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United lt11t• Foreign
lntalllgence lurv•H•ano. Court
201~

UNITED STATES

l.1M.n11 Fl~nn Hall Clerk Of Court

FOREIGN INTELLIGENCE SURVEILLANCE COURT

'

WASHINGTON, D. C.

This Opinion shall not be served immediately on counsel for
the parties, and shall be handled in accordance with the
~
Court's
ing Review of Opinion on the Merits
issued o
2014.
•

II

•

••

I

•

MEMORANDUM OPINION
On

2014, the government filed a Petition for an Order to Compel

Compliance with Directives of the Director of National Intelligence and Attorney General
("Petition"), pursuant to Section 702(h)(5)(A) of the Foreign Intelligence Surveillance Act of
1978 ("FISA"), as amended, (SO U.S.C. §§1801-1885c), and Rules 22 and 23 of the Foreign

order from this Court compelling

irectives

issued by the Director of National Intelligence ("DNI") and Attorney General ("AG") pursuant
to Section 702(h)(l ), which were serve

("the 2014

Directives"). For the reasons set forth below, the Court concludes that the directives meet the
requirements of Section 702 ofFISA and are otherwise lawful, and is issuing the requested
Order.

ACLU 16-CV-8936 (RMB) 000510

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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I.

PROCEDURAL HISTORY
On July 24 and 25, 2014, the DNI and the AG executed

certifications pursuant to

Section 702 ofFISA, which is codified at 50 U.S.C. § 188la: DNI/AG 702(g)

(collectively referred to as "the 2014 Certifications"). 1 Each of the 2014 Certifications
authorizes ''the targeting of non-United States persons reasonably believed to be located outside
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The government submitted the 2014 Certifications and accompanying targeting
procedures and minimization procedures, together with supporting affidavits and an explanatory
memorandum (collectively "2014 Submission") to the FISC on July 28, 2014, for ex parte
review in accordance with Section 702(i) of FISA (50 U.S.C. §1881a(i)). 2 On August 26, 2014,
the FISC found that the 2014 Certifications contain all the required statutory elements, and that
the related targeting and minimization procedures comply with 50 U.S.C. §188la(d)-(e) and are
consistent with the requirements of the Fourth Amendment
Memorandum Opinion and Order at 41 (FISC 2014) ("August 2014

(collectively referred to as
to "immediately provide the

2

Because the certifications, targeting procedures, and minimization procedures are relied
upon in this Opinion, the Court directs the Clerk of the FISC to include the 2014 Submission in
the record for this cas
References to targeting or minimization

procedures in this Opimon are to the procedures that were included in the 2014 Submission.
=an

ag

2
ACLU 16-CV-8936 (RMB) 000511

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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Approved for public release.

a

Government with all information, facilities, or assistance necessary" to accomplish the
acquisition of foreign intelligence information authorized in the corresponding certification.
2014 Directives at 1(emphasis added). 3 In particular, each 2014 Directive states that:

the 2014 Directives. Petition at 6 and Exhibit 3.

3

Each 2014 Directive is entitled "Directive of the Director of National Intelligence and
the Attorney General Pursuant to Subsection 702(h) of the Foreign Intelligence Surveillance Act
of 1978 as Amended " and references the certification under which the directive i issued i.e.

3
ACLU 16-CV-8936 (RMB) 000512

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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On

, 2014, the government filed its Petition with the FISC. 4 In accordance
filed its Response
, 2014, 5 and the government filed its Reply with a supporting ex parte affidavit on

testimony and both parties presented oral argument.
II.

BACKGROUND

4

Because the Presiding Judge of the FISC was traveling outside Washington, D.C., at
in her
that time, the Clerk notified the undersigned Judge, pursuant to FISC Rule 26, w~ho
capacity as acting Presiding Judge, assigned the matter to herself at 9:00 a.m. o
2014, in accordance with FISC Rule 27(a). The Court must render a decision on e mens
within thirty days of assignment of the petition unless the Court, by order for reasons stated,
extends that time as necessary for good cause in a manner consistent with national security. 50
U.S.C. §1881a(h)(5)(C), (j)(2).

