US. Department of Justice

 

National Security Division

 

Washington, D. C. 20530

EMAIL: savage@nvtimes.com

NSD #16?148
September 29, 2017

Mr. Charlie Savage

The New York Times

16271 Street, NW.

Washington, DC. 20006
36/3

Dear . vage:

This is our ?nal response to your Freedom of Information Act (F OIA) request dated May
10, 2016, for ?previously unreleased documents from the Foreign Intelligence Surveillance Court
docket for the case that resulted in Judge John Bates? October 3, 2011, and November 30, 2011,
rulings, both of which were declassi?ed and made public in August 2013 but with their docket
number and case name redacted.? Your request was received on May 10, 2016.

In response to your request, we conducted a search of the National Security Division
Of?ce of Intelligence and we have located responsive records. We have processed
documents for today?s response under the FOIA, and enclose here 12 documents with portions
withheld in part pursuant to one or more of the following FOIA exemptions set forth in 5 U.S.C.

552(b):

(1) which permits the withholding of information properly classi?ed pursuant to
Executive Order No. 13526; and

(3) which permits the Withholding of information speci?cally exempted from disclosure
by statute, including but not limited to Section 102(d)(3) of the National Security Act of 1947;

(6) which permits the withholding of information when the disclosure of such
information "would constitute a clearly unwarranted invasion of personal privacy.?; and

which permits the withholding of records or information compiled for law
enforcement purposes the release of which could "could reasonably be expected to constitute an
unwarranted invasion of personal privacy.?

Additional documents responsive to the May 10, 2016 OIA request are exempt from
disclosure in their entirety pursuant to one or more of these FOIA exemptions. To describe these

documents in any more detail would disclose information that is exempt from disclosure under
the FOIA.

For your information, Congress excluded three discrete categories of law enforcement
information and national security records from the requirements of the FOIA. See 5 U.S.C.
?552(c). This response is limited to those records that are subject to the requirements of the
FOIA. This is standard noti?cation that is given to all our requesters and should not be taken as
an indication that excluded records do, or do not, exist.

Although this request is now the subject of litigation, we are including the following
information on FOIA mediation and administrative appeals.

You may contact the Of?ce of Government Information Services (OGIS) at the National
Archives and Records Administration to inquire about the FOIA mediation services they offer.
The contact information for OGIS is: Of?ce of Government Information Services, National
Archives and Records Administration, 8601 Adelphi College Park, Maryland 20740-
6001, or at ogis@nara.gov, or 202-741-5770, or toll free at 1-877-684-6448, or facsimile at 202-
741-5769. Or you may contact our Public Liaison at 202-233-0756.

If you are not satis?ed with this response, you may administratively appeal by writing to
the Director, Of?ce of Information Policy, US. Department of Justice, 1425 New York Avenue,
N.W., Suite 11050, Washington, DC. 20530, or you may submit an appeal through FOIA
portal by creating an account at: Your
appeal must be postmarked or transmitted electronically within 90 days of the date of my
response to your request. If you submit an appeal by mail, both the letter and envelope should be
clearly marked, ?Freedom of Information Act Appeal.?

Sincerely,


Kevin G. Tieman
Records and FOIA

Approved for public release. I I i and b(3) except as othemise noted.
155.21. 5?
. 5 55255,?. 

. UNITED STATES SUR "5 .L 55515;? . 

FOREIGN INTELLIGENCE SURVEILLANCE CWR 2 2 M51 0 3

WASHINGTON, DC. .5 55553:; 5-?5 2559:: 5-5 5
5'5 5.5 5335? 

UNDER SEAL

 

GOVERNMENTS EX PARTE SUBMISSION 015 REAUTHORIZATION
CERTIFICATION AND RELATED PROCEDURES, EX PARTE SUBMISSION OF
AMENDED CERTIFICATIONS, AND REQUEST FOR AN ORDER APPROVING

SUCH CERTIFICATION AND AMENDED CERTIFICATIONS 

In accordance with subsection 702(g)(1)(A) of the Foreign Intelligence
Surveillance Act of. 1978, as amended ("the Act"), the United States of America, by and
through the undersigned Department of Justice attorney, hereby submits ex parte the
attached-certi?cation, 702(g) Certification - This certification.
reauthorizes 702(3) Certi?cation -A7hich expires 011-011;.
Attached as Exhibits A, B, c, D, and to 702(g) Certificatior- are the

targeting and minimization procedures to be used under the certi?cation. W)

"GI'?SSifiEd?by: 

Reason:
Declassify on: 

 

.NYT DOJ, 16 CIV 7020_000238

Approved for public release. All withheld information exempt under W) and 13(3) except as otherwise noted.
I

The National Security Agency (NSA) targeting procedures and Federal Bureau of
Investigation (FBI) minimization procedures attached to the certi?cation as Exhibits A
and D, respectively, previously have been submitted to and approved by this Court,
The NBA and Central intelligence Agency (CIA) minimization procedures attaChed as

Exhibits and E, respectively, as well as the FBI targeting procedures attached as

Exhibit c, were submitted to this Court on April 2o, 2011? .
the NBA and em 
minimization procedures, as well as the FBI targeting procedures, are similar to, but
differ in certain substantive respects from, procedures previously approved by this
Court. {st/sense 
In addition, the above-captioned certification also includes amendments to the
.. certification being reauthorized, 702(g) Certification-and its
predecessors, 702(g) Certifications I Specifically, these
amendments authorize the use of the NSA and CIA minimization procedures attached

.asExhibits and E, reapectively, to 702(g) Certificatio in connection

NYT DOJ, 16 CIV 7020_000239

Approved for public release. - All withheld information exempt under b(1) and b(3) except as otherwise noted.
I

with foreign intelligence information acquired in accordance with 7 02(g)
Ciertification?1 W.
conclusion (U)

702(g). Certification-contains all of the elements required by the
Act, and the targeting and minimization procedures included with the certification are
consistent with the requirements of the Act and the Fourth Amendment to the
Constitution of the United States. Accordingly, the Goyernment respectfully requests,
pursuant to subsection oi the Act, that this Court review ex parte and in
camera 702(g) Certi?catior- and supporting documents, which are .
submitted herewith. The Government further, requests that this Court enter an order
pursuant to subsection 702(i)(3) (A) of the Actapproving: 702(g) Certification
I - the use of the targeting and minimization procedures attached thereto as
Exhibits A, B, C, D, and in connection with acquisitions of foreign intelligence
information in accordance with that. certificatiOn; and the use of the minimization

procedures attached as Exhibits and to 702(g) Certificatior- in

 

1 The FBI minimization procedures attached to the above?captioned certi?cation as Exhibit are identical
to the FBI minimization procedures that already have been approved for use by this Court in connection

 

_th11 'fofign'intelligenc? information achir?edin 

under those certifications, no amendments are necessary. (weenieNYT DOJ, 16 CIV 7020_00024o

Approved for public release. . All withheld information exempt under b(1) and b(3) except as otherwise noted.
I

connection with foreign intelligence information acquired in accordance with 

me) Certi?cations?W

 

omey?Advisor
ational Security Division
United States Department of Ius?ce.

 

 

NYT DOJ, 16 CIV 7020_000241

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

UNITED STATES
ECREICN INTELLIGENCE SURVEILLANCE COURT
. WASHINGTON, DC.

 

IN RE 702(g). CERTIFICATION-

 

 

ORDER

This matter having come before this Court pursuant to the Governntent?s er I
parte Submission of the above?referenced certification in adcordancewith subsection
702(g)(1)(A) of the Foreign Intelligence Surire?lance Act of 1978, as amended ("the Act"),
and request for an order approving such certification and the use. of the targeting and
minimization procedures attached thereto, and full consideration having been given to
the matters set forth therein, the Court finds that the above-captioned certification
submitted in accordance with 50 U.S.C. 188ia(g) contains at] the reqUired elements,
and that the targeting and minimization procedures adopted in aCcordance With

50 U.S.C. are consistent IWith the requirements Iof_ those subsections and

with the Fourth Amendment to the Constitution of the United States.-

 

Derived From:-

 

NYT DOJ, 16 CIV 7020_000242

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

Accordingly, it is hereby ORDERED, pursuant to 50 U.S.C. 18812101) that
such certi?cation and the use of such procedures are approved.

Entered this day 0- 2011, at Eastern Time.

 

Judge, United States Foreign
Intelligence Surveillance Court

NYT DOJ, 16 CIV 7020_000243

Approved for public release. All withheld igformi?ign eerppt under b(1) and. b(3) except as otherwise noted.

UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC. 

 

IN RE 702(g) . Docket No. 702(1) 08?01

 

 

ORDER .

. For the reasons. Stated in the Memorandum Opinion issued contemporaneously I
herewith, and in reliance on the entire record in this matter, the Court-?nds, .inthe
language of 50 U.S.C. that the certi?cation submitted in the above- 
captioned docket, as amended, "contains all the required elements" and that the revised 
National Security Agency and Central Intelligence Agency minimization procedures
submitted with the amendment "are consistent with the requirements of [Section
1881a(e)] 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

such amendment and the use of such procedures are approved.

Entered this day (- 2011, at Eastern Time.

 

Judge, United States Foreign
Intelligence Surveillance Court

  
 

- - 
Derived From: submissiOn I

inDo?cket - "oned above

DOJ, 16 CIV 7020_000244

Approved for public release. .AII withheld information exempt under 13(1) and b(3) except as otherwise noted.

UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC.

 

IN RE 702(g) 

 

 

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 certification submitted in the above-
. captioned docket, as amended, "contains all the required elements" and that the revised
I National Security Agency and Central Intelligence Agency minimization procedures I
submitted with the amendment "are consistent with the requirements of [Section
1881 and with the fourth amendment to the Constitution of the United States."

Accordingly, it is hereby ORDERED, pursuant to 50 U.S.C. 1881 a(i) that

such amendment and the use of such procedures are approved.

Entered this day - 2011, at Eastern Time.

 

Judge, United States Foreign
Intelligence Surveillance Court

 

NYT DOJ, 16 CIV 7020_000245

Approved for public release.

- UNITED STATES

All withheld i?formation exempt under b(1) and b(3) except as otherwise noted.

FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC.

 

IN RE 702(g) CERTIFICATION-

 

 

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. 5 Isaieaxsm), that the certi?cation submitted in the above-

captioned docket, as amended, "contains all the required elements" and that the revised

National Security Agency and Central Intelligence Agency minimization procedures

submitted With the amendment "are consistent with the requirements of [Section

1881a(e)] andwith the fourth amendment to the Constitution of the United States."

Accordingly! it is hereby ORDERED, pursuant to 50 U.S.C. 1881 a(i) (3) (A), that

Such amendment and the use of such procedures. are approved.

. Entered this- day . 2011, at

Eastern Time.

 

Judge, United States Foreign
Intelligence Surveillance Court

Derived From:

Submission to the USFISC .
in Doc1<et Number captioned {hove

NYT 16 CIV 7020_000246

Approved for public release. - All withheld information exempt under b(1) and b(3) except as otherwise noted.

 

In accordance with subsection 702(g) of the Foreign Intelligence Surveillance Act of

1978, as amended ("the based on" the representations niade in the supporting af?davits
of John C. Inglis, Acting Director of the National Security Agency SA), Robert S. Mueller, 
Director of the Federal Bureau of Investigation (FBI), and Leon B. Panetta, Director of the
Central Intelligence Agency (CIA), in the above-referenced matter, the Director of National
Intelligence and the Attorney General, being duly sworn, hereby certify that:l 

I (1) there are procedures in place that have been approved2 or will be submitted with this
certi?cation for approval by the Foreign Intelligence Surveillance Court3 that are
reasonably designed to 

a, - ensure that an acquisition authorized pursuant to subsection 702(a) of the Act is I

limited to targeting persons reasonably believed to be located outside the United

States; and

 



2 Speci?call the NSA targeting procedures attached-herewith as Exhibit A were most recently approved by the
Court mi 2010, in connection with Amendment 1 to 702(g) Certi?cation-. 

3 Speci?cally, the FBI targeting procedures attached herewith as Exhibit are being submitted for approval by the
Court. {8196671512139? - 

 

NYT DOJ, 16 CIV 7020_000247

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

b. prevent theintentional acquisition of any communication as to which the sender
and all intended recipients are knewn at? the time of acquisition to be located in
the United States; I
(2) the minimization procedures with respect to such acquisitio --
a. meet. the de?nition of minimization procedures under subsections 101(h) and
301(4) of the Act; and - i I
b. have been approved?11 or will be submitted With this certi?cation for approval by
the Foreign Intelligence Surveillance Court;S
(3) guidelines have been adopted in accordance with subsection 702(t) of the Act to
ensure compliance with the limitations in subsection 702(b) of the Act and to ensure
that an application for a court order is ?led as required bythe Act;

(4) the procedures and guidelines referred to in sub-paragraphs (2), and (3) above are 
{consistent with the requirements of the fourth amendment to the Constitution of the-
United States;

(5) a signi?cant purpose ofthe acquisition is to obtain foreign intelligence information;

(6) the acquisition involves obtaining foreign intelligence information ?om or with the

- assistance of an electronic communication service provider; and
(7) the acquisition complies with the limitations in subsection 702(b) of the 
On the basis of the. foregoing, the targeting of non-United States persons reasonably 

believed to be located outside the United States to acquire foreign intelligence information, as

 

4 Speci?cally, the FBI minimization procedures attached herewith as Exhibit were most recently submitted to the
Court for approval in connection With Amendment 1 to 702(g) Certi?catior-n-OIO,
and werelmost recentlyapprogd?bmegqu?n- 2010. 

 

 

 

5_ Speci?cally; the NSA and CIA minimization procedures attached herewith as Exhibits and B, respectively, are
being submitted for appr'oval?by'the court. {swam 

 

- NYT DOJ, 16 CIV 7020_000248

Approved for public release. . . All withheld information exempt under h(1) and b(3) except as otheMise noted.
a .

described above, is authorized, and such authorization shall be effective on-, 2011, or on 
the date upon which the Foreign Intelligence Surveillance Court issues an order concerning this
certi?cation pursuant to subsection 702(i)(3) of the Act, Whichever 1s later. Such targeting is

authorized for a period of one year from the effective date of this authorization. This

authorization reauthorizes 702(g) Certi?cation?

 

which became effective 01-1-2010. {Set/eater)

Amendment 4 to DNIIAG 702(g) Certi?catio
Amendment 3 to 702(g) Certificatio
Amendment 2 to 702(g) Certi?cation

   
  
 

and

Furthermore, in accordance with of the Act, 702(g)

Certi?cation?re hereby amended. Speci?cally, the userof the

NSA and CIA minimization procedures attached herewith as Exhibits and B, respectively, in

connection with foreign intelligence information acquired in accordance with 702(g)

Certi?cation_ is authorized? Such authorization, as amended,

shall be effective on-, 2011, or on the date upon which the FISC issues an order

concerning these amendments pursuant to subsection 702(i)(3) of the Act, virhichever is later. All .

other aspects of Certi?cations? as amended, remain unaltered and
are incorporated herein. 

 

?5 702 Certi?cation-was ?rst amended by the Attorney General and the Director of National
Intelligence i 2009. This amendinent related only to modi?cations to the FBI's targeting procedures.
Amendments to 702(g) Certi?cation-n .2010 and -010, which related only to
modi?cations to the minimization procedures for NSA, FBI, and CIA were incorrectly speci?ed as Amendment 1
and Amendment 2, respectively, to 7 02(3) Certi?catio The amendments in Jul)r and August 
2010 should have been speci?ed as Amendment 2 and Amendment 3, respectively. {$969439?

7 As certi?ed above, these minimization procedures meet the de?nition of minimization procedures under

are consistent-with--the?-? - 
requirements of the Fourth Amendment to the Constitution of the United States. - 

3

NYT DOJ, 16 CIV 7020_000249

Approved for public release. All withheld information exemgt under b(1) and b(3) except as othenNise noted.

(U)

I declare under penalty of perjury that the facts set. forth in the foregoing certi?cation in

 

702(g) Certi?catior-, are true and correct to the best of

my-knowledge and belief. I ?lrther declare under penalty of perjury that the facts set forth in the

foregoing amendments to 702(g) Certi?cation_ are true 

and correct to the best of my knowledge and belief. Executed pursuant to 28 U.S.C. 1746

on 3 13 ,2011; Q)

Eric H. Holder, Jr.
Attorney General of the United Statesd/

NYT DOJ, 16 CIV 7020_000250

- I. aquIi'?shdm?.

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


VERIFICATION (U)

I declare under penalty of perjury that the facts set forth in the foregoing certi?cation in

 

702(g) Certi?cation- are true and correct to the best of

my knowledge and belief. I further declare under penalty of perjury that the facts set forth' 1n the
foregoing amendments to 7 02(g) Certi?cation_ are true
and con eet to the best of my knowledge and belief. Executed pursuant to 28 U. S. C. 1746

011 



James Clapper, Jr.
Director of National Intelligence

 

NYT DOJ, 16 CIV 7020_000251.

Approved for public release. All withheld information exempt under em and b(3) except as otherwise noted .-

it i 

ER

DUEL ?efi

AFFIDAVIT OF JOHN C. INGLIS, ACTING DI
NATIONAL SECURITY AGENCY

ii?izz names

i

 
        

- DNIIAG 702(g) Certi?catior-

to subsectiOn 702(g)(2)(C) of the Foreign ?lialligence eillance Act of 1973, as
amended ("the Act"), and in support of 702(g) Certi?cation I af?rm that the
following is true and accurate to the best of my knowledge and belief:

I. (-Sfm-F?here are reasonable procedures in place that the National Security Agency
(NSA) will use to ensure that any acqr?sition under this certi?cation is limited to
targeting non-United States persons reasonably believed to be located outside of the
United States. Iii-addition, these targeting procedures are reasonably designed to preVent
the intentional acquisition of any as to which the sender and all intended
recipients are known at the time of the acquisition to be located in the United States.
These targeting procedures, which are attached herewith as Exhibit A, were most recently
submitted for approval to the Foreign Intelligence Surveillance Court FISC in
connection with Amendment 1 702(g) Certi?cation on
2010, and were most recently approved by the FISC on 2010.

2. WAS described below, acquisition of foreign intelligence information
pursuant to this certi?cation involves obtaining foreign intelligence information ?om or
with the assistance of electronic communication service providers, as that term is de?ned

in subsection 701(b)(4) of the Act. 

NSA seeks to ac Hire forei intelli ence infonnatio

    

 

NYT DOJ, 16 CIV 7020_000252

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

 

 



 

  

. intelligence infomation cementing

TOP 

cCIV 7020_000253

Approved for public release. All withheld information exempt under and b(3) except as otherwise noted.



 

is attached herewith as Exhibit F. NSA
believes that the non?United States persons reasonably believed to be located outside the
United States who will be targeted for collection under this certi?cation possess, are

expected to receiiel andfor are likely to foreign intelligence iriformation

concerning
obtain:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect agains --

81. 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 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.

Thus, a signi?cant purpose of the acquisition is to

If NSA seeksto ac uire forei "intelli ence information concernin

   
 

NSA
may target under this certi?cation non-United States persons reasonably believed
to be located outside the United States who possess, are expected to receive,
and/or are likel to communicate foreign intelligence information concerning

provided that noti?es the Attorney General -
and Director of National Intelligence within ?ve business days of implementing
such targeting. Such noti?cation will include a descri tion of the factual basis for
NSA's detenn ination that th

  

6. {WWith respect to the information?NSA acquires pursuant to the above-referenced
certi?cation, NSA will follow the minimization procedures attached herewith as Exhibit

NYT DOJ, 16 CIV 7020_000254

 Approved for public release. All withhetd information exempt under cm and b(3) except as otherwise noted.

 

?7 NSA may provide to the Central Intelligence Agency (CIA) miminimized
communications acquired pursuant to the above-referenced certi?cation. CIA will -
identify to NSA the targets for which NSA may provide unminimized communications to
CIA. CIA will process any such unminimized communications received ?cm NSA in

. accordance with the CIA minimization procedures adopted by the Attorney General, in
consultation with the Director of National Intelligence, pursuant to subsection 702(8) of
the Act.



8. 4814819- NSA may provide to the Federal Bureau of Investigation (FBI) umninimized
communications acquired pursuant to the above-referenced certi?cation. The FBI will
identify to NBA the targets for which NSA may provide unminimized communications to
the FBI. The FBI will process any such unminimized communications received from
NSA in accordance with the FBI minimization procedures adopted by the Attorney 
Genera], in consultation with the Director of National Intelligence, pursuant to subsection
702(e) of the Act.

The remainder of this page intentionally Ie? blank 

NYT DOJ, 16 CIV 7020_000255

Approved for public release.. eldi or t'o xem tunderb 1 and 3) except as o?wenmi?e'noted.

(U) I declare under penalty of perjury that the foregoing is ?ue and correct.
.4 
Signed this ?6 day of April, 2011.



A gDir

National Security Agency

NYT DOJ, 16 CIV 7020_000256

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


l-?ti? L..

13.51.: a
can?; a

AFFIDAVIT 0F ROBERT s. MUELLER, EZL 
DIRECTOR, FEDERAL BUREAU 702(g) Certification -

{S9?Pursuant to subsection 7 of the Foreign Intelligence Surveillance Act of 1978, as
amended ("the Act"), and in support of 702(g) Certi?cation -, I af?rm the
following is true and accurate to the best of my knowledge-and belief:

1. The National Security Agency (N SA) has represented to the Federal Bureau of
Investigation (FBI) that, in accordance with the NSA targeting procedures attached

. herewith as Exhibit A NSA ma identi certain electronic communications
that are used by non-United .

States persons reasonably believed to be outside the United States and which are
reasonabl believed to contain forei intelli ence informatio

    

2. The FBI's acquisition of _pursuant to NSA's request is
consistent with Section 702 of the Act because, inter alia: the acquisition will be 
conducted in compliance with the limitations set forth in subsection 702i of the Act; the

ac uisition will involve obtainin foreign intelligence inforniatio
lectronic service providers; and a 

signi?cant purpose of the acquisition is to obtain foreign intelligence information.

