All withheld information exempt under b( 1) and b(3) except as otherwise noted. Approved for public release. UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. MEMORANDUM OPINION This matter is before the Court on the Government?s Ex Parte Submissio- ?and Related Procedures and Request for an Order Approving? and Procedures, ?led on January 12, 2009 (?January 12 Submission?) pursuant to 50 U..S.C. 188la(g). For the reasons stated below, the government?s request for approval is granted. 1. BACKGROUND A. The FAA Certi?cations The January12 Submission include??led by the government pursuant to Section 702 of the Foreign Intelligence Surveillance Act which was enacted as part of the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (Jul. 10, 2008) and is now codi?ed at 50 USC. 1881 a. ?certi?cations were submitted in 2008, the ?2008 Dockets?). Like the government?s submissions in the 2008 Dockets, the January 12 Submission in the above-captioned docket includes- by the Attorney General and the Director of National Intelligence Page 1 June 13, 2017, Public Release EFF v. DOJ Document 14, page 1 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. supporting af?davits by the Director of the National Security Agency the Director of the Federal Bureau of Investigation and the Director of the Central Intelligence Agency two sets of targeting procedures, for use by the NSA and FBI respectively; and three sets of minimization procedures, for use by the NSA, FBI, and CIA respectively. The certi?cations ?led in the 2008 Dockets govern the acquisition of foreign intelligence ertifications are limited to ?the targeting of non-United States persons reasonably believed to be located outside the United States.? On September 4, 2008, the Court issued a Memorandum Opinion and accompanying Order approving the certi?cation tiled in Docket Number and the use of the targeting and minimization procedures submitted with that certi?cation. Page 2 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 2 of 31 pages. All withheld information exempt under b( 1) and b(3) except as otherwise noted. Approved for public release. WW A c0py of each of those Memorandum Opinions is attached hereto at Tab A, and both are incorporated by reference herein. B. Ihe Overcollection Incidents Involving the 2008 FAA Certi?cations On? 2008, the government ?led, pursuant to Rule 10(c) of this Court?s Rules of Procedure, a preliminary notice of compliance incidents involving intelligence gathering activities conducted by NSA pursuant to the certi?cations approved in the 2008 Dockets. The government explained in the notice that collection? had ?2008 Notice of Compliance Incident Regarding Collection Pursuant to Section 702 [of] the ISA Amendments Act of 2009 at 1?2 (internal quotation marks omitted); Each of the incidents involved what the government has since referred to as_vercollection By letter dated_ 2009, the Presiding Judge of this Court asked the Department 'o explain why it took the government nearly three months following the discovery of the ncident in September 2008 to notify the Court of the problem. - 2009 letter from Hon. Colleen Kollar-Kotelly to Assistant Attorney General J. Patrick Rowan at 1. In a response dated- 2009, the government acknowledged its noncompliance with Rule 10(0) of the FISC Rules of Procedure, which requires the government to ?immediately inform? the Court in writing of instances of noncompliance, and assured the Court that it will endeavor to provide timely notice of such incidents in the future. - 2009 Letter from Acting Assistant Attorney General Matthew G. Olsen to Hon. Colleen Kollar-Kotelly at 1-2. Page 3 June 13, 2017, Public Release EFF v. DOJ Document 14, page 3 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. C. The Government?s Reliance on Certain Prior Representations On- 2009, the United States submitted the Government?s Ex Parte Statement Concerning 702(g) ?Smeission?). In that submission, the government stated that some, but not all, of the representations it made to the Court concerning the certi?cations in the 2008 Dockets ?are equally applicable? to?_ -uch that ?it would be appropriate for the Court to rely on these prior representations? The 2 The government also has identi?ed a number of additional compliance incidents of a different nature involving intelligence gathering under Section 702. Those incidents are discussed below in Section 3 The prior representations referred to by the government appeared in portions of the record first developed copies of which the government included as part of the Submission in the above-captioned matter: (1) the government?s written responses to questions posed by the Court, ?rst Page 4 June 13, 2017, Public Release EFF v. DOJ Document 14, page 4 of 31 pages. All withheld information exempt under b(1) and b(3) except as othewvise noted. Approved for public release. 