, Government's Reply
2014) ("Reply").
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B. Section 702 Targeting and Minimization Procedures
Both parties urge the Court to consider how the government's Section 702 targeting and
minimization procedures would be applied to

[n assessing the lawfulness of

the 2014 Directives. See generally Petition at 9-13; Response at 1. Accordingly, a review of
those procedures and their implementation is instructive.
Pursuant to Section 702(c)(l)(A), all acquisitions authorized by a Section 702
certification must be conducted in accordance with targeting and minimization procedures that

ACLU 16-CV-8936 (RMB) 000514

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

Approved for public release.

TSP SECRET//SI//CRCOrtlrt8FORr.f
are adopted by the AG, in consultation with the DNI. 50 U.S.C. §188la(c)(l)(A), (d), (e). Both
sets of procedures, as well as the underlying certifications, are subject to ex parte judicial review
by the FISC. 50 U.S.C. §1881a(i).
1. Targeting Procedures
Section 702(d)(l) requires targeting procedures that are "reasonably designed" to "ensure
that any acquisition authorized under [the certification] 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." 50 U.S.C. 188la(d)(l). In addition to these
statutory requirements, the government uses the targeting procedures as a means of complying
with Section 188la(b)(3), which provides that acquisitions "may not intentionally target a United
States person reasonably believed to be located outside the United States." See National
Security Agency ("NSA") Targeting Procedures at 1, 3-4, 7

In practice, the government implements the targeting procedures by tasking for
acquisition a telephone number or electronic communications account (referred to as a "selector"
by the government) that is believed to be used by a targeted person. NSA Targeting Procedures
at 1, 3. The NSA is the lead agency in making targeting decisions under Section 702. Prior to
tasking a selector, the NSA must detennine that the targeted person is a non-United States
person reasonably believed to be outside the United States. NSA Targeting Procedures at 1. The
NSA makes this determination "in light of the totality of the circumstances based on the
information available with respect to that person, including

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ACLU 16-CV-8936 (RMB) 000515

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

Approved for public release.

Such information may include
human source reporting, signals intelligence, and intelligence reporting from

The targeting procedures also require that, prior to tasking, the NSA assess whether the
person being targeted possesses, is expected to receive, and/or is likely to communicate the types
of foreign intelligence information authorized for acquisition under the 2014 Certifications.
NSA Targeting Procedures at 4-6;

at

1-2 (FISC filed

NSA Targeting Procedures at 5.

ACLU 16-CV-8936 (RMB) 000516

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All tasking requests must be documented, and that documentation must indicate what
information the analyst relied upon in determining that the targeted person is reasonably believed
to be located outside the United States. NSA Targeting Procedures at 7-8. Before a tasking is
approved, the documentation is reviewed by other NSA personnel to ensure that the requesting
analyst has satisfied this requirement. Id. at 8.

the government's possession supports a reasonable belief that the person: 1) is located outside
the United States; 2) is not a United States person; 3) uses the facility to be tasked; and 4)
possesses, is expected to receive, and/or is likely to communicate the types of foreign
intelligence information authorized for acquisition under the 2014 Certifications. 10

Nevertheless, because targets can travel, and even reasonable determinations can be
called into question by new facts, the targeting procedures mandate an additional layer of
protection in the form of post-tasking analysis. Specifically, the government is required to
conduct post-targeting analysis to detect those occasions when a target, i.e., a user of a selector
tasked for acquisition under Section 702: 1) is located in the United States; or 2) is a United
States person. NSA Targeting Procedures at 6. In addition, the government conducts posttasking analysis to ensure that the target is and remains "a source of the sought-after foreign
intelligence information."

Deel. at 4. Any time the government determines that the

8
ACLU 16-CV-8936 (RMB) 000517

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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TCP SECPET,','§LVSRSS?!.?fOFGPJ'f
target has entered the United States or is a United States person, all facilities used by that target
must be detasked. Id. at 5; NSA Targeting Procedures at 7. Further, if the government
determines that the intended target is not using a tasked selector, that facility must be detasked.
Deel. at 5.
The government's post-targeting analysis includes

The contents of communications acquired from such selectors must also be reviewed for
indications that the target has entered or intends to enter the United States, or is a United States
person. 11

9
ACLU 16-CV-8936 (RMB) 000518

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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TOP SECPFT//S!.'/ORCON,?'JOFOPJ'!

