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 and ORDER This matter is before the Court on the Govermnent?s Ex Parte Submission of and Related Procedures and Request for an Order Approving- and Procedures, ?led or? 2009 (- Submission?- pursuant to 50 U.S.C. 1881a(g). For the reasons stated below, the government?s request for approval is granted. 1. BACKGROUND A. _Certi?cations Submitted Under Section 1881a The -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. 1 10-261, 122 Stat. 2436 (Jul. 10, 2008) and is now codi?ed at 50 U.S.C. 1881a. Like the government?s prior ?lings under Page 1 June 13, 2017, Public Release EFF v. DOJ Document 11, page 1 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. Section 702, the-ubmission in the above-captioned docket include- by the Attorney General and the Director of National Intelligence 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. and Attorney General authorization for the types of acquisitions?ubmitted thieh governs the collection of foreign intelligence information Like the acquisitions authorized in the certi?cations approved by the Court in all prior Section 702 dockets, limited to ?the targeting of non-United States persons reasonably believed to be located outside On September 4, 2008,_2008, and April 7, 2009, the Court issued Memorandum Opinions and accompanying orders approving the certi?cation? _n?2009 respectively, the Director of National Intelligence and the Attorney General executed amendments to the certi?cation_ for the purpose of authorizing the FBI to use, under those certifications, the same revised FBI minimization Page 2 June 13, 2017, Public Release EFF v. DOJ Document 11, page 2 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. procedures that were submitted to and approved by the Court in connection with Memorandum Opinion at 3. On - 2009, the Court issued a Memorandum Opinion and accompanying order approving the amendments. 19L. at 6. (Collectively, ?Original 702 Dockets?) Each of the Court?s Memorandum Opinions in the Original 702 Dockets is incorporated by reference herein. 0- 2009, the Court issued a Memorandum Opinion and Order and an accompanying order approving? _nd the use of the targeting and minimization procedures submitted?Memorandum Opinion?) B. The Government?s Representations On - 2009, following a meeting with the Court staff, the United States submitted the Government?s Response to the Court?s Questions Posed by the Court (th- . In that submission, the government indicates that each set of targeting and minimization procedures now before the Court is either substantively identical, or very similar, to procedures previously approved by the Court in the Original 702 Dockets.2 - 2 ?e_e Procedures Used by NSA for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Targeting Procedures?) (attached as Exhibit Procedures Used by the FBI for Targeting Non?United States ersons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Targeting Procedures") (attached as Exhibit C). inimlzation Procedures Used by the NSA in Connection with Acquisitions of Foreign Page 3 June 13, 2017, Public Release EFF v. DOJ Document 11, page 3 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW Submission at 13-14. Notwithstanding such similarity, the government notes a few cross?cutting changes from the earlier approved procedures. First, in the various procedures submitte- ?he government throughout uses ?will? rather than ?shall,? which had been used in the procedures submitted in the Original 702 Dockets. -ubmission at l.3 The government avers that this change purely stylistic and not intended to suggest that each agency?s obligation to comply with the requirements set forth in their respective targeting and/or minimization piecemesd submitted wit? .iiminished in any way.? Second, the government has changed the deadline for complying with various reporting requirements from ?seven days? to ?five business days.? at 2. According to the government, this change ?is intended to remove any potential ambiguity in calculating the deadline for reporting matters as required.? Finally, the government has added to the NSA and CIA Minimization Procedures an emergency provision similar to that which already had been included in the FBI Minimization Procedure? Intelligence information Pursuant to Section 702 of PISA, as Amended Minimization Procedures?) (attache-s 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 FISA, as Amended Minimization Procedures?) (attached?as Exhibit E). 