110W government ?rst asserted that because the NSA and FBI targeting procedures and the CIA minimization procedures included with? in the above-captioned docket ?are identical to those submitted to and approved by the Court? in the 2008 Dockets, the representations made by the government with respect to those targeting and minimization procedures in the 2008 Dockets ?are equally applicable? to the corresponding procedures now before the Court. at 4. In a footnote, however, the government suggested that the overcollection incidents reported to the Court on- 2008, which were still under investigation, might affect the accuracy of prior government representations ?concerning the ef?cacy of the? used to conduct acquisitions authorized under [the 2008 certi?cations.? E, at 4 n.2. Next, the govemment?-Submission noted the revision of Section 8 of the NSA minimization procedures. _Submission at 4-5. Speci?cally, the government asserted that Section 8(a) of the minimization procedures now before the Court ?contains new language that clari?es authority to disseminate to foreign governments properly minimized information of or concerning United States persons that is acquired in accordance with [the accompanying] . certi?cation,? and that Section 8(b) ?contains language enabling NSA to seek linguistic and submitted on_ 2008; (2) the transcript of the hearing conducted on- 2008; and (3) two documents, ?rst submitted on- 2008, and-2008, respectively, addressing the relationship between 50 U.S.C. 1806(i) and certain provisions of the targeting and minimization procedures. Page 5 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 5 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. technical assistance from a greater array of foreign partners? than is authorized under the NSA minimization procedures authorized in the 2008 Dockets. at 5. Notwithstanding those differences, the government asserted that ?it would be appropriate for the Court to rely upon representations previously made by the [g]0vernment concerning the NSA minimization procedures submitted to and approved by the Court? in the 2008 Dockets. Id at 6-7. Lastly, the government stated that the Court should not rely on the govemment?s prior representations regarding the FBI Minimization Procedures submitted to and approved by the Court in the 2008 Deckets, which incorporated by reference, with certain modi?cations, the FBI Standard Minimimtion Procedures in their then-current form. -ubmission at 7-8. The government explained that the FBI SMPs have since been substantially revised, and that the revised Bl SMPs are adopted with appropriate modi?cations for use in? in the above- captioned docket. Li. D. The Court?s Request for Additional Information Following a careful review of the- and_ Submissions, the Court identi?ed 20 factual and legal questions regarding? in the above-captioned docket that merited further input from the government. 0- 2009, the Court issued an order directing the government to ?le a brief addressing those questions. Many of the Court?s questions concerned the overcollection incidents that were the subject of the govemment?_ 2008, noncompliance notice, and their possible effect on the Court?s ability to make the ?ndings nessecmtoapprove?zowoweratz- 4. 0- 2009, the government submitted its responses to the Court?s questions. Page 6 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 6 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW Government?s Response to the Court?s Order 0- 2009 E. The Motion for an Extension of Time On-, 2009, following a meeting with the Court and Court staff, the government ?led a motion seeking to extend until- 2009, the 30-day time limit for completion of the Court?s revie_n the above-referenced docket, which was then due to expire on - 2009. Motion for an Order Extending Time Limit Pursuant to 50 U.S.C. at 4. The government noted in the motion that its efforts to address the overcollection incidents were still ongoing and that it expected remedial measures to'be in place by the end of - 2009. at 3. The government asserted that ?providing the Court with additional details of the implementation of these remedial measures will aid the Court? in reviewing- and the targeting and minimization procedures submitted therewith, but that the government would not be able to supplement the record until after the -dead1ine. at 4. The government further asserted that granting the requested extension of time would be consistent with national security, because, by operation of statute, the government?s acquisition of foreign intelligence information conceming? Put-?lamt to other authorities could continue pending completion of the Court?s review. at 6-7.4 Section 7020)(2) 0 F1 A permits ourt, or er or reasons 5 0 ex en as necessary or good cause in a manner consistent with national security, the time limit for this Court to issue an order under Section 702(i)(3) conceming the certi?cation now before the Court. By operation of Section 404(a)(7) of the FAA, the authorization in? continues beyond its Page 7 June 13, 2017, Public Release EFF v. DOJ Document 14, page 7 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW 9 On- 2009, the Court entered an order granting the govemment?s motion. Based upon the representations in the motion, the Court found that there was good cause to extend the time limit for its revie_ 2009, and that the extension would be consistent with national security. - 2009 Order at 3. F. The Govemment?s- Submission Following additional informal discussions with the FISC staff, the government ?led, on - 2009, a supplemental response providing additional and updated information concerning the issues raised by the'Court in its- Order. See generally- Submission. 