reports,
there were ap Kim - matters, respectively, reported to NSD that were
reporting period.3 For the time periods covered by th ember

2013 Mar 2 14, an une 2 14 Section 702 Quarterly Reports, NSA exceeded the
?uoti?cation requirement in 42%, 17%, and 3% of those matters, respectively.

4. (U) Unauthorized Access to Section 702-Acquired Data

On June 17, 2014, in a notice ?led with the Court, and in the June 2014 Quarterly
Report, the Government advised the Court of an incident involving certain NSA personnel who
had gained access to unminimized Section 702-acquired information without the appropriate
training. More speci?cally, NSA reported that on? while discussing operational
matters, personnel had been
put on an email distribution list that regularly received unminimized Section 702?acquired

 

3 For additional context, during the time the December 2013, March 2014, and June 2014

Quarterly Reports, and ODNI received incident reports, respectively. This means, for
example, that of th atters reported to NSD and ODNI during the period of time covered by the June 2014
Quarterly Report, (8 were properly reported within the required the

   
    

MSW

4

     
  
  
  

 

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information.4 Some personnel had not received the appropriate training
to permit access to unminimized Section 702 data. As of the June 2014 Quarterly Report, NSA
advised that it was dif?cult to assess the scope of information provided to personnel
- given the passage of time and
- NSA also advised, however, that as of all personnel
were removed from the email distribution list. NSA further advised that all personnel -
-have been instructed to delete the relevant e-mails.? Given the operational practices of

NSA assessed that it is unlikely that personnel further disseminated any
unminimized Section 702 data.

(SM?Subsequent to the June 2014 Quarterly Report, and in res onse to questions
from the Court, NSA advised that certain NSA of?ces supporting targets have an e?
mail distribution list for section 702?trained personnel. NSA emp oyees

were inadvertently added to the distribution list in the above incident in
approximately December 2012. NSA further advises that although Section 702-trained
personnel who were on the distribution list recognized the information as Section 702?acquired,
the e-mail distributions in this case did not speci?cally identify the collection as Section 702.? Of
the personnel NSA has identi?ed
.non?Section 702-trained individuals who had access to the e?mail distribution list.6 All -
individuals have con?rmed that all relevant e?mails have been deleted from their systems. As
these .individuals advised that they did not read any of the e-mail messages containing
unminimized Section 702 information; NSA remains con?dent that no improper dissemination -
of the Section 702-acquired data resulted from this incident.

  
   
 

  

- 5. (-8) Review of Section 702 Collection Without the Use of a Required Review Team

- ESWF) Section 111.111. of the Minimization Procedures Used by the'Federal Bureau of
Investigation (FBI) in Connection with Acquisitions of Foreign Intelligence Information
Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended,
requires that FBI ?implement procedures that ensure that the target?s attorney-client privilege is
protected.? Speci?cally, Section provides for stablishment of a review team of one

or more monitors and/or reviewers, who have no role in the prosecution of the charged criminal
matter, to initially access and review information or communications acquired from a

 

468% The distribution list was developed to encourage collaboration among NSA working similar
targets, and was not accessible to non-N SA personnel.

5 (U) In the June 2014 notice and Quarterly Report, the Government incorrectly identi?ed this date as -

 
 

6 (89 As noted above, NSA advised that it is dif?cult to assess the full scope of information rovided' to ersonnel
- includini tie  number of e-mails received, given the passage of time and 
7 Section 702-training analyst recognized the issue in -

$01) SW

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surveillance or search of a target who is charged with a crime pursuant to the United States
Code.?

In separate notice . lid in the March and June 2014 Quarterly Reports, the
Government identi?ed in which FBI ersonnel continued to review
communications
at Febru uartery 

   

     

           

       

 

but FBI monitored the

 
 
   

FBI established the necessar

an April 2014 notice and the June 2014 Quarterly Report, the Government
. . . . . .f 1 

  

BI received
collection from the

689?1381 currently requires Speci?c training prior to any agent or analyst receiving
authorization to review raw Section 702-acquired communications. This training includes a 
discussion of the Section 702 minimization procedures, including attorney?client
communications, and policy guide; In addition to this training, NSD conducts reviews at
approximately 31 FBI ?eld of?ces each year. As part of those reviews, NSD lawyers-provide

 

3 ES) There have been additional, subsequent instances of this type of compliance incident.

 

 

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Approved for Public Release

additional training on Section 702 issues, and speci?cally address possible attorney?client issues.
Finally, whenever any Compliance incident arises, FBI ensures that the relevant personnel
receive the necessary reminders. While there have been isolated instances in which FBI
personnel have not established the necessary review teams, the Government believes that these
were the result of individual failures or confusion and not a systematic issue. NSD and FBI will
continue to provide training on the attorney?client communication provisions of the minimization
procedures. 

6. (U) FBI Incomplete Purges

In a Ma 7, 2014, notice and the June 2014 Quarterly Report, the Government

hen 'red information has been
The Court requested
additional information on this matter during the July. 17, 2014 meeting, and the Government ?led
a supplemental notice with the Court on July 25, 2014, that provides additional information on
this issue. -

7. (8) NSA Incomplete Purges of 

  
    

- In a_ notice and the March and June. 2014 Quarterly Reports,
the Government advised the Court of a gap in purge discovery processes that affects
es of information under certain circumstances that,

 

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WW

 

Incident  

(874431-139 In February 2013, March 2013, August 2013, and July 2014 notices, and in the
March 2013, June 2013, September 2013, December 2013, March 2014, and June 2014

Quarterly reports, the Gover ination regarding efforts to evaluate
transcripts stored in a database that ma have been retained longer than

permitted. NSA is using the identifyin criteria that used to delete the transcri ts to
identify whether any transcripts exist i '11 use
these criteria to identify and delete any transcripts identi?ed, and the results of this action will be
reported to the Court. To date, NSA has not identi?ed any transcripts from that have
been sent to

9. (S) Overcollection Incident Related to-

W111 a November 201 1 notice, and in the December 2011, March 2012, June 2012,
September 2012, December 2012, March 2013, June 2013, September 2013, December 2013,
March 2014, and June 2014 Quarterly reports, the Government rovided information re arding
an overcollection incident involvin the ac uisiticn 

   
 
  

  
  
   
 

 

matter.

10.  - Systems 

Esme In an October 2013 notice and the December 2013 Quarterly Report the

3? curt that there were multiple instances in which copies of 
ere provided to requesting ormation was
cuts would then lace c0 ies of the information on
or additional analysis. On November 14, 2013,

?ln the irior i iuarterli Reiortsl the Government incorrectly advised that NSA was continuing to sequester all

IOPS-E-C-REIHISMNQ-EO-RN

  

 

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the Attorney General and Director of National Intelligence approved amended certi?cations
which included amended minimization procedures for FBI that permit FBI to process and re a'
ra ection - ired informatio . 'ect to certain conditions and re t"ctions

      

The Court approved these minimization procedures on December 13, 2013.