3This change also is re?ected in the Af?davit submitted by Lt. Gen. Keith B.?Alexander, U.S. Army, Director, NSA (attache_ at Tab 1) at 3-4. Page 4 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 4 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. NSA Minimization Procedures at 1, CIA Minimization Procedures at Submission at 2. Apart from these across-the?board changes, the government con?rms that the NSA and FBI targeting procedures are virtually identical to those submitted to and approved by the Court government represents that the FBI Minimization Procedures now before the Court are in all material respects identical to the FBI Minimization Procedures approved by the Cout- nd again in connection with the -amendments to the certi?cations- d. at 14. Likewise. the NSA Minimization Procedures at bar are nearly identical to the corresponding procedures approved by the Court in The CIA Minimization Procedures, while substantially similar to the procedures approved by the Court?include a few material 5In a departure from the minimization procedures submitted in the Original 702 Dockets, the NSA Minimization Procedures submitted in this docket do not characterize the transfer of unminimized information from NSA ?disseminations,? but rather as the provision of information. The government made this change ?so that the description of the information?sharing regime established by the NSA minimization procedures is consistent with the Court?s opinion in - 1.1 [11188101] at 4-5. The Court does not understand this change of wording to me 1 or unit 1e requirements governing such ?provision? or ?dissemination? of information. Page 5 June 13, 2017, Public Release EFF v. DOJ Document 11, page 5 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. ditfeiences. The p1oced111es submitted 111 this Docket 1:1co1po1atea handful of p1ovisions that had not been 111 the Oiiginal 702 Docket minhnization p1oceduies but arie )"2111 of the Page 6 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 6 of 16 pages. All withheld information exempt under b(1) and b(3) except as othenNise noted. Approved for public release. The Court has care?illy reviewed the instant Procedures and has found that, with the exception of the above?described differences and certain non-material changes, the procedures submitted in the current Docket, as informed by the -Submission, min'or those submitted and approved by the Court in the Original 702 Dockets and their amendments. 11. he Court must review a certi?cation 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 examination _ubmitted in the above-captioned docket con?rms that: (1) ?been made under oath by the Attorney General and the DNI, as (2) -ach of the attestations required by 50 U.S.C. l88la(g)(2)(A), at 1-3; (3) as required by 50 U.S.C. by the applicable targeting procedures8 and minimization procedures? (4). supported by the af?davits of appropriate national security of?cials, as described in 50 U.S.C. and 8 Se SA Targeting Procedures and FBI Targeting Procedures. 9 See A Minimization Procedures, FBI Minimization Procedures, and CIA Minimization Procedures. '0 ??Af?davit of Lt. Gen. Keith B. Alexander, US. Army, Director, (attached at Tab Af?davit of Robert S. Mueller, Ill, Director, Page 7 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 7 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. (5) 'includes an effective date for the authorization in compliance with 50 U.S.C. Accordingly, the Court ?nds that?submitte? -all the required elements.? so U.S.C. 1881a(i)(2)(A). REVIEW OF THE TARGETING AND MINIMIZATION PROCEDURES The Court is required to review the targeting and minimization procedures to determine whether they are consistent with the requirements of 50 U.S.C. 1881 and 50 U.S.C. l881a(i)(2)(B) and (C). Section 1881a(d)(1) provides that the targeting procedures must be ?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.? Section 1881a(e)(1) requires that the ?minimization procedures meet the de?nition of minimization procedures under section 1801(h) or 1821(4) of [the In addition, the Court must determine whether the targeting and minimization procedures are consistent with the requirements of the Fourth Amendment. 1881a(i)(3)(A). 10(. . .continued tTab Af?davit of Leon 13. Panetta, Director, CIA (attached. 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 1881 Page 8 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 8 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW Based on the Court?s review of the targeting and minimization procedures in the above- captioncd Docket, the representations of the government made in this matter and those carried forward from the Original 702 Dockets, and the analysis set out below and in the Memorandum Opinions of the Court in the Original 702 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. As discussed above, the targeting and minimization procedures are, in substantial measure, the same as those previously found to comply with the requirements of the statute and with the Fourth Amendment to the Constitution. The few substantive changes noted do not change the Court?s assessment. There is no statutory or constitutional signi?cance to the change from a seven day reporting deadline to ?ve business days. Nor is the Court concerned about the government?s use of ?will? rather than ?shall,? given the government?s assurance that the change . is merely stylistic. And, the Court is satis?ed that US person information will be properly protected through the processes described in the CIA Minimization Procedure- In fact, only two changes even have the potential to require that the Court re-assess its prior determinations. In a departure from the Minimization Procedures in the Original 702 Dockets, both NSA and CIA include a provision in their Minimization Procedures that allows the agency to act in apparent departure from the procedures to protect against an immediate threat to human life. _S_e_e SA Minimization Procedures at 1, CIA Minimization Procedures at Page 9 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 9 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. 