3. conducting the acquisition 0? as requested by NSA, the
FBI will use the procedures attached herewith as Exhibit to determine that the -
requested acquisition targets non?United States persons reasonably believed to be located
outside the United States.

4. 43% The FBI will convey an_it acquires. pursuant to the

above-referenced certi?cation to NSA in unminimized form without erforrnin any
further processes or procedures to ensure that the user of the 's a
non?United States person reasonably believed to be located outside'the United States. If

directed NSA the FBI will also convey the? of speci?ed 
#130111 the electronic communication service provider to the Central

  

NYT DOJ, 16 CIV 7020_000257

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

Intelligence Agency (CIA) in unrninimized form without erformin an further I
processes or procedures to?ensure that the user of the? is a non-United
States person reasonabl believed to be located outside the United States. NSA and CIA
shall process an_ received from the FBI in accordance with the
NSA and CIA minimization procedures, respectively, adopted by the Attorney General,

in consultation with the Director of National Intelligence, pursuant to subsection 702(e)
of the Act.

5. he minimization procedures that the FBI will use with respect to any-
it acquires pursuant to the above?referenced certi?cation are attached
herewith as Eirhibit D. These minimization procedures were most recently submitted for
approval to the Foreign Intelligence Surveillance Court (FISC in connection with 
Amendment 1 to 702(g) Certi?cation 2010, and were
most recently approved by the FISC 

 
   
 

010.

 

6. may acquire, pursuant to the above-referenced certi?cation, unminimized
communications as those communications are transmitted. Such unminimized
communications may contain foreign intelligence information relating to the lawful
?mctions and responsibilities of the FBI's ocunterterrorism, counterintelligence, and
national security activities. Accordingly, the FBI may request and receive such
unminimized communications ?om NSA. The FBI will identify to NSA the targeted
selectors for which the FBI seeks the dissemination ofunminimized cemmunicaticns.
The minimization procedures that the FBI will use with respect to anyunminimized
communications it receives from NSA are attached herewith as Exhibit D.

The remainder ofthz's page intentionally left blank 

NYT DOJ, 16 CIV 7020_000258

Approved for public release. All withheld information exempt under em and b(3) except as otherwise noted.
I declare under penalty of perjury that the foregoing is true and correct.

My? 

ROEERT s. LLER, HI
Director, eral Bureau of Investigation

Signed this 2 mday of April 201 1.

NYT DOJ, 16 CIV 7020_000259

 


1 
I

. uA? uuhL. u. .. .n 

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

. 

-



AFFIDAVIT OF THE DIRECTOR OF HE CENTRAL INTELLIJ AGENCY

 

1.4 ?l ii!? 
F?r ETDTZ. {?th3 
Li?? it 211 I

DNIIAG 702(g) Certi?cation -

Pursuant to subsection 702(g) (2) (C) of the Foreign Intelligence Surveillance Act of -

19.78, as amended ("the Act?). and in support of 702(g) Certification- I af? rm
the following is true and accurate to the best of my knowledge and belief: -

1768} As Director of the Central Intelligence Agency (CIA), I am responsible for the collection
of foreign intelligence through human sources and by other appropriate means. These functions
are carried out by and through CIA. The mission of includes the collection, production, and
dissemination of foreign intelligence and countermtelligence including information not
otherwise obtainable. This includes the conduct of clandestine espionage or counterintelligence
activities abroad

2. 13511865151113)- Pursuant to the above-referenced certi?cation, the National Security Agenci (NSA)

and Federal Bureau of Investiiation ii Inai aciuire unminimized communications

 

 

NYT 16 CIV 7020_000260

 

Approved for public release. All withheld information exempt under b(1) and b(3) except as otl'ierwise noted.



 

. 3% I have reviewed the'niinimization procedores attached herewith as Exhibit E. CIA

will follow these minimization procedures with respect to communications acquired pursuant to
the above-referenced certification. -

I declare under penalty of perjury that the foregoing is true and correct.

,4 .
Signed this 6 day of April 2011.

 

  

 



Director, Central Intelligence Agency

 

 

WT DOJ, 16 CW 7020_000261

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

TOPSECRWW
0.8. 

c: 
EXHIBITA 

PROCEDURES USED BY THE NATIONAL SECURITY AGENCY 3? ?1
STATES PERSONS REASONABLY BELIEVED TO ED
OUTSIDE THE UNITED STATES TO ACQUIRE FOREIGN INTEL 5 
INFORMATION PURSUANT TO SECTION 702 OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978, AS AMENDED

94 ed: 20070108

NYT DOJ, 16 CIV 7020_000262

 

Approved for public release. All withheld Information exempt under b(1) and 13(3) except as othenNise noted.



NYT DOJ, 16 CIV 7020_000263

 

Approved for public release. All withheld information exempt under b(1) and b(3) except as othemrise noted.



NYT DOJ, 16 CIV 7020_000264

 

Approved for public release. All withheld information exempt under and 13(3) except as otherwise noted.

WOW

NYT DOJ, 16 CIV 7020_000265

 

Approved for public release. All withheld information exempt under b(1) and M3) except as otherwise noted.

MW

NYT DOJ, 16 CIV 7020_000266

 

Approved for public release. All withheld infon?nation exempt under 13(1) and b(3) except as otherwise noted.



NYT DOJ, 16 CIV 7020_000267

 

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

WW

NYT DOJ, 16 CIV 7020_000268

 

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

NYT DOJ, 16 CIV 7020_000269

 

Approved for public release. All withheld infomation exempt under b(1) and b(3) except as othemise noted.

 

 

NYT DOJ, 16 CIV 7020_000270

Approved for public release.

 

    

EXHIBIT .

MINIMIZATION PROCEDURES USED BY THE NATIONAL SECURINYWEN CKHIH 20
CONNECTION WITH ACQUISITIONS OF FOREIGN INTELLIGENCE
INFORMATION PURSUANT TO SECTION 702 OF THE FOREIGN MEELLIGENCE
SURVEILLANCE ACT OF 1978, AS ANIENDED Ci; .3 3 ii .im

Section 1 - Applicability and Scope (U)

These National Security Agency (N SA) minimization procedures apply to the acquisition,
retention, use, and dissemination of non-publicly available information concerning
unconsenting United States persons that is acquired by targeting non-United States persons-
reasonably believed to be located outside the United States in accordance with section 702 of
the Foreign Intelligence Surveillance of 1978, as amended ("the Act"). (U)

If NSA determines that it must take action in apparent departure ?orn these minimization
procedures to protect against an immediate threat to human life force protection or
hostage situations) and that it is not feasible to obtain a timely modi?cation of these .

procedures, NSA may take such action immediately. NSA will report the action taken to the
Of?ce of the Director of National Intelligence and to the National Security Division .of the
Department of Justice, which will notify the Foreign Intelligence Surveillance
Court of such activity. (U)

or'the purposes of these procedures, the terms "National Security Agency" and 
personne refer to any employees of the National Security A gencyf Central Security Service
or and any other personnel engaged in Signals Intelligence (SIGINT)
Operations authorized'pursuant to section 702 of the Act if such operations are executed
under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA). (U) 

Section De?nitions (U)

In addition to the de?nitions 1n sections 101 and 701 of the Act, the following definitions
will apply to these procedures:

Acquisition means the collection by NSA or the FBI through electronic means of a non-
public communication to which it is not an intended party. (U) 

Communications concerninga United States person include all communications in which
a United States person is discussed or mentioned, except where such communications
reveal only publicly-available information about the person (U)

communications of a United States person include all communications to which a United
States person is a party. (U)

 

NYT DOJ, 16 CIV 70_20_000271 .

1 Approved for' public release. 13(3) except as othenNise noted.

  

Consent is the agreement by a person or organization to permit the NSA to take particular
actions that affect the person or organization. To be effective, consent must be given by 
the affected person or organization with suf?cient knowledge to understand the action
that may be taken and the possible consequences of that action. Consent by an
organization will be deemed valid if given on behalf of the organization by an of?cial or
governing body determined by the General Counsel, NSA, to- have actual or apparent
authority to make such an agreement. (U)

(6) Foreign communication means a communication that has at least one cominunicant
outside of the United States. All other communications, including communications in
which the sender and all intended recipients are reasonably believed to be located in the
United States at the time of acquisition, are domestic 

Identi?cation of a United States person means (1) the name, unique title, or address of a
United States person, or (2) other personal identi?ers of a United States person when
appearing in the context of activities conducted by that person or activities conducted by
others that are related to that person. A reference to a product by brand name, or

manufacturer's name or the use of a name in a descriptive sense, e. g. ., "Monroe 
is not an identi?cation of a United States person. 

Processed or processing means any step necessary to convert a communication into an
intelligible form intended for human inspection. (U)

Publicly-available information means information that a member of the public could
obtain on request, by research in public sources, or by casual observation. (U) 

(11) Technical data base means information retained for traf?c analytic, or
. signal exploitation purposes. 

United States person means a United States person as de?ned in the Act. ?The following
guidelines apply in determining whether a person whose status is unknown IS a United
States person: (U)

(1) A person known to be currently in the United States will be treated as a United States
person unless positively identi?ed as an alien who has not been admitted for 
permanent residence, or unless the nature or circumstances of the person's 
corninunications give rise to a reasonable belief that such person is not a United
States person. (U)

(2) A person known to be currently outside the United States, or whose location is
unknown, will not be treated as a United States person unless such person can be
positively identi?ed as such, or the nature or circumstances of the person's
communications give rise to a reasonable belief that such person is a United States

person (U)



 

NYT Iv DOJ, 16 CIV 7020_000272

Approved for public release. All withheld information exempt under b(1) and except as otherwise noted.

(3) A person known to be an alien admitted for permanent residence leses status as a
United States person if the person leaves the United States and is not in compliance
with 8 U.S.C. 1203 enabling re-entry into the United States. Failure to ?follow the .
statutory procedures provides a reasonable basis to conclude that the alien has
abandoned any intention of maintaining his status as a permanent resident alien. (U)

(4) An unincorporated association whose headquarters or primary of?ce is located
outside the United States is presumed not to be a United States person unless there is
information indicating that a substantial number of its members are citizens of the
United States or aliens lawfully admitted for permanent residence. (U)

Section 3 Acquisition and Processing - General (U)
Acquisition (U)

The acquisition of information by targeting non-United State's persons reasonably believed to
be located outside the United States pursuant to section 702 of the Act will be effected in
accordance with an authorization made by the Attorney General and Director of National

Intelligence pursuant to subsection 702(a) of the Act and will be conducted in a manner
designed, to the greatest extent reasonably feasible, to minimize the acquisition of
information not relevant to the authorized purpose of the acquisition. 

Monitoring, Recording, and Processing (U) -

(1) Personnel will exercise reasonable judgment in determining whether information

acquired must be minimized and will destroy inadvertently acquired communications
of or concerning a United States person at the earliest practic'ablepoint in the

processing cycle at which such communication can be identi?ed either: as clearly not
relevant to the authorized purpose of the acquisition the communication does
not contain foreign intelligence information); or, as not containing evidence of a
crime which may be disseminated under these procedures. Such inadvertently
acquired communications of or concerning a United States person may be retained no 
longer than ?ve years from the expiration date of the certi?cation authorizing the
collection in any event. The communications that may be retained include electronic -
communications acquired because of limitations on NSA's ability to ?lter
communications. 

(2) Communications of or concerning United States persons that may be related to the
authorized purpose of the acquisition may be forwarded to analytic personnel
reaponsible for producing intelligence information ?om the collected data. Such .
communications or information may be retained and disseminated only in accordance
with Sections 4, 5, 6, and 8 of these .

(.3) Maelstisernestber 



NYT DOJ, 16 CIV 7020_0002?73

Approved for public release.

(Zjid?fiyeoinmmcations acquired thi-Bligh the 'targ?etingdf 'a'p?rsoa'n?e'atihe Hare 

. except as otherwise noted.

  

(4) As a communication is reviewed, NSA analyst(s) will determine Whether it is a
domestic or foreign communication to, from, or about a target and is reasonably
believed to contain foreign intelligence information or evidence of a crime. Only
such communications may be processed. All other communications may be retained
or disseminated only in accordance with Sections 5, 6, and 8 of these procedures,



(5) Magnetic tapes in other storage media containing communications acquired pursuant
to section 702 may be scanned by computer to identify and select communications for
analysis. Computer. selection terms used for scanning, such as telephone numbers,
key words or phrases, or other discriminators, will be limited to those selection terms
reasonably likely to return foreign intelligence information. Any United States
person identi?ers used as terms to identify and select communications must be
approved in accordance with NSA procedures. NSA will maintain records of all
United States person identi?ers approved for use as selection terms. The Department
of Justice 3 National Security Division and the Of?ce of the Director of National
Intelligence will conduct oversight of NSA's activities with respect to United States

. persons that are conducted pursuant to this paragraph 

(6) Further processing, retention and dissemination of foreign communications will be
-made in accordance with Sections 4, 6, 7, and 8 as applicable, below. Further
processing, storage and dissemination of inadvertently acquired domestic
communications will be made in accordance with Sections 4, 5, and 8 below. {816819?

Destruction of Raw 

Communications and other information, including that reduced to graphic or "hard copy" 
form such as facsimile, telex, computer data, or equipment emanations, will be reviewed for
retention in accordance with the standards set forth in these procedures. Communications -
and other information, in any form, that do not meet such retention standards and that are
known to contain communications of or concerning United States persons will be destroyed
upon recognition, and may be retained no longer than ?ve years ?romthe expiration date of
the certi?cation authorizing the collection in any event. The communications that may be
retained include electronic communications acquired because of limitations on NSA's ability
to ?lter communications. 

Change in Target's Location or Status 

(1) In the event that NSA determines that a person is reasonably believed to be located
outside the United States and after targeting this person learns that the person is inside
the United States, or if NSA concludes that a person who at the time of targeting was
believed to be a non?United States person is in fact a United States person, the
acquisition from that person will be terminated without delay. 43,4811)

 

targeting was reasonably believed to be. located outside. the United States but is infect

. . 

NYT DOJ, 16 CIV 7020_000274

Approved for public release. . b(3) except as otherwise noted.

 

located inside the United States at the time such communications were acquired, and
any communications acquired by targeting a person who at the time of targeting was

believed to be a non-United States person but was in fact a United States person, will
be treated as domestic communications under these procedures. (8748-1)-

Section 4 - Acquisition and Processing - Attorney-Client Communications (G)

As soon as it becomes apparent that a communication is between a person who is known to
be under criminal indictment 1n the United States and an attorney who represents that
individual 1n the matter under indictment (or someone acting on behalf of the attorney),
monitoring of that communication will cease and the communication will be identi?ed as an
attorney-client communication in a log maintained for that purpose. 'The relevant portion of
the communication containing that conversation will be segregated and the National Security
Division of the Department of Justice will be noti?ed so that appropriate procedures may be
established to protect such communications from review or use in any criminal prosecution,
while preserving foreign intelligence information contained therein. Additionally, all
proposed disseminations of information constituting United States person attorney-client
privileged communications must be reviewed by the NSA Of?ce of General Counsel prior to
dissemination. 

1 Section 5 - Domestic Communications (U)

A communication identi?ed as a domestic communication will be destroyed upon
recomiition unless the DireCtor (or Acting Director) of NSA speci?cally determines, in
writing, that: 65)-

- (1) the communication is reasonably believed to contain signi?cant foreign intelligence
information. Such communication may be provided? to the Federal Bureau of
Investigation (FBI) (including United States person identities) for possible
dissemination by the FBI in accordance with its minimization procedures; (S)

(2) the communication does not contain foreign intelligence information but is
reasonably believed to contain evidence of 'a crime that has been, is being, 'or is about
to be committed. Such communiCation may be disseminated (including United States
person identities) to appropriate Federal law enforcement authorities, in accordance
with 50 U. S. C. 1806(b) and 1825(c), Executive Order No. 12333, and, where 
applicable, the crimes reporting procedures set out in the August 1995 "Memorandum
of Understanding. Reporting of Information Concerning Federal Crimes," or any,
successor document. Such communications may be retained by NSA for a reasonable
period of time, not to exceed six months unless extended in writing by the Attorney

- General, to permit law enforcement agencies to determine whether access to original
recordings of such communications is required for law enforcement purposes; 

(3) the communication IS reasonably behaved to contain techniCal data base information,
as de?ned in Section or information necessary to understand Or assess a
communications security vulnerability. Such commumcation may beprovided to the 

NYT DOJ, 16 CIV 7020_000275

Approved for public release. . b(3) except as otherwise noted.

  

FBI and/or disseminated to other elements of the United States Government. Such
communications may be retained for a period suf?cient to allow a thorough
exploitation and to permit access to data that are, or are reasonably believed likely to
become, relevant to a current or ?iture foreign intelligence requirement. Suf?cient
duration may vary with the nature of the exploitation. {519481)?

a. In the context of a effort, maintenance of techmcal data bases
requires retention Of all communications that are enciphered or reasonably
believed to contain secret meaning, and suf?cient duration may consist of any
period of time during which material is subject tothe caseof communications that are not enciphered or otherwise thought to
contain secret meaning, suf?cient duration is ?ve years ?'om the expiration date
of the certi?cation authorizing the collection unless the Signal Intelligence
Director, NSA, determines in writing that retention for a longer period is required
to respond to authorized foreign intelligence or counterintelligence requirements;

orfS?S?-

(4) the communication contains information pertaining to a threat of serious harm to life

or preperty. f5)

Notwithstanding the above, if a domestic communication indicates that a target has entered
the United States, NSA may advise the FBI of that fact. Mereover, technical data regarding
domestic communications may be retained and provided to the FBI and CIA for collection

avoidance purposes. {Sits-B'?

Section 6 Foreign Communications of or Concerning United States'Persons (U) 
Retention (U)

Foreign communications of or concerning United Statespersons collected in the course of an
acquisition authorized under section 702 of the Act may be retained only:

(1) if necessary for the maintenance of technical data bases. Retention for this purpose is
permitted for a period suf?cient to allow a thorough exploitation and to permit access
to data that are, or are reasonably. believed likely to become, relevant to a current or
future foreign intelligence requirement. Suf?cient duration may vary with the nature
of the exploitation.

a. In the context of a e?ort, maintenance of technical data bases
- requires retention of all communications-that are enciphered or reasonably
believed to contain secret meaning, and suf?cient duration may consist of any
period of time during which material IS subject to, or of use in,



NYT DOJ, 16 CIV 7020_000276

Approved for public release. Wfpw??rgwh uds? er l?gb?nd b(3) except as otherwise noted.-

b. In the case of communications that are not enciphered or otherwise thought to
contain secret meaning, suf?cient duration is ?ve years from the expiration date
of the certi?cation authorizing the collection unless the Signals Intelligence
Director, NSA, determines in writing that retenticin for a longer period is required
to respond to authorized foreign intelligence or counterintelligence requirements;

(2) if dissemination of such communications with reference to such United State's persons
would be permitted under subsection below; or

(3) if the information is evidence of a crime that has been, is being, or is about to be .
committed and 1s provided to appropriate federal law enforcement authorities. (SIER-

Dissemination (U)

A report based on communications of or concerning a United States person may be
disseminated in accordance with Section 7 or 8 if the identity of the United States person is
deleted and a generic term or symbol is substituted so that the information cannot reasonably
be connected udth'an identi?able United States person. Otherwise, dissemination of 
intelligence reports based on communications of or concerning a United States person may
only be made to a recipient requiring the identity of such person for the performance of
of?cial duties but only if atleast one of the following criteria is also met:

(1) the United States person has consented to dissemination or the mformation of or
concerning the United States person is available publicly; -

(2) the identity of the United States person is necessary to understand foreign intelligence
information or assess its importance, e. the identity of a senior of?cial in the
Executive Branch;

(3) the communication or information indicates that the United States person may be:
a. an agent of a foreign power;
b. a'foreign power as de?ned in Section 101(a) of the Act;

e. residing outside the. United States and holding an of?cial position in the
government or-military forces of a foreign power;

d. a corporation or other entity that IS owned or controlled directly or indirectly by a
foreign power, or .

e. acting in collaboration with an intelligence or security service of a foreign power
and the United States person has, or has had, access to classi?ed national. security
. information or material;

NYT DOJ, 16 CIV 7020_000277

Approved for public release.

 

(4) the communication or information indicates that the United States person may be the
target of intelligence activities of a foreign power; -

(5) the communieation or information indicates that the United States person is engaged
in the unauthorized disclosure of classi?ed national security information or the
United States person's identity is necessary to understand or assess a communications
security vulnerability, but only after the agency that originated the information
certi?es that it is properly classi?ed; .

(6) the communication or information indicates that the United States person may be
engaging in international terrorist activities; .

(7) the acquisition of the United States person' communication was authorized by a
court order issued pursuant to the Act and the communication may relate to the
foreign intelligence purpose of the surveillance; or

(8) the communication or information 1s reasOnably believed to contain evidence that a
crime has been, is being, or is about to be committed, provided that dissemination IS
for law enforcement purposes and 15 made 1n accordance with 50 U. S. C. 1806(b)
- and 1825(c), Executive Order No. 12333, and, where applicable, the crimes reporting
procedures set out in the August 1995 "Memorandum of Understanding: Reporting of
Information Concerning Federal Crimes," or any successor document. (U)

Provision of Unminimized Communications to CIA and FBI 

(1) NSA may provide to the Central IntelligencelAgency (CIA) unminimized
communica?ons acquired pursuant resection 702 of the Act. CIA will
identify to NSA targets for which NSA may provide unminimized
communications to CIA. CIA will process any such unminimized 
communications received ?om NSA in accordance with CIA minimization
procedures adopted by the Attorney General, in consultation with the Director
of National Intelligence, pursuant to subsection 702(e) of the Act. 

(2) NSA may provide to the FBI unminimized communications acquired pursuant to-
section 702 of the Act. The FBI will identify to NSA targets for which NSA may.
provide unminimized communications to the FBI. The FBI will process any such
unminimiZed communicaticns received from NSA in accordance with FBI
minimization procedures adopted by the Attorney General, in consultation With the
Director of National Intelligence, pursuant to subsection 702(e) of the Act. 