(811% According to Section IV.B.2 of these amended procedures:

The FBI will implement procedures regarding storage of PISA?acquired
information in an -database, 'which will require the FBI to (I) maintain
adequate records of all persons who have been granted access to FISA?acquired
information in an ad hoc database, (2) track the PISA?acquired information in an
ad hoc database that has been determined to be foreign intelligence information,
necessary to understand fereign intelligence information or assess its importance,
,or evidence of a crime, and (3) maintain adequate records to ensure FBI can
comply with the destruction requirement discussed in subparagraph B. 1. of this
section. -

The FBI adopted the procedures required by this section as of February 25, 2014.

(U) NSA and FBI have veri?ed the accuracy of the relevant information in this letter.

Respectfull submitted,

 
  

 

  
 

Vin J. O?Connor
hief, Oversight Section

Office of Intelligence, NSD
U.S. Department of Justice

WSW

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UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT

WASHINGTON, DC.

 

MEMORANDUM OPINION AND ORDER

This matter is before the Foreign Intelligence Surveillance Court or ?Court?) on
the ?Government?s Ex Parte Submission of Reauthorization Certi?cations and Related
Procedures, Ex Parte Submission of Amended Certi?cations, and Request for an Order
Approving Such Certi?cations and Amended Certi?cations,? which was ?led on July 28, 2014
(?July 28, 2014 Submission?). For the reasons explained below, the government?s request for
approval is granted, subject to certain reporting requirements. The Court?s approval of the
certi?cations, amended certi?cations, and accompanying targeting procedures and minimization

procedures is set out in separate orders that are being entered contemporaneously herewith.

 

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I. BACKGROUND
The July 28, 2014 Submission includes Icerti?cations that have been executed by the
Attorney General and the Director of National Intelligence pursuant to Section

- 702 of the Foreign Intelligence Surveillance Act which is codi?ed at 50 U.S.C. 

1881a:?
_certi?cations (collectively referred to as ?the 2014

Certi?cations?) is accompanied by the supporting af?davits of the Acting Director of the
National Security Agency the Director of the Federal Bureau of Investigatibn 
and the Director of the Central Intelligence Agency two sets of targeting procedures, for
use by the NSA and FBI respectivelyf and four sets of minimization procedures, for use by the
NSA, FBI, CIA, and the National Counterterrorism Center respectively.2 The July 28
Submission also includes an explanatory memorandum prepared by the Department of Justice

(?July 28, 2014 Memorandum?).

 

1 The targeting procedures for _2014 Certi?cations are identical. The targeting
procedures for the NSA Targeting Procedures?) appear as Exhibit A to- 2014
Certi?cations. The tar eting procedures for-the FBI Targeting Procedures?) appear as
Exhibit (3 mi 2014 Certi?cations.

2 The minimization procedures for - 2014 Certi?cations are identical. The
minimization procedures for the NSA Minimization Procedures?) appear as Exhibit to
2014 Certi?cations. The minimization procedures for the FBI Minimization
Procedures?) appear as Exhibit to - 2014 Certi?cations. The minimization
procedures for the CIA Minimization Procedures?) appear as Exhibit to- 2014
Certi?cations. The minimization procedures for the NCTC Minimization Procedures?)

appear as Exhibit to _2014 Certi?cations.

Page 2

 

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FISC review of targeting and minimization procedures under Section 702 is not con?ned

to the procedures as written; rather, the Court also examines how the procedures have been and

will be implemented. SSE, gg,?Memorandum Opinion entered on
April 7, 2009, at 22-24 (?April 7, 2009 Opinion?); 

Memorandum Opinion entered on Aug. 30, 2013, at 6-11 (?August 30, 2013
Opinion?). Accordingly, for purposes of its review of the Jul}r 28, 2014 Submission, the Court
has examined quarterly compliance reports submitted by the government3 since the most recent
FISC review of Section 702 certi?cations and procedures was completed on December 13, 2013,4
as well as individual notices of non?compliance relating to implementation of Section 702.
Based on its review of these submissions, the Court, through its staff, orally conveyed a number
of compliance-related questions to the government, to which the government has reSponded in
writing.5 On August 4, 2014, the Court conducted a hearing, which addressed certain revisions
to the targeting and minimization procedures included in the July 28, 2014 Submission, as well
as certain compliance matters.

_2014 Certi?cations involves ?the targeting of non-United States persons

reasonably believed to be located outside the United States to acquire foreign intelligence

 

3 Quarterly Reports to the FISC Concerning Compliance Matters Under Section 702
of PISA, submitted on June 20, 2014; March 21, 2014; and Dec. 20, 2013.

4 se_ Memorandwn Opinion
entered on Dec. 13, 2013 (?December 13, 2013 Opinion?).

5 See July 28, 2014 Memorandum at 18-22; Letter ?om Kevin J. O?Connor, Chief,
. Oversight Section, Of?ce of Intelligence, National Security Division, US. Department of Justice,
?led on July 30, 2014 (?July 30, 2014 Letter?).

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- 2014 Certi?cations generally proposes to continue acquisitions of foreign
intelligence information that are now being conducted under certi?cations that were made in

2013 (?the 2013 Certi?cations?). July 28, 2014 Memorande at 2. The 2013 Certi?cations,

ere

approved by the FISC on December 13, 2013. See December 13, 2013' Opinion.?5 The 2013

 

6 More speci?cally, the 2013 Certi?cations were ?rst submitted on July 31, 2013. The
FISC approved the 2013 Certi?cations and accompanying minimization and targeting procedures
on August 30, 2013. See August 30, 2013 Opinion. At that time, however, the Court was unable
to make the statutory ?ndings required to approve the accompanying amendments to
minimization procedures governing information acquired under prior Section 702 certi?cations.
?gs; i at 4 11.2. On November 15, 2013, the government ?led amendments to all Section 702


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Certi?cations, in turn, generally renewed authorizations to acquire foreign intelligence
information under a series of certi?cations made by the AG and DNI pursuant to Section 702
that date back to 2008.1' In its July 28,2014 Submission, the govermnent also seeks approval of
amendments to the certi?cations in all of the Prior 702 Dockets, such that the NSA, CIA, and
FBI henceforward will apply the same minimization procedures to information previously

obtained under prior certi?cations as they will to information to be obtained under the 2014

Certi?cations. ea. My 28 Memorandum at 


II. REVIEW OF CERTIFICATIONS OF THEIR
PREDECESSOR CERTIFICATIONS AS AMENDED BY THE JULY 23, 2014
SUBMISSION.

The Court must review ancerti?cation submitted pursuant to Section 702 ?to determine

whether [it] contains all the required elements.? 50 U.S.C. 1881a(i)(2)(A). The Court?s

mix?mien of?con?rms 

 

.
certi?cations that had been issued to that date, including the 2013 Certi?cations. Sec; December
13, 2013 Opinion at 1-2. Those amendments, which provided for use of revised minimization

procedures, were approved by the FISC. Sage La at 2.

 
 

ese oc et's, to'ge er Wit
are collectively referred to as ?the Prior'702 Dockets?).

 

3 The July 28, 2014 Submission does not propose any changes to the minimization
procedures applied by the NCTC. July 28, 2014 Memorandum at 3 11.3.

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the certi?cations have been made under oath by the AG and the DNI, as required by
50 U.S.C. 188 see

(2) the certi?cations contain each of the attestations re uired 50 U.S.C.
1881atg)(2)(A), are

(3) as required by 50 U.S.C. 1881a(g)(2)(B), -erti?cations is accompanied
by the applicable targeting procedures and minimization procedures; 

certi?cations is supported by the affidavits of national security
officials, as described in 50 U.S.C. and

(5) certi?cations includes an effective date for the authorization in compliance
with 50 U.S.C. 1881a(g)(2)(D) speci?cally, the certi?cations become effective on

August 28, 2014, or on the date upon which this Court issues an order concerning the
certi?cation under 1881a(i)(3), whichever is later, see 
10

The Court therefore ?nds that?

-contain all the required statutory elements. 50 U.S.C. 1881a(i)(2)(A).
Similarly, the Court has reviewed the certi?cations in the Prior 702 Dockets, as amended
by the 2014 Certi?cations, and ?nds that they also contain all the elements required by the

statute. I_d,,11

 

9 meg Af?davits of Richard H. Ledgett, Jr., Acting Director, NSA (Tab 1 to
(?Ledgett Af?davits?); Affidavits of James B.

  
    
 
 

Comey, Director, FBI (Tab 2 to
Af?davits?); and Af?davits of John O. Brennan, Director, CIA Tab 3

_(?Brennan Af?davits?).

1" The statement described in 50 U.S.C. 1881a(g)(2)(E) is not required in this case
because there has been no ?exigent circumstances? determination under Section 1881a(c)(2).

1? The effective dates for. the amendments to the certi?cations in the Prior 702 Dockets


 

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1H. REVIEW OF THE TARGETING AND MINIMIZATION PROCEDURES

The Court is also required, pursuant to 50 U.S.C. 1881a(i)(2)(B) and (C), to review the
targeting and minimization procedures to determine whether they are consistent with the
requirements of 50 U.S.C. 1881a(d)(l) and Pursuant to 50 U.S.C. 1881a(i)(3)(A), the
Court ?u'ther determines whether the targeting and minimization procedures are consistent with
the requirements of the. Fourth Amendment.

Section 1881a(d)(1) requires targeting procedures that are ?reasonably designed? 'to
?ensure that any acquisition authorized under [the certi?cation] is limited to targeting persons
reasonably believed to be located outside the United States?-and to ?prevent the intentional
acquisition of any communication as to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United States.? In addition to these statutory
requirements, the government uses the targeting procedures as a means of complying with
Section 1881a(b)(3), which provides that acquisitions ?may not intentionally target a United
States person reasonably believed to be located outside the United States.? NSA Targeting
Procedures at 1, 3-4, 7; FBI Targeting Procedures at 1?4. The FISC considers steps taken

- pursuant to these procedures to avoid targeting United States persons as relevant to its
assessment of whether the procedures are consistent with the requirements of the Fourth
Amendment. See Docket No. Memorandum Opinion entered on Sept. 4, 2008, at

14 (?September 4, 2008 Opinion?).

 

.continued)

are the same as the effective dates for the 2014 Certi?cations. 

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Section 1881a(e)(l) requires minimization procedures that ?meet the de?nition of
minimization procedures under [50 U.S.C. 180101) or The applicable statutory
de?nition is fully set out at pages 15?16 below.

A. As Written, the NSA and FBI Targeting Procedures Comply With Statutory

Reguirements and Are Reasonably Designed to Prevent the Targeting of United States

Under the proCeduresadopted by the government, NSA is the lead agency in making
targeting decisions under Section 702. Pursuant to its targeting procedures, NSA may target for
acquisition a particular ?selector? (Le, a facility such as a telephone number or email address).
The FBI Targeting Procedures come into play in cases Where the government?

_hat has been tasked under the NSA Targeting Procedures.

FBI Targeting Procedures at 1. ?Thus, the FBI Targeting Procedures apply in addition to the
NSA Targeting Procedures, whenever?are acquired.? September 4, 2008
Opinion at 20 (emphasis in original).

In comparison to the targeting precedures previously approved by the FISC and now
being implemented, the July 28, 2014 Submission presents two substantive revisions to the NSA
Targeting Procedures and one substantive revision to the FBI Targeting Procedures.

1. De?ning the Target of Acguisition

The ?rst revision to the NSA Targeting Procedures concerns who will be regarded as a
?target? of acquisition or a ?user? of a tasked facility for purposes of those procedures. As a
general rule, and without exception under the NSA targeting procedures now in effect, any user

of a tasked facility is regarded as a person targeted for acquisition. This approach has sometimes

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resulted in becoming obligated to detask a selector when it learns that?
ewes, 2014Memomndum at 4-s-

The relevant revision would permit continued acquisition for such a facility. It provides

that

 

NSA Targeting Procedures at 1. In support of this revision, the government contends that, in the

narrow circumstances described in this provision, 

. ?ee July

28, 2014 Memorandum at 5-6.

For purposes of electronic surveillance 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 (PISA Ct. Rev. 2002) (quoting
HR. Rep. 95-4283, at 73 (1978)). As the FISC has previously observed, ?[t]here is no reason to
think that a different meaning should apply? under Section 702. September 4, 2008

Memorandum Opinion at 18 n.16. It is evident that the Section 702 collection on a particular

facility does not seek information ?om or about 

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TOP 

This amended provision might be read literally to apply where?

But those circumstances fall outside the accepted rationale for

this amendment. The provision should be understood to apply only where?

Finally, implementation of this provision is not expected to slow the required analysis of
whether tasked facilities have come to be used by a United States person or someone located in

the United States. ?ee NSA Targeting Procedures at 6?7. That post?tasking analysis relies



a.
a:
3

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July 28, 2014

Memorandum at 7.



"d
0%

(D

ha.

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reSponsible for routinely conducting separate -reviews for indioia that a user of a
targeted facility is in the United States. ?3

Because the Only change effected by this revision is to assi_
to the agency that is most fully engaged in the review of the same communications for foreign
intelligence purposes, the Court concludes that this revision does not present problems in ?nding
the NSA Targeting Procedures satisfy the requirements of Section 1881a(d)(1) and are

reasonably designed to prevent the targeting of United States persons.

 

 

?3 S_eq NSA Targeting Procedures at 6-7; July 28, 2014 Memorandum at 7; see also, egg;,

0 mum at 7 overnment had represented tha
and reviewed by expenenee A a 

Court had ?expressly relied upon these assurances in concluding that targeting
procedures are reasonably designed to ensure that targeting is limited to non-US. persons
reasonably believed to be located outside the United States and consistent with the Fourth
Amendment?).

