Alfwithheld information exempt under em. MS) and timE. Approved for public release.

SEGREF

UNITED STATES

FOREIGN INTELLIGENCE SURVEILLANCE COURT

WASHINGTON, DC.

 

. ORDER

On- the government ?led with this Court, in the above-captioaed
docket, a Veri?ed Memorandum of Law Regarding the Collection of Post-Cut-Through
Digits Through Telephone Pen Register Surveillance Under the Foreign Intelligence
Surveillance Act (hereafter ?Mcmorandum?) to advise the Court regarding the
Government?s collection of post-cut?through digits through telephone pen register
mtrveillance under the Foreign Intelligence Surveillance Act (PISA). In its
Memorandum, the government takes the position that, under FISA, the Court may
authorize the collection of post?cut-through digits that are call processing information as
well as those that constitute the contents of a communication. The government?s legal

analysis rests in part on the government?s assertion that 18 U.S.C. ?3121(c)

    

 

ernorandurn, at 9.

   

     

REGRET
Derived from: Veri?ed Memorandum of Law filed-in
Docket NumbeF
Declassify on:

September 25. 201?, Public Release EFF v. DOJ te?CV-02041 Document 10. Page 1 of 2

 Ali'withheid information exempt under b{1 hi3} and hi?)E. Approved for public release.

SEGRET

In the event post-cut?throngh digits that constitute cell content are incidentally captured
pursuant to pen register authority, the government undertakes to ?make no af?rmative
investigative use of such information except in a rare casein order to prevent an
immediate danger of death, serious physical injury, or harm to the national security,? and
indicates that ?this practice is consistent with criminal pen register applications submitted
by the Government to United States District Courts under 18 U.S.C. 3122 and 3123."
Memorandum, at 11.

On July 19, 2006, the Honorable Stephen WM Smith denied a government
application to acquire post-cut?tbrongh digits in a criminal investigation, eXpressly
ecting the government?s argument that 18 USE. ?3121(c) implicitly authorizes the
acquisition of contents using a pen registeritrap and trace device, given the current state
of ?ltering technology In re Application of the United States for an Order Authorizing
(1) Installation and Use of a Pen Register and Trap and Trace Device or Process. (2)
Access to Customer Records, and Cell Phone Tracking, F.Supp.2d 2006 WL
2033877, at 6, 9 (SD. Texas, 2006).

Accordingly, the government is ordered to submit a written brief to the Court, no

   

later th discussing how, if at all, Magistrate Judge Smith?s opinion

affects the government?s analysis of this issue as set forth in its Memorandum.

300mm-
darts (an in;

COLLEEN 
Judge, United States Foreign
Intelligence Surveillance Court



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September 25. 201?. Public Release EFF v. DOJ Document 10. Page 2 of 2