NSA's tasking decisions are subject to regular review and oversight. Internally, NSA
oversight personnel "conduct periodic spot checks of targeting decisions." NSA Targeting
Procedures at 8. In addition personnel from the Department of Justice ("DOJ") and the Office of
the DNI ("ODNI") conduct periodic reviews ofNSA's implementation of its targeting
procedures approximately once every two months. Id. In the event that NSA reasonably targets
a person based on available information and subsequently learns that the target is inside the
United States or is a United States person, NSA must report the incident within five business
days to DOJ and ODNL 12 Id. at 9.
2. Minimization Procedures
The government's minimization procedures are implemented in tandem with the
targeting procedures and serve to further mitigate the harm from any targeting errors and to
reduce intrusions into the privacy interests of United States persons who may communicate with

12

Any incidents of intentionally targeting a person in the United States or a United
States person must be reported within five days to DOJ and ODNI, and any information acquired

as a result of the intentional targeting must be purged. NSA Targeting Procedures at 8.
IO
ACLU 16-CV-8936 (RMB) 000519

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TSP SEGP£T,VSLVORCOPf.7f8FOPJ!
the user of a tasked selector. See In re Directive

(FISA Ct. Rev.

2008) (redacted version published at 551 F.3d 1004). Section 1881a(e)(l) requires minimization
procedures that "meet the definition of minimization procedures under [50 U.S.C. §§] 1801(h) or
1821(4)]." Sections 1801(h) and 1821(4) define "minimization procedures" in pertinent part as:
(1) specific 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;[ 13 ]
(2) procedures that require that nonpublicly available information, which is not
foreign intelligence information, as defined in [50 U.S.C. § 180l(e)(l)], shall not
be disseminated in a manner that identifies 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

13

Section 180l(e) defines "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 foreign 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 affairs of the United States.
TOP SECP£T//SLVORCOPJ,TJOFOPJD!
11
ACLU 16-CV-8936 (RMB) 000520

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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being, or is about to be committed and that is to be retained or disseminated for
law enforcement purposes[.]

For that reason, it is useful
to focus on how the minimization procedures respond to targeting errors.
Targeting errors can generally be described as falling into three categories:
1) the government's targeting of a person who, at the time of targeting, was
believed to be located outside the United States, but who was located in the
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2) the government's targeting of a person who, at the time of targeting, was
believed to be a non~United States person, but who was, in fact, a United States
person at the time of acquisition; and
3) the government's tasking of a selector that, at the time of targeting, was
believed to be used by a person who possesses, is expected to recei
likely to communicate the t es of forei intelli ence informatio

With regard to the first two scenarios, the minimization procedures first reiterate the
requirement in the targeting procedures that, once the government learns that the target is located
in the United States or is a United States person, it must terminate acquisition from selectors
used by the target "without delay." NSA Minimization Procedures at 8. The procedures further
require the government to destroy "upon recognition" a communication if, at the time the

14

The definitions of"minimization procedures" set forth in these provisions are
substantively identical (although Section 1821(4)(A) refers to "the purpose§. ... of the particular

physical search") (emphasis added).
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12
ACLU 16-CV-8936 (RMB) 000521

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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communication was acquired, the government mistakenly believed that the user of the tasked
selector was a non-United States person located outside the United States. 15 NSA Minimization
Procedures at 8-9. This destruction requirement can be waived only if the Director or Acting
Director of the NSA determines, in writing and on a communication-by-communication basis,
that the user was properly targeted, i.e., that the government had a reasonable belief at the time
of acquisition that the user was a non-United States person outside the United States, and that the
communication satisfies certain limited criteria, e.g., that the communication contains
"significant foreign intelligence infonnation" or evidence of a crime. Id. at 9-10. 16
When the overnment encounters the third scenario

dissemination are regulated by the minimization rules that generally apply to United States
person information acquired under Section 702. That should not be a surprise, because the same
circumstance - acquisition of a communication between a United States person and a non-United
States person who is outside the United States, but who is not the intended foreign intelligence
target - can easily arise when there has been no targeting error at all.