    
 

 

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5?4

 





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4- 9.91M

For the reasons stated above and in the Court?s opinions in the Prior 702 Dockets, the
Court concludes that the NSA Targeting Procedures and the -F BI Targeting Procedures, as
written, are reasonably designed, as required by Section 1881a(d)(1): to ensure that any
acquisition authorized under the 2014 Certi?cations is limited to targeting persons reasonably
believed to be located outside the United States, and (2) to prevent the intentional acquisition of
any communication as to which the sender and  intended recipients are known at the time of
the acquisition to be located in the United States. Moreover, for the reasons stated above and in
the Court?s opinions in the Prior 702 Dockets, the Court concludes that the NSA and FBI
Targeting Procedures, as written, are reasonably designed to prevent United State5 persons from
being targeted for acquisition a ?nding that is relevant to the Court?s analysis of Whether those
procedures are consistent with the requirements of the Fourth Amendment. See pages 3 8-40

below.

B. As Written. the FBI. NSA. and CIA Minimization Procedures Conipr With Statutoq
Requirements.

The FBI, NSA, and CIA all have access to unreviewed information obtained under
Section 702. Each agency is governed by its own set of minimization procedures in its handling
of Section 702 information. Under Section 1881a(i)(2)(C), the Court must determine Whether
the agencies? respective minimization procedures included as part of the July 28, 2014

Submission meet the statutory de?nition of minimization procedures set forth at 50 U.S.C. 

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1801(h) or 1821(4), as appropriate. Sections 1801(h) and 1821(4) de?ne ?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;[15]

(2) procedures that require that nonpublicly available information, which is not
foreign intelligence information, as de?ned in [50 USC. 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

 

?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 fereign 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

(B) the conduct of the foreign a??airs of the United States.

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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 also 

 

In comparison to the FBI minimization procedures now in effect, the FBI Minimization
Procedures before the Court include three substantive revisions. The CIA and NSA

Minimization Procedures now before the Court include one substantive revision, which pertains

to?

1. Provision of Infermation bv the FBI to the National Center for Mission and
Exploited Children

The FBI Minimization Procedures include new provisions respecting the transmittal of
information to the National Center for Missing and Exploited Children (NCMEC). See uly 28,
2014 Memorandum at 10-13; FBI Minimization Procedures at 28, 30-31. Speci?cally, the FBI
may ?disseminate, for law enforcement purposes, PISA-acquired information[?] that reasonably
appears to be evidence of a crime related to child exploitation material, including child
pornography, to [the FBI Minimization Procedures at 28. ?The FBI may also

disclose, for the purpose of obtaining technical or linguistic assistance, FISA-aoquired

 

?6 The de?nitions of ?minimization procedures? set forth in these provisions are

substantively identical (although Section 1821 refers to ?the purposes . . . of the particular
physical search?) (emphasis added). For ease of reference, subsequent citations refer only to the

de?nition set forth at Section 180101)).

?7 For purposes of these procedures, ?I?FISA-acquired information? refers to .
communications and information acquired under Section 702. _S_;cme FBI Minimization Procedures

at 1.-
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information that reasonably appears to be evidence of a crime related to child exploitation
material, including child pornography, to NCMEC for processing and analysis.? Ll. at 30.
Such disclosures to obtain technical or linguistic assistance are subject to several restrictions: for
example, the NCMEC may not make use of the information except to provide such assistance;
shall restrict such information to personnel involved in providing such assistance; and may not
retain such information permanently. Li. at 30-31. These restrictions are similar to those now in
effect when the FBI discl?ses Unreviewed Section 702 information to other federal agencies for
the purpose of obtaining technical or linguistic assistance. ?ee FBI minimization procedures
submitted on Nov. 15, 2013, as Exhibit to the amended 2013 Certi?cations at 29-30 (?2013

FBI Minimization Procedures?).
The as:

stated:

Congress established NCMEC in 1984 as a non-governmental
organization and it is funded through grants administered by the Department of
Justice. One'of its purposes is to assist law enforcement in identifying Victims of
child pornography and other sexual crimes. Indeed, Congress has mandated
Department of'Justice coordination with NCMEC on these and related issues.
Furthermore, this Court has approved modi?cations to [minimization procedures]
in individual cases to permit the Government to disseminate information to
NCMEC. Because of its unique role as a non-governmental organization with a
law enforcement function, and because it will be receiving what reasonably

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appears to be evidence of speci?c types of crimes for law enforcement purposes,
the [proposed amendments] comply with FISA under Section 1801(h)(3).

The Court adopts the same reasoning and ?nds that

the NCMEC-related amendments to the FBI Minimization Procedures under Section 702

comport with the applicable statutory de?nition of ?minimization procedures.?18

2. Provision of Information to Mitigate Serious Harm 
The FBI minimization procedures now in effect permit the FBI to disseminate

information that reasonably appears to be foreign intelligence information, is
necessary to understand foreign intelligence information or assess its importance,
or is evidence of a crime and that it reasonably believes may assist in the
mitigation or prevention of computer intrusions or attacks to private entities or
individuals that have been or are at risk of being victimized by such intrusions or
attacks, or to private entities or individuals . . . capable of providing assistance in
mitigating or preventing such intrusions or attacks. Wherever reasonably
practicable, such dissemination should not include United States person
identifying information unless the FBI reasonany believes it is necessary to
enable the recipient to assist in the mitigation or prevention of computer
intrusions or attacks.

2013 FBI Minimization Procedures at 32 (emphasis added).19

 

 

'19 The FISC ?rst approved a version of this provision under Section 702 on September

20, 2012, in connection with a prior Section 702 certi?cation. See
Memorandum opinion entered on Sept. 20, 2012, at 22

(?September 20, 2012 Opinion?). At that time, the FISC noted that the provision at issue

  
   

(contlnu

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The government anticipates situations that would require dissemination of Section 702
information to someone in the private meter in order to mitigate other forms of serious harm,
such. as ?a plot to destroy a building or monument.? See July 28, 2014 Memorandum at 16. The
FBI Minimization Procedures now before the Court would permit the FBI to make certain
disseminations to the private sector that are unrelated to computer intrusion or attack.

Speci?cally, the FBI could disseminate

information that reasonably appears to be foreign intelligence information, is
necessary to understand foreign intelligence information or assess its importance,
or is evidence of a crime to a private individual or entity in situations where the
FBI determines that said private individual or entity is capable of providing
assistance in mitigating serious economic harm or serious physical harm to life or
property. Wherever reasonably practicable, such disseminatidn should not include
United States person identifying information unless the FBI reasonany believes it
is necessary to enable the recipient to assist in the mitigation or prevention of the
harm. The FBI will report to [the DOJ, National Security Division all
disseminations made pursuant to this paragraph within ten business days of such
dissemination.

FBI Minimization Procedures at 33. Although the procedures currently authorize the FBI to act
in apparent departure from their requirements in order ?to protect against an immediate threat to
human life? under circumstances where it is not feasible to obtain timely modi?cation of the

procedures, ,s_ee i_d, at 3, this new provision enables the FBI to disseminate information to private

parties in less extreme cases.

 



 
 
 

 

The FISC approved the current version of this provision
under section 702 on August 30, 2013. _S_e_e August 30, 2013 Opinion at 17-19.

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The de?nition of ?minimization procedures? at Section 180101) does not speak
speci?cally to the circumstances warranting dissemination to private sector individuals or
entities. That de?nition does, however, provide that such procedures should be?reasonably
designed? to prohibit dissemination of United States person information, ?consistent with the
need of the United States? to ?disseminate foreign intelligence information.? Section
1801000). ?Foreign intelligence information,? in turn, is de?ned in substantial part by reference
to several types of harm threatened by foreign powers and their agents g, sabotage and acts of
international terrorism) against which foreign intelligence information may be? used to protect.
SE Section 1801(e)(l) (quoted in note 15 above). In combination, these de?nitions suggest that
foreign intelligence information may be disseminated to responsible parties including those in
the private sector who are ina position to mitigate serious harm, and that such disseminations
may include United States person information when necessary to mitigate that harm.? Moreover,
legislative history expressly contemplates that information may be disseminated to the
private sector in appropriate cases?1 Accordingly, the Court concludes that this provision is

consistent with the statute?s minimization requirements.

 

2? Similarly, disseminations of evidence of a crime to private individuals and entities so
that they can mitigate serious harm would serve a law enforcement purpose and for that reason
fall under Section 1801(11)(3).

21 ?Federal agents may learn of a terrorist plot to kidnap a business executive. Certainly
in such cases they should be permitted to disclose such information to the executive and his
company in order to provide for the executive?s security.? HR. Rep. 95-1283, at 88 (1978).

 

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3. Preservation of Information for Litigation Purposes by the FBI
As a general rule, Section 702 information retained by the FBI that has not been I
?identi?ed as information that reasonably appears to be foreign intelligence, to be necessary to
understand foreign intelligence information or assess its importance, or to be evidence of a
crime? is subject to a retentionfdestruction schedule. ?gs FBI Minimization Procedures at 20-
21.22 The FBI Minimization Procedures now before the Court would permit the FBI to retain
information otherwise subject to destruction under this schedule if ?the FBI and NSD determine
that such information is reasonably believed to be necessary for, or potentially discoverable in,
administrative, civil, or criminal litigation. Such dcterrninatibn shall be made in writing and
shall identify the speci?c information to be retained and the particular litigation for which it is
retained.? Id, at 21 -22. Information retained under this provision may only be accessed for
litigation-related purposes by personnel working on the particular litigation in question. Li, The
- FBI shall destroy the information as required by the generally applicable destruction

schedule once the litigation need to preserve the information has passed. The government

 

22 In brief, information that the FBI retains on an electronic and data storage system, but
has not reviewed, generally must be destroyed after from the expiration date of the
certi?cation authorizing the collection.? FBI Minimization Procedures at 20. Information
retained on such systems that has been reviewed, ?but not identi?ed as information that
reasonably appears to be foreign intelligence, to be necessary to understand foreign intelligence
information or assess its 1111 ortance, or to be evidence of a crime? is generally subject to special
access controls after i from such expiration date, and shall be destroyed after
from such date. 191, at 20-21. Information retained by the FBI in any other form ?shall be
destroyed in accordance with the Attorney General Guidelines and relevant National Archives
and Records Administration procedures regarding the retention of information in FBI
myestigations,? except that ?an original copy? that cannot be accessed through an electronic and
data storage system may be retained inde?nitely, subject to special access controls after ?ve

years. 15;. at 21.

  

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undertakes to report to the FISC on an annual basis regarding implementation of this provision.
_S_e_e July 28, 2014 Memorandum at 15.
_enennee en  en en

Government proposes, along with the reporting requirements that would be required, strike an

appropriate balance between the competing concerns of not retaining data longer than necessary

and having the Government comply with its litigation obligations?
?Tne ennun requirement

regarding Section 702 information is set out below at page 42.

:b

 

23 For example, under other provisions of the NSA Minimization Procedures, the NSA
may not retain telephony and certain forms of Internet communications for ?longer than ?ve
years from the eXpiration date of the certi?cation authorizing the collection? unless the NSA
determines that speci?ed retention criteria are met. NSA MinimizationProcedures at 7. For
?Internet transactions acquired through upstream collection techniques,? that retention
period is two years ?om such expiration date. Id,

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CIstrikes a proper balance between

the protection of United States person infomation, on the one hand, and?

two


a:


to
03
3?

points regarding these provisibns merit further discussion.

 mathePI-ovisionsdopermit?

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In the interests of ef?ciency and consistency, the Court

encourages the government to consider further revision of these procedures to address such
situations with generally applicable rules, rather ?lan on a piecemeal basis.

The second point concerns

in



:t



9:




El



g:

*0


The July 28, 2014 Submission contains similar, but broader language:

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determining and enforcing compliance with these procedures. 50 U.S.C. 1803 FISC

Rule 13(b). Section 702 explicitly provides a mechanism for the AG and DNI to modify
minimization procedures, subject to FISC approval, Whenever circumstances In View
of these considerations, and because the government has provided no support for its suggestion

that equivalent relief can or should be obtained 

- the Court expects the government to bring to the FISC issues arising?

Because -
the point does not arise under the language of th?

it does not preclude the Court from ?nding that those

minimization procedures are consistent with the de?nition at Section 1801(11).

 

2? Section 702 permits the AG and the DN1 to amend previously adopted minimization
procedures ?as necessary at any time,? subject to FISC review. See 1881a(i)(1)(C).

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5. Conclusion

For the reasons stated above and in the Court?s opinions in the Prior 702 Dockets, the
Couit concludes that the NSA, FBI, and CIA Minimization Procedures, as written, comport with
the de?nition of minimization procedures at Section 1801(h).

C. The Compliance and Implementation Issues Reported bv the Government Do Not

Preclude a Finding That the NSA and FBI Targeting Procedures and the NSA, FBI, and

CIA Minimization Procedures Comnlv With Statutorv Requirements.

As noted above at page 3, the F180 examines the govermnent?s implementation of, and
compliance with, the targeting and minimization procedures as part of assessing whether these
procedures comply with the applicable statutory (and Fourth Amendment) requirements.

In conducting this assessment, the Court is mindful that the controlling norms are ones of
reasonableness, not perfection.25 This distinction is particularly important in the context of a
large and complex endeavor such as the government?s implementation of Section 702. While in
absolute terms, the scope of acquisitions under Section 702 is substantial, the acquisitions are not

conducted in a bulk or indiscriminate manner. Rather, they are effected through 

discrete targeting decisions for individual facilities.?5 Each targeting decision requires

 

25 ?gs Section 1881a(d)(l) (requiring targeting procedures that are ?reasonably designed?
to limit targeting to ?persons reasonably believed to be located outside the United States? and to
?prevent the intentional acquisition? of communications to which all parties are known to be in
the United States); Section l801(h)(1) (requiring minimization procedures that are ?reasonably
designed? to minimize acquisition and retention, and to prohibit dissemination, of information
concerning United States persons, consistent with foreign intelligence needs); United States v.
Knights, 534 US. 112, 1 18 (2001) (?The touchstone of the Fourth Amendment is reasonableness

,5
no I

26 For example, the NSA reports that, ?on average, approximater -ndividual


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application of the pre?tasking provisions of the applicable targeting procedures. 13;; NSA
Targeting Procedures at 1-6; FBI Targeting Procedures at 1-3. For each facility while it is
subject to tasking, there are post-tasking requirements designed to ascertain, for example,
Whether the targeted user of the facility has entered the United States. See NSA Targeting
Procedures at 6~7. And pursuant to the minimization procedures, there are detailed rules
concerning the retention, use, and dissemination of information obtained pursuant to Section 702.
Size NSA Minimization Procedures at 3-15; FBI Minimization Procedures at 5-33; CIA
Minimization Procedures at 1-9.

Given the number of decisions and volume of information involved, it should not be

surprising that occasionally errors are made. Moreover, the government unavoidably relies on

a. my 23.. 2014 Memorandum at
18-20; August 3'0, 2013 opinion at 

April 7, 2009 Opinion at 17-22. Because of factors

such as changes in communications technology or inadvertent error, these processes do not

always ?mction as intended.

 

26 -
?Were tasked for acquisition ?at any given time between March 1 and May 31, 2014.?
Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA,
submitted on June 20, 2014, at 1 (footnote omitted) (?June 20, 2014 Compliance Report?).
Facilities tasked for acquisition include ?telephone numbers, e?mail account
Additionally, between March 1 and

Mai 31i 2014, the reports that it received and processed approximatel-

  
 
  

 

requests.? Id; at 1.

 

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It is apparent to the Court that the implementing agencies, as well as the O?ice of the
Director of National Intelligence (ODNI) and NSD, devote substantial resources to their
compliance and oversight responsibilities under Section 702. As a general rule, instances of non-
compliance are identi?ed and appropriate'remedial actions are taken, to include
purging information that was impmperly obtained or otherwise subject to destruction
requirements under applicable procedures."37 Accordingly, the Court?s overall assessment of the
implementation of, and compliance with the targeting and minimization procedures permits a
?nding that the these procedures, as implemented, satisfy the applicable statutory requirements.
Nonetheless, the Court believes it is useful to discuss the following aspects of implementation I
and, in some respects, to direct the government to provide additional information.

I. Timelv Resolution of the NSA

The NSA is required to discontinue acquiSition for a facility if it determines that the user

 

 

of the facility is in the United States. NSA Minimization Procedures at 7, 9; see also 50 U.S.C. 
1881a(b)(l) (the government ?may not intentionally target any person known at the time of

acquisition to be located in the United States?). The NSA routinely checks each electronic

communications facility that is subject to tasking for acquisitio?
?for indications that a tasked facility may have been accessed from

inside the United States. NSA Targeting Procedures at 6-7; July 28, 2014 Membrandum at 18.

 

27 A notable exception involved protracted delays in detasking facilities used. by -
there was reason to believe was a United States person. See June
20, 2014 Compliance Report at 14-15. The FESC probed the reasons for such delay at a hearing

on June 26, 2014,

 
 
 

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The Court, through its staff, inquired why, in some cases, it may tak- from the

receipt of such an indication for the NSA to determine

that the user of the tasked facility is in the United States and discontinue collection. 1g?

use 20, 2014 Compliance Report at 31.

In response, the government has advised that the NSA employ-o

conduct these checks and to prioritize the results for research by NSA July 28, 2014
Memorandum at 18-19. These ?a large percentage of false
positives: ?Although the number ?uctuates, NSA reports that for 2014 more than 90% of the
- generated were false positives, not indicative of access of the facility by a user inside

the United States.? 1; at 19 11.6.

The NSA further prioritizes within the subset of - that are deemed to indicate

potential access from within the United States. that are assessed to be?

of a user inside the United States? result in immediate detasking. 1d; at 20. 

 

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Diligent and prompt reSponse to credible indications that a tasked facility has been
accessed ?om the United States goes to the heart of the requirement of 50 U.S.C. 
that targeting procedures be reasonably designed to ensure that acquisitions target
persons reasonably believed to be outside the United States. Nonetheless, given the high rate of
false positives associated with these -and the potentially complex nature of the analysis
required to resolve them, the Court believes that the current practices in responding to
- are consistent with a ?nding that the NSA Targeting Procedures comply with that statutory 
requirement.

2. rider the FBI Targeting Procedures

The FBI Targeting Procedures state:

 

 

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The Court has questions about Whether_ comply

with this requirement in every context. The Court assesses, however, that these outstanding
questions about compliance with the FBI Targeting Procedures do not preclude a ?nding that the
government?s targeting procedures satisfy the requirements of Section 1881a(d)(1). Recently

reported instances of non-compliance with the FBI Targeting Procedures do not appear to have

resulted in the acquisition of _from an account used by a United States

 

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person or someone located in the United States. See, egg June 20, 2014 Compliance Report at
54, 56-57; Quarterly Report to the F180 Concerning Compliance Matters Under Section 702 of
FISA, submitted on March 22, 2014, at 67-69. Moreover, as noted above, page 8, the FBI
Targeting Procedures apply in addition to the NSA Targeting Procedures for accounts from
which ?are sought, so that every account subject to the FBI Targeting
Procedures will already have been approved pursuant to the NSA Targeting Procedures. The

- Court is, however, directing the government to report further on the questions raised by the
August 6, 2014 Letter. ?es, page 42 below.

3. Purge Issues
Various types of data are generally required to be purged: for example, infonnation

obtained from a tasked facility during a time when it is later assessed that a user of that facility
was in the United States or a United States person.30 Purge processes for the CIA, NSA, and FBI
all permit data otherwise subject to purge requirements to be retained on backup systems, with
access limited to-technical personnel, June 20, 2014'Compliance Report at 3-5. purge
processes also do not reach  (as distinct from the repositories of information

used for intelligence analysis), certain systems that?
a at 

Implementation of these purge requirements relies substantially on -rocesses,

as well as- Experience has shown that purge processes are not always perfectly

 

30 See, egg NSA Minimization Procedures at 3-10; FBI Minimization Procedures at 
CIA Minimization Procedures at 8.

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effective in identifying and destroying data in all repositories subj eet to those processes. The
NSA reports substantial improvement in the ef?cacy of its purges,31 but dif?culties on certain
systems or for certain types of data are still encountered?2 Given the volume of information
acquired under Section 702 and the complexities of routing, processing, storing, and analyzing
that information, the Court ?nds that the reported limitations on purge processes, and the
government?s efforts to overcome these limitations, are consistent with ?nding that the targeting
and minimization procedures presented in the July 28, 2014 Submission comply with the
applicable statutory requirements. The Court encourages and expects the government to continue
to work toward improving the ef?cacy of its purge processes, both as applied to systems or

records currently within their compass and as potentially extended to other systems or records

 

3? The NSA has performed annual studies that examined samples 0?

to see if they had actually been removed from systems subject to its purge
processes. The 2011 study found .objects that had not been purged; the 2012 study found
objects that had not been purged; the 2013 study founr. objects that had not been purged; and
the 2014 study found .objects that had not been purged. June 20, 2014 Compliance Report at

50-51. -

32 See Letter from Kevin J. O?Connor, Chief, Oversight Section, Of?ce of Intelligence,
NSD, DOJ, filed on July 25, 2014, at 2?5 (?July 25, 2014 Letter?) (describing

    
     

July 30, 2014 Letter at 7-8 (describing incomplete
NSA purges of metadata for .

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11W

4. The Nonvcomoliance With Attomevalient Minimization Procedures

de?nition of minimization procedures at Section 180101) does not, by its terms,
afford any special protection to celmnunications subject to the attorney-client privilege.33
Nevertheless, the minimization procedures under review have speci?c rules for handling
attorney~client communications. ?e_e NSA Minimization Procedures at 9; FBI Minimization
Procedures at 12-?16, 25 ~27; CIA Minimization Procedures at 5. Because the FBI has law
enforcement responsibilities and often works closely with prosecutors in criminal cases; its
procedures have detailed requirements for cases in which a target is to be charged with a
federal crime. Unless otherwise authorized by the NSD, the FBI must establish a separate review
team whose members ?have no role in the prosecution of the charged criminal matter? to conduct

the initial review of such a target?s communications. FBI Minimization Procedures at 12-

Since February 2014, the has received written notice of-eparate instances in
which the responsible FBI case agent knew that a person targeted under Section 702 faced federal
criminal charges, but did not establish the required review team. See July 30, 2014 Letter at 5-6.

Although the government attributes those lapses to ?individual failures or confusion and not a

 

33 FISA does provide that otherwise privileged communication obtained in
accordance with, or in violation of, the provisions of shall lose its privileged character?
50 U.S.C. 1806(a).

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systematic issue,? id. at 7, the government at the August 4, 2014 hearing provided partial
information about-more recent cases where the FBI failed to establish the required review
team.
The record does not indicate what percentage of Section 702 targets have been charged

- with federal crimes; however, given that these targets are reasonably believed to be non-United
States persons located outside the United States, one would expect the percentage to be fairly
small. For that reason, the Court regards .recent cases as a potentially signi?cant rate ofnon?
compliance. Nonetheless, because circumstances triggering the obligation to establish a review
team presumably arise infrequently in the context of Section 702 acquisitions, the Court does not
believe that these instances of non-compliance prevent a ?nding that the minimization
procedures under review comply with the requirements of Section 1801(h). The Court intends to
monitor compliance with this provision of the FBI Minimization Procedures closely, and to that
end is directing that the government fully report on the- additional instances of non-
compliance noted above. pages 42-43 below.

5. Anticipated Delav in the Implementation of Destruction Requirements
As a general rule under the cm Minimization PrOCedures, ?[un]minimized

communications that may contain United States person information that does not otherwise
qualify for retention . . .- may be retained . . . for no longer than ?ve years from the expiration
date of the certi?cation authorizing the collection . . . CIA Minimization Procedures at 2. On
August 18, 2014,-the government orally advised the Court, through its staff, that the ?rst two sets

of communications subject to this provision are due to be destroyed on September 4 and

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September 18, 2014, respectively, and that the CIA did not expect to have completed their

destruction by those dates. The government principally attributes this delay to the amount of

time it took to ?nalize guidance from the DOJ to the CIA regarding 
it is expected that the destruction of these

communications will have been completed within th irty days after the applicable due date.

The Court does not see a basis for finding that retention for an additional month would
render these minimization procedures non-compliant with the requirements of Section 1801(h).
The government is being directed, however, to report to the Court on the implementation
of this destruction requirement.

D. The NCTC Minimization Procedures Comply With Statutory Requirements.

The NCTC does not have access to raw Section 702 information, but it does have access
to minimized Section 702 information on certain FBI data systems. June 20, 2014
Compliance Report at 1-2 n.4. The NCTC Minimization Procedures now before the Court are
identical to those approved in the August 3 0, 2013 Opinion, see July 28, 2014 Memorandum at 2
n.1, as well as those approved in the September 20, 2012 Opinion. August 30, 2013 Opinion
at 23. For the same reasons that these procedures were approved in 2012, see September 20,
2012 Memorandum Opinion at 22-25, and because no signi?cant compliance issues have arisen
under these procedures, the Court again ?nds that the procedures satisfy the requirements of

Section 1801(h).

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E. The Targeting and Minimization Procedures Are Consistent with the Fourth
Amendment.

Finally, the Court must determine whether the targeting and minimization procedures
included in the July 28, 2014 Submission are consistent with the requirements of the Fourth
Amendment. 50 U.S.C. 1881a(i)(3)(A). The Fourth Amendment does not require the
government to obtain a warrant to conduct surveillance ?to obtain foreign intelligence for
national security purposes . . . [that] is directed against foreign powers or agents of foreign
powers reasonably believed to be located outside the United States.? In re Directives Pursuant to
Section 105B of PISA, Docket No. 08-01, Opinion at 18?19 (FISA Ct. Rev. Aug. 22, 2008) (?In
re. This exception to the Fourth Amendment?s warrant requirement applies even
when a United States person is the target of such a surveillance. Sop id, at 25-26 (discussing
internal Executive Branch criteria for targeting United States persons). The FISC has previously
concluded that the acquisition of foreign intelligence information pursuant to Section 702 falls
Within this ?foreign intelligence exception? to the warrant requirement of the Fourth
Amendment. See September 4, 2008 Opinion at 34-36; accord United States v. Mohamud. 2014
WL 2866749 at *15?18 (D. Or. June 24, 20-14). I

It follows that the targeting and minimization procedures are consistent with the
requirements of the Fourth Amendment if those procedures, as implemented, are reasonable. In

assessing the reasonableness of a governmental action under the Fourth Amendment, a coort

 

34 A declassi?ed version of the opinion in In re Directives is available at 551 F.3d 1004
(FISA Ct. Rev. 2008). 

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must ?balance the interests at stake? under the totality of the circumstances presented. 1%
Directives at 19-20.

If the protections that are in place for individual privacy interests are suf?cient in

light of the governmental interest at stake, the constitutional scales will tilt in

favor of upholding the 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.
at 20.

The government?s national security interest in conducting acquisitions pursuant to
Section 702 ??is of the highest order of magnitude.? September 4, 2008 Opinion at 3 7 (quoting
In re Directives at 20). With regard to the individual privacy interests involved, the Court has
concluded, as discussed above, that the targeting procedures now. before it are reasonably
designed to target non?United States persons who are located outside the United States. Such
persons fall outside the ambit of Fourth Amendment protection. September 4, 2008 Opinion
at 37 (citing United States v. Verdugo-Urouidez, 494 US. 259, 274~75 (1990)).