7 6. However, these emergency provisions are virtuall I identical to a )rovision in the FBI Minimization Procedures that were approved The government has informed the Court that the one substantive difference the absence of a time frame by which the agency must notify the DN1 and NSD of the exercise of the emergency authority - was inadvertent and that both the NSA and CIA have represented to the Department of Justice that they, like the will report any emergency departure. -Submission at 2. The new standard ontinues to require a foreign intelligence purpose for retaining such information; the procedures only permit the retention of such identifying information when it serves to correlate foreign intelligence, i.e. only under circumstances that are ?consistent with the need of the United States to produce and disseminate foreign intelligence information.? 50 U.S.C. ?1801(h)(l). As the Court noted in its September 4, 2008 Memorandum Opinion, procedures that meet this requirement contribute to Page I 0 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 10 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. the Court?s assessment that such procedures comport with the Fourth Amendment. at 40. In addition to the procedures themselves, however, the Court must examine the manner in which the government has implemented them. In its April 7, 2009 Memorandum Opinion, the Court acknowledged that while the potential for error was not a suf?cient reason to invalidate surveillance, the existence of actual errors may ?tip the scales toward prospective invalidation of the procedures under l_d, at 27. In its- Submission, the government reports on. compliance matters that had previously been the subjects of preliminary notices to the Court, -which involve NSA and one of which involves the CIA.12 at 5-11. The NSA problems principally involve improperly acquiring the communications of US. persons. In response to these incidents, Of?ce of Oversight and Compliance has instituted several procedures designed to ensure more rigorous documentation of targeting decisions in order to minimize the likelihood that NSA will improperly target U.S. persons or persons located within the U.S. at 7, 8. in addition, NSA has conducted remedial training not only of the individual who committed the errors, but the of?ces and management chains involved. at 6?9. The CIA problem is more discrete although arguably more troubling because it re?ects a profound misunderstanding of minimization procedures, the proper application of which contribute signi?cantly to the Court?s finding that such procedures comport with the statute and 12The overnment reports that down-collection Memorandum inion at 17-27 for a full discussion Cou it is aware of no new com liance incidents resulting from cc April 7, 2009 ncident before the Page 1 1 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 11 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. the Fourth Amendment._o longer works with or has access to FISA information, improperly minimized at least-repOIts that were disseminated to NSA, FBI, and DOJ. -2009, Preliminary Notice of Compliance Incident Regarding Collection Pursuant to Section 1058 of the Protect America Act and Section 702 of the FISA, as Amended; - .Submission at 9-1 1. Recognizing that if one person so significantly misunderstood the minimization regime, others might as well, the NSD, and CIA have been working together to implement procedures that will facilitate more comprehensive oversight of applications of its minimization procedures in the future.?- Submission at l0. In addition, has made several process and training changes as a result of [this incident]. at 1. Given the remedial measures implemented in both agencies as a result of the compliance incidents reported to the Court, the Court is satis?ed that these incidents 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. The Court, however, is aware that both NSA and FBI have identi?ed additional compliance incidents that have not been previously reported to the Court. Through informal discussion between NSD attorneys and the Court staff, and later con?rmed at a hearing held on -2009 to address these compliance matters, the Court learned that the government?s practice has been to report only certain compliance incidents to the Court: those that involve systemic or process issues, those that involve conduct contrary to a speci?c representation made to the Court, and those that involve the improper targeting of U.S. persons under circumstances Page 12 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 12 of 16 pages. All withheld information exempt under b(1) and b(3) except as othenlvise noted. Approved for public release. 