15

Any communications acquired by intentionally targeting a United States person or a
person in the United States must also be destroyed. See supra note 12. This requirement is not
subject to waiver.
16

The minimization procedures for the FBI and the CIA have similar provisions. See
FBI Minimization Procedures at 6; CIA Minimization Procedures at 8.
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13
ACLU 16-CV-8936 (RMB) 000522

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

III.

Approved for public release.

ANALYSIS
The Court must issue an orde

comply with the 2014 Directives

or any part of them, as issued or modified, if the Court finds that the directives meet the
requirements of Section 702 ofFISA (50 U.S.C. §188la) and are otherwise lawful. 50 U.S.C.
§1881a(h)(5)(C). Because the 2014 Directives are identical, except for each directive
referencing the particular certification under which the directive is issued, the Court will
.consider the 2014 Directives collectively.

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14
ACLU 16-CV-8936 (RMB) 000523

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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TOP SECPJJT/,'§J,'/ORCOPi,?iOFOPJ'f
The Parties focus almost entirely on the implementation of the 2014 Directives.
Nevertheless, the Court must first consider whether the directives, on their face, satisfy the
requirements of Section 702. Examination of the 2014 Directives confirms that:

(1) the directives were provided in writing and were signed by the AG and the DNI, see
50 u.s.c. §188la(h)(l);
(2) the language of the directives is consistent with 50 U,:S.C. §188la(h)(l)(A) & (B);
(3) the directive_s require the government to compensate
for providing information, facilities, or assistance pursuant to the directives, see 50
U.S.C. §188la(h)(2).
Because each directive was issued pursuant to a valid certification that was approved by the
FISC, and comports with Sections 702(h)(l) & (2) of FISA, the Court finds that the directives
facially meet the requirements of Section 702.
Next, the Court must consider whether the 2014 Directives, as implemented, would meet
the requirements of Section 702 of FISA and are "otherwise lawful." See §1881a(h)(5)(C). The
question before the Court therefore is a limited one, i.e., whether the government's expansion of
Section 702 acquisitions t

would so undennine the protections

afforded under the targeting and minimization procedures that this Court must conclude that the
compliance with the 2014
Directives would fail to satisfy the requirements of Section 702 or the Fourth Amendment. For
the reasons set forth below, the Court finds that it would not.

A. The Tar etin Procedures
Requirements of Section 702.

fail to satisfy the requirements of Section 702 and the Fourth Amendment.

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15
ACLU 16-CV-8936 (RMB) 000524

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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Response at 2.

targeting and

minimization procedures "render the directives invalid as applied to its service." Id.
this Court will first consider
whether the targeting and minimization procedures continue to satisfy the requirements of
Section 702 when applied in the context of the government acquiring information through the
2014 Directives.
Does Not Render

Response at 10. This argument is simply not supported by the facts.

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16
ACLU 16-CV-8936 (RMB) 000525

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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ACLU 16-CV-8936 (RMB) 000526

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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18
ACLU 16-CV-8936 (RMB) 000527

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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ACLU 16-CV-8936 (RMB) 000528

 All withheld information exempt under b(1) and b(3) except as otherwise noted.
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20
ACLU 16-CV-8936 (RMB) 000529

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above-described circumstances occurs frequently, or even on a regular basis. Assuming

arguendo that such scenarios will nonetheless occur with regard to selectors tasked under the
2014 Directives, the targeting procedures address each of the scenarios by requiring NSA to

21
ACLU 16-CV-8936 (RMB) 000530

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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22
ACLU 16-CV-8936 (RMB) 000531

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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ACLU 16-CV-8936 (RMB) 000532

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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ACLU 16-CV-8936 (RMB) 000533

 All withheld information exempt under b(1) and b(3) except as otherwise noted.
WA

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Approved for public release.