That is not the end of the matter, however, because the government acquires under
Section 702 communications to which United States persons and persons within the United
States are parties. Such acquisitions can occur when those non-targeted persons are parties to a

communication that is to or from, or that contains a reference to, a tasked selector. See

September 4, 2008 Opinion at 15?20. Such communications may also be acquired when they

constitute part of a larger ?Internet transaction? 
that also contains one or more communications that are

to or from, or that contain a reference to, a tasked selector. In the latter case, the entire

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transaction may be unavoidably acquired by the ?upstream? collection. 
Memorandum Opinion entered on Oct. 3, 2011, at
5, 30-31 (?October 3, 2011 

In the Prior 702 Dockets, the FISC has found that earlier versions of the various agencies?
targeting and minimization procedures adequately protected the substantial Fourth Amendment
interests that are implicated by the acquisition of communications of such United States persons.
See, 9g? August 30, 2013 Opinion at 24-25; September 20, 2012 Opinion at 43-44. In the
assessment, the combined effect of these procedures has been ?to substantially reduce the
risk that non-target information concerning United States persons or persons inside the United
States will be used or disseminated? and to ensure that ?non?target information that is subject to
protection under FISA or the Fourth Amendment is not retained any longer than is reasonably
necessary.? See August 30, 2013 Opinion at 24-25 (internal quotations omitted). Neither the
amendments before the Court nor the compliance concerns discussed above undermine that
conclusion. The Court has balanced the completing interests at stake and found that the targeting
and minimization procedures put forward in the July 28, 2014 Submission are consistent with the

requirements of the Fourth Amendment.

 

3'5 FISA minimization protects the privacy interests of United States persons in
communications in which they are discussed, regardless of whether they were parties to such
communications. Section 1801(11)(1) (protecting ?nonpublicly available information
concerning unconsenting United States persons?) (emphasis added). In contrast, non-targets
generally do not have a Fourth Amendment-protected interest in communications in which they
are discussed, unless they are also parties to the communication. See Alderman v. United States.
394 US. 165, 174-76 (1969).

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IV. CONCLUSION

For the foregoing reasons, the Court ?nds that: (1) the 2014 Certi?cations, as well as the
certi?cations in the Prior 702 Deckets as amended by the 2014 Certi?cations, contain all the
required statutory elements; (2) the targeting and minimization procedures to be implemented
regarding acquisitions conducted pursuant to the 2014 Certi?cations comply with 50 U.S.C.
and are consistent iwith the requirements of the Fourth Amendment; and (3) the
minimization procedures to be implemented regarding information acquired under prior Section
702 certi?cations comply with 50 U.S.C. and are consistent with the requirements
of the Fourth Amendment. Orders approving the certi?cations, amended certi?cations, and use
of the accompanying procedures are being entered contemporaneously herewith.

For the reasons discussed above, it is HEREBY ORDERED as follows:

1. On or before December 31 of each calendar year, the government shall submit in
writing a report to the Court containing the following information: the number of Section
702-acquired products disseminated or disclosed to the and the number of
disseminations or disclosures by the NCMEC to other law enforcement entities of Section 702-
acquired information. Additionally, prior to implementing changes to policies or practices
concerning: (0) the release of Section 702-acquired information from the NCMEC to Interpol?s
International Child Sexual Exploitation database; or approval to use Section 702-acquired
information disseminated to the NCMEC in any proceeding, the government shall make a written
submission to the Court describing such changes and explaining why hnpiementing them would

be consistent with applicable minimization procedures and statutory minimization requirements.

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2. On or before December 31 of each calendar year, the government shall submit in
writing a report to the Court containing the following information 
all administrative, civil, or criminal litigation matters necessitating preservation of Section 702
information that would otherwiso be subject to destruction requirements under applicable
minimization procedures; the docket numbers and court information for those administrative,
civil, or criminal litigation matters; a description of the Section 702-acquired information

preserved for each such litigation matter; and a description of the status of each such

litigation matter. 
3. On or before September 30, 2014, the government shall submit in writing a report
describing in detail th6? 

4. On or before September 30, 2014, the government shall submit in writing a report
describing in detail the .recent instances of non-compliance With the attorney?client
minimization requirements of the FBI Minimization Procedures-that have not been reported in
writing to the FISC, as referenced on pages 35?36 above. This report shall also provide an

assessment of the adequacy of the government?s training, guidance, and oversight efforts with

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regard to those requirements, to include a statement of any planned modi?cations or
enhancements.

5. 0n or-before October 24, 2014, the government shall submit in writing a report about
the status of the efforts to comply with the destruction deadlines of September 4 and
September 18, 2014, as discussed on pages 36-3 7. The government shall submit subsequent
reports on that subject at intervals thereafter, until it is reported that the destruction of

information subject to such requirements has been completed.

ENTERED  my omugust 2014, 

OMS F. HOGAN 5
Judge, United States Forei
Intelligence Surveillance Court

 
  

5 3' Deputy_
 

document is a true and

correct copy of the on inal.


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SEGREJIL
UNITED STATES

FOREIGN INTELLIGENCE COURT

WASHINGTON, DC.

 

ORDER

For the reasons stated in the Memorandum Opinion and Order issued contemporaneously
herewith, and in reliance upon the entire record in ?n?s matter, the Court ?nds pursuant to 50
U.S.C. 1881a(i)(3)(A) that the certi?cations referenced above, as amended in the above- I
captioned docket numbers, contain all the required statutory elements and that the revised



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minimization procedures adepted for use in connection with those amended certi?cations are
consistent with the requirements of Section 1881a(e) and with the Fourth Amendment.
Accordingly, it is hereby ORDERED pursuant to Section 1881a(i)(3)(A) that the

amended certi?cations and the use of such procedures are approved.

 

(7&4
ENTERED this  day of August 2014, in

THOMAS F. HOGAN
Judge, United States Forei
Intelligence Surveillance Court

 
 

(me) I._Deputy
Cler FISC, certify that this

document is a true and

correct copy of the ori inai. Page 2

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SEGREIP-

UNITED STATES

FOREIGN INTELLIGENCE SURVEILLANCE COURT

WASI-DNGTON, D.C.

 

ORDER

For the reasons stated in the Memorandum Opinion and Order issued contemporaneously
herewith, and in reliance upon the entire record in this matter, the Court ?nds, pursuant to 50
U.S.C. 1881a(i)(3)(A), that the certi?cations referenced above contain all the required statutory
elements and thatthe targeting procedures and minimization procedures approved for use in
connection with those certi?cations are consistent with the requirements of 50 U.S.C. ?1881a(d)?
and with the Fourth Amendment.

Accordingly, it is hereby ORDERED, pursuant to so U.S.C. 1881a(i)(3)(A), that the

certi?cations and the use of such procedures are approved.

ENTERED WW day or August 2014, i?

 
               

 

THOMAS F. HOGAN i 
6 I Deputy Judge, United States For 
(DEF that this Intelligence Surveillance Court

document is a true and

correct copy of the ori inat.