11. The Court must review a certification submitted pursuant to Section 702 of FISA ?to determine whether [it] contains all the required elements.? 50 U.S.C. 1881a(i)(2)(A). The Court?s examinatio? in the above-captioned docket con?rms that: (1)?been made under as required by 50 U.S.C. 1881a(g)(1)(A (2) each of the attestations required by 50 U.S.C. 1881a(g)(2)(A), 9 (3) as required by 50 U.S.C. accompanied by the applicable targeting procedures5 and minimization procedures" I stated expiration date until the Court enters an order on-submitted in the above- captioned docket. Pub. L. No. 110-261, 122 Stat. 2476. 5 - See Procedures Used by NSA for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Page 8 June 13, 2017, Public Release EFF v. DOJ Document 14, page 8 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW (4) .supported by the af?davits of appropriate national security of?cials, as described in 50 U.S.C. and (5) 188 Accordingly, the Court ?nds that? submitte -all the required elements.? so U.S.C. 188Ia(i)(2)(A). 'zati ni corn lianee with 50 U.S.C. REVIEW OF THE TARGETIN AND MINIMIZATION PROCEDURES The Court is required to review the targeting and minimization procedures to determine whether they are consistent with the requirements of SO U.S.C. 1881 and 50 U.S.C. Pursuant to Section 702 of FISA, as Amended Targeting Procedures?) (attached as Exhibit Procedures Used by the FBI for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of ISA, as Amended Targeting Procedures?) (attached as Exhibit C). 6 See Minimization Procedures Used by the NSA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Minimization Procedures?) (attached? as Exhibit Minimization Procedures Used by the FBI in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Minimization Procedures?) (attached as Exhibit Minimization Procedures Used by the CIA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of ISA, as Amended Minimization Procedures?) (attached as Exhibit E). 7 Af?davit of Lt. Gen. Keith B. Alexander, US. Army, Director, NSA (attached- at Tab Af?davit of Robert S. Mueller, Director, FBI (attached at Tab Af?davit of Michael V. Hayden, Director, CIA (attached at Tab 3). 8 The statement described in 50 U.S.C. 1881a(g)(E) is not required in this case because there has been no ?exigent circumstances? determination under Section WORN Page 9 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 9 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. June 13, 2017, Public Release Approved for public release. EFF v. DOJ 16-CV-02041 Document 14, page 10 of 31 pages. All withheld information exempt under b(1) and b(3) except as othewvise noted. Approved for public release. WW . the 2008 Dockets, the Court ?nds that the targeting and minimization procedures are consistent with the requirements'of 50 U.S.C. and with the Fourth Amendment. A. The Unchanged Procedures The government represents that the following sets of procedures submitted in the above- captioned docket are identical to the corresponding procedures that were found by the Court in the 2008 Dockets to meet the applicable statutory and constitutional requirements: the NSA Targeting Procedures, the FBI Targeting Procedures, and the CIA Minimization Procedures. - Submission at 4. The Court has reviewed each of these sets of procedures and con?rmed that this is the case. B. The Modi?cations to the NSA Minimization Procedures The NSA Minimization Procedures submitted in the above-captioned docket differ from the corresponding procedures submitted and approved in the 2008 Dockets.?o Speci?cally, Sections 8(a) and 8(b) of the NSA Minimization Procedures now before the Court replace Sections 8(a) through of the previously-approved procedures. The changes re?ected in the new Section 8(a) regard the dissemination to. foreign governments of information acquired by NSA pursuant to Section 702 of the Act. Sections 6(b) and 7 of the NSA Minimization Procedures approved by the Court in the 2008 Dockets authorize NSA to disseminate intelligence reports containing properly minimized information regarding U.S. persons, but those procedures nowhere specify the entities to The NSA Minimization Procedures submitted in the 2008 Dockets are not absolutely identical to each other, but the Court foUnd the minor distinctions between the two to be immaterial to the determinations it made in approving them. _Opinion at 5-6. WOW Page 11 June 13, 2017, Public Release EFF v. DOJ Document 14, page 11 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. WW which such reports may be disseminated. The new Section 8(a) makes clear that reports containing information acquired pursuant to Section 702 of ISA may be disseminated by NSA to a foreign government, and that the dissemination of any such information of or concerning a US. person may only be made in a manner consistent with subsections 6(b) and 7 of the NSA Minimization Procedures. According to the government, ?the changes to Section 8(3) clarify, but do