Section 7- Other Foreign Communications (U)

Foreign communications of or concerning a non-United States person may be retained, used,
and disseminated In _any_ form 1n accordance other applicable law, re gulatmn and _po_li_cy._



NYT 00.1, 16 ON 7020_000278

Approved for public release. . at under b(3) except as othemise noted.

 

Section 8 - Collaboration with Foreign Governments {574513-

Procedures for the dissemination of evaluated and minimized information. Pursuant to

1 Section of Executive Order No. 12333, as amended, NSA conducts foreign
liaison relationships with certain foreign governinents. Information acquired
pursuant to section 702 of the Act may be disseminated to a foreign government. Except
as provided in subsection 8(b) of these procedures, any dissemination to a foreign 
government of information of or concerning a United States person that is acquired
pursuant to section 702 may only be done in a manner consistent with subsections 6(h)
and 7 of these minimization procedures. 

Procedures-for technical or linguistic assistance. It is anticipated that NSA may obtain
information or communications that, because of their technical or linguistic content, may
require further analysis by foreign governments to assist NSA in determining their .
meaning or' signi?cance. Notwithstanding other provisions of these minimization

procedures, NSA may disseminate computer disks, tape recordings, transcripts, or other
information or items containing unminimized information or communications acquired .
pursuant to section 702 to foreign governments for further processing and analysis, under
the following restrictions with respect to any materials so disseminated: 65-)

(1) Dissemination to foreign governments will be solely for translation or analysis
of such information or communications, and assisting foreign governments
will make no use of any information or any communication of or concerning
any person except to provide technical and linguistic assistance to NSA. 

(2) Dissemination will be only to those personnel within foreign governments
involved in the translation or analysis of such information or communications.
The number of such personnel will be restricted to the extentfeasible. There

will be no dissemination within foreign governments of this unminimized data.

is)

Foreign governmentswill make no permanent agency record of information or
communications of or concerning any person referred to or recorded on
computer disks, tape recordings, transcripts, of other items disseminated by
NSA to foreign governments, provided that foreign governments may 

maintain suchtemporary records as are necessary to enable them to assist
NSA with the translation or analysis of such information. Records maintained
by foreign governments for this purpose may not bedisseminated within the
foreign governments, except to personnel in providing technical or
linguistic assistance to NSA. 

(4) Upon the conclusion of such technical or linguistic assistance to NSA,
computer disks, tape recordings, transcripts, or other items or information
disseminated to foreign governments 

assasysa?ainmseamen?argues destruction made 

.

NYT DOJ, 16 CIV 7020_000279

Approved for public release.

  

. .. b(3) except as otherwise noted.

(5) Any information that foreign governments provide to NSA as a result of such
technical or linguisticassistance may be disseminated by NSA in accordance
with these minimization procedures. 

    


Date Eric H. Holder, Jr. 
. Attorney General of the United tes
.. 10 . 

NYT DOJ, 16 CIV 7020_000280

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

i EH 233'

as:

 

:T?trzauipazoRimpgg-
PROCEDURES USED BY THE FEDERAL BUREAU OF INVESTIGATION 0 .
TARGETING STATES PERSONS REASONABLY BMWD $01313 :4 . 

LOCATED OUTSIDE THE UNITED STATES TO ACQUIRE FOREQAJ 1.44: if?" .

INTELLIGENCE INFORMATION PURSUANT TO SECTION 702 OF THE 
INTELLIGENCE SURVEILLANCE ACT OE1973, AS AMENDED

#68} These procedures address: (I) the process the Federal-Bureau of Investi ation FBI) will use
in acquiring foreign intelligence information, by targeting
electronic communications accounts/addresses/identi?ers designated by the National Security
Agency (N SA) as being used by non-United States persons reasonably
believed to be located outside the United States, (11) the FBI's documentation of that process, and 
compliance and oversight. - 

 

I. (U) DETERMINATION OF WHETHER A PERSON IS REASONABLY BELIEVED TO
BE LOCATED OUTSIDE THE UNITED STATES AND NOT A UNITED STATES
PERSON - 

   

1..
NSA will follow its targeting procedures, adopted by the Attorney General, in
consultation with the Director of National Intelli ence ursuant to subsection 702(d) of
the Act, for determining that the user of the? is a person reasOnably
believed to be lecated outside the United States andis not a United States person. NSA. -
will also be responsible fer determining that a signi?cant purpose Of the acquisition is to
obtain foreign intelligence information. -

 
   

NSA will rovide the FBI with identi

  
    

to ether with an
explanation of NSA's conclusion that the user of the 
reasonably believed tO'be located outside the United States and its determination 
regarding the non?United States erson status of the user. NSA will also represent that a
signi?cant purpose '0 'is to Obtain foreign 
intelligence information and that the purpose of such acquisition is not to intentionally
target a particular, known person reasonably believed to be in the United States.

 

3. FBI, in with NSA, Will review and evaluate the suf?cienc Of: 
eXplanation for its reasonable belief that the user Of the ?is
located outside of the United States; and information provided by NSA concerning -

- the _user's non-United States person status. 

 
  
  

'Reas'onf 
Declas 
SEC,

NYT DOJ, 16 CIV 

Approved for public release. . - All withheld information exempt under b(1) and b(3) exoept as othenlvise noted.

is a United States erson or is located inside of the United States, the FBI will

 

NYT DOJ, 16 CIV 7020_000282

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

- WW

Approved for public release. I

 

All such communications retained by the FBI will be

processed in accordance With FBI minimization procedures adopted by the Attorney
General, in consultation with the Director of National Intelligence, pursuant to subsection

702(6) of the Act.

7.. If NSA analysis 0 -
indicates that a user of a om which

ursuant to these procedures is actuall located the
United States or is a United States erson NSA Will rem t1

8. 483? Ifthe FBI is not
a re riate for tasking under section 702 because the user of th

is a United States person and/or is located inside of the United States), the FBI
will inform NSA and the FBI will no of the

_u.ntil the FBI determines that the is in fact

appropriate for tasking under section 702

  
  
 

9. .4 In addition the FBI- will take a o-roriate action which ma include th-

 

NYT DOJ, 16 CIV 7020_000283

Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted.
. .
H. (U) DOCUMENTATION

10483? The FBI will ensure the retention of information it receives from NSA concerning
the non-United States person status of the user oft the factual
basis for determination that the user ofthe is reasonably
believed to be located outside the United States in accordance with the National Archives
and Records Administration (NARA) and, as apprOpriate, the FBI's Records Management
Division and/or Security Division standards, policies, and guidelines. -

1?

(U) OVERSIGHT

12-63) The FBI will develop and deliver trainin re ardin the a licable rocedures to
ensure that all ersonnel re5ponsible for
under these procedures understand their responsibilities with res ect to
The FBI has established recesses for determining whic

  
 

 
 
 

   

ensuring that and the related 6 accessible
only to those who are authorized and have had the proper training.

13% FBI Inspection Division will conduct oversight of the FBI's exercise of these
procedures. This oversight will include periodic reviews by FBI Inspection Division
personnel to evaluate the implementation of the procedures and the training given to
relevant personnel. Such reviews will occur at least once every quarter.

14. f5) The DOJ and ODNI will conduct oversight of the FBI's exercise of the authority 
under section 702 of the Act, which will include periodic reviews by DOJ and ODNI-
personnel to evaluate the implementation of these procedures. Such reviews Will occur at
least once every sixty days,

15:69- The FBI will report to DOJ through the Deputy Assistant Attorney General in the
National Security Division with responsibility for intelligence operations and oversight,
to the ODNI Of?ce of General CounSel, and to the ODNI Civil Liberties Protection

Of?cer any incidents of noncompliance with these procedures by FBI personnel Within
?ve business days of learning of the incident.

   

- -- -- Date - -- -??Erie- Holder, 
Attorney General of the United u.

. NYT DOJ, 16 CIV 7020_000284

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


ii? Hi 
li?i i FLI 
3? "1




mil '73

set:
EXHIBIT 

MINIMIZATION PROCEDURES USED BY THE FEDERAL ZQWAQII 3 Hi
INVESTIGATION IN CONNECTION WITH ACQUISITIONS gg?l?l i343]
INTELLIGENCE INFORMATION PURSUANT TO SECTION 702 LF EN

INTELLIGENCE SURVEILLANCE ACT OF 1978, AS AMENDED-

These Federal Bureau of Investigation (FBI) minimization procedures apply to the
acquisition, retention, use, and dissemination of non-publicly available information concerning
unconsenting United States persons that is acquired by targeting non-United States persons
reasonably believed to be located outside the United States pursuant to section 702 of the
Foreign Intelligence Surveillance Act of 1978, as amended ("the Act"). (U)

With respect to any unminirnized communications acquired pursuant to section 702 of the
Act, the FBI will apply its standard minimization procedures as described in the Stande
Minimization Procedures for FM Electronic Surveillance and Physical Search Conducted Under
the Foreign Intelligence Surveillance Act (adopted October 21, 2008) ("Standard Minimization
Procedures"), with the following modi?cations: I

a.

References to "information acquired pursuant to and "PISA-acquired
information" will be understood to also include communications acquired
pursuant to section 702 of the Act. (U)

    

risi-

References to "target" will be understood to refer to the user(s) of a targeted
selector, account, or? 

Section ILA ("Acquisition Electronic Surveillance") will not apply. (U)

Subparagraphs 1 through 5 of Section ILB ("Acquisition Physical Search, including
of Electronic Data") will be replaced in their entireties by the following

subparagraphs: 

l. The FBI may acquire_ pursuant to section 702 of the Act
only in accordance with FBI targeting procedures that have been adopted by the
Attorney General, in consultation with the Director of National Intelligence,
pursuant to section 702(d) of the 

2. Any acquired through the targeting of a person who at the time of

- bea-non-?United-States-person 

   
  

Derived

outside the Uni-ted States but is in fact located inside the United States at the time

tiple Sources
. 21, 2034

NYT DOJ, 16 CIV 7020_000285

Approved for public release. All withheld information exempt under and b(3) except as otherwise noted.



such is acquired or is subsequently determined to be a United
States person will be removed from FBI systems upon recognition, unless the
Director or Deputy Director of the FBI Speci?cally determines in writing that
such communication is reasonably believed to contain signi?cant foreign
intelligence information, evidence of a crime that has been, is being, or is about to
be committed, or information retained for traf?c analytic, or signal
exploitation purposes. Notwithstanding the above, if any such conununications
indicate that a person targeted under section 702 has entered the United States,
nothing in these procedures shall prevent the FBI from retaining and providing to
the National Security Agency (N SA) and Central Intelligence Agency (CIA)
technical information derived from such communication for collection avoidance

purposes. 

3. As soon as FBI personnel recognize that an acquisition of a communication under
section 702 of this Act is inconsistent with any of the limitations set forth in
section the FBI will purge the communication and destroy all other
cepies of that communication that are accessible to any end user electronically or
in hard copy. Any electronic copies of the communication that are not available
to any end user but are available to a systems administrator as an archival back-up
will be restricted and destroyed in accordance with normal business practices and
will not be made available to any other person except as permitted by the F180.
In the event FBI archival back up data is used to restore an electronic and data
storage system, the FBI will ensure that the previously deleted communication
will not be accessible to any user and will be deleted from any stored system. (83?

f. Paragraph 4 of Section will be replaced in its entirety with the following:
Required training on the Standard Mnimization Procedures and the policies

regarding access to raw PISA-acquired information before granting access to raw
PISA?acquired information. 

 

Subsection 702(b) provides that authorization authorized under subsection --

(1) may not intentionally target any person known at the time of the acquisition to be located in the United
States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the
purpose of such acquisition is to target a particular, known person reasonably believed to be located in the
United States; .
(3) may not intentionally target a United States person reasonably believed to be located outside the Unite
States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are
""??1oTovvn?at?the 'United'States; and - - --
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United
State's." (LINYT DOJ, 16 CIV 7020;000286

Approved for public release. All withheld information exempt under and b(3) except as otherwise noted.

11.

l.



The following will be added as Paragraph 6 to Section 

With respect to information-acquired pursuant to section 702 of the Act, only those
FBI personnel who have received training on the application of these "Minimization
Procedures Used by the Federal Bureau of Investigation in Connection with
Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the
Foreign Intelligence Surveillance Act of 1978, as Amended" may be designated as

case coordinators. All FBI personnel having access to information acquired pursuant

to section 702 of the Act will be informed of and provided access to these
minimization procedures. fS?-

Section ("Categories of Non-Pertinent and Sensitive Information") will not

applr +53-

111 Section ("Retention of Attorney?Client Communications"), the second
sentence of the preamble "In certain cases, however, the Government may
propose and/or the FISC may order the use of supplemental procedures") shall not
apply. Furthermore, all remaining references to the FISC in this section shall be
replaced by DOJ-NSD. 

The time limits described in Section ("Time Limits for Retention") as applied to
communications acquired pursuant to section 702 of the Act will be measured from

.. the expiration date of the certi?cation authorizing the collection. 

Section IV.E (?Dissemination Under_") will be replaced in its

entirety with the following paragraph: (-39-

With respect to any communications that the FBI acquires from an electronic
communication service provider pursuant to Section 702 of the Act, the FBI may
convey such communications to the NSA and CIA in unminimized form. The
NSA and CIA shall process any received from the FBI
pursuant to these procedures in accordance with the NSA and CIA minimization
procedures, re5pectively, adopted by the Attorney General, in consultation with

the Director of National Intelligence, pursuant to subsection 702(e) of the Act. 

 

Section V.C ("Minimization Brie?ngs") will not 

yeti-e? in

Date

Eric H. Holder, Jr.
Attorney General of the Unit States

 

NYT DOJ, 16 CIV 7020_000287

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



STANDARD PROCEDURES FOR FBI ELECTRONIC
SURVEILLANCE AND PHYSICALSEAECH CONDUCTED
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (U)

EFFECTIVE: Navember 1.332008

 
    

Classi?ed by: 5 ttemey General
Reason: . -
DecI?assify 0111

NYT DOJ, 16 CIV 7020_000288

Approved for public release. All withheld information exempt under and b(3) except as othemise noted.

TABLE OF CONTENT-S

GENERALPROVISIONS (U) 

H. ACQUISITION . . 4

A. AcqlliSi?OIl SLlW?ill?flce (U) 4

B. . 5

1. Personnel Authorized 'to Conduct Physical Search (U) . 5

2. Con?ucting Physical Search 5'
3-. Areas ofsearoh (U) . .

- b. Mariner ofseat'ch (U) H.

1
1. 

Tgmporar'y Renloxfal nu





Destructive Testing (United States. ..

.3. Physical Search hwolvigrg Mail or Private Couriers (U)

4
1'



u.
u.


4. Record of Information ?Collected 1'11 Physioal SearCh (U)
5. Rbpolt (U) 3

C. Acquisition~II?Id Parties (will?

RETENTION CU) 

A. Retention Storage of PISA-acquitted 9.
B. Retention Access to PISA?acquired Information. 10
C. Retention Review-and Use of PISA?acquired Information (U) - - l2
1. General Provisions (11) 7 . . 1'2
2. Third?Pan)! Information (U). . i3

3 . .Cgtogoljosof. 

. .- 

SEW .

Hm

NYT DOJ, 16 CIV 7020_000289

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

SEERE-F

 

E. Retention ofAttomey-ClientCommunications 

1. Target ohal?ged with a crime pursuant to the United States Code 17

2. Target charged with a non?Federal crime in the United States and peje?ons-
other than a tanget charged with a Crime in the UnitedStetes (U) 19

3. Privileged celnmul?cations involvingtargete and other persons
not charged with a saline 'inth United States 2]

F. Additional Ptooedm'es for Retention, Use and Disclosure. of FISA
Information {722

G, Time Limits for Retention (U) 2-5

 

IV. DISSEMNATION 27

A. Dissemination of'Foreigu inte?i'geneehtfornta?on to

Federal, State, Laeal and Tribal Of?cials and Agencies (U) 27'

1. Foreign Intelligence Information-as defmed in 56 (U) 27,

2.. Foreign Intelligence Infoxmation-as de?ned in 50 USE. 180-] (133(2) (U) 28.?

B. Diss'em?inatic?m ovaide?nee of a Crime?to Federal,
State, Local andTri'baI Of?cials 

NYT DOJ, 16 CIV 7020_000290

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



C. Dissemim?on of Foreign Intelligence Information Concerning
United States to Foreign Governments (U329

 

COMPLIANCE (U) 33
A. OVBFSigl-lt 33
B1. Training 

Ca Millimization B?e?llgs 35

VI. Interpretation .35

VII. Review ofProoedulee (U) 3.6

NYT DOJ, 16 CIV 7020_000291

 

Approved for public release. All withheld information exempt under b(1) and except as otherwise noted.

- 

1. GENERAL PROVISIONS (U)

A. In accordance with 50 .1801 (11) ?and these procedures govern the
acquisition, retention, and dissemination Ofnonpubli'ely atrailable informationconcerning; .
Uncensenting United States persons that the Fedi'eral .Blu'e'au of hivestig'ation (FBI) Obtains
_,pursuant to orders issued by the Foreign Intelligence Surveillance Court or entesgenoy
authorizations by the Attorney General under the Bitei'liigenoe- Surveillance Aet of I978:
as amended (FISA), 5.0 1.1.850. 1801-1811 and 1821?1829; For the putpose of these
procedures, the term "iagpl?lcable PISA authority? refers to both IS Csordered and Attorney
General authorized electronic surveillance or physical search conducted in ?a particular ease
panuant to PISA. The Attorney General has adopted these procedures zit-ter- concluding .thatLtliey
meet the requirements of?S? U.S.C.- 1801013 and 1821(4) became they areispeciite procedures
that are ?reasonably designed in light of the purpose and technique. oft'he particular- ?suweilianoe
0r physical search ?to minimize the acquisition and retention,- and prohibit the dissemination, of'
nonpublioly- availabie concerningtinoons?enting United States persons consistent
with the need of tlie'UIlited States to obtain, produce, and disseminate 
information and otherwise oomport with the statutory de?nition In
accordance-with 50 the Director of National Intelligence (ENE-has .
provided assistance to the Attorney General with resneot to the diasei?nination wooed?tires Sei
forth herein so that BSA-acquired infomiation may be used ef?ciently and. effeo?yely'for

foreign intelligence purposes. CU)

 

NYT DOJ, 16 CIV 7020_000292

Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted.



B. ?Pursuant to 50 U.S..C. 1806(3) and 1825(21), no information acquired? pursuant-toEISA
may he used ctr-disclosed by Federal of?cers or employees except for lawful 1311330365..
Itiformatidn acquh'ed .?fom electroizje surveillance or physical search conducted under'FISA?
concerning; United States persons may be used and disclosed by Federal of?cers and employees

withdut the (10113th of ?te'United States persons only in aeodrda?de with these minimiz?atibn

.pmcedtires ands-any Modi?ed. or supplemental minimization Iproeedu'ree?that 1ndyepp?ly. These

procedures do 1101: apply to publicly information con?oemin'g Ut?ted States persene, 1191*

do they apply to infoniiation that is apquii'ed, retained; or disseminated with a United States

1 


53

t3}

8

r3
334

These procedures adept the definitions: Set forth in 50 U.S.C.- 180.11! .i'iidluding those for

the terms ?foreign intelligence informaticm? and ?United States 

 





NYT DOJ, 16 CIV 7020_000293

. 



I




I
I
I

I

I


Approved for public release. All withheld information exempt under b(1) and 13(3) except as otherwise noted.



D. If FBI personnel, which, for the p111'poees of"?1ese precedures; includes all contractors and:
others all?mr'ized to work under the direction and oontnol of-the- FBI related-matters,
encounter a situation that they believe. reguires- them to act inconsistemly Wi?i'thesfe procedures
in onder to. protect the national security.? of the United States, enforce theoriminal law, or protect
life or property from serious harm, those-personnel inunediatGIY-ehould contact FBI
Headquarters and the Of?ce of Intelligence of the 'IVle?tional.l??uecuritjgr Division: of the Depaimient'
efjus.1ice (NSD) "to req?est that mew-procedures bemodi?ed. The United: States mayebraih
modi?cations to these :proeedm?es. with the approval of the Attorney General and a detem?nation
by the that the modi?ed procedures meet 'the?de?nit-ion of minimization pitoeed?l'e??a?i?der
sections 1-3-01an audxor or PISA. (U)

E. If, inorder to protect, against an immediate threat to. human life, the FBI determines that it
mus-t take action in apparent departure ?'om these proCedur'es and that lit tenet feasible to obt?ai-ne
thlrely-niodi?eation of these'proeedm'es item the FISC, the FBl'shall repaid-that. tastier-it}?
to the NSD, which shall notify the F180 of? such aoti?vity. (2U)

F. No?ring- in these procedures shall restrict the performanoe of lawful oversight.

functions-of its personnel.- (U)

 

NYT DOJ, 16 CIV 7020_000294

 

Approved for public release. All withheld Information exempt under b(1) and b(3) except as otherwise noted.



II. an

A. Acquisition - Electronic Surveillance. (U)

1. Prior to initiating electrmiie surveillance, the FBI shall verify that the facility 01'
place at which it will direct surveillance lathe-facility or place speci?ed in the applicable FISA
authority. The FBI is under a continuing obligation to verify that: the-autho?-zed target of the
surveillance uses?or is about to use the facility or place at directed,
during the authorized period of suweillanee. The FBI shall terminate eleotuoni-e surveillance of a.
facility tit-place as Soon as it determines that the authorized target of the electronic autve?lance
no longer uses, nor is about to use,1.he facility or place? and shall notify the'NSD: of
.suol1termination, (U)

2. mien conducting electronic surveillance of a fa'oil'ity- (11? place pursuant to1:11'e'
applicableF'I-SA autho?ty, the. FBI may acquire, 115..ng the means and?to the extent approvetlby
the court or authorized by the Attorney General for that facility?or place? all information, or
communications transmitted to or from the facility or plate; (15) all oonununications that occut! at
such facility or phat-31o) all visual, aural, and other that the 
surveillance deviee(s) can aequii'e at Snell facility or place; and all information,
communications, 01?- other? ?ata processed at sueh facility- or?plaee by. oomputers- or-othf'ir.
equipment present at the facility or place. To the extent consistent with the electronic
surveillance approved By the Court or authe?zed hy-t?he Attomey- Genera1,_tlie FBI may; at?its
discreti on, automatically record" all iufmmation,? Communications and data thatitacquires, and

a_15_<2_141_ay_conduct 

NYT DOJ, 16 CIV 7020_000295

Approved for public release. All withheld infon'nation exempt under b(1) and b(3) except as othem'ise noted.



3. NoiWiths'tanding Section the FBI shall, to'the' extent reasonably feasihle:
use means of surveillance that ave designed to limit the acquisition of itohp'ubli-oly available.

information or cmlununiCatio'ns. of or concerning unconsentiug UnitedStates persons that are not

foreign intelligence information i?elatitlg'fo a tar-get of the surveillance; and place surreillance

devices in locations within. a facility or place at which sowei'llanoeis directed 

are likely to acquire foreign intelligence information relating to. a target: of the stoveillaaee. ~653- II

3.. Acquisition plasma Swat?la

1. Persoime'l Authorized to Conduct Ph sical. Search. (U)

 

Physical search shall be conducted only by: (i).appropriiate13 authorized and-trained
personnel of the FBI1 not including cohtraetors; 

?l
5.0 Use. other
persons, assist in the physical search.- as speci?ed in
the applicable PISA authority. {35-

2. Conducting 13113:. sical Search. (U)

Prior to initiating physical search, the FBI shall verify that'the pi-en?sea or property'at
which it will conduct physical search is the premises 01' proper?tysp?oei?ed 11.11116. applicable FIB-A
authority; The FBI shall conduct physical search with the minimum intrusion. node-sear); to
acquire the foreign intelligame-information soiight. Petislotmel conducting p?hysiCal search-3112111

theiinfommliongPlat-?lial 01' 1319133??

5-

NYT DOJ, 16 CIV 7020_000296

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



revealed through the search reasonably appears to be. foreign intelligence information relating to

a target of the search or evidence of a Crime. The FBI shall conduct the Search in seem-dance- 

with the applicable PISA authority. (U) 
a. Areas of search. For physical search of?premiSes or 

conducting any-necessary- p'roteetiVe sweep, the FBI shall, where reasonably feas?ib?lehlimit

search areas to lecat?ions withinpren?ses or. property where the. FBI reasonably ?expedte that; (33

foreign intelligence information may- be Stored or concealed by the tanget; or. (ii) foreign
intelligence related to the target or the activities of the target maybe found. (U)

h. Manner of Search. The FBI may 
methods most- suitable fer acquiring the foreign. intelligenee?i'nfonnation sought in light 'Df?le;
particular of the -.seareh. White conducting a physiCal search of 
FBI may acquire all information, or data gelating to the target in aceead'a'nee
with the applicable PISA authority. Methods used to eond'tie?t physicalseareh may ineludee:
inspection; examination; reproduction; temporary removahgnarking for identi?eati on; testing;
alteration; Substitution; or Seizure of htformat'iotn material, or propelty. (1.1)

i.

 

NYT DOJ, 16 CIV 7020_000297

 

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

ii. Temperatv Rommel. The FBI may temporarily remove
information, material, orqaroperty for teehn?ical, scienti?c,_ or other
reasonably necessary examination, and for any other purpose

approved by the Court. 



lit. Destructive Testing. The FBI 111213! conduct testingof
material discoveredjgt only when such testingts
provided fer-in the applicable. PISA authority 301? in east: of
emergency when leasonab'ly necessary to protect against
immediate threat to publio.sefety.. (U)

0. United States Person Information; Material, 'or Property. may
intentionally alter, substitute,- or 313126 i?I??onnati-ons material, or preperty belonging to aUhit?ed
States person 011] wl-Ien reasonably. necessary to prevent serious? ?ll ?1.st 1083 Q?ff?, 91?nt-
damage to property, or damage to the-national seem'tt-y-of'the United States. 

Sentence does not preolude the alteration or'et'tbs?tution of material or property that tempo-sear}:

to effect a physical search of electronic data in aeCord'anoe with the applicable PIS-A autlion?ty.

NYT DOJ, 16 CIV 7020_000298

Approved for public release. All withheld information exempt under b(1) and b(3) except as othenNise noted.

- ear
4. Record of Infomnation Collected in Physical Search. (U) I
The F131 shall keep records identifying all itifomretion, material, or'property acquired
during a physical search. (U)
Re}; out of ths?ical Search. (U)
Within seireri business days following the execution of a physical Search, oi"- receiving

notice: that .a search has been executed, and for-which ordered that a Search retm'n Be

.

?led, the FBI shall notify the NED of the date the sears]: took place. The preceding reguireme?t

shall not apply to physical searches of electronic data. {83'

0-. Acquisition - Third Parties. (U)

?Third?party information? is: nonpublic-?y available meant-touting an
ltnoonsentingl'United States person who is no?t'tlie authorized tasget of the pattic?ler PISA
collection, or the in arterial er property of a United States person who is not the authorized
target of the particular Tim'd?pai'ty'information may includethe:
'or property of family members, coworkers or others, who sreno't the targets of:
the collection, but who share facilities, premises or property with the target: Thitdrpaity

intent} atioti not include any ihfolm'at'ion contained in a eonmmnioation to Which tlietsrget

 

NYT DOJ, 16 CIV 7020_000299

Approved for public release. . All withheld information exempt under em and b(3) except as otherwise noted.



is a party. The FBI shall limit, to the extent reasonably feasible, its acquisition of 

information dining the course of electronic surveillance or physical Search. The foregoitig?does

not preclude the acquisition of all information,__ communications,, or data telatiug to. the target'in
accordance with the applicable PISA authority where necessary to effect electronic surveillance

or physical Search of electronic datav??j?

RETENTION (U)
Retention Storage of FISAeacqu'ired Information. 

The FBI must retain all PISA-acquired information nudef?approprjately se?corecoudi?ons
that limit access to. such information only to authorized users in accordance- and?t?lter
applicable FBI procedures. These retention procedures apply to htfojrniationl
reta-ined in any form. FBI electronic and data storage systems may permit multi?le- authorized
users to access the'informetion simultaneously 'or sequentially and to share FIZSAJ-acquil'ed
information between "?FISA-acguired informatioif" means allilrformatipn;
property- that the FBI acquires. surveillance; Or
physical search conducted pursuant to; BSA. (U)

?Raw FISAiacquired. information? is EBA-acquired inform atien that-(e) is; in the 'Sam?e'or'
substantially as when the FBI acquired it, or has been processed only as-
neoessa?ry to render. it into a form in whiclrit can be evaluated-to determine whether it reasonably
appears to be foreign intelligence information, to be necessary to understand foreign intelligoitCB
information or to assessits importance, or to? be evidenceofa crime, Illusttetiverexemples of

remit-IS A?gquireoiufornlation include audio recoz?iegagi F,

 



NYT DOJ, 16 CIV 7020_000300

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

(including copies thereof); soft echo-rd copies of e-mails and other Eternal: conmunications or.
data; digital images, negatives, or prints of photographs of documents obtained during a-pliy'sical
search; electronic storage media (including computer harddrives' and removable storage media);
verbatim translations of'doeuments or communication-s; and intercepted communications that
hate been processed into- the fOi?t?t?t? elf-"tech cuts? but have not been evaluated. to detenmhte
whether the tech outs reasonably appear? to be 'fOreigli intelligence information, 'to to
understand foreign ?ttelligenoc information or to assess its importance, or to'he'evidetice of a

crime. 

Bt Retention - Access to .FISA-aoquired Information. (U)

The FBI may grant access to PISA-acquired information to all authorized-personnel in
accordance: with policies established by the Director, FBI, in consultation with the Atto'rt-IBY
Generel?or a designee. The FBI's policies regarding access will vary according to, whether. a
particular- storage system contains raw ISA?acquired informatiom will be consistent with the.
foreignititeliigence information- gathering and infortnationrsharing responsibilitiES, and
shall include provisions:

1, Pe1?mitting access to BSA?acquired information only lay-individuals who recit?tte'

access in order to perform their job duties or assist in; a lawful and authorized 

?tnoticin;
2. Requiring the to maintain seettrate records of all persons to whom it'ha?s
granted access;

10.. .2.

NYT DOJ, 16 CIV 7020_000301

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



Requiring. the FBI to maintain seem-ate retards of all persons who haveaecessed

t?aw PISA?acquired information, and to, audit its access records regularly to enSur-e the]; raw

FISAvaequired infonnation is only accessed by authorized individuals?
_5

4. R?equiriug; training on these mihimizat'ion procedures. and the policies;
regarding access to raw FISAracqu'ired i11fol?1imaitioti before ggauting a?ceess to raw FISA?saeqpired
information; and

5-. Requiring the primary ease ?agent(s) and his/her/their desighees (hereinafter ?case
so to control the marking of information in-a particular case i 11 accordance With
B1 policy; A marking, for example, would include an indication that the information-ifs .or is not
fdre?ign ?83?

The FBI shall providesuch policies; to the Court when these proeedures go into-effect.
There'a?eig the FBI shall proyide any new polleies or materigll-y?modi?ed polieies to :the'Ceurt-
?e

The FBI may niake raw PISA-acquired infomtafi'on'available to autherizedpersennel :en

a coittinuin'g basisfer'review, translation, analysis, and use 111 admit-dance With'these proeeddres.

Authprized pemozmel ma?

NYT DOJ, 16 CIV 7020_000302

Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted. i



C. Retention Review and Use ofFISA~acquired Information. (U)

1. General Provisions, (U)

FBI persomtel with authorized access to raw I SAuacqnii-ed information may-review,
translate, analyze, and 'use- all such information only in accordance with these procedures and.
FISA and only-for the purpose. of determining whether it reasonably appears-tribe. foreign-
intelligence' information, ?to be necessary to understand foreign intelligence 'informatibn or to
assess its importance, onto be evidence of a crime. Such personnel shall exercise reasonable
judgment; in making. such determinations. ?683?

FBI persoxmel with. authorized access may copy, transcribe? Stomnarizet moiew, or
analyze raw ISA-acquired information only as neceSSar-y to Evaluate-whether it reasonably
appears to be foreign intelligence- information, to be necessary to tindeietand' foreign intelligence-
?infonnation orassess its imgortanoe, or to be evidence?of a crime; Once FBI personntiillane
assessed-that raw PISA-acquired.information meets one of these entering "the may retain that
information for further investigation and analysis and may disseinitmte it in accordance With
these procedures? Pu'rsu'ant to {5'0 howeveninforma?on
that is .a-sseSSed to be evidence of a crime but not to be foreign intelligence. or- necessary to:
understand 'foi'eign intelligence may onlybe-?retained and disseminatedjfor law enforcement.

purposes. TheFBl Shall identify PISA-acqnired?information in 

.

 

NYT DOJ, 16 CIV 7020_000303

Approved for public release. All withheld information exempt under b(1) and b(3) except as othewvise noted.



If the FBI proposes to use any storage system?that isrmcapable?of meeting tljlese-requh'eitfrepts,
the FBI shall fellow the procedures. set i'orth in Section LD. ?659\

Before using FISA~aoquire-disinformation for ?nther I?Jwestigation, analysis, or
dissemination, the FBI shall strike, or substitute a characterization. for, information of?or
eolnceroiug a United including that person?s identity, if it does not reastsnably
appear to be foreign intelligence information, to be necessary- to tutderstand or assess the
importanceof'forei'gn intelligence information, or to be evideneeof a crime-l (U)

The copies, transcriptions, summaries, and, other documents
containing PISA-acquired infomtation only in accordance .with- the dissemination prociedur'es set
forth in below. (.11)

The FBI ?shall retain FlSA~acqtrired information thesis ootforei??go intelligence
information, that has beepgeviewed attd?reasonahly appears to be exculpatory 01' impeachneot
material for. a criminal proceeding, or reasonably appears to be discoverable it} a criminal
proceeding, and shall treat that?infogrmation as if itwere evidence .ofva cj'ioieffk

2-. Thll?dea'l'iY Infort?oatioo, (U)

The? FBl'may retain and use third-party information for investigativeand-analytical.

purposes in accords-nee procedures if smeltinformation reasonably appears to be

foreign intelligence. information, to be necessary to understand foreign i?telligGHCe-info?na??h

o?r assess its impolta'nce, or to be evidence of a crime (which is being retained or used for law
enforcement p11 rposes?, and:

is a communication made 01' receivedoo behalf 'of the target(s);

NYT DOJ, 16 CIV 7020_000304

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



'concetns activities in which the? targetCs) is or may be invoked; or

concerns aserious threat of injury, loss of life,.vdamage to preperty, or damage "to. the
national Security of the United State's. .683

Third-13 art-y information that does not fall into these. categories maybe retained in
accordance with Section 111.6 of these procedures but may 1m be used for investigation 01?
analysis and may mt be included in investigative or analytical documents such as Electronic
01' reports. If! however, FBI 13613901111131 acq?ire information that does-not fall,
into one of these categories but that they believe-should housed, the FBI shall proceed in
accordance with 'S'e?ctions LD and LE. (39'

3. Categories of Non??Pertinent and Senstove-Information. (U)

FBI personnel shall continually analyze communications of'or informat-imn. oonceming
United Statespersons acquired pars-nant to 18A for the purpose of establishing categories of
infonnation that are not foreign intelligence infonnation, are not necessary to-understan?d foreign-
intelligeoce- information massess its impotence, or are not evidence of a. cthne. Thesc
categories. should be established alter a reasonable potted. of montto?ngthe communications of-
the target andshali. be reported to the Court in a later renewal application .Itelating to that?target.
When develop?ing'these categories, patticular attention should be _giVe11 to the following types of.
sensitive: information:

ta.) 



NYT DOJ, 16 CIV 7020_000305

 

1

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











Beforcusing-infonnation ?'om ?111 established?oategmy of'sensitivo. information for
investigation or analysis, including using the information in investigative ol'venaiytical
documents such ?35 Electronic of rapotts; EBIIpe-rsolmel She'll. detemiinc
that the. that falls into Such categories reaSonably appears to be foreign intelligence

infoimatiom to be necessary to understand. foreign intoiligence.-informatio? 131? aS?c?e its;

I
i
i

I


1












NYT DOJ, 16 CIV 7020_000306

 

Approved for public release. All withheld information exempt under b( 1) and b(3) except as othenivise noted.

Authorized users may query'FBI electronic and data storage that?centam? raw.
NBA-acquired illfO?nal-iO? to ?nd, extract, revise?, translate, and assess-whether such
information reasonably appears to be foreign intelligence information, to be necessary to
understand foreign intelligence information er assess its importance, or te be evidence of a crime.
Such qUeiji'es may involve the use of keywords, identi?ers, formulas, attributes, or other
sophisticated dataexploitation techniques. To. the extent reasonably feasible, authorized users.

most design such queries to ?nd and extract ?foreign or evidence efa
?Cl?ll?lla and to minimize the extraction of third?party information. Authorized usersmayprocess
the results ofan-appropriate query in accerdance With?Secticn jab-0cm shall?
maintain records of all searches, including, search terms, used to query 

Authorized users may query electronic and data storage systemsjto' ?nd-extract, and
analyze ?met?a?data? pertaining to communications; The F-Bl?may also use such metadata to
analyze communications and may unlead or'transfer some or all such metadata te other? FBI

and data s?to?rage systems for authorized foreign, intelligence orlaw enforcement

purposes. 

 

1-55

NYT DOJ, 16 CIV 7020_000307

.

. 

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



E. Retention of Attorney-Client Communications; (U)

This section governs the retention of?attomey?olient' communioatioos. In certain cases!
however, the Gover?mnent may propOse- and/or the F180 may order the use-of Supplemental
procedures, FBlpe'rsotmel shall consult as appropriate with FBI. Division COu?sel, the FBI
Of?ce of General Counsel, for the NSD to detem'litie wheth? a octnmunication ispriviloged. (U)

Target charged with Jo crime-pursuant to the United States Code. (U)

As soon as the FBI knows that a target is charged with?a Crime. pursuant to the'United
States Code; the .FBI "shall :?intpleineitt procedures that ensure attorney?client
privilege is protected. These procedures shall include the followinghtiless otiaemise authorized
by the Else:

3.. of a review: team of one ormore monitors endior'rextieWet?53
who have no role in the prosecution of the charged Criminal matter, to. initially access and review
infomtation or communications acquired from a surveillance or scotch of a-s-target'WI-io is" charged
with a crime pursuant to the United States Code;

A procedure to ensure that-as soot}; asthereviewteam determines that the-
FBI has aequired a privileged communication concerning the'chat?gjed o?n?nel matter? betWeen
the targetfand the attorney representing the taiget in that matter; the FBI will appropriately mark.
the communication privileged in a malm'er'that is apparent to anyone who accesses the
information, including in any FBI electronic end data storage system. An attorney representing
the target in the criminal. matter includes anyone-working on behalfof-?thatettomey, Such as



.317 

NYT DOJ, 16 CIV 7020_000308

Approved for public release. All withheld information exempt under cm and except as otherwise noted.



c. A procedm?e to ensure that within 10 business days of detenniniag'thata

privileged communication under this section has been acquired?



Any aearonic
versions of the privileged that are. not available to. my end user but are available
to a. systems adntiaisnator as an archival back-1UP will be restricted and destroyed in accordance
with normal busmess, practices and will. not be made available to.- any ether, persion except as.
pemiilte'd by the .FISC, In the event FBI?aroliiVal backup datai's used to restore an electronic
and data storage system, the FBI will ensure that the previously deleted lariiFileged
0011111111 cations will not be?aCoe'ssible to any 1.156.? and will be deleted from any gee-icied-system.

d. ELSA-acquiredinfolnnafiou, other than privileged infermation tliat'ha?ls
been seal ed. according to- Sections 7156 tile-die available to: the
investigative team, including prosecutors, as appropriate.

As soon as FBI persocmlrecognize that oon?n?nicat'ions'betWeeu the
person under criminal charges have been acquired puisuant-to a-particttl-ariF'ISA
Searchorsurveillance, the FBI shall ensure that whenever-any user ?owieWsiafomation or
communications acquired from that search or sm'ireillance; which are 111311331 electronic and:
data sterage system containing raw 'FlSiAaacquired information, he receives elect-(sails

noti?cation. that attorneyaclicnt. celmnunications haverbeen aeqUii'ecl during-the. search 01:

T. . .18- 2.7; f: . 

NYT DOJ, 16 CIV 7020_000309

Approved for public release. All withheld information exempt under b(1) and 13(3) except as otherwise noted.

surveillance. The-purpose of the noti?catidni?s to alert others who may review this information
that they may encounter privileged communications, 

2. Target charged with a non-Federal crime in the United States and persons other

than a target charged with a crime in the United States.- (U)

FBI monitors and other'persomiel With access- to PISA-acquiredinformation Shall be.- alert?
for communications that may be betweena target who is charged with a nonaFederal crime. in
the United States and the .attomey representing the individual in the criminal matter, cir- (ii)
bemeeh a person other than a target charged with a crime in States-end theatiorrwy
representing the individual in the matter; As soon personnel know that. a target is
charged wither non-Federal crime in. the United States or someone otherithan the tar-get who
appears to regularly use the targeted. facility, place, premises or property is charged witha- crime
in?the United States, they will notify the Chief Division Counselz FBI Of?ce ofGejneral 
and the. NSD to determine whether supplemental procedures-or a separatemonito?hg team are
required. In the absence of" such supplemental. procedures: or a separate monitojing team, as soon
as FBI personnel recognize that they have acquired 'a communication h?etiyeen (1) a target who is
chargedwith a noanederai crime in the United States and the attorney representing the
individual in the criminal matter, or (ii) 138138011 other that: a. target charged wi?tha crime. in the
United States and the attorney representing the individual in the criminal matter, the FBI ?shall.
implement procedures that include the following:-

a. A procedure'to ensure that the FBIimmediately ceases moriitoringer

reviewing a privileged communication concerning-the charged criminal matter;

NYT DOJ, 16 CIV 7020_000310

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

in 

A procedure to ensure that within 10 business days of determining that a;

privileged communication. under this section has been acquired, 

may
electronic versions of the privileged communications that'atemot available to. any end user but-
at'e available to a systems administrator as. an s?r?ehival back-up will he restricted-and dean-eyed in
aceofdance'with normal business practices. and will moths-made available to any otherpersen
except as pe?pitted hay-the FISC. In the event FBI-archival back up data: is aft
electroliieend data storage system, the FBI will ensure that the ?pt'eviettsily deleted prisiileged.
communications will not be accessible to any-usere-nd will be. deleted any?. festered system;
and

As soon personnel recognize that counnunications between the.
person under criminal chm-gee and ?his attorney have. been. acquired pursuant to garti?cgulat' PISA
march or euweillenoe, the-FBI shall ensure that wheneVer any. user reviews information or
communications- acquired from that search orzsuweillance, which?arein an FBIie-leetrdnie'and.

data storage system contahijng? raw FISA?acguirejd information,_ he receives electronic

 

NYT DOJ, 16 CIV 7020_000311

Approved for public release. All withheld information exempt under em and b(3) except as otherwise noted.

. .

notification that attorney-client oonmmnica?tionsihave been acquired-during'the'seareh or

suiveiilanee. The purpose of the. noti?cation is. to alert others?wlio may review this infonnation

that they may encounter privileged 

3: Privileged communications. involving: taraets and other person's noteh'a'l'KEd with a
crime in the United States. (U) 

The FBI may review and use FISA?aoquired. communications of a target or=ot11er person

not charged with a crime in the United. States that.areatt?omey?olient, privilegedin oentiueti?ge

Nationai Security investigation. Authorized FBI personnel who review. PISA-acquired

information that is priVileged mast mark .the communication (in hard copy'and electronically?)

as privileged in a manner that is apparent to. anyone Who accesses the-information; and (ii) may

disseminate the item within the United 'States Intelligence if it otherwise? meets the:

standards- for dissemination. Before disseminating, such item that otherwisemeete-tite standards

for dissemination outside the. United States Intelligence Conunmity, the FBI. must obtain the

approval of the Attorney General or the Attorney General?s. designeer?sg.

If tile-FBI determines that a privileged .FISAeaequi'red comma-nieation of a person not

charged with a crime in the United States is not foreign intelUgeileelihfoi?ijia?tion hu't?is evidence

of a, crime, the FBI-must obtain approval to disseminate. the information for lawenforeement

purposes from the Attomey General or the Assistant Attorney Gettetral. Security.

The FBI may disseminate the information immediately-if it determines there. isan'inunediate

threat to life. or of serious property damage. If'the FBI makes such a diesemination, it. shali.

immediately ittform the 

21

NYT DOJ, 16 CIV 7020_000312

Approved for public release. . All withheld information exempt under em and b(3) except as othemrise noted.

F. - Additional Procedures for and Disclosure. 
Information. (U) i

1. Pursuant to 50 18-06(b) and information-acquired pursuant

to an order- aut?horizing electronic snrvei?llanee or physical search nnd'en'FISA shall be disclosed

-, PISA-acquired in fonnation, including raw. ElS-Acaeguired information, may be

 

disclosed for law enforcement-purposes in c?min?l '-p'reoeedings. f8?

2. The FBI shall ensure of any per-8911's, includingUnited States.
persons, that reasonablyeppear to be foxeig'l intelligence information; to be necessary to
Understand foreign intelligence ii?oxmatiml or .assess its importance, or to bereviideiice'. of a crime,

Proseeutms. (U)

a, The-F BI may diseioi'se PISA-acquired infonnation, including 
acquired information, and-infolmation derived therefrom, to federal prosecutors and others

working at their direction, for all I-a-w?tl fereign intelligence and law enforcement purposes,

 

NYT DOJ, 16 CIV 7020_000313

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

others working at their direction are provided access to raw MBA-acquired information, they
shall be trained on and comply with these and all other applicable minimization prooe?itres. 

b. In accordance with applicable Attorney General-approved polie?ies? and
pmeedmesrfederal preseeutors may also disclose equired infomia-tion, when necessary
for the prosecutors to carry out-their responsibilities, including to witnesses, target's or subj'eo'ts of
air-invesrigetion, or their respective oou'n?s'el, Whenthe-FISAuaeqsired hiformation could be
foreign intelligence information or is. evidence of a crime This provision does} tiotfrefstriet a
federal prosecutor?s ability, ine oriminai proceeding, to disclose FISAyaequired information that
contains exculpatory or impeachment information or is otla?erwiSe:diseoirerablennder the-
C??onsiitution or applicable federal law. (U)

c. The FBI may not provide federal prosecutors and others Workingattli?i?
direction ?eenfainisg raw FISA?aToquirogl
information unless suoh secess is: Ca) for 'forei'g?nintelligenoe. or lair enforcementpu-r-poSes; (is)
consistent-?with their responsibilities as federal prosecutors; and pursuant-to pg'ooedures
established by the:.Att0riiey General and presided to the?FIlSC. The. procedures establishediby

?the Attorney General and provided?to the F180 shall include the foliowing:

1. Ams?
that
which is oonsi?Stent With their responsibilities-as federal prosecutors:
and necessary to. Garry? out their responsibilities. e?ieie?tly?during 

specifiejnvestigation or prosecutionNYT DOJ, 16 CIV 7020_000314

Approved for public release.



iv.

Vi 3.

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

Access. must be requested fI?Dm and approved by an executive at

Headquarters in a position no lower than Assistant Director 

(A D). and in coordination with the Deputy Gelteral Connect of the

FBI National Security Law Branch era Senioer ecu?ve Service--

attomey?in the National Security Law Branch, and Will he

Comidered on a case~by~oase basis;

A request for access mast specif?
Foreign Intelligence 

(PISS) docket numbers, and targeted facilities ?ae'proseoutor needs

access, why such. access? is necessary,_. and the .dutatlml of such

access;

NI individuals receiving ataho'rizatiouto have must

weave. 

and training on 

relevant supplemental .tliinimization procedures applicable to the.

infotma?on to which they have access;

Access shat] be. terminated. no later man ?ue-ponelusi?on (hf-the

relevant investigation or?pltosecution; and

Federal. prosecutoramay itmnediately he given access-tofm

_raw PISA-

acquired information personnel determine? that an itmpec?ate

'24

NYT DOJ,

16 CIV 7020_000315

.

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

threat to life or of serious damage. to pi'otjcizty necessttetes.
immediate-access, and if such immediateaccess-is .givetrto federal
prosecutors, noti?cation shall be made to FBI Headquarters, 

Of?ce of General Counsel, 

G. Time Limits for Retention. (U)

general? the FBI may retain EISA-aoqnired information that reasonably appearetobe
foreign intelligence information, to ?be necessary to understand foreign intelligence information
or assess-its importance, of to be evidentie of a Crime. {53-

1. The FBI is authorized. to retain data in electronic. andrdata 

in, nee With the followmg:

 

NYT DOJ, 16 CIV 7020_000316

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

I




3.. Audio and video recordings not aocessi?ble tlmoug'h an. electronic and data storage
system, and items audio: records obtained through physical 5631:0131 ofptgamises o1: ?propolfyg.
hicluding images 01* copies ofcomputerhard drives and removable media acquired {111ng the
execution of . _a physical search. order, whethei' revieWed Or not, but as infogma'tion
that leasonably appears to he; fm'eign iiltelli'gmoe in formation, necessat'yto understa?dvfordign

intelligenw ilifmfmati'on, or-e?d?nce of a crime, shall be. destroyed. wiminsfpeci??-tinm periods

- .. . r-x .. - .. . 4-2. -

..

NYT DOJ, 16 CIV 7020_000317

Approved for public release. All withheld information exempt under 13(1) and 13(3) except as otherwise noted.

as set forth in FBI policy, which shall previt?le for periodic destruction of certain oategories, of
FlSA~aoquired information. This provision does not'apply to FISAaaoqu-ired infotmationWi?tin
the scope of-Seotion IILGJ or 111.52.153-

4. iSA?a cqtilred information retained by the FBI in any other fenn-

IV. DISSEMINATIZON (U)

A. Dissemination of Foreign Intelligence Information to Federal,_Sfate, Local 3and
Tribal Of?cials anilAgenei'es. (U)

The FBI may disseminate PISA?acquired information that reasonably appears-to he
foreign intelligence infoimation in accordance with Sections and to federal-,etateg
local and tribal of?cials and agencies with l'eSPonsilaili'ties direo?yTelated'to the information
proposed to be dieseminated. Inform at'ion that reasonablyeppears to beforeigo- intelligence

information not directly related to responsibilities of smell agencies may be disseminated

'ineidental to the of information directly related to responsibilities of snob agenoies-.

Such informatimt may-bedisseminatedonly e'onsis'teot'with- the needof?le United Statesito.
obtain, produce, and diSSeminate foreign intelligenceinfommtion. (U)

1. Fereiml Intelligence lnfoimetiOH-as de?ned in 50 U.-S..C. 6 '1 (U)

To max may disseminates?518A-

acquired information'eoncen?ng United States. persons that. reasonably appears. to be. necessary

2'7 . 

NYT DOJ, 16 CIV 7020_000318

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



to the ability of- the United States to protect against: actual or potential attack ,or other grave
hosiile ants. of a foreign power or an agent of a foreign poWer; (ii) sabotage, international
terrorism, or?the alternation'al' proliferation of weapons of mass destruction by a foreign power-or
an agent of a foreign power; or clandestine intelligence activities by an intelligence Bert-tide
or net-Work of a foreign power or by an agent of a foreign power; ?65;

2. Foreign hitell-igenoe Information as de?ned-in-SO 6 (U)

The FBI?inay'disserninate to 
acquired information concerning United States persons that reasonably-appears to be neoe's'aaiy:
to the national defense ?or the security of the United States; or ?die. cenditct of'the foreign
affair-s of the United States. Such information shall not be disseminated, however, in a manner-
that identifies- a United State?s person, unless 51.1011 person?s identity is neceasaiytorundestaud
foreign intelligence information or to assess 

B. Dissemination of Evidence of a Crime to Federal, State, focal and Tribal

Of?cials, 

The FBI may dieseminate, for. a law enforcement pilmos?e, FISA?acquirediinforma?on
condom-lug a United States? person .tiiat reasonablyagpears- to be evidence of a- crime but'iiot
foreign intelligence information to?
- The FBI shall disseminate each FISA~anuited ihfommiion in at in?nite: eonsistent

with the requirements of S'eetion 

NYT DOJ, 16 CIV 7020_000319

 

Approved for public release. All withheld information exempt under b(1) and 13(3) except as otherwise noted.

C. Dissen?'na?on of Foreign Intelligence Information Cancerning United States-
Persons to Foreign Governments. (U)

?The FBI may disseminate BEA-acquired..infonnation concerning United States persons,
which is foreign intelligence information, to foreign govermnents as follows:-
1. Disseminations of PISA-acquired informaticsn cancem?ing: United States persons
to the govermnents? of the United Kingdom, Canada, Australia 0'1: New Zealaud- may be
made upon the approval of?the' Director of the 313131,. on a des?ignee?a'?
DiSSeminatiohs of PISA-acquired.information Ioo'i?lc?l'?ing United States persons
to other foreign g0ve1mnents shall be made oonsiStently with Department Ofiustiee guidance
and maybe made upon the. appfmial of the DirectorvsoftheFBI',? ore designee who shall hold a-
position .110 loWeI thaii Station Chief in the FBI, and shall be in coordination withtheFBI. .Ot??joe
of General Counsel, upon consideiation of the'foll owitng- factors:- the national. security bene?tthe
?United?State?smay reasonably expect to obtain from making the dissemination; the anticipated.
uses to which 1116 foleign government will put the: information; endsafay ?potetiti? for-egaltemio
injuw, physical lie-13m, or other resttiction of movement to bereasonably exgeoted from-pzovidiog
the information to the foreign government.- lf'the proposed reeipient(s) of? the dissenmation haste.
a recent record of?human rights abuses, that Meter}: shdu?lii be considered in assessing the -
poteleial for ecc?mo?mic injUty, 'phySiCEilvhalj??l, tor tithe;~ xestt?i otien of movement, and whether: the
dissemination should be made. 
W11 ere there is a reasonable basis to anticipate that the dissemination will resultin?;

economic- illjili?y, physical harm, orother resteiction ofmeventent, no dissemination shalt be

39-.

NYT DOJ, 16 CIV 7020_000320

 

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



made, Without the approval of the Attorney General._ If the Attorney Genera?iapproyes the
dissemination, the FBI shall undertake reasonable steps to ensure that the disseminated
information will be used in, a manner "consistent with Udited States laws, haeluding?at'eeutiVe
Order 12333 (as amended) and applicable federal criminal statutes. 

The Attorney General, in consultation with the DNI or a designate; may authorize

Prim-0 granting =31th
authorizatibn, those of?cials shall Consider, among other things: (1) whether such :use is
consistent With the national ?security inte1ests ofthe. United States; and (2) the effect of such-use-
on any identi?able United States person?659?

4-. The FBI will make a written re?oo'rd of each d'isselnination apptoited pursuant to;

this section, and ?such; disseminations and approvals-shall he-

up

?The- FBI may?
'Con?ktent

'with the other provisions .of these is authorized to disseminate 
acquired infermat-ion, including,- tape recei?dings, transcripts, or electronic sterage media

(incindingdo?tputer hard drives and rernpvablesto'ragezmedia), 



NYT DOJ, 16 CIV 7020_000321



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



The following restrictions apply with respect to. any materials so
disseminated:

1. Dissemination to 
- of such information or communications. 



2. DisSelnination wit] be only to?
of suchxinformatjon or ccmamunieations 


3. ?shall make 110 permane?t- rec?rd of?inf?nnation
or communications of'or consenting any person referred to in, PISA?acquired i?nfmmabimm;
on FISAracqui-red tape recordings, transcripts, electronic storage media?ncludfng
computer hard drive-s and removable storag??lnedia), '01: (11116?


- Records maintained? for this puxpese-may not be
dissiimimuted?- 
?f55*

.4. Upon the conclusi?? _0 the 

information, including all tape (including

.31

NYT DOJ, 16 CIV 7020_000322

Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted.



om'nputpr hard drives and removable storage media), or ofh?el? items; 01' in?rmation 

5. Any information tha? provide to the a result of
_may be disseminated by the FBI. in accordance with the applicable

minimization procedures. {83? .

The FBI may disseminate?

-.1'aw PISA-acquired infemlation ?iat relates to internatiOnaI 'terro?em acquired from
eleetronie Surveillance or physical search Conduoted by the-FBI as pijgyid'ed il?
+89?

In addition to dissemination authorized under other pro?eionsiiereih, foreign intelligeliee

information, as de?ned in Section 1801(e), maybediSseminated to 

NYT DOJ, 16 CIV 7020_000323

 




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

a. 
NotwithStahding any ether provision of these the FBI 1?
access to its'?
database, provided that Such access is limited to classi?cations. ef eases theterel?iely to Kimmie
fm gin
?whieh mew-tn the
FISC. Ift?he FBI authorizes -o disseminate ?arty to:
this seetieiig sfueh authorization shall be made 'QOnS'istent with thesejproeedures- and applicable
Department of Justice guidance; including but not limited to restrictions governing dissez-t?hatibn

to foreign 

V, COWLIANCE (U)
A. Oversight. (U)

To ?ensu?re cempli-?a?ee with'these procedures, the Attorney General, through the Assistant
Attorney General for National Security or other designate, policies arid
procedures that ensure the ?g'ocdjfai?l compliance With all of the. requirements (set ?01111 herein,
and shall eonduet periodic mihimization reviews, including-termite ?at FBI Hesideliutert'ersg ?eld
offices, and. US. Attorney?s Of?ces that receive raw EBA?acquire?
_11e'Attomey-1General and the NSD. Or other desi'guee of the

 

NYT DOJ, 16 CIV 7020_000324

. u. 

 

Approved for public release. All withheld information exempt under and b(3) except as othenNise noted.

Attorney General shall have access to all'FISA?acquired information to facilitate mhtin?'za?oh
revi?ws and for all other law?ll purposeSrES')?

To assess compliaajce with theseproceduresa minimization shall consist of
of documents, coniojutliCations, audit trails? or other information. They shall 
appropriate, but are not limited to:

1. Reviews of .eledtroniccommuniCatio?s? Or other documents containing PISA-
acqu'ired information that have been retained for further investigationand analysis or
disseminated in accordance with these procedures, 1-8}

2. .RevieWs of FHA?acquired htfoimation (item electronic surveillance and physical
search) in FBI electronic andfdata storage systems. that contaiti 1faW?-EISA?acgpi1?sd htformatiouto
assess compliance. With these procedures, includiitg'W-hctlier raw PISA?acquired colnniuaicatioits
or property have been properly marked as infotanation that reasonably appears tabs-foreign
intelligence, an, to be ne?essary' to, 'und?rstand foreign into-lligencoinfon?ati?? Or to
assess'itsimportance, or to be evidence of a crime. ?PEA?acquired communications andproperty-
in FBI electronic-and data storage systems-that contain raw FISA?acqui'red infomtatimt may?also
be reviewed to determine whether they were prope?y markedipursuaut to ?ieattomey-client
communications provisions of these proceduresr?sas 

3. Add-"its of_ra'w-
PISA?acquired information to assess the compliance with the retention procedures for

FiSAaacquir?ed information as detailed in Section 111 of these procedures, Tlte audits may also

include reviewing a sam_



NYT DOJ, 16 CW 7020_000325

 

 

 

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

- and accesses in FBI and data storage sYstems containing raw FISAracqeiied
information. These audits may-assist in detemiining the FISA-scquiredinfermation that was
accessed FBI electronic and data sterage? systems and the hidivl'eluals who accessed the
infornmticn. In turn, the minimization reviews-'rnay include Ve?fymg?ist theiuclividuals who
secessed the PISA-acquired infatuation in these FBI systems were individuals w?ho?hed properly

been given access under FBI guidelines. 

B. Training. (U)
The Attorney General, or-a designee, shall ensure. that adequate training on these

prooedures'be-provided to appropriate personnel. 

C, Minimization Briefings. (U)

FollOwili'g the authorization of collection activity, an NSD attorney shall conduct a
minimization brie?ngwith appropriate FB-I'pei'smmel responsible for the FISA..surveillsnoeex
seamh. (U)

Interpretation (U)

The FBI shall refer all signi?cant questions relating to? the inteipretstion of'these

precedur'es to. the-NED. (U)

NYT DOJ, 16 CIV 7020_000326

noun-nt- 

 

Approved for public release. All withheld Information exempt under b(1) and b(3) except as othenNise noted.

SECRET

VII. Review of Procedures (U)

The Attorney General, or a designee, in consultation with the. FBI Of?ce of?General.
Counsel, shell these procedures and-determine Whether they remain appropriate in light of
the technology and practices used by the FBI no later- than ?ve years from the. date. of the
Attorney'Geneml'e'approval of these procedures ?led with the Court, and every years 
thereafter. A w?ttensljeport of such review shall be provided to the Court within six months of -

the completiOn ofthe review. (U)

 

Attomey General of the United States

#21
Date

NYT DOJ, 16 CIV 7020_000327

Approved for public release. All withheld information exempt under b(1) and 13(3) except as otherwise noted.

EXHIBIT - s1 
1VIINIMIZATION PROCEDURES USED BY THE 2 0
AGENCY IN CONNECTION WITH ACQUISITIONS OF FOREIGN INTELLIGENCE
INFORMATION PURSUANT TO SECTION 702 OF THE FOREIGN . I II .1
SURVEILLANCE ACT OF 1978, AS AMENDED {Sf?i-BE-it 1 Unl-

 
 

With respect to unminimized communications the Central Intelligence Agency (CIA)
receives from the National Security Agency (N SA) Or the Federal Bureau of Investigation (FBI)
that are acquired pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as
amended (FISA or "the Act"), the CIA will follow the following minimization procedures:

- .
1. De?nitions:

a. As used herein, the terms "Attorney General, I"foreig?n power, ?agent of a foreign
power, "United States person, "person, "foreign intelligence information," I
"international terrorism, and "sabotage" have the meanings speci?ed in sectiOns 101 and
'701 of the Act.

b. The term "United States person identity" means (1) the name, unique title, or address of Ia
United States person; or (2) other personal identi?ers of a United States person when 
appearing in the context of activities conducted by that person or activities conducted by
others that are related to that-person. A reference'to a product by brand name or
manufacturer 3 name, or the use of a name in a descriptive sense, e. g. ., "Monroe
Doctrine," is not a United States person identity. 

2.Unn1inirnized communications acquired in accordance with Section 702 of the Act and 

received by CIA will be maintained 1n access-controlled repositories that are accessible only
to those who have had the required training and are physically or logically separated ?Om
repositories with general access. Unminimized communications that may contain United
States person information that does not Otherwise qualify for retention under paragraphs 3, 6,
or 8 of these procedures may be retained in' such access-controlled repositories for no longer
than ?ve years from the expiration'date of the certi?cation authorizing the collection unless

. the Director of the National Clandestine Service (NCS), or one of his or her superiors,
determines that an extension is necessary because the communications are reasonably

I believed to contain signi?cant foreign intelligence information, or evidence of a crime that
has been, is being, or is about to be committed An extension under this paragraph may

apply to a speci?c category of communications, and must be documented in writing, renewed -
on an annual basis, and reported to the Department" of Justice's National Security
Division (N SD) and the Of?ce Of the Director of National Intelligence (ODNI). W-

3. Information concerning a United States person may be retained by CIA inde?nitely and
outside of _repositoriesmI if the inform?a?gn _coIncerniing the United States

 

Classi?ed b?y?x The Attornev?enerf

 

NYT DOJ, 16 CIV 7020_000328

Approved for public release. All withheld information exempt under b(1) and except as otherwise noted.

person is publicly available; the United States person has consented to retention of the
information concerning him or her; or the United States person identity is deleted or
otherwise sanitized to prevent the search, retrieval, or review of the identifying information
(a generic term may-be substituted which does not identify the United States person in the

. context of the data). If the information cannot be sanitized in such a fashion because the
identity is necessary, or it is reasonably believed that it may become necessary, to understand
or assess the information, CIA may retain that information and the United States person
identity inde?nitely and outside of access- -controlled repositories if: 

a. The information IS foreign intelligence information. Such information includes, but IS not
limited to, information falling within one or more ?of the following categories:

(1) the information indicates that the United States person has acted or may be acting as
an agent of a foreign power, including information indicating that a United States
person was in contact with a foreign power under facts and circumstances indicating 
that he intends to collaborate with a foreign power or become an agent of a foreign
power;

(2) the information indicates that a United States person may be a target of intelligence
activities of a foreign power; -

(3) the information indiCates that a United States person has engaged or may be engaging
in the unauthorized disclosure of properly classi?ed national security information; or

b. The information concerns corporations or other commercial organizations the deletion of
which would hamper the correlation of foreign intelligence information on the same
subject; -

c. The information is enciphered or contains secret meaning;

(1. The information is needed to protect the safety of any persons or organizations, including
those who are targets, victims, or hostages of groups engaged in international terrorism;

6. The information concerns a? United States person who is'or reasOnably appears to be, on
the basis of that or other information, an agent of a'foreign power;

f. The information indicates that a United States person is engaged or may be engaged in
international terrorism or activities in preparation therefor;

g. The information is needed and retained solely to identify individuals in contact with a
foreign power or an agent of a foreign power (including for purposes of this subparagraph
any person, regardless of location, who engages in international terrorism or activities
in preparation therefor; who aids, abets, or conspires with persons to engage in such .
activities_; or who acts _as a member_ of a group engaged 1n such act1v1t1es),

 

NYT DOJ, 16 CIV .

Approved for public releaseunder b(1) and b(3) except as othemrise noted.

 

i. The inforrnation concerns a person or activity that poses a threat of sabotage,
international terrorism, actual or potential attack or other grave hostile act, to any facility
or personnel of any agency Within the U. Intelligence Community, or any department
containing such an agency; - -

j. The information indicates that a. United States person may be a target of intelligence .
activities of a foreign power; or

k. The information concerns a US. Governmentof?cial acting in- an of?cial capacity.
is . .

4. CIA personnel may query CIA electronic and data storage Systems centainin unminimized
communications ac uired in accordance with Section 702 of the Act.

 
 
  

 

 

Such queries must be reasonably designed to ?nd and extract foreign
intelligenCe information. CIA will maintain records of all such queries, including but not
limited to United States person names and identities,? and NSD and ODNI will review 
activities that are conducted pursuant to this paragraph. 

- 5. Any information retained pursuant to paragraph 3 above may be disseminated to otherwise
authorized recipients outside of CLA if the identity of the United States person and all
personally identi?able information regarding the United States person are deleted or
otherwise sanitized to prevent the search, retrieval or review of the identifying information.
A generic term may be substituted which does not identify the United States person in the
context of the data. However, if the information cannot be sanitized in such a manner
because such person's identity is necessary to understand foreign intelligence information or
assess its importance, that identity may be disseminated outside of CIA without such-person's
consent. Additionally, if the information cannot be sanitized in such in a manner because it 
is reasonably believed that such person's identity may become necessary to understand or
assess the importance of?foreign intelligence infomiation as de?ned by 50 U.S.C. 1801
that identity may be disseminated outside of CIA without such person's consent.

.
6. Nothing in these procedures shall prohibit:

a. The retention or disclosure of information necessary for the purpose of determining
whether the requirements of these procedures are satis?ed, provided that the recipient
.under this paragraph does not retain or disclose the identity of a United States person
Where it is determined that the requirements of these procedures do not permit
. disseminzi?tion;

NYT DOJ, 16 CIV 7020_000330

Approved for public release. I Wm under b(1) and b(3) except as otherwise noted.

b. The retention of communications necessary for the maintenance of technical data bases,
so long as only collection or technical personnel have access to .such data bases;

0. The retention or dissemination of information concerning corporations or other
commercial organizations which is limitedto their identities as manufacturers of
equipment and related nomenclature or their locations; 

d. The retention or dissemination of information required by law to be retained or
disseminated; or

e. The retention or processing of communications in emergency data backup systems, 
provided that only administrative, collection, or technical personnel have access to such
systems; In the event that information from such systems must be used to restore lost,
destroyed, or inaccessible data, CIA shall apply these procedures to the transferred data.


7. CIA will also follow the following procedures:

 

b. Dissemination to Foreign Governments: CIA may disseminate nonpublioly available

identity or personally identi?able information concerning United States persons to

foreign governments provided that such information is foreign intelligence information

and either the Attorney General approves the dissemination; or (ii) CIA disseminates

the information under procedures that have been approved by the Attorney-General. In
additioifClA?ma?y such foreign intelligence information acq?JrTEd'p??a?tid 
Section 79.2 oftheACE to the extentauthmizedby?he Dir?qtor. of ?le CIA, audio

 

4 .3.- .. . "a

I - NYT DOJ, 16 CIV 7020_000_331

Approved for public release. . under b(1) and b(3)lexoept as othemise noted.

accordance with Director of National Intelligence Intelligence Community directives
CIA may make such disseminations without speci?c Attorney General approval subject
to the following procedures:

 

(3) Procedures for technical or linguistic assistance. It is anticipated that CIA may 

obtain from NBA and FBI unrninimized information or communications that, because .
of their technical or linguistic content, may require further analysis by foreign
governments (collectively "assisting foreign governments") to assist CIA in
determining their meaning or signi?cance Notwithstanding other provisions of these
minimization procedures, CIA may disseminate computer disks, tape recordings,
transcripts, or other information or items containing um'ninimized information or
communications acquired by NSA or FBI pursuant to Section 702 of the Act to
assisting foreign governments for further processing and analysis, provided that the
following restrictions apply with respect to any materials so disseminated:

Dissemination to assisting foreign governments Will be solely for translation or
analysis of such information or communications, and assisting foreign
governments Will make no use of any information or any communication of or
concerning any person except to provide technical assistance to CIA.

Dissemination will be only to those personnel within assisting foreign
governments involved in the translation or analysis of such information or
communications. The number of such personnel will be restricted to the extent
feaSIble. There Will be no further dissemination within assisting fereigri I 
governments of this raw data,

 

NYT ?501, 16 CIV 

Approved for public release. II I i i pt under b(1) and b(3) except as otherwisenoted.

Assisting foreign governments will make no permanent agency record of

information or communications of or concerning any person referred to or
recorded on computer disks, tape recordings, transcripts, or other items
disseminated by CIA to assisting foreign government, provided that assisting
foreign government may maintain such temporary records as are necessary to
enable them to assist CIA with the translation or analysis of such information.
Records maintained by assisting foreign governments for this purpose may not be
disseminated within the assisting foreign government, except to personnel
involved in providing technical assistance to CIA.

Upon the conclusion of such technical assistance to CIA, computer disks, tape
recordings, transcripts, or other items or information disseminated to assisting
foreign government will either be returned to CIA or be destroyed with an
accounting of such destruction made to CIA.

Any information that assisting foreign governments provide to CIA as a result of.
such technical assistance may be disseminated by CIA in accordance 'With these 
minimization procedures.

(4) CIA will make a written record of each dissemination approved pursuant to these
procedures, and information regarding such disseminations and approvals will be .
made available for review by the Department of Justice. 

o. Compliance With Crimes Reporting Obligations. Notwithstanding other provisions of
these minimization procedures, information that is not foreign intelligence information, 
but reasonably appears to be evidence of a crime that has been, is being, or is about to be
committed, may be retained and disseminated (including United States person identities)
to the FBI and other appropriate federal law enforcement authorities, in accordance with
50 U. S. C. 1806(b) and 1825(0), Executive Order No. 12333, and, where applicable,
the crimes reporting procedures set out in the August 1995 "Memorandum of

'Understanding: Reporting of Information Concerning Federal Crimes, or any successor

document. 

8. Any communication received by. CIA that is acquired through'the targeting of 'a person who
at the time of targeting was reasonably believed to be a non?United States person located
outside the United States but is in fact located inside the United States at the time such
cormnunication is acquired or was in fact a United States person-at the time of targeting will
be destroyed unless the Director of the CIA speci?cally determines in writingthat such
communication is reasonably believed to contain signi?cant foreign intelligence information I
or evidence of a crime that has been, is being, or is about to be 

NYT DOJ, 16 CIV 7020_000333

Approved .for public release. Wt under b(1) and b(3) except as otherwise noted.

9. .If CIA determines that it must take action in apparent departure from these minimization
procedures to protect against an immediate threat to human life and that it is not feasible to
obtain a timely modi?cation of these procedures, CIA may take such action immediately.
CIA will report the action taken to the Of?ce of the Director of National Intelligence and to
the National Security Division of the Department of Justice, which will notify the
Foreign Intelligence Surveillance Court of such activity. 

 

Date Eridf Holder, Jr.
Attorney General of the United States

 

NYT DOJ, 16 CIV 7020_000334

Approved for public release. All withheld information exempt under b(1) and b(3) except as othemrise noted.

EXHIBIT 

NYT 16 CIV 7020_000335

 

Approved for public release.

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

 

NYT DOJ, 16 CIV 7020_000336

 

Approved for-public release. Alt withheld information exempt under b(1) and b(3) except as otherwise noted.
.. I l" 
Haj" --
51.. w- .
UNITED STATES r" 5 




FOREIGN INTELLIGENCE SURVEILLANCE 

.uu.

I i117
i {th 

WASHINGTON, DC. 


(- 


NDER SEAL

 

MOTION FOR ORDERS EXTENDING TIME LIMITS PURSUANT
TO 50 U. S. C. .6 1881a(j)(2) {St

THE UNITED STATES OF AMERICA, through the undersigned Department of

Justice attorney, respectfully moves the Court to issue orders pursuant to 50 U.S.C.

1881 of the Foreign Intelligence Surveillance Act of 1978, as amended (the Act),

extending to July 22, 2011, the time limits for the Court to complete its review of and

issue orders concerning 702(g) Certifications and the

amendments to their respective predecessor certifications. As discussed below, the
government respectfully submits that there is good cause for the extensions of the time

limits, and that such extensions would be cOnSistent with national security. 

  
   
    

Classified by: ssistant

. Attorney?? A 
Reason: 1. 4(c)
DEclassify on: 

NYT DOJ, 16 CIV 7020_000337

Approved for public release. . All withheld information exempt under W) and b(3) except as otherwise noted.

1. Procedural Background?(53?

A. The 2011 Reauthorization Certifications and Related Amendments 

On April 20, 2011, the government submitted to the Court 702(g)

Included with 702(g) 

 

Certi?cation -were the targeting and minimization procedures to be used by the
National Security Agency (NSA), Federal Bureau of Investigation and Central

Intelligence Agency (CIA) under that certification. 7 02(g) Certification-

reauthorizes 702(g) Certification?

 



DNIXAG 702(g) Certification -also included amendments tolits predecessor

certifications, 702(g) Certifications?5P8Ci?ca?y,? these I

 

the use of the attached as Exhibits 

and ?60 702(3) Certi?catio?-in connection-with foreign intelligence -- - 

 

NYT DOJ, 16 CIV 

Approved for public release. I All withheld irifonnation exempt under b(1) and b(3) except as othemise noted.

WW

information acquired in accordance with 702(g) Certi?cations-

These amendments also have an effective date of May 23, 2011. 

NYT DOJ, 16 CW 7020_000339

 

Approved fer public release. All withheld information exempt under b(1) and b(3) e'xcept as otherwise notedNYT DOJ, 16 CIV 7020_000340

 

Approved for public release. . All withheld information exempt under and b(3) except as othemise noted,

B. Two Matters Recently Reported to the (30th I

1. Overcollection of 

On April 19, 2011, the government filed with the Court pursuant to Rule 13(b) of
the Rules of Procedure for the Foreign Intelligence Surveillance Court, a preliminary
notice of two compliance incidents, both of which concern NSA's collection of - . .
?that, in addition to targeted communications, contain communications
that are not to, from, or about selectors'tasked for acquisition in accordance with section

702 of the Act. 1 One of these incidents concerns overcollection of-

The government respectfully inc01p01 ates herein by

reference this notice dated April 19, 2011. 
2. Clarification Concerning Upstream Collection 
On May 2, .2011, the government ?led, pursuant to Rule 13(a) of the Rules of
Procedure for the Foreign Intelligence Suryeillance Court, a preliminary notice
clarifying certain facts concerning NSA's upstream collection of electronic

communications.3 Specifically, this notice provided the Court with additional details

 

. 1 A copy of this notice is attached herewith at Tab 

- 2 incident re orted' in this notice concerned NSA's overcollection o-
_Q_ri March 15, 2011, NBA terminated collection om 
. which these were being collected. 

3 A copy of this notice is attached herewith at Tab B. {esteem}

 

 

NYT DOJ, 16 CIV 7020_000341

Approved for public release. All withheld information exempt under and b(3) except as otherwise noted.

concerning one specified category of Internet communications NSA acquires through its

upstream collection 'Telectronic communications?
AS stated it the notice 

and ODNI are still reviewing this matter and assessing its'import, including What effect,
if any, this type of Internet communications collection has on the efficacy of the means
by which NSA prevents the intentional acquisition of Internet communications where
the sender and all intended recipients are known at the time of acquisition to be located
in the United States. The government respectfully incorporates herein by reference this

notice dated May 2, .2011. 

II. The Issuance of Orders Under 50 U.S.C. 1881a(j)(2) is Appropriate in These
Cases 

I Upon the government?s submission of .DNIIAG 702(g) Certification -on
-the thir ty?day- time periods' in which the Court IS required to review the
certifications began to run. See 50 U. S. 5 1881a(i)(1)(B) The thirty-day time periods -
for the Court to review the amendments to the predecessor certifications also began to
run on those same dates. See 1881a(i)(C). Accordingly, the time limit for the Court -
to complete its review of 702(g) Certification-and the amendments to its

predecessor certifications is May 20, 2011. Likewise, the time limit for the Court to

complete its review o__f 702(3) Certificatio?n?__* 
?is May 22" mil-W

 

NYT 16 CIV 7020_000342

Approved for public release. All withheld information exempt under M1) and b(3) except as otherwise noted. .


The Court may, however, "extend[] that time as necessary for good cause in a
manner consistent with national security." 50 U.S.C. For the following
reasons, the government respect??lysubmits that there is good cause for extensions of
the time limits, and that such extensions would be consistent with national security.



A. There is Good Cause for the Court to Extend the Time Limits for Its Review 

is;

The government behaves that there is good cause for the Court to extend the
deadlines for the Court to complete its review of 702(g) Certifications-
?and the amendments to their respective predecessor certifications.
Specifically, as explained below, the government intends to supplement the record
concerning the matters discussed above in a manner that will aid the Court in its re'vievv
and in making the determinations necessary to issue orders under 50 U.S.C. 
1881 a(i) (3). However, the government will not be in a position to supplement the -
record until after the statutory time limits for such review have expired. 

FerseNessie-verseseecsser?

designed to eliminate the above?discussed overcollection of-communications-

However, these measuresare not expected to be fully operational

until on or about Jone 17, 2011 which is after the time limits established by 50 U.S.C.

 

y? and (C). Because the government believes?that these corrective?

measures should be considered by the Court as part of its review of the certifications

I -.. I 
1- 

 

. NYT DOJ, 16 CIV 

Approved for public release. All withheld information exempt under and except as otherwise noted.

WW
and related amendments, the government respectfully submits that there is good cause
for extending the time limits for such review. 
Second, NSA, NSD, and ODNI are continuing to investigate and assess the
manner in 'which NBA acquires through its upstream 
mum-m 
-including what affect, if any, this type of Internet communications?collection has
on the efficacy of the means by which NSA prevents the intentional acquisition of
Internet communications where the sender and all intended recipients are known at the
tithe of acquisition to be located in the United States. . The government intends to
provide additional information and analysis to the Court upon completion of this 
review and assessment. However, given the complexity of this issue, the government
dues not believe its review and assessment will be complete until after the above?
discussed time limits established by 50 1881a(i)(1)(B) and (C): The government
respectfully submits, therefore, there is good cause for extending those time limits
because the government believes the additional information and analysis it intends to
provide to the Court will assist the Court in making the required statutory findings
conCerning the certi?cations and related amendments. 

Extending the Time Limit for the Court's Review is Consistent with
National 

As this Court has recognized, "[t]he government 5 national security interest' 111



conducting these acquisitions. [under section 702] is of the highest order of magnitude.

 

NYT DOJ, 16 CIV 7020_000344

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



In re Certification ?Mem. OP- at 37 Sept. 4:

2008) (quoting In re Directives Pursuant to Section 105B of the Foreign Intelligence

 

Surveillance Act, 551 F.3d 1004, 1012 Ct. Rev. 2008)). For example, the foreign

intelligence information the government acquires under 702(g) Certification

 

CC 

.Affidavit of Lt. General Keith B. Alexander, Director, NSA, 6. 
Were the Court to issue orders under 50 U.S.C. 1881a(j)(2) extending the time

limits for its review of the certifications and related amendments so that the Courteould
consider these additional materials, the authoriZatibns in the certifications being
reauthoriaed, 702(g) Certification?would, by
operation of 50 U.S.C. 1881a(i)(5)(B), continue despite their expiration dates.4 The

government respectfully submits that this result would be consistent with national
security, because it'would allow the government's acquisition of vitally important -

foreign intelligence information under 702(g) Certifications?

 

.ii iililli lili mini amt/AG 

comported with 50 U.S.C. 51881a(i)(5)(A), uc
requires that if the government seeks to reauthorize an authorization issued under 50 U.S.C. 1881 
the government must, to the extent practicable, submit to the Court a new certi?cation executed under
documents, at least thirtyr days before the expiration of the 

 

certi?cation being reauthorized. If anew certificEion is - .. - 

50 (B) provides that the existing certification being reauthorized shall
remain in effect, notwithstanding its expiration date, until the Court issues an order 
1881a(i)(3) with reopect to the new certi?cation. 

.

   

NYT DOJ, 16 CIV 

.. -- . 

Approved for public release. All withheld information exempt under b(1) and b(3) except as othenNise noted.

?to continue pending the completion of the Court's review of the
reauthorization certi?cations, 702(g) Certification?
respectively. {579%

The goVernment further submits that it would be consistent with national
security for the. Court to extend its consideration of the above-discussed amendments,
which authorize the use of the NSA and'CIA minimization-procedures submitted with
702(g) Certifications?n connection with foreign
intelligence. information acquired in accordance with the predecessors of those
certifications. The NBA and CIA minimization procedures currently approved'for use
under those predecessor certifications, however; differ in some respects from the NBA

and CIA minimization procedures submitted with 702(g) Certifications

The government believes that authorizing the NBA and

CIA to use a single set of minimization procedures each agency's respective
minimization procedures submitted with 702(g) Certifications 
for the entirety of each agency's holdings of foreign intelligence
information acquired under section 702 Will result in a more uniform application of
minimization standards to that information. Authorizing each agency to use a single

set of nunimization procedures for that information also will significantly simplify

 

NYT DOJ, 16 CIV 7020_000346

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

WEE-BTW

For the foregoing reasons, the government respectfully submits that there is: good 

cause for the Court to issue orders under 50 U.S.C. 1881a(j)(2) attending to July 22,

2011, the time limit for the Court to cornplete its review of, and issue orders under .

50 U.S.C. 1881a(i) (3) concerning, 702(g) Certifications?

and the amendments to their respective predecessor certi?cations, and that such an

extension would be consistent with national security. For 702(g) Certification

?-the government also requests that the Court issue the proposed Notice of

Extension, attached herewith. (W3-

Respectfully submitted,

 

National Security Division
United States Department of Justice

 

NYT DOJ, 16 CIV 7020_000347

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

. . . 
APPROVAL
I ?nd that this motion regarding 702(g) Certi?cations 

-and the amendments to their respective predecessor certi?riations satisfies the

criteria and requirements set forth in the Foreign Intelligence Surveillance Act of 1978, 

as?amended, and hereby approve its filing with the United States Foreign Intelligence

Surveillance Court. (S)

   
  

HF
Eric H. Holder, Ir.
Attorney General of the United 5

 

James M. Cole .
Deputy Attorney General of the United State

NYT DOJ, 16 CIV 7020_000348

Approved for public release. All withheld information exempt under 13(1) and 13(3) except as otherwise noted.



UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC.

 

IN RE 702(g) CERTIFICATION -et. a1. Docket No.

 

 

ORDER

This matter is before this Court on. the motion-of the United States for an order
under 50 U.S.C. 188la(j)(2) of the Foreign Intelligence Surveillance Act of 1978, as
amended ("the Act"), extending to July 22, 2011, the time limits established by 5t) U.S.C.I
5 1881a(i)(1)(B) and (C) for this Court to complete its review of, and-issue orders under
50 U.S.C. 1881a(i)(3) concerning, 702(3) Certi?catio?
In
entertainingthe government's motion, this Court has considered the following:

1. 702(g) Certi?cation-sauthorizes DNIIAG 702(g) Certi?cation
- which expires on August 19, 2011.

2. Included within 702(g) Certificatior- are amendments to

702(g) Certifications These amendments

authorize the use of the minimization procedures attached as Exhibits and to

 

NYT DOJ, 16 CIV 

A - I - 
. pproved for public release. All Withheld Information exempt under b(1) and b(3) except as otherwise noted.

702(g) Certification- in connection with foreign intelligence information

acquired in accordance with 702(g) Certi?cations 

3. The government submitted 702(g) Certification - and the
amendments to 702(g) Certifications ?to the Court
on April 22, 2011.

4. By operation of 50. U.S.C. 1881a(i)(1)(B) and (C), this Court is required to
complete its review of, and issue orders under 50 U.S.C. 1881 21(1) (3) concerning,
702(g) Certification-and the amendments to 702(3)
I Certifications? by May 22, 2011.

5. Based on the record presently before this Court concerning these matters, this
Court will not be able to complete its review of, and issue orders under 50 U.S.C.
1881 concerning, 702(g) Certi?cation- and the amendments to
702(g) Certifications?before May 22, 2811.

6. 1he government has asserted that it will be able to supplement the record
concerning these matters in a manner that will aid the Court in reviewing 
7 02(g) Certification- and the amendments to 702(g) Certifications-
?and in making the determinations necessary to issue orders
under 50 U.S.C. 1881a(i)(3). However, the government has ?represented that it will not

be after May 22: 201}: 

NYT DOJ, 16 CIV 7020_000350

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50 U.S.C. 188ia(j)(2) permits this Court, by order for reasons stated, to
extend, as necessary for good cause in a manner consistentlwith national security, the
time?limit for this Court to issue orders under 50 U.S.C. concerning
702(g) Certi?cation -and the amendments to 702(g)
Certi?cations 

8. By operation of 50 U.S.C. 1881a(i)(5)(B), the authorization in the certification
to be reauthorized, 702(g) Certification-continues beyond its stated
expiration date until this Court issues an order under 50 U.S.C. 1881a(i)(3) concerning
702(g) Certification -

Having given full consideration to these matters and the representations in the
government?s motion, this Court finds that there is good cause to extend the time limit
for its review of 702(g) Certification -and the amendments to DNIZAG
702(8) May 22, 2011, and that such I
extension is consistent with national security. I

WHEREFORE, IT IS HEREBY ORDERED that the government's motion is

and

NYT DOJ, 16 CIV 7020_000351

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IT IS FURTHER ORDERED, pursuant to 50 U.S.C. 1881a(j)(2), that the time
limit for this Court to complete its review of, and issue orders under 50 U.S.C.

. 1881a(i)(3) concerning, 702(g) Certi?cation-and the amendments to-

DND DD .

2011.

Signed Eastern Time
Date Time

 

Judge, United States Foreign
Intelligence Surveillance Court

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ion - --. .
Number captione- -

NYT DOJ, 16 CIV 

 

 ..

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NYT DOJ, 16 CIV 7020_000354

 

Approved for public release. All withheld information exempt under 13(1) and b(3) except as othenmise noted.

NYT DOJ, 16 CIV 7020_000355

 

Approved for public release. . I All withheld Information exempt under b(1) and b(3) except as otherwise noted.

 

NYT DOJ, 16 CIV 7020_000356

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NYT DOJ, 16 CIV 7?020_000357

 

Approved for public release. All withheld information exempt under b(1) and b(3) except as othemise noted.

NYT DOJ, 16 CIV 7020_000358

 

Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted.

DOJ, 16 CIV 7020_000359

 

Approved for public release. 

All withheld information exempt under and except as otherwise noted.

 

NYT DOJ, 16 CIV 7020_000360_

 

 

 

 

 

Approved for public release. . All withheld information exempt under blI) and 13(3) except as otherwise noted.
I :g 
3 l" i112 I. . 

iiel Pl?l h= L37

UNITED STATES
EGREIGN INTELLIGENCE SURVEILLANCE Gd?jtdt

WASHINGTON DC. m? lazing?? . 

r-I ?rm 

 

 

 

NOTICE OF FILING OF 
TO THE BRIEFING ORDER OF MAY 9f 2011

THE UNITED STATES OF AMERICA, through the undersigned Department of

Justice attorney, respectfully submits the attached factual and legal response to the

. Classified by

Reason:
Declassify- on:

 

NYT DOJ, 16 ON 7020_000364

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



questions posed by this Court in its Brie?ng Order of May 9, 2011.. concerning the

above?referenced matters. The Government may seek to supplement and/or modify its

re5ponse as appIOpriate during any hearing that the Court may hold in the above-

captioned matters. 

Respectfully submitted,

   

 

 

    

National Security DiVIslon
United States Department of Iustice

 

NYT DOJ, 16_ CIV 7020_000365

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VERIFICATION
I declare under penalty of peijury that the facts set forth in the attached
?Govermnent?s Response to the Conrt's Briefing Order-of May 9, 2011, are true and
correct based upon-my best informatien, knowledge and belief. Executed pursuant to

Title 28, United States Code, 1746, on this 1st day 0i lune, 2011. (S)

 

 

 

Signals Intelligence Directorate Compliance Architect
National Security Agency

 

NYT DOJ, 16 CIV 7020_000366

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WW

RESPONSE TO THE
BRIEFING ORDER OF MAY 9, 2011

1. The overnrnent's May 2 Letter can be read to take the position that
are communications authorized for collection under the Section 702

Certifications that have previously been approved by the Court. 

a. For how long has NSA been acquiring? through its
upstream collection? 

       
  
   

I


Under the?Section 702 Certi?cations, NSA ac ?alter cilia ?Internet
communications," E. 702(g) Certi?catioh
Affidavit of General Keith B. Alexander, Director, National Security Agency (N SA 1 ed Apr.

20, 2011, at 1] ternet communications ?include, but are
not limited to, -

 

 

  
    

In the context of NSA's upstream collection techniques, NSA acquires Internet
communications in the form of "transactions," which in? this ?ling refers to a complement of
"packets" traversing the Internet that together may be understood by a device on the Internet and,
where applicable, rendered in an intelligible form to the user of that device.1 A "transaction"
might contain information or data representing either a discrete commumcation an e-mail
message), or multiple discrete As further described in 
the response to question 32 below, whenever a tasked selector is present within a transaction,
NSA's "upstream" Internet collection techniques are designed to identify and acquire that

transaction. 

 

While the terms "Internet communication" and "transmission" have been used to describe the types of
communications NSA acquires, NSA believes that, in the context of upstream collection, "transaction" is
the more precise term from a technical perspective, because ?transmission" could be understood to mean
__all data being exchanged on the Internet within a speci?c time period by a speci?c device, and an
l?Internet communication" may actually --

among persons. 618W 

The transactions discussed herein whether they contain single or multiple discrete
'cat?ions having a commonality of a single user should not be confused with the two

compliance incidents initially reported to the Court on April 19, 201 II iid ?rmer

discuSsed below in the Government?s res case to uestion 6, which involved the
unrelated communications



  

 

 

 

 

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At the time of acquisition, upstream Internet collection devices are, with limited
exceptionsfurther described below, not presently capable of distinguishing transactions
containing only a single discrete conuntmication to, from, or about a tasked selector from
transactions containing multiple discrete communications, not all of which may be to, item, or
about a tasked selector.2 Thus, in order to acquire transactions containing one or more
communications to, from, or about a tasked selector, it has been necessary for NSA to employ
these same upstream Internet collection techniques throughout me entire timeframe of all

certi?cations authorized under Section 702 of the Foreign Intelligence Surveillance Act of 1978,
as amended (hereinafter or "the Act"), and the Protect America Act of 2007, Pub. L. No.
110-55, 121 Stat. 552 (Aug. 5, 2007) (hereinafter It was also necessary for NSA to

- - - . . lection techni-ues to int-lenient the electronic surveillance authorized

         
   

and In re

 

b. According to the May 2 Letter, _may include the full
content of email messages that are not to, from or about the user of a targeted
selector. They also may include discrete communications as to which all
communicants are within the United States. Please explain how the acquisition of

such transmissions: 

i. comports with the government's representations to the Court regarding the
scope of upstream collection under Section 702 and the approvals granted by the
11 on those re resentations in Dockets 702(i) 08?01,?
see, Docket No. Aug.
27, 2008 Hearing Transcript at-19?26, 40-41 and Sept. 4, 2008 Memorandum
Opinion at 15?20, 38); -

The Government has concluded, after a careful review of the record, that its prior
representations to the Court regarding the steps NSA must take in order to acquire single,

- oi; 
means by which such communications are acquired through upstream-collection 
techniques. The Government will attempt through this thing to provide the Court with a more
thorough explanation of this technically complex collection. This notwithstanding, the

Government respectfully submits that for the reasons set forth in its responses to questions 2.ii.,

 

2 Speci?cally, as is discussed in the Govermnent?
brie?ng order, NSA does have the abil' 
ed selector in certain cases

3 reSponse to questions 2(c) and of the Court?s .
iscrete communications to, hem, or

       
     

 

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and 5 below, prior and ongoing acquisition of information utilizing its upstream
collection techniques is consistent with the Court?s pn'or orders, meets the requirements of
Section 702, and is consistent with the Fourth Amendment. 

b. According to the May 2 Latch?may include the full
content of email messages that are not to, from or about the user of a targeted 
Selector. They also may include discrete communications as to which all
communicants are within the United States. Please explain how the acquisition of

such transmissions: 

ii. meets the requirements of Section 702, including, but not limited to, the
requirement that targeting procedures must be reasonably designed to prevent
the intentional acquisition of any communication as to which the sender and all
intended recipients are known at the time of acquisition to be located in the
United?States"; and, $333333? 

TARGETING PROCEDURES ARE REASONABLY DESIGNED TO PREVENT
THE INTENTIONAL ACQUISITION OF COMMUNICATIONS AS TO WHICH THE
SENDER AND ALL INTENDED RECIPIENTS ARE KNOWN AT THE TIME OF
ACQUISITION TO BE LOCATED IN THE UNITED STATES. (-53- 

Under Section 702, the Government targets ?persons reasonably believed to be located
outside the United-States to acquire foreign intelligence infatuation.? 50 U.S.C. 1881a(a).
The Government determines whether the targeting Of a person is consistent with Section 702 by
applying Court-approved targeting procedures. 50 U.S.C. 1881a(d). These targeting
procedures must be "reasonably designed to (A) ensure that any acquisition authorized under
subsection [702(a)] is limited to targeting persons reasonably believed to be located outside the
United States; and (B) prevent the intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of acquisition to be located in the United
States." _50 U.S.C. 1881a(d)(1). (U) -

A. The User of a Tasked Selector is the Person Being Targeted by all

 

Acquisitions s'U?p?stream 'Collectic 
Contain Multiple Discrete Communications?WW

As previously explained to the Court, the Goverrmrent "targets" a person by tasking for
collection a "selector" (6. . an email account) behaved to be used by that person. See, In
re CertificWDocket No. Mem. Op. at.8 (USFISC Sept. 4,
2008) (hereinafter em. NSA acquires foreign intelligence information through
the tasking of selectors by collecting ceimnunioations to or from a selector used by a targeted

person (hereinafter "to/from communications") and by collecting communications that refer to or
are about a selector used by a targeted person (hereinafter "abouts cormnunications"). Id.

. . 

 
   
 

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In both of these types of acquisition, the person being "targeted" is the user of the tasked
selector, who, by operation of the targeting procedures, is a non-United States person reasonably
believed to be located outside the United States. Speci?cally, "the persons targeted by
acquisition of to/from communications are the users of the tasked selectors," because "their
are intentionally selected for acquisition." -Mem. Op. .at 15. Similarly,
the person being targeted by acquisition of abouts communications is also the user of the tasked
selector, "because the government's purpose in acquiring about communications is to obtain

information about that user." Id. at 18 (citation omitted). WP)

This remains true for all acquisitions cbnducted by NSA's upstream collectio 
including transactions containing several discrete communications, only one of which may be to,
from, or about the user of a tasked selector. As discussed above, the fact that there also may be
communications to, from, or about persons other than the target in the transaction does not mean
that those persons are also being targeted by the acquisition. The sole reason a transaction is
selected for acquisition is that it contains the presence of a tasked selector used by a person who

 

has been subjected to targeting 
NSA cannot always know whether the tranSaction includes other data or information
representing communications that are not to, from, or about the target, let alone always have
knowledge of the parties to those Cf. - Mom. Op. at 18?1 9 (noting that
with respect to abouts communications, "the government may have no knowledge of [the parties
. to a communication] prior to acquisition?). It therefore cannot be said that the acquisition of a

. transaction containing multiple discrete communications results in the intentional targeting of
any of the parties to those communications other than the user-of the tasked selector. Cf. United
States v. Bin Laden, 126 F. Supp. 2d 264, 281 (S.D.N.Y. 2000), a??d sub nom. In re Terrorist
Bombings of US. Embassies in EdstA?'ica, 552 F.3d 157 (2d Cir. 2008), cert. denied sub nom.
El-Hage v. United States, 130 1050 (2010) (acknowledging. that in light of United States v.
Verdngo-Urqnidez, 494 U.S. 259, 265 (1990), and Title ?incidental interception? case law,
overseas surveillance of a United States person terrorism suspect would have posed no Fourth
Amendment problem "if the Governnient had not been aware of [his] identity or of his

complicity in the [terrorism] enterprise"). 

 

 

NYT DOJ, 16 CIV 7020_000370

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B. NSA's Targeting Procedures are Reasonably Designed to Prevent the

Intentional Acquisition of Communications as to Which the Sender and All
Intended Recipients Are Known at the Time of Acquisition to be in the
United States 

In conducting acquisitions targeting the user of a tasked selector, the Government "may
not intentionally acquire any communication as to which the sender and all intended recipients
are known at the time of acquisition to be located in the United States.? 50 U.S.CC 1881a(b)(4).
As noted above, the targeting procedures must be reasonably designed to prevent such
intentional acquisitions. With respect to to/i?rom "because a user of a tasked
selector is a party to every to/ from communication? acquired by NSA, a reasonable belief that the
users of tasked selectors are outside the United States will ensure that NSA does not intentionally
acquire any communication 'as to which the sender and all intended recipients are known
at the time of acquisition to be located in the United States.?' -Me1n. Op. at 15 (citation
onutte . 1 respec 0 up 
targeting procedures provide that: .

  

4

Amendment 1 to 702(g) Certi?cation-Docket No. A,
tiled Aug. 12, 2010, at 1-2 (hereinafter Targeting Procedures"). Although these

- provisions on their face suggest separate technical means might apply only to the "abouts" aspect
ofNSA's upstream collection, in practice these provisions currently apply to any Internet

transaction collected upstream. 

reiresented that 'fthe oieraticn of the IP address ?lters or
arge as 0 er

prevents the intentional acquisition of commumcaticns a on 

and all intended recipients"'a're . . ..
States." In. re 702 Certi?cation - Docket No. Govermnent's.

Preliminary Response to Questions Posed by the Court, ?led Aug. 26, 2008, at 3. The

Government also has represented that these IP ?lters "have been effective in limiting the

collection to communications with at least one conununicant located outside the United States."

 

 

4 This provision has remained identical throughout every set ofNSA?s Section 702 targeting procedures

 

702(g) Certi?cation I 

NYT DOJ, 16 CIV 7020_000371

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Id. at_4. Except in one circumstance previously reported to the Court,S the Government is not
aware of a case where an about collection resulted in the acquisition of a communication Where
both ends were inside the United States. NSA therefore continues to believe that these prior
representations remain accurate. Accordingly, for the-reasons described below, the Government
respectfully submits that targeting procedures are reasonably designed to prevent, in the
context of NSA's upstream collection, ?the intentional acquisition of any communication as to

- which the sender and all intended recipients are know of ac uisition to?he located in
the United States," including'lnternet communications that
have not been previously described to the Court. 50 U.S.C. 1881a(d)(1)(B). 

1. How NSA's IP Filters Work 

 

NSA acquires Internet co- individual ackets of data that
make 11 those communications.

 

 

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3

 

     

Additionally, at the time of acquisition, upstream 1 eme co co 1
limited exceptions furthei described below, not presently capable of distinguishing tiansactions
containing only a single discrete communication to, from lor about a targeted selector from
transactions containing multiple discrete communications} Accordingly, NSA cannot prevent
- the acquisition of, or even mark for separ ent those es of transactions that may
feature multiple discrete communications

  
 
 
 

 

7 See Government? 5 response to questions 2(0) and in??a?l)

 

 

NYT DOJ, 16 

 

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3

 


3

Except for the one instance noted above conCerning an error by an electronic

communication service rovider NSA is not aware of any instance in which its upstream
collection on _or are subject to an IF ?lter
nevertheless resulted in the acquisition of a 1011 as to which the sender and all
intended recipients were known at the time of acquisition to be located in the United States 11

This includes those situations in which NSA might collect unrelated communications when
acquiring Internet communications that include multiple, discrete communications. 

 

 

?1 It is noteworthy that the provider error that resulted in the acquisition of domestic communications was
?rst identi?ed not by the provider, but by an NSA analyst who recognized a domestic communication in
repositories, realized that such a domestic communication should not have been acquired, and
properly reported the communication through NSA channels. NSA investigated this matter and found
that domestic communications theoretical limitations in its 11? ?lter
technology, but instead because The
domestic overcollection. caused by this incident represented a very small portion of NSA's co ection
during the time period of the overcollection, and an even smaller portion of NSA's collection since the
initiation of its Section 702 acquisitions, but the error was still discovered and remedied. It is therefore
particularly noteworthy that no NSA analyst has otherwise y'et discovered a wholly domestic

is

NYT 16 CIV 7020_000374

   
 

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In May 2011, NSA conducted two tests of its Section 702 upstream collection in order to
determine the likelihood of collecting an hiternet transaction between a user in the United States
The ?rst test included

The second test include I

(seesaw

The. ?rst test sample included no records where both the sender and receiver IP addresses
were in the United States - - -

  
  
    

    
 
 
    
  
 
  

    

   

  
       

. ana yels Ti" terrevea 1 u. i
- 

.ccessin_ a

For the second dataset, NSA ana y31s a scovere 1a
total records (0,0016%) included anon-targeted user likely
ccessin the Internet from an IP address in the United States.

NSA assesses, based on anaiysm 0! H13 unWr yin -
ies of the same Internet transaction,W
There 1s no 111 1c

olly domestic conununications throng its acquisition of this transaction.

 
   
  

  
      

 

only .out of more than I

 
   
   

 

in fact was

NSA collected any wh
WW3-

In sum, the Government submits that the two test samples discussed above, coupled with
the fact that, except as noted above, no NSA analyst has yet discovered in repositories a
wholly domestic communication collected through NSA's upstream collection systems, strongly
suggests that acquisition of transactions or single Internet communications between users
in the United States and _currently occurs only in ayery small percentage of

 

cases. Even those rare cases 

receiving from the?a transaction containing a communication from a person
known at the tiine of acquisition to be located in the United States. Westerns}

 

12 Additionally, as discussed elsewhere herein, even if the sender is located in the United States, the

N33 

time of acquisition the sender's location. 83W

NYT DOJ, 16 CIV 7020_000_375

 one

Approved for puhlic release. All withheld information exempt under ?30) and b(3) except as otherwise noted.

2. The - Means by Which NSA Prevents the Intentional Acquisition
of Communications as to Which the Sender and All Intended Recipients
Are Known to be Located In the United States at the Time of Acquisition
Are Reasonable -

This Court has found that targeting procedures are reasonably designed to prevent
the intentional acquisition of in which the sender and all intended recipients are
known at the time of acquisition to be located in the United States. In approving 702(g)
Certi?cation with respect to NSA's upstream collection of I?abouts_" communications, in
particular,'the Court noted that NSA ?relies Oil?means of ensuring that at
least one party to the communication is located outside the United States." -Mem. op. at
19. As described above, those means are NSA's use of "an Internet Protocol ?lter
to ensure that the per tain forei 1intelli ence information is located
overseas" and NSA's 
Targeting Procedures at 1?2; see aiso -Mem.?Gp.?a . mg?on amends?
representations that these-means had prevented the acquisition of wholly domestic
communications under the FAA, and recognizing that it is "theoretically possible that a wholly

neans were

'0 communication could be acquired as a result of the
the Court found that these
"reasonably esrgne to preven mtentional acquisition of communications as to which all

parties are in the United States." -Mem. Op. at 20 n.17. The Govemrnent respectfully
submits that there is no aspect of NSA's upstream collection, as ?nther described herein, that
would prevent the Court from continuing to ?nd that targeting procedures are reasonably
designed to prevent the intentional acquisition of communications as'to which the sender and all
intended recipients are known at the time of acquisition to be in the United States.



Two aspects of 
addressed by the

 

  
 
    
   

 
   

upstream collection activity that have not been speci?cally
'ein: ?rst the fact that NSA acquires some

 
      
 
  
  

 

 
   

and second, the fact that NSA could acquire
:2 'whether'retrievin-g- a?single; -- - 
communication, or a transaction containing several discrete communications possibly resulting

in the acquisition of wholly domestic cemmunications. 

  

 
  
 
  

a. Ac uisition of Communications that

 

NSA's targeting proce ures are

sender and all intended recipients are known at the time of acquisition to be located in the United 



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5

 

estic Communications Through

 
 
  
     
   

ve?discussed theoretical cases in which NSA could acquire a
NSA's targeting

procedures also are reasonably designed to prevent the intentions acqm31 on 
as to which the sender and all intended recipients are knovm at the time ?of acquisition to be
located in discussed above NSA assesses that

 

        
  
      
 
  
 
 

    

only in a minute percentage of cases. Yet even in those rare cases, ere wou
NSA to know at the time of acquisition that the sender and intended recipient are

no Way for
United States.

 

't is highly unlikely that the wou con am
information useful .. ..
currently not possible f0 SA's ?lters to

 

  
   

 

    
   

cause NSA's ?lters will be looking at est av a 011113 on,
it cannot be said that the sender

and all intended recipients of those communications are own at the time of acquisition to be

located in the United States. Similarly, in the case of NSA's 

 

NYT DOJ, 16 CIV 7020_000377

 

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3

3

Accordingly, NSA has designed its systems so that it should never intentionally acquire a
communication as to which the sender and all intended recipients are known at the time of
acquisition to be located in the United States. To the extent that NSA does unintentionally
acquire such communications, NSA must treat-those communications in accordance with its
minimization procedures -- just as it must for other types of communications that it is prohibited
?om intentionally collecting under subsection 702(b), but nevertheless sometimes does

unintentionally acquire, such as communications acquired from a target while that target is


 

located inside the United States. {Ton om Uu,1.u.. 
c. Conclusion (U)

Although for different reasons than those discussed above, the Court has recognized that
it is ?theoretically possible that a wholly domestic could be acquired" through
NSA's upstream collection of ?abouts? communications. -Me1n. Op. at 20 n.17. For the
reasons outlined above, the Government subunits that, despite the theoretical
scenarios under which NSA could acquire communications through its upstream collection as to
which the sender and all intended recipients are located in the United States, targeting
procedures are reasonably designed to prevent such acquisitions where the location of the sender

and all intended recipients is known at the time of 

he remainder ofthis page intentionally left blank.

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3

13. According to the May 2 Letter,? may include the fun
content of email messages that are not to, from or about user of a targeted 
selector. They also may include discrete communications as to which all
communicants are within the United States. Please explain how the acquisition of

such transmissions: 
is consistent with theFourth Amendment-(TWE-

ACQUISITION OF TRANSACTIONS CONTAINING MULTIPLE DISCRETE
COMMUNICATIONS IS CONSISTENT WITH THE FOURTH AMENDMENT.


Section 702 requires the Attorney General (AG) and the Director of National Intelligence
(DNI) to execute a certi?cation attesting, among other things, that the targeting and minimization

roce ures are con quirements of the Fourth Amendment. 50 
188 1 In reviewing a certi?cation, Section 702 in tum requires the Court to enter
an order approving the certi?cation and the use of the targeting and minimization procedures if
the Court ?nds, among other things, that those procedures are consistent with the requirements of
the Fourth Amendment. Id. 188 The issue for the Court in light of the above-
described nature and scope upstream collection is whether, in light of a governmental
interest "of the highest order of targeting and minimization procedures
suf?ciently protect the individual privacy interests of United States persons whose
communications are inadvertently acquired. In re Directives Pursuant to Section 1053 of the
Foreign Intelligence Surveillance Act, 551 F.3d 1004,1012 (Foreign int. Surv. Ct. Rev. 2008)

(hereinafter "In re Directives"). 

The Fourth Amendment protects the right "to be secure . against unreasonable searches
and seizures" and directs that "no Warrants shall issue, but upon probable cause, suppmted by
Oath or affmnatiOn, and particularly describing the place to be searched, and the persons or.
things to be seized." U.S. Const. amend. IV. As demonstrated below, the Fourth Amendment
requires no warrant here, and the upstream collection conducted by NSA is a reasonable exercise
mofgovernmental power that satis?es the Fourth Amendment. 
A. The Warrant Requirement Does Not Apply to Acquisition of

Transactions Containing Multiple Discrete Communications.

The Supreme Court has recognized exceptions to the Fourth Amendment's warrant
requirement "when special needs, beyond the normal need for law enforcement, make the
warrant and probable?cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873
(1987) (internal quotations omitted); see also Vernonia Sch. Dist. 47.] v. Acton, 515 U.S. 646,
653 (1995) (quoting Grif?n). The Foreign Intelligence Surveillance Court of Review, in
upholding the Government's implementation of the PAA, held that a foreign intelligence

gence for national

security purposes and is directed against foreign powers or agents of foreign powers reasonably 

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3

believed to be located outside the United States." In. re Dir?ectiiIes, 551 F.3dat 1012. See also In
re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002) the . . . courts to
have decided the issue [have] held that the President did have inherent authority to conduct
warrantiess searches to obtain foreign intelligence information"). . 

In approving a previous Section 702 certi?cation, this Court has found that Section 702
acquisitions "fall within the exception recognized by the Court of Review" in that they "target 

. persons reasonably believed to be located outside the United States who will have been assessed
by NSA to possess and} or to be likely to communicate foreign intelligence information
concerning a foreign power authorized for acquisition under the Certification" and are
?conducted for national security purposes." Mom. Op. at 35 (citations omitted).
Speci?cally, this Court recognized that the ourt Review's rationale for applying a foreign
intelligence exception "appl[ies] with equal force? to Section 702 acquisitions, in that the --
Government?s purpose in conducting Section 702 acquisitions goes well beyond a normal law
enforcement objective and involves ??the acquisition from overseas foreign agents of foreign .


is particularly intense."I Id. at 35-36 (quoting In re Directives, 551 F.3d at 1011). In addition, 
this Court, noting the likely volume of Section 702 acquisitions and the fact that those
acquisitions involve targets who are attempting to conceal their communications, found that
"[s]ubj ecting - number of targets to a warrant process inevitably would result in delays
and, at least occasionally, in failures to obtain perishable foreign intelligence information, to the
detriment of national security." morn. Op. at 36; see also United States v. Triton Dink
Hang, 629 F.2d 908, 913 (4th Cir. 1980 ("attempts to counter foreign threats to the national
security require the utmost stealth, speed, and secrecy? such that warrant requirement would
add a procedural hurdle that would reduce the ?exibility of executive foreign intelligence
initiatives, [and] in some cases delay executive response to foreign intelligence threats. . . The 

Court?s previous. finding that the foreign intelligence exception applies to Section 702
acquisitions remains equally applicable here. {sesame

 
 
 
 

NSA's Acquisition of Transactions Containing Multiple Discrete
Communications is Reasonable Under the Fourth Amendment. 

Where, as here, the foreign intelligence exception applies, "governmental. action intruding

on individual privacy interests must 
requiremen In re Directives, 551 F.3d at 1012. In evaluating the reasonableness of the
Government's action, a court must consider the totality of the circumstances, see United, States v.
Knights, 534 U.S. 112, 118 (2001), taking into account "the nature of the government intrusion
and how the intrusion is implemented." In re Directives, 551 F.3d at 1012 (citing Tennessee v.
Garner, 471 U.S. 1, 8 (1985) and United States vf Place, 462 U.S. 696, 703 (1983)). In
balancing these interests, the Court of Review has observed that "[t]he more important the

government's interest, the greater the intrusion that may be constitutionally tolerated.'.? In re
Directives, 551 F.3d at 1012 (citing Michigan v. 452 U.S. 692, 701?05 (1981)). "If the
protections that are in place for individual privacy interests are sufficient in light of the

7? 7' stake, theconstitutional-scales wilLtilt illjfaitgtgiupl?ltidliggib? 

government's actions.? Id. 
.. I 11Ir??

 

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3

1. NSA's Acquisition of Transactions Containing Multiple Discrete .
Communications Implicates Fourth Amendment?Protected Interests.



Although targeting under Section 702 is limited _to non?United States persons reasonably
believed to be located outside the United States, who are not entitled to protection under the
Fourth Amendment, see, eg. _Mem. Op. at 37, this Courthas recognized that conducting
acquisitions under Section 702 creates a ?real and non?trivial likelihood of intrusion on Fourth
Amendment?protected interests" 'of United?States persons or persons located in the United States
who, for example, communicate directly with a Section 702 target, id. at 38.14 In particular, as
described herein, upstream collection may incidentally acquire information concerning
United States persons within transactions containing multiple discrete communications, only one
of which is to, from, or about a person targeted under Section 702. 


Contained in All Transactions, Including Those Containing Multiple
Discrete Communications, is Paramount. 

On the other side of the ledger, it is axiomatic that the Government?s interest in obtaining
foreign intelligence information to protect the Nation?s security and conduct its foreign affairs is
paramount. See, Hat'g v. Agee, 453 US. 280, 307 (1981) is 'obvious and unarguable'
that no governmental interest is more compelling than the security of the Nation." (citations
omitted)). Equally indisputable is the Goverrnnent?s interest in conducting acquisitions of
- foreign intelligence information? under Section 702 of the Act. See - Mem. Op. at 37

 

14 Although the scepe of Fourth Amendment protection for e-mail is not settled, the Government has
argued before this Court that United States persons have a reasonable expectation of privacy in the
content of such electronic conununications. See, United States of America's Supplemental Brief on
the Fourth Amendment, Docket No. 105B(g) 07?01, ?led Feb. 15, 2008, at 1. _The Government likewise
assumes for purposes of this filing that the collection 0- implicates privacy interests
protected by the Fourth Amendment. .

intelligenceinfonna?on"" lS?dC?'Iled' 35(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 I
(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 foreign territory that relates to, and if conceming a
mm? ?Mm. .. 
(A) the national defense or the security of the United States; or - -
(B) the conduct 'ofth?eforeign affairs--of-the United-States? 

I

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("The government's national security interest in conducting these acquisitions ?is of the highest
uotin In. re Directives 551 F.3d at 1012)). For example, 

     

The Supreme Court has indicated that in addition to examining the govemmental interest
at stake, some consideration of the ef?cacy of the search being implemented that is, some
measure of ?t between the search and the desired objective is also relevant to the 
reasonableness analysis. See, e. Knights, 534 U.-S. at 119 (noting that the reasonableness of a
search "is determined 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 [the search] is needed for the
promotion of legitimate interests. (internal quotation marks omitted)); see also
Board ofEduc. v. Earls, 536 US. 822, 834 (2002) ("?Finally, this Court must consider the nature
and immediacy 0f the government's concerns and the ef?cacy of the Policy in meeting 
Here, NSA's acquisition of transactions through upstream collection is an essential and
irreplaceable means of acquiring valuable foreign intelligence information that promotes the
paramount govemmental mterest of 

(reassem-

The AG and DNI have attested that a signi?cant purpose of allacquisitions under Section
702, which includes those conducted by NSA's upstream collection, is to obtain foreign
intelligence information. These acquisitions are conducted?in accordance with FISC?approved
targeting procedures reasonably designed to ensure that the acquisitions are directed "toward
communications that are likely to yield the foreign intelligence information sought, and thereby

 

 

(U)
5- - -. 16-" - I -- z;

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WW 

afford a degree of particularity that is reasonable under the Fourth Amendment." -Mem.
0p. at 39-40 (footnote omitted). Indeed, ceitain of the valuable foreign intelligence information
NSA seeks to acquire through upstream collection of transactions simply cannot be acquired by

any other means. 

Speci?cally, as this Court has recognized, upstream collection "is particularly
important because it is uniquely capable of acquiring certain types of targeted communications

0 I valuable forei intelli_ence information," such as

  
 
  

 

.5 ch foreigs intellience infmmation is

   

. articularl useful, for example,

  

 

1? More speci?cally, during the course of the Court?s consideration of 702(g) Certi?cation -I .
uni ue value of 

 

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additi I enables NSA to ac uire foreign intelligence information

   
    

All of 1338 types 0 oomrnunrca 10
in transactions acquired through NSA's upstream collection. Valuable foreign intelligence
information such as this simply cannot be obtained by means other than the acquisition of
transactions through upstream collection. 

3. The Acquisition of Foreign Intelligence Information Contained in
Transactions is Conducted Using the Least Intrusive Means Available.



The fact that NSA's upstream collection acquires transactions that may contain several
discrete communications, only one of which is to, from, or about a tasked Selector, does not
render upstream collection unreasonable. See In re Directives, 551 F.3d at 1015 (?It is
settled beyond peradventure that incidental collections occurring as a result of constitutionally



also United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y. 2000) .
interception of a person's conversations during an otherwise lawful [Title surveillance is not
violative of the Fourth Amendment"); cf?Scott v. United States, 436 US. 128, 140 (1978)-
(recognjzing that "there are surely cases, such as the one at bar [involving a Title wiretap],
where the percentage of nonportinent calls is relatively high and yet their interception was still
reasonable?). Indeed, the Supreme Court has repeatedly rejected suggestions that reasonableness
requires "the least intrusive search practicable." City of Ontario ann, 130 S. Ct. 2619, 2632
(2010) (quotation marks omitted); see, Earls, 536 US. at 837 Court has repeatedly
stated that reasonableness under the Fourth Amendment does not require employing the least
intrusive means, because the logic of such elaborate 1ess?restrictive-altemative arguments could
raise insuperable barriers to the exercise of virtually all search?and?seizure powers." (internal
quotation marks omitted?; Vernonia, 515 US. at 663 (?We have repeatedly refused to declare

 

 

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9

that only the ?least intrusive' search practicable can be reasonable under the Fourth

Amendment"). 

Although not demanded by the Fourth Amendment, NSA is nevertheless conducting ?the
leaSt intrusive search practicable" when it acquires a single transaction which may contain
several discrete only one of contain forei intelli ence information
't 's to ??om or about a tasked selector.

     
  
  

 
 
 
   
 

ccordingly, at the time of acquisition, NSA
generally cannot know whether a transaction con ains only a single to, from, or
about a tasked selector, or whether tha ?on contains that sin le communication along

al other communications.?
also render the information
technologically infeasible for NSA's upstream co cc 1011 ems to extract only the discrete
communication that is to, from, or about a tasked selector. The gn_lv way to obtain the foreign

inte 1gence orma i 
the entire transaction in which it is contained. The fact that other, non-pertinent information
within the transaction may also be incidentally and unavoidably acquired simply cannot render
the acquisition of the transaction unreasonable. See United States v. Wuagneux, 683 F.2d 1343,
1352-53 (11th Cir. 1982) (observing that "a search?may be as extensive as reasonably required to
locate the items described in the warrant,? and on that basis concluding that it was "reasonable
for the agents [executing the search] to remove intact ?les, books and folders when-a particular
document within the ?le was identified as falling within the scope of the warrant"); United States 
v. Beusch, 596 F.2d 871, 876?77 (9th Cir. 1979) (rejecting argument that "pages in a single 7
volume of written material must be separated lay-searchers so that only those pages which

actually contain the evidence sought may be seized"). 

At the same time, NSA is making every reasonable effort to ensure that its upstream
collection acquires this singularly valuable foreign intelligence information in a manner that
minimizes the intrusion into the personal privacy of United States persons to the greatest extent
possible. As discussed above, these acquisitions are conducted in accordance with .
approved targeting procedures reasonably designed to ensure that the acquisitions are directed
only "tow communications that are likely to yield the foreign intelligence infonnation 
sough targeting 
procedures further ensures that "[t]he targeting of communications pursuant to Section 702 is
designed in a manner that diminishes the likelihood that United States person infonnation will be
obtained." - MemDirectives, Docket No. Mem. Op.
at 87 (USFISC April 25, 2008) (recognizing that ?the vast majority of persons who are located
overseas are non United States persons and that most of their communications are with other,
non?United States persons, who' are located overseas") (footnote omitted), 551 F.3d 1004
(Foreign Int. Surv. Ct. Rev. 2008). Lastly, to the extent that United States person information is
incidentally acquired in the acquisition of a whole transaction by NSA's upstream collection,

 
  

 

?7 See Government?s response to questions 2(c) and 

 

.19 

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such information will be handled in accordance with strict minimization procedures, as discussed

in more detail below. ?neness}

4. United States Person Information Acquired Incidentally Through NSA's
Acquisition of Transactions Containing Multiple Discrete
Communications is Protected by NSA's Section 702 Minimization

Procedures. 

As discussed above, the fact that upstream collection may result in the incidental
acquisition of communications of United States persons cannot, by itself, render the overall
collection unreasonable. instead, courts have repeatedly found support for the constitutionality
of foreign intelligence activities resulting in the incidental acquisition of United States person .
information in the existence and application of robust mir?mization procedures. See, In re
Directives, 551 F.3d at 1015 (recognizing that minimization procedures are a "means of reducing

Wow into the privacy of non?targeted United States persons?);
em. p. a 
U.S.C. 1801 "constitute 'a safeguard against improper use of information about United .

States persons that is inadvertently or incidentally acquired, and therefore contribute to the

Court's overall assessment that the targeting and minimization procedures are consistent with the

Fourth Amendment"). As explained below, NSA's cunent Section 702 minimization procedures,

which this Court previously has found to satisfy the de?nition of minimization procedures in 50

U.S.C. adequately protect the privacy interests of United States persons whose

communications may be incidentally acquired through NSA's upstream collection and thus

contribute significantly to the overall reasonableness of that collection. WT

At the outset, it is worth noting that acquisition of internet transactions containing
multiple discrete communications does not necessarily increase the risk that NSA will
11y acquire United States person information. For example, as discussed above, the
means by which NSA ensures it does not intentionally acquire wholl domestic
communications limits the acquisition of certain transactions such as 
to persons located outside the United States who reasonabl can be presumed to be non-United 
States?persons. Thus, to the extent that the of those non?United States persons
contain communications that are not to, from, or about a-targeted selector, those communications
are unlikely to be United?States person 
.Mem. Op. at 87 (recognizing that "the vast maj ?ority of persons who are located
overseas are non United States persons and that most of their communications are with other,
non?United States persons, who are located overseas?) (footnote omitted). For this same reason,

'51: that United States erson information would be obtained through the acquisition? of a
his no greater than in the acquisition of a 

18 50 U.S.C. 1801(h)(l) de?nes "minimization procedures" as ?speci?c procedures, which shall be
adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the
particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of

QQRSiStent With the

 

need of the United States to btain, produce, and disseminate fereign intelligence information.? (U) 

f7 -. . .3.) . 20 .- .-2- ..

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a. Acquisition (U)

As discussed above, with limited exceptions,? it is technologically infeasible for NSA's
upstream collection to acquire only the discrete communication to, hem, or about a tasked
selector that may be contained in a transaction containing multiple discrete communications.
That does not mean, hoWever, that the minimization procedures governing upstream
collection do not adequately minimize the acquisition of any United States person information
that may be contained in these transactions. Speci?cally, minimization procedures must be I
reasonably designed to minimize .the acquisition of nonpublicly available information concerning

uncons?enting, United States persons with the need of the United States to obtain,
produce, and disseminate foreign intelligence information." 50 U.S.C. 1801(h)(1). As



discrete communication is to acquire the entire transaction in which it is contained. Thus, to the
extent that United States person information may be contained within other discrete
communications not to, from, or about the target in that transaction, the acquisition of such
United States person information would be ?consistent with the need of the United States to
obtain . . . foreign intelligence information." {reassess 

Congress has recognized that "in many cases it may not be possible for technical reasons
to avoid acquiring all information" when conducting foreign intelligence surveillance. HR. Rep.
No. 95-1283, pt. 1, at 55 (197 see also id. at 56 (?It maynot be possible or reasonable to avoid
acquiring all conversations"); of Scott, 436 US at 140 (recognizing that Title "does not

. forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct

the surveillance in such as manner as to 'minimize' the interception of such conversations").
Rather, in situations where, as here, it is technologically infeasible to avoid incidentally
acquiring communications that are not to, from, or about the target, "the reasonable design of the
[minimization] procedures must emphasize the minimization of retention and dissemination."

I-I.R. Rep. No. 95-1283, pt. 1, at 55. 

 

b. Retention (mm?"m - 

In addition, for reasons discussed more fully below, nothing in the statutory de?nition of
minimization procedures obligates NSA to immediately destroy any United States person
information in a communication that is not to, from, or about a tasked selector within a

transaction acquired by upstream collection. 

 

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i. Destruction Is Not Technologically Feasible 

First, Congress intended that the obligation to destroy non-pertinent information would
attach only if the destruction of such inforrnation is feasible. See H.R. Rep. No. 95-1283, pt. 1,
at 56 (?By minimizing retention, the committee intends'that information acquired, which is not
necessary for obtaining[,] producing, or disseminating foreign intelligence information, be
destroyed wherefeasible.? (emphasis added)). That is because Congress recognized that in some
cases, the pertinent and non-pertinent information may be co-mingled in such a way as to make it
technologically infeasible to segregate the from the non-pertinent
information and then destroy the latter. See id. (?The committee recognizes that it may not be
feasible to out and paste ?les or erase part of tapes where some information is relevant and some

is not"). 

A transaction containing several communications, only one of which contains the tasked
selectorsingle message to, ??orn, or about a tasked selector. That is true both for NSA's collection
systems and for the NSA systems that process and then route Section 702-acquired information
to NSA's corporate stores. Thus, unlike other instances where it is technologically possible for

- certain kinds of communications to be recognized, segregated, and prevented from being routed

to NSA's corporate stores, the transaction as a whole, including all of the discrete
cominunications that may be included within it, is forwarded to NSA corporate stores, where it is

available to NSA 

The transaction is likewise not divisible into the discrete communications within it even
once it resides in an NSA corporate store. That is because NSA assesses that it is not
technologically feasible to extract, post-acquisition, only the discrete communication that is to,
from, or about a tasked selector within a transaction without destabilizing and potentially
rendering unusable -- some or all'of the collected transaction, including the single, discrete
communication which is to, ?om or about the tasked selector. Thus, an NSA analyst cannot, for
example, simply cut out any pertinent part of the transaction the discrete communication
that contains the tasked selector), paste it into a new record, and then discard theremainder. In

__this way, the transactions at issue here are a present-day version of the very same problem that

 

Congress recognized over thirty years earlier?4 .

to cut and paste ?les . . . where some information is relevant and some is not." Rep No. 95?

1283, pt.1, at 56. Given that Congress recognized it might be necessary to retain all acquired 
information regardless of its pertinence because destruction of the non?pertinent information may
not be feasible, minimization procedures that permit the retention of transactions in their

entireties because their further divisibility is infeasible (if not technologically impossible) are

- consistent with the statutory requirement that such procedures minimize the retention of United

States person information. WW 

NYT DOJ, 16 CIV 7020_000388

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ii. Retention of United States Person Information Can Be Effectively
Minimized Through Restrictions on its Retrieval 

Second, although it is not required that all non?pertinent United States person information
be destroyed, NSA's retention of non?periment information concerning innocent United States
persons is not without bounds. legislative history suggests that the retention of such
information could still be effectively minimized through means other than destruction. See HR.
Rep. No. 954283, pt. 1, at 56 (?There are a number of means and techniques which the
minimization procedures may require to achieve the purposes set out in the de?nition?). Of
particular relevanCe here, Congress recognized that minimizing the retention of such information
can be accomplished by making the information "not retri evable by the name of the innocent
person" through the application of "rigorous and strict controls." Id. at 58-5 9. Those ?rigorous
and strict controls," however, need only be applied to the retention of United States person . 
information "for purposes other than counterintelligence or counterten'orism.? Id. That is
because o'ngress in en a a s' 
and counterterrorism cases with respect to the retention of information." Id. at 5 9. 

NSA's current Section 702 minimization procedures ?atly prohibit the use of United
States person names or identi?ers to retrieve any Section 702?acquired communications in NSA 
systems. See, Amendment 1 to DNUAG 702(g) Certi?cation
-Ex. B, ?led-2010, (hemina?er Section 702 minimization
procedures?). This "rigorous and strict control[]" applies even to United States person
information that relates to counterintelligence or counterten?orism, despite Congress's stated
intent that agencies should have "a signi?cant degree of latitude . . . with respect to the retention
of [such] information." HR. Rep; No. 95-128358-59 (recognizing that
"for. an extended period it may be necessary to have information concerning [the] acquaintances
[of a hypothetical PISA target] retrievable" for analytic purposes, even though ?[a]mong his
contacts and acquaintances . . . here are likely to be a large number of innocent persons").
NSA's current Section 702 minimization procedures thus require the retention of information
concerning United States persons (innocent or otherwise) to be minimized to a Signi?cantly
greater degree than is necessary for those procedures to be reasonable. 

preteens seminarians tits-Cents approvatofwvised?NSA~S conch-702m 
minimization procedures that would enable NSA to use United States person identi?ers
as selection terms if those selection terms are reasonabl likel to return foreign intelligence
Er, Dane 702(g) admonish 13. ?xed.
Apr. 20, 2011, Under these revised NSA Section 702 minimization procedures, the
use of such selection terms must be approved in accordance with NSA procedures. Id. The
Government is still in the process of developing the NSA procedures governing the use of United .
States person identi?ers as selection ten'ns. Until those procedures are completed, NSA .
will not begin using United States person identi?ers as selection terms. The Government will
ensure that these NSA procedures contain "ligorous and strict controls" on the retrieval of United

WW 5
. A 23 I 3.1?7

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e. I Dissemination (U)

As discussed above, the NSA current Section 702 minimization procedures prohibit the
use of United States person identi?ers to retrieve any Section 702~acquired communications in
NSA systems. Accordingly, the only way incidentally acquired United States person information
currently will be reviewed by an NSA analyst is if that information appears in a communication
that the analyst has retrieved using a permissible query term one that is reasonably likely
to return information about non-United States person foreign intelligence targets. See NSA
Section 702 minimization procedures, Any identi?able United States person
information contained in a communication retrieved in this manner would be subject to the
dissemination restrictions in the NSA Section 702 minimization procedures, which operate to
ensure that any dissemination of United States person information is consistent with the Act;
These restrictions apply regardless of whether the United States person information is contained
in a discrete communication that is to, from, or about a tasked selector. Moreover, the same
lemm?mtