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. BRIEFING ORDER On October 3, 201 this Court granted in part and denied in part the government?s requests for approval of the certi?cations in the above-captioned dockets. Oct. 3, 201 I Order at 2. This Court?s Order and Memorandum Opinion found that the National Security Agency?s (N SA) minimization procedures do not meet the requirements of 50 U.S.C. 1881a(e) with respect to retention, and that targeting and minimization procedures are inconsistent June 13, 2017, Public Release EFF v. DOJ Document 17, page 1 of4 pages. Congressional Production _age 328 All withheld information exempt under b(1) and b(3) except as othenrvise noted. Approved for public release. with the requirements of the Fourth Amendment, as the government proposed to apply them to Multiple Communications Transactions (MCTs) for which the ?active user? is not known to be the tasked selector. Furthermore, in the Memorandum Opinion issued simultaneously with its Order, this Court noted that ?[t]he government?s revelations regarding the scope of upstream collection implicate 50 U.S.C. 1809(a)? and advised that the Court would address this and related issues in a separate order. Oct. 3, 2011, Mem. Op. at 17 n.15. It is now clear that NSA has been acquiring MCTs sincc -1 while at the same time assuring the Court until May 2, 2011, that its upstream collection acquired only communications to or from a targeted selector and speci?ed categories of ?about? communications individual communications that reference?hat NSA tasked for collection) 3-6-6? - als_o Oct. 3, 2011, Mem. Op. at 17;-ubmission at 2. In the Government?s Response to the Court?s Brie?ng Order of-2011- Submission), the government acknowledged that it has been acquiring MC'l?s ?throughout the entire timeframe of all certi?cations authorized under Section 702,? the Protect America Act (FAA and earlier Foreign Intelligence Surveillance Act (PISA) Title I cases. at 2 (citing In Docket the govermnent rcpresente at would ?ensure that all communications forwarded to have been sent or received using, and that ?rcfer to? or are ?about,? email or which there is probable cause to believe are being used, or are about to be used, by [the targets].? Docket ?common of Lieutenant General Keith B. Alexander at 21. The Court re re on is represen a 1011 when it issued its Order approving the collection. Dockewrder at 22. MCTS, however, have been shown to contain communica 10118 a no meet this standard. Page 2 June 13, 2017, Public Release EFF v. DOJ Document 17, page 2 of 4 pages. Congressional Production -age 329 All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW Prior to this Court issuing its Order in the above-captioned dockets, the government argued that previous and ongoing collections of MCTs were in compliance with this Court?s orders, did not violate 50 U.S.C. 1881a, and were consistent with the Fourth Amendment, and that the use of such information did not violate Section 1809(a)(2), g; June 1 Submission at 2- 24 3 1-3 8, despite the fact that the government acknowledged that it did not fully inform the Court of this aspect of the collection prior to May 2, 2011, sg at 2 31; ?bmission>atzs- In fact, the government?s May 2 Letter ?disclosed to the Court for the ?rst time that ?upstream collection? of Internet communications includes the acquisition of entire [1 Oct. 3, 2011 Mem. Op. at (emphasis added) (footnotes omitted). As a result, none of this Court?s prior authorizations considered the collection and use of MCTs. In lightof this Court?s Order and Memorandum Opinion issued on October 3, 2011, and in view of what appears to be a signi?cant overcollection dating back to-, including the content of communications of non-target U.S. persons and persons in the US, the government is hereby ORDERED to ?le a memorandum with any necessary supporting documentation no later than 5 pm. on November 10, 2011, which shall address but not necessarily be limited to the following issues related to MCTs: 1. An analysis of the application of Section 1809(a) to each of the three different statutory schemes under which Internet transactions were acquired without the Court?s knowledge. ?e_e3_um_anote1. 2. The extent to which information acquired under Section 1881a, the FAA, and Docket Page 3 June 13, 2017, Public Release EFF v. DOJ Document 17, page 3 of 4 pages. Congressional Production ?Page 330 All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. WW falls within the criminal prohibitions set forth in Section 1809(a). 3. Whether the collections under Section 1881a, the PAA, and Docket? - include information that was not authorized for acquisition but 18 no su J60 0 1e criminal prohibitions of Section 1809(a). 4. Whether any of the over-collected material has ?aged off? NSA systems such that it is no longer retained by NSA or accessible to its S. If the government has determined that it has acquired information that is subject to Section 1809(a) or was otherwise unauthorized: a. Describe how the government proposes to treat any portions of the prior unauthorized collection that are subject to the criminal prohibitions of Section 1809(a). b. What steps is NSA taking to ensure that such information subject to 1809(a) is not used in proceedings before the Court? c. What steps is the government taking to remediate any prior use of such information in proceedings before this Court? d. How does the government propose to treat any portions of the collection that are unauthorized but not subject to Section 1809(a), and explain why such treatment is appropriate. 6. Whether there are any other matters that should be brought to the Court?s attention with regard to these collections that implicate Section 1809(a) or that were unauthorized. IT IS SO ORDERED. st. ENTERED this L6 day of October 2011. rotates? JOHN D. BATES Judge, United States Foreign Intelligence Surveillance Court Page 4 er ,certify that this document is a true and correct co 0 me Original exemp under June 13, 2017, Pu b(6) -. - - EFF v. DOJ 16-CV-02041 Document 17, page 4 of 4 pages. Congressional Production-Page 331