not alter, existing authority to disseminate to foreign governments reports containing properly minimized information acquired in accordance with Section 702? of FISA. -Submission at6n.5. The second change to the NSA Minimization Procedures appears in the new Section A third change effected by the revision of Section 8 is the deletion of Sections and of the NSA Minimization Procedures approved by the Court in the 2008 Dockets. Taken together, those provisions allow NSA to make limited disseminations to certain foreign Page 12 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 12 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WOW governments of information acquired under the authority of the certi?cations in the 2008 Dockets, in non?report form ?foreign plain text communications? and ?foreign enciphered or encoded communications?), and for purposes unrelated to obtaining technical and linguistic assistance. Because the substance of Sections 8(a) through of the 2008 procedures has not been carried forward, the Court understands (and the government has orally con?rmed) that, unless and until the Court approves wider sharing with foreign governments, all disseminations to foreign governments of information acquired by NSA under? will comply with the terms of Section 7 or 8 of the NSA Minimization Procedures submitted? foregoing changes to Section 8 of the NSA Minimization Procedures do not preclude the Court from relying on the representations made by the government regarding the corresponding procedures submitted in the 2008 Dockets. After reviewing the revised NSA Minimization Procedures in view of the govemment?s representations, the Court finds that the revised procedures, like the corresponding procedures previously approved by the Court, meet de?nition of minimization procedures and satisfy the requirements of the Fourth Amendment. New Section 8(a) merely makes explicit what is implied by the NSA Minimization Procedures approved by the Court in the 2008 Dockets that NSA can share reports containing Section 702 information with foreign governments, provided that such disseminations are made in accordance with Section 6(b) or 7. Page 13 June 13, 2017, Public Release EFF v. DOJ Document 14, page 13 of 31 pages. All withheld information exempt under b(1) and b(3) except as othenlvise noted. Approved for public release. WW Further, new Section 8(b) merely brings authority to seek technical and linguistic assistance from foreign governments into line which is re?ected in procedures that were approved by the Court in the 2008 Dockets. ?g Docket Number 01, Opinion at 28. Finally, the elimination of former Sections 8(a) through has the effect of nanowing ability to disseminate information, and therefore poses no obstacle to Court approval. C. . Changes to the FBI Minimization Procedures The FBI Minimization Procedures submitted in the matter at bar also differ from the corresponding procedures approved by the Court in the 2008 Dockets. Speci?cally, the FBI Minimization Procedures approved by the Court in the 2008 Dockets incorporate by'rcferencc, with certain modi?cations, the FBI SMPS that were in effect at the time the Court conducted its review and issued its approval orders. Subsequently, or? 2008, the FBI began to implement new SMPS -- the ?Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act?? (?revised FBI -- that were approved by the Attorney General on _2008. The FBI Minimization Procedures now before the Court incorporate, by reference, the revised FBI SMPS, with certain modifications. As the Court observed in approving certain retroactive applications of the revised FBI SMPS to orders authorizing electronic surveillance pursuant to Section 1805 or physical search pursuant to Section 1824 of FISA, the revised procedures are the product of a t?systematic revision? conducted with the Court?s input over the course of several years? 2008 Opinion and Order at 2-3. As the Court further noted, large measure,? the revised FBI SMPS Page 14 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 14 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. ?represent an improvement upon prior sets of FBI standard minimimtion procedures, which themselves were generally found by this Court to comport with the statutory de?nition of minimization procedures at 50 U.S.C. 1801(h) and I_d. at 4. Indeed, the judges of this Court have found the revised FBI SMPs to meet the statutory de?nition of minimization procedures in issuing scores of recent orders authorizing electronic surveillance under Section 1805 or physical search under Section 1824. Although the government has proposed certain modi?cations to the revised FBI SMPs for . application?now before the Court, nothing in those modi?cations presents additional concern. A number of the modi?cations are merely terminological clari?cations explaining that references to ?information acquired pursuant to and ?PISA-acquired information? should be understood to include communications acquired pursuant to Section 702, Minimizaiion Procedures at 1. Other modi?cations closely track provisions approved by the Court in the 2008 Dockets. Compare at 1-2 6.2) (allowing FBI Director or Deputy Director, under