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ACLU 16-CV-8936 (RMB) 000534

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, are not "reasonably
designed" to achieve the objectives stated by Section 702(d)(l) (50 U.S.C. § 188la(d)(l)).

Accordingly, the Court finds that the targeting procedures,
satisfy the requirements of Section 702(d){l ).
B. The Minimi ation Procedures
the Reguirements of Section 702.

\lso Satisfy

why, in its view, the minimization procedures are

minimization procedures that do not require the government to
immediately delete such information do not adequately protect United States person information.

For the reasons discussed supra at pages 16-21, the Court does not find that
implementation of the 2014 Directives by

ACLU 16-CV-8936 (RMB) 000535

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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and. as stated supra at page 2, the FISC has found that those minimization
procedures satisfy the applicable statutory requirements. Accordingly, the Court finds that the
minimization procedures, as implemented through the 2014 Directives, meet the definition of
minimization procedures under 50 U.S.C. §§ 1801(h) and 1821(4).
I

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edures and Minimization Procedures
Are Consistent With the Reguirements of the Fourth
Fourth Amendment arguments. 26 For the reasons

discussed below, th

ourt als finds these arguments to be without merit.

the Court must first consider
are properly before the Court. As the
provider having to bear the burden of implementing the 2014 Directives, the Court finds that
standing under Article III. In re Directives, at
10.

26

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affinnation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV. "As the text makes clear, the ultimate touchstone of the Fourth
Amendment is reasonableness." Riley v. Califomi!!, 134 S. Ct. 2473, 2482 (2014) (internal
quotations omitted).
27
ACLU 16-CV-8936 (RMB) 000536

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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Moreover, the Foreign Intelligence Surveillance Court of Review ("FISCR") has held
that: "[i]f Congress, either expressly or by fair implication, cedes to a party a right to bring suit
based on the legal rights or interests of others, that party has standing to sue; provided, however,
that constitutional standing requirements are satisfied." Id. at 9. In the context of the Protect
America Act, Pub. L. No. 110-55, 121 Stat. 552 (2007) ("PAA") (the predecessor to Section
702), the FISCR found that, where the PAA pennitted a service provider to "challenge the
legality of [a] directive," and the PAA did "nothing to circumscribe the types of claims of
illegality that can be brought," the statute was properly read to grant the service provider a right
of action and to extend that right "to encompass claims brought by it on the basis of customers'
rights." Id. at 10-11 (internal quotations omitted).
In this case, the Court is charged with determining whethe
meet the requirements of Section 702 or are otherwise lawful, with no
limitation on what legal claims

can make in defense of its refusal to
Accordingly, this Court finds that Congress has implicitly

The FISCR has previously held that "a foreign intelligence exception to the Fourth
Amendment's warrant requirement exists when surveillance is conducted to obtain foreign
intelligence for national security purposes and is directed against foreign powers or agents of
foreign powers reasonably believed to be located outside the United States." In re Directives, at
18-19. Despite this clear statement of law

TOP SECP,J5Tl/SL'/ORCO>J,'l'!OFOP_>J
28
ACLU 16-CV-8936 (RMB) 000537

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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argues that a warrant should be required for
"all surveillance conducted on the servers of a U.S.-based provider, regardless of whether the
target of surveillance is a U.S. person or a non-U.S. person, and regardless of where that person
is located when they use the service, because the communications of U.S.
collected as part of such surveillance." Response at 17.

The Court is bound to follow In re Directives. Accordingly, the Court finds that the
government's proposed acquisition of foreign intelligence information throug
falls within the "foreign intelligence
exception" to the warrant requirement of the Fourth Amendment.

The remaining Fourth Amendment issue is whether the government's acquisition of
communications and information through the implementation of the 2014 Directives, and in
accordance with the targeting and minimiz.ation procedures, would be reasonable. In assessing
the reasonableness ofa governmental action under the Fourth Amendment, a court must
"balance the interests at stake" under the totality of the circumstances presented. In re
Directives, at 19-20.