11W in which the analyst knew or should have known that the individual was a .8. person. Consistent with the government?s practice, the Court was not noti?ed of numerous incidents that involved the failure to de-task accounts once NSA learned that non-US. person targets had entered the United States. Indeed, in th-2009 hearing, the government informed the Court that in addition to th- informally reported 01 2009 to the FISC staff, there were approximately- other similar incidents, all of which occurred since -, 2008. The government reported at the hearing that while the de-tasking errors did not all stem from the same problem, NSA has instituted new-recesses to minimize the likelihood of these types of de-tasking errors recurring. In addition, the government informed the Court that system for conducting post-targeting checks provides an effective backstOp in the government?s efforts to de-task accounts as soon as the government learns a target has entered the United States. Finally, the government confirmed to the Court that NSA has purged from its systems all communications acquired during the period of time when these accounts should have been de-tasked. Based on these representations, the Court is satis?ed that these incidents do not rise to the level of undermining the Court?s assessment that the targeting and minimization procedures comport with the statute and the Fourth Amendment. However, the Court is concerned that incidents of this sort were not reportedto the Court, in apparent contravention of Rule 10(0) of Foreign intelligence Surveillance Court Rules of Procedures.? Section 702(i)(2)(B) Speci?cally directs the Court to review the targeting 13The Court appreciates the assurances offered by the Department of Justice at the- Page 13 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 13 of 16 pages. All withheld information exempt under b(1) and b(3) except as othenlvise noted. Approved for public release. 103W procedures ?to assess whether [they] are reasonably designed to ensure that any acquisition is limited to targeting persons reasonably believed to be located outside the United States and 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.? Given the Court?s obligations under the statute, and consistent with 50 U.S.C. 1803(i), the Court HEREBY ORDERS the government, henceforth, to report to the Court in accordance with Rule 10(0) of the Foreign Intelligence Surveillance Court Rules of Procedure, every compliance incident that relates to the operation of either the targeting procedures or the minimization procedures approved herein. IV. CONCLUSION For the foregoing reasons, the Court ?nds, in the language of 50 U.S.C. 1881a(i)(3)(A), that ?submitted in the above-captioned docket ?in accordance with [Section 1881 the required elements and that the targeting and minimization procedures adopted in accordance with [Section 188 are consistent with the requirements of those .2009 hearing that, henceforth, the government will work with the Court, through the Court?s counsel, to ensure that the govemment?s guidelines for notifying the Court of compliance incidents satisfy the needs of the Court to receive timely, effective noti?cation of such incidents. Page 14 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 11, page 14 of 16 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WSW subsections and with the fourth amendment to the Constitution of the United States.? A separate ordcr approving? and the use of the procedures pursuant to Section 1881a(i)(3)(A) is being entered contemporaneously herewith. ENTERED thi 2009. THOMAS F. HOGAN Judge, United States For 5 Intelligence Surveillance Court 511W Pagc 15 ?03qu Clerk FISC, cm . ls document la a "wm,m? a i EFF v. DOJ Document 11, page 15 of 16 pages. exempt the origin? under b(6) All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. SECRET- UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. ORDER For the reasons stated in the Memorandum Opinion and Order issued contemporaneously herewith, and in reliance on the entire record in this matter, the Court ?nds, in the language of 50 1881a(i)(3)(A), that the above-captioned-ubmitted 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 50 use. l881a(i)(3)(A), that - _and the us ENTERED thi are approved. 2009. THOMAS P. HOGAN 0 Judge, United States Forei g1 Intelligence Surveillance Court exempt under b(6) puty Clerk . ce is accument Is a true and correc .0 0 01 the origina exempt June 13, 2017, Public Rel under b(G) EFF v. DOJ Document 11, page 16 of 16 pages.