certain circumstances, to authorize retention of information from communications acquired when the government reasonably believed that the target was a non-US. person outside the United States, when in fact the target was a US. person or was inside the United States), with Docket Number Opinion at 24?28 (approving similar special retention provisions)?; also compare '2 The govemment represented in the 2008 Dockets that such special retention (continued . .) Page 15 June 13, 2017, Public Release - EFF v. DOJ Document 14, page 15 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WSW FBI Minimization Procedures at 2 e2) (permitting retention and dissemination of technical information regarding domestic communications for purposes of avoiding overcollection), Docket Number NSA Minimization Procedures at 6 (1i 5) (same). Another noteworthy change to the FBI Minimization Procedures would allow the National Security Division of the Department of Justice rather than the Court, to approve exceptions and modi?cations to the minimization rules for attorney-client communications in criminal matters?FBI Minimization Procedures at 3 That change Would give NSD the same latitude it possesses under the attorney-client minimization provisions of the CIA Minimization Procedures that were approved by the Court in the 2008 Dockets_ CIA Minimization Procedures at 3 4a). In sum, neither the modi?cations discussed above nor any of the others proposed by the government precludes the Court from ?nding, in the context of?authorizing the targeting of non-US. persons reasonably believed to be outside the United Statesrthat the Minimization Procedures submitted?met the statutory de?nition of determinations would be made, in writing, on a case-by-case basis, and consistent with the government?s exPlanations of 50 U.S.C. 1806(i). Opinion at 25 n. 24 27 n. 28. The government has con?rmed that the same will be true of similar determinations made under _ubrnittcd in this matter. Submission at 24. Page 16 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 16 of 31 pages. All withheld information exempt under b(1) and b(3) except as othenivise noted. Approved for public release. 7 minimization procedures and are consistent with the requirements of the Fourth Amendment.13 D. The Incidents The ?nal question before the Court is whether the incidents of overcollection by NSA during signals intelligence activities conducted pursuant to the 2008 FAA certi?cations preclude the Court from approving, in whole or in part, the targeting and minimization procedures submitted To place the issue in context, it is helpful to note that the overcollection incidents in question involve only one aspect of intelligence gathering conducted pursuant to Section 702: the means of acquiring Internet communications -Submission at Submission at The incidents do not involve acquisition of telephone communications. - Submission at 2. ?3 Like Paragraph of the FBI Minimization Procedures approved by the Court in the 2008 Dockets, Section LC of the revised FBI SMPs adopts certain presumptions regarding U.S. person status. The government has con?rmed that those presumptions, like the identical presumptions applicable under the 2008 procedures, will be applied in the Section 702 context ?only after the exercise of due dili ence.? Submission at 23. Page 17 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 17 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. 2. The ()vercoilection Incidents and the Government?s Remedial and Preventative Measures Submission at 13. The government reports that NSA has been able to identify the causes incidents. Page 18 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 18 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. resulted from a CITOT on one Further, NSA has June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 19 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. illhe?eause of the overoolleetion involvin_? ?'emains undetermined. -Submission at 5. Nevertheless, NSA technical personnel have con?rmed that? mum?? - Moreover, the govcmment reports that an ?end-to-end tes? Page 20 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 20 of 31 pages. All withheld information exempt under b( 1) and b(3) except as othenivise noted. Approved for public release. WW produced no overeollection. The government represents that it has adopted substantial remedial and preventative measures in response to the overcollection incidents. NSA has updated and imome? . Submission at 6; see also March 2009 Semiannual Report of the US. Department of Justice Concerning Acquisitions Under Section 702 of the FISA Amendments Act of 2008 Semiannual Report?) -Submission at DOJ Semiannual Report at 17-18. This new system is designed to recognize possible overcollected data and alert NSA technical personnel so that corrective actions may be taken. DOJ Semiannual Report at 17?18.? To ensure that these tools are properly installed and functioning, NSA has improved its Semiannual Report at 18. NSA is also working to improve its? and compliance procedures. See-Submission at 7; DOJ Semiannual Report at 18. NSA has alerted its to the ris_ and is Page 21 