If the protections that are in place for individual privacy interests are sufficient in
light of the governmental interest at stake, the constitutional scales will tilt in
favor of upholding the government's actions. If, however, those protections are
insufficient to alleviate the risks of government error and abuse, the scales will tip
toward a finding of unconstitutionality.
Id. at 20.

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ACLU 16-CV-8936 (RMB) 000538

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

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TOD OFODDm''CI''ODOA•xexppgpax

a. The Government's Interests Are Compelling.
The government's national security interest in conducting acquisitions pursuant to
Section 702 "is of the highest order of magnitude." In re Directives, at 20.
platitude. Intelligence Community investigation has reveale

With regard to the individual privacy interests involved, the Court has concluded, as
discussed above, that the targeting procedures are reasonably designed to target non-United
States persons who are located outside the United States. Such persons fall outside the ambit of

TOD SFCDFTfWT''ODGO=tarOFADPI

30
ACLU 16-CV-8936 (RMB) 000539

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Fourth Amendment protection. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75
(1990).
The Court must, however, balance the government's national security interests against
the burde

, as well as the privacy interests of

United States persons and persons within the United States whose communications and
information could be acquired
under Section 702.

mp SFCPFT.'J8l'JOPCON.'NOEOP1\J

31
ACLU 16-CV-8936 (RMB) 000540

 All withheld information exempt under b(1) and b(3) except as otherwise noted.

Approved for public release.

TOP SFCPFT.'.'S!'.'ORCQ)J.'!tJAFAP'J
Response at 7-8. Assuming that these concerns weigh in the Fourth Amendment balance at all, 29
only would be affected if the government

privacy interests of United States persons and persons in
the United States. Its primary argument is that the privacy protections afforded by the targeting
and minimization procedures are inadequate,

will unreasonably intrude on the privacy interests of United States persons and persons in the
ecause the
29

its contention that compelled compliance with
the 2014 Directives would "implicate its o
ts" because it
would be forced "to engage in conduct that
' Response at 8.
None of these cases is on point. G.M. Leas g rp
,
338, 353 (1977),
stands for the general (and in this case widisputed) proposition that corporations can have Fourth
Amendment rights. Burwell v. Hobby Lobby Stores. Inc., 134 S. Ct. 2751, 2759, 2764-66
(2014), involved claims wider the Religious Freedom Restoration Act of 1993, codified as
amended at 42 U.S.C. §§ 2000bb--2000bb-4, that a governmen
·
·
ened
does
the free exercise of religion by certain closely-held corporations
not claim any religious objection to complying with the 2014 Directives, nor does it point to any
comparable statutory protection that could apply here. Finally, in Patel v. City of Los Angeles,
686 F.3d 1085, 1087-90 (91h Cir. 2012), rev'd, 738 F.3d 1058 (9th Cir. 2013) (en bane), cert.
granted, 2014 WL 1254566 (U.S. Oct. 20, 2014), the issue was whether a hotel operator had a
Fourth Amendment-protected interest in its guest registry. The contested issue in this case is not
whether the Fourth Amendment applies at all, but whether the 2014 Directives offend the Fourth
Amendment.

man
enaznm:rs ·an ssn
.a'-'&
32
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anon

I

.A. II J.J.A.11'-'.&''-"'-"l ... I l "''-'.&.''-I.I'! ...

ACLU 16-CV-8936 (RMB) 000541

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government will regularly acquire, store, and use their private communications and related
information without a foreign intelligence or law enforcement justification. See Response at I 0-

14.
For the reasons discussed supra at pages 16-21, the Court does not find that
implementation of the 2014 Directives will result in any distinctive or heightened risk of the
govemm t'

t

I

· f

f

And the mere fact that there is

persons
~potential

of or concerning United States

for error is not a sufficient reason to invalidate the surveillance. In re Directives,

at 28-29 ("A prior judicial review process does not ensure that the types of errors complained of
here (say, a misidentification arising out of the misspelling of an account holder's name) would
have been prevented.").
To the extent the government may mistakenly task the wrong account, the targeting
procedures require the government to conduct post-targeting analysis and the government
terminates acquisition without delay if it determines that a user of the account is in the United
States or is a United States person, or that the account is not being used by the intended foreign
intelligence target. In addition, the minimization procedures provide additional safeguards
restricting the use30 of information of or concerning United States persons.31