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 14, page 21 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. providing them with instruction and training on how to recogni7e and report potential cases of overcollection. -Submission at 9; Semiannual Report at 18. When overcollected information is discovered, NSA isolates and purges it from the on-line databases that are used by - Submission at 10.?7 Finally, the government represents that SA has not disseminated any overcollected data obtained by NSA in intelligence gathering activities conducted pursuant to Section 702. ii? I 3. Effect of Overcollection Incidents on Statutory and Constitutional Analysis Statutory Requirements The government asserts that the overcollection problems discussed above do not preclude a ?nding that the NSA Targeting Procedures ?led in this matter 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 recipients are known at the time of the acquisition to be located in the United States.? 50 U.S.C. 1881a(d)(1). The Court agrees, but '8 In it- Submission, the government reported that NSA has con?rmed that no ?serialized product reporting? containing overcollected information has been disseminated. .Submission at 10. In addition, the govemment has orally represented that no overcollecte ata has been disseminated by NSA in any form. Page 22 June 13, 2017, Public Release EFF v. DOJ Document 14, page 22 of 31 pages. All withheld information exempt under b(1) and N3) except as othenlvise noted. Approved for public release. for reasons somewhat different than those put forth by the-government. Pointing to this Court?s conclusion in the 2008 Dockets that the ?target? of an acquisition is the user of the tasked email account, Docket Number Opinion at 18-19, the government contends that the unintentional collection of communications unrelated to such an email account and its user is irrelevant to whether targeting procedures comply with Section 1881a(d)(1). - Submission at 34, ii. The Court is unpersuaded by the government?s contention that compliance with Section 18813(d)(1) is purely a matter of intent. Substantial implementation problems can, notwithstanding the govenment?s intent, speak to whether the applicable targeting procedures are ?reasonably designed? to acquire only the communications of non-U.S. persons outside the United States. If, for example, NSA unintentionally obtained 100 - domestic communications for every properly targeted and acquired communication, one might reasonably question whether its targeting procedures were ?reasonably designed? to target only non- domestic communications. In any event, the government?s narrow reading of the statutory requirements would only defer consideration of implementation problems, because such errors plainly are relevant to the required Fourth Amendment analysis. In re Directives, Docket No. 08-01, Opinion at 20 (PISA Ct. Rev. Aug. 22, 2008) (stating, in articulating the analytical framework for assessing reasonableness under the Fourth Amendment, that if, considering the governmental and privacy interests at stake, the protections in place ?are insuf?cient to alleviate the risks of government error and abuse, the scales will tip toward a finding of 'unconstitutionality?). Instead of regarding the above-described overcollection incidents as irrelevant under Section 1881aid)(1), the Court concludes that the enhanced measures recently implemented by NSA to WOW Page 23 June 13, 2017, Public Release EFF v. DOJ Document 14, page 23 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW detect and ?lter out such non-targeted communication? accessible to (33; pages 21-22, ?1913), provide a basis for ?nding, despite the overcollections, that the NSA Targeting Procedures are reasonably designed to ensure that an acquisition authorized under Section 702 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 known recipients are known at the time of the acquisition to be located in the United States.'9 Further, the overcollection issues do not undermine the Court?s ability to ?nd that the NSA Minimization Procedures in this matter meet the de?nition of ?minimization procedures? under page 10, m. In accordance with its obligation to minimize the acquisition of nonpublicly available information concerning unconsenting U.S. persons, NSA ha.- no nneen? With regard in minimizing the retention of such information, NSA has enhanced-? to ensure that oVercolleetions are identi?ed and purged before non-targeted information enters data repositories. ?e pages 21-22, supra. Should any overcollected information regarding U.S. persons '9 With res ect to the latter requirement, the Court notes that NSA uses Internet Protocol ?lters andh to ensure that it is not intentionally acquiring a communication for which all of the communicants are located in the United States. In Docket Number the Court found that these measures were ?reasonably designed to prevent the intentional acquisition of communications as to which all parties are in the United States.? Docket Number Opinion at 20. According to the government, the_ ?in no way affects the ef?cacy of [these] at 5, and nothing in the record suggests otherwise. Page 24 June 13, 2017, Public Release EFF v. DOJ Document 14, page 24 of 31 pages. All withheld Infon'nation exempt under btt) and except as otherwise noted. Approved for public release. survive those safeguards, it would have to be destroyed upon recognition. -SA Minimization Procedures at Submission at Submission at 10. With respect to dissemination, the government'has represented that NSA has not disseminated any overeollected information to anyone outside NSA. gag page 22 tit 11. 