_
Riley v. Ca}ifomia, 134 S. Ct. 2473, 2491 (2014), for the
proposition that "when it comes to the Fourth Amendment rights of U.S. persons, the Executive
is not an adequate check on the Executive." Response at 15. But Riley reaffirmed that there are
exceptions to the warrant requirement: the Court generally determines ''whether to exempt a
given type of search from the warrant requirement 'by assessing, on the one hand, the degree to
which it intrudes upon an individual's privacy, and, on the other, the degree to which it is needed
for the promotion oflegitimate governmental interests."' Riley, 134 S. Ct. at 2484 (quoting
TOD
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'-'.&"-'"'11
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33
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acquisitions
under the 2014 Directives will be appropriately focused on selectors used by non-United States
persons who are outside the United States and who are valid foreign intelligence targets. On the
whole, one would not expect a large number of communications acquired under such
circumstances to involve United States persons. See supra at page 19 n.19. Moreover, a
substantial proportion of United States person communications acquired under such
circumstances are likely to be of foreign intelligence value. All these factors weigh in favor of
I.

. •

t

I• I

. I.

t

I.

.. .

• I

•

at issue.
facts underlying the FISCR's decision in In re Directives

are sufficiently different that the FISCR's reasoning regarding the reasonableness of similar
surveillance sheds little light on the constitutionality of Section 70
Response at 13-14. The Court disagrees.
While the facts of this case are different from those in In re Directives in several respects,
on balance those differences weigh in the government's favor. First, unlike the PAA, Section
702 does not permit the government to target United States persons, even when abroad.
Therefore, unlike the FISCR in In re Directives, this Court need not consider whether, in the
Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). There is nothing in Riley that suggests that
the FISCR erred in determining that a foreign intelligence exception to the warrant requirement
should be recognized. See In re Directives, at 14-19.
Moreover, Riley's discussion of"government agency protocols," 134 S. Ct. at 2491,
appears in an analysis of whether a warrant is generally required to search an arrestee's cell
phone and particularly regarding how, if warrantless searches were pennitted, the proper scope
of such a search could be regulated. It does not address whether applicable ..government
protocols" may be relevant in assessing the overall reasonableness of a search, as the FISCR has
twice found minimization procedures to be relevant to the reasonableness of foreign intelligence
surveillance. See In re Directives at 22-23, 29-30; In re Sealed Case, 310 F.3d at 740-42; ~
also Board of Educ. oflndep. School Dist. No. 92 v. Earls, 536 U.S. 822, 833-34 (2002) (school
district policy restricting disclosure and use of search results contributed to reasonableness of
search); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658 (1995) (same).
TSP &E€RETJ/§I//'-'R.£3f.f,T.fSFSRf{

34
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absence of a warrant, the targeting and minimization procedures adequately protect the privacy
interests of United States person targets.

Finally, the Court fails to see how the compliance problems arising under the business
record provisions ofFISA in 2009, see Response at 7, shed any light on this matter. To be sure,
compliance issues arise under Section 702 and significant problems can require modification of
\1emorandum Opinion
(FISC Oct. 3, 2011) (available in redacted form at 2011 WL 10945618). But in the absence of a
showing of misconduct by the government, a presumption of regularity applies. In re Directives,
at 28 ("Once we have determined that protections sufficient to meet the Fourth Amendment's
reasonableness requirement are in place, there is no justification for asswning, in the absence of
evidence to that effect, that those prophylactic procedures have been implemented in bad faith").
In sum, neither the facts

nor its Fourth Amendment arguments

cause this Court to call into question the adequacy of the targeting and minimization procedures,

35
ACLU 16-CV-8936 (RMB) 000544

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'tlOP 1!1ECPE51i.Vl!l!t'@RJ!iDPf.?f@F@llJJ
After
considering the totality of the circumstances and balancing th

I

f

!.

•t

tttakth

Court holds that the targeting and minimization procedure '
the 2014 Directives, satisfy the requirements of the Fourth
Amendment.
c. The Court Need Not Consider Interests of NonI

·1

,·

t.

•1

~···•

consider ''the impact ... on foreign
persons when considering whether the requested surveillance is reasonable," apparently without
regard to whether these persons are protected by the Fourth Amendment. Response at 16. But
under§ 188Ia(h)(5)(C), the Court does not assess reasonableness abstractly. Instead, the Court
must determine if"the directive meets the requirements of [Section 702] and is otherwise
lawful." For that reason, the impact on foreign persons can be relevant only to the extent that an
applicable legal requirement makes it relevant.
ort for its contention that the Court should consider the interests of such persons
cites Presidential Policy Directive 28.
Response at 16. But that directive, by its terms, is not judicially enforceable.33
Universal Declaration on Human Rights and the International Covenant on Civil
and Political Rights, ~ Response at 16, is equally unavailing. The former "does not of its own
force impose obligations as a matter ofintemational law," Sosa v. Alvarez-Machain, 542 U.S.
692, 734 (2004), and the latter, though a binding treaty as a matter of international law, "was not

33

"This directive is not intended to, and does not, create any right or benefit, substantive
or procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person."
Directive on Signals Intelligence Activities, Presidential Policy Directive 28, § 6(d), 2014 Daily
Comp. Pres. Doc. 31(Jan.17, 2014).
TOR CE GD FT 'CC' llOD CAPT -'ODOR,;

36
ACLU 16-CV-8936 (RMB) 000545

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self-executing and so did not itself create obligations enforceable in the federal courts." Id.; see
also Medellin v. Texas. 552 U.S. 491, 505 & n.2 (2008) (treaties "are not domestic law unless
Congress has either enacted implementing statutes or the treaty itself conveys an intention that it
be self-executing" - i.e., to have "automatic domestic effect as federal law upon ratification" and was "ratified on those terms") (internal quotations omitted).34 Accordingly, whatever
standards for a reasonable surveillance one might derive from these documents are inapplicable
to the Court's review under§ 1881a(h)(S)(C).

IV. CONCLUSION
For the reasons set forth above, the Court finds that the 2014 Directives meet the
requirements of Section 702 and are otherwise lawful. Accordingly, pursuant to the Order issued

will be ORDERED to

contemporaneously with this Opinion
comply with the 2014 Directives.

ENTEREDthi

Judge, United States Foreign
Intelligence Surveillance Court

34

Nor is there any indication that privacy standards rooted in the Universal Declaration
on Human Rights or the International Covenant on Civil and Political Rights should be applied
as a matter of customary international law. See Flores v. Southern Peru Co1mer Com., 414 F.3d
233, 248 (2d Cir. 2003) ("In short, customary international law is composed only of those rules
that States universally abide by, or accede to, out of a sense oflegal obligation and mutual
concern.").
37
ACLU 16-CV-8936 (RMB) 000546

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Filed
Ontted States Foreign
tntemgence Surveillance Court

014
UNITED STATES

l,,QMnn. Flynn Hall, Clerk of Court

FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D. C.

ORDER COMPELLING COMPLIANCE WITH DIRECTIVES
This Order shall be served immediately on counsel for both parties.
The Court, having found that the directives
-

attached as Exhibit 1 to the Government's "Petition for an Order to Compel

Compliance with Directives of the Director of National Intelligence and Attorney General,"
submitted in the above-captioned matter on

2014 ("Directives"), as issued, meet

the requirements of 50 U.S.C. § 188la and are otherwise lawful,

IT IS HEREBY ORDERED, pursuant to 50 U.S.C. §

1881~(h)(5)(C)

shall comply with the Directives FORTHWITH.
Pursuant to§ 1881a(h)(5)(C), an Opinion providing a written statement for the record of
the reasons for the above-stated determination is being issued contemporaneously herewith.

SO ORDERED.
819@Ml'/J1f8Ji81ll f

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'\

ENTERED this

SEEi& I ))f 4OPl>ftiI f
2

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