13, gang. In the event that any such information is somehow disseminated -- in raw form pursuant to Section 3(b) of the Minimization Procedures the Court expects NSA, upon recognition, to alert the recipients so that the}r make take necessary remedial measures. (ii) The Court concludes that the overcollections by NSA do not warrant a ?nding that the targeting and minimization procedures fail to satisfy the requirements of the Fourth Amendment. To determine whether a particular governmental action is reasonable, and thus permissible, under the Fourth Amendment, the Court must balance the governmental interests at stake against the degree of the intrusion on Fourth Antendment-protected interests, taking into account the totality of the circumstances. Docket Number Opinion at 3? (citing cases). As this Court has previously achiowledged, the govemanent?s national security interest in coilecting foreign intelligence information pursuant to Section 702 ??is of the highest order of magnitude.? 5? ?reDira?wW?nioanQ: explained thatthe? form of intelligence gathering involved in the overcolleetions? -s particularly important because it is ?uniquely capable of acquiring certain types of targeted communications containing valuable foreign intelligence information.? Submission at 3. The government represents, for instance, that? permits Page 25 June 13, 201?. Public Release EFF u. DOJ Document 14. page 25 of 31 pages. Ail withheld information exempt under cm and except as otherwise noted, Approved for public release. NSA to acquire electronic communications even if'the targeted communication is not to or from the targeted email address ?about? conununications);? In assessing the privacy interests at stake, this Court noted in Docket Number that intelligence gathering under Section 702 may target only non-U.S. persons reasonany believed to be located outside the United States, who enjoy no protection under the Fourth Amendment. Docket Number Opinion at 37. The Court also recognized, homver, the existence of circumstances situations in which U.S. persons, or persons located in the United States, are mistakenly targeted, and situations in which US. persons, or persons located in the United States, are parties to conununications to, from, or that contain a reference to a tasked selector) thatpresent a ?real and non?trivial likelihood of intrusion on Fourth Amendmennprotected interests." at 38. Weighing the interests at stake in light of the various protections built into the Section 702 intelligence. gathering regime, the Court concluded that the procedures were reasonable under the Fourth Amendment, notwithstanding the likelihood that some Fourth Amendment-protected - - - - - -- As the government notes (-Submission at 13), the Court recognized in the course of its Fourth Amendment balancing in the 2008 Dockets that the ?potential for error" the inadvertent collection of non-targeted communications of domestic communicants was ??not a suf?cient reason to invalidate the surveillances.? Docket Number Opinion at 33 n. Page 26 June 13. 201?. Public Release EFF v. DOJ Document 14. page 26 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. 45 (quoting In re Directives, Opinion at 28). Here, however, the Court is faced not with the mere potential for error, but with errors. Moreover, those errors have resulted in the improper acquisition by NSA of?of non-targeted emails, at least some of which likely were communications of US. persons or persons located inside the United States. $3 Docket Number Opinion at 38. Such signi?cant intrusions must be accorded more relative weight in i the Fourth Amendment balancing because the overcollected communications have no connection to any properly targeted facility and, therefore, do not serve the governmental interest underlying foreign intelligence gathering under the FAA. Nevertheless, although overcollection problems alter the Fourth Amendment analysis, they do not, considering the totality of the circumstances, ultimately tip the scales toward prospective invalidation of the procedures under review in the above-captioned docket. As discussed above pages 21-22, supra), the government has, since identifying the ?rst overcollection incidents at issue here, taken substantial steps toward preventin and purging?The Court is satis?ed that those remedial and preventative measures, taken together with the protections that were relied upon by the Court in approving the corresponding procedures in the 2008 Dockets and that have been carried forward here, are adequate to protect the Fourth Amendment interests at stake .20 2" In light of the remedial and preventative measures adopted by the government in response to the overcollection incidents described above, the Court is satis?ed that it need not take additional corrective action in the 2008 Dockets at the present time. The Court expects that the government Page 27 June 13, 2017, Public Release EFF v. DOJ Document 14, page 27 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. B. Other Compliance Incidents In addition to the overcollection incident government has identi?ed a number of other compliance incidents of a different nature involving intelligence gathering under Section 702. In several instances, for example, US. person selectors subject to collection under 50 U.S.C. 1805 (electronic surveillance) and/or 50 U.S.C. 1824 (physical search), or an order authorizing acquisitions targeting a person overseas under 50 U.S.C. 1881c, have been erroneously targeted under Section 702. ?-Submission at 8 n. 14; _2009 Notice of Compliance Incident _Moreover, there have been several situations in which the government has, as the result of typographical errors, mistakenly tasked selectors under Section 702. Submission at 8 n. 14. In other instances, the government has failed to de-task accounts before the known arrival of the target in the United States, see id, or apparently failed to detect the presence of a target in the United States as a result of temporar-factors, see Submission at 27. Along the same lines, the government recently reported that in several other cases, NSA incorrectly?ndieating that targets might have roamed into the United States as ?false positives,? only to later ?nd out that the targets were in fact in the country. Si Government?s Second Supplemental Response to the Court?s Order of- 2009 at 3- 20(. . continued) will, in accordance with Rule 10(0), notify the Court of any future compliance issues involving foreign intelligence collection conducted pursuant to the FAA Certi?cations. WW . Page 28 June 13, 2017, Public Release EFF v. DOJ Document 14, page 28 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. 6; see also at 7 (discussing corrective measures adopted by NSA). The Court has considered these incidents, many of which are more fully described in the DOJ Semiannual Report and in the March 2009 Semiannual Assessment of Compliance with the FISA Amendments Act, Submitted by the Attorney General and the Director of National Intelligence, both of which are on ?le with the Court. In light of the steps taken by the government to address these incidents and prevent similar occurrences, the Court is satis?ed that they likewise do not preclude a ?nding that the targeting and minimization procedures submitted in the above-captioned docket satisfy the requirements of the FAA and the Fourth Amendment. IV. CONCLUSION For the foregoing reasons, the Court ?nds, in the language of 50 U.S.C. l881a(i)(3)(A), that_ submitted in the above-captioned docket ?in accordance with [Section the required elements and that the targeting and minimization procedures adopted in accordance with [Section are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States.? A Separate order apprOving?and the use of the procedures pursuant to Section 188 is being entered contemporaneously herewith. ENTERED thiS?/tlay of April 200? l/lUto fart/41M; MARY Judge, United States Foreign Intelligence Surveillance Court Page 29 June 13, 2017, Public Release EFF v. DOJ Document 14, page 29 of 31 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. SEGREZP UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. ORDER For the reasons stated in the Memorandum Opinion issued contemporaneously herewith, and in reliance on the entire record in this matter, the Court ?nds, in the language of 50 U.S.C. 1881a(i)(3)(A), that the above-captioned submitted in accordance with [50 U.S.C. the required elements and that the targeting and minimization procedures adopted in accordance with [50 U.S.C. are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States.? Accordingly, it is hereby ORDERED, pursuant to so U.S.C. 1881a(i)(3)(A), that- the use of such procedures are approved. ENTERED this CL day of April 2009, at I /0 A1 Eastern Time. Wt we- . Wad; [1 Judge, United States Foreign Intelligence Surveillance Court exempt under b(6) (limit. SEGR E113 FlStu, purity Hm is; is a "true fitl'itli correct 1* 1 0i the mining}. under b(6) June 13, 2017, Public EFF v. DOJ Document 14, page 30 of 31 pages. exempt under b(6) ?51" ?5 7:1 All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. ORDER For the reasons stated in the Memorandum Opinion issued contemporaneously herewith, and in reliance on the entire record in this matter, the Court ?nds, in the language of 50 U.S.C. 1881a(i)(3)(A), that the above?captioned-ubmitted in accordance with [so use. the required elements and that the targeting and minimization procedures adopted in accordance with [50 U.S.C. are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States.? Accordingly, it is hereby ORDERED, pursuant to 50 U.S.C. 1881a(i)(3)(A), that - -nd the use of such procedures are approved. ENTERED this CL day of April 2009, at /0 Eastern Time. 701 at a We MARY GHLINJ Judge, United States Foreign Intelligence Surveillance Court tit i? i exempt under b(6) . . 3 ..-. ls- ?El? .i l' June 13, 2017, Public 't EFF v. DOJ Document 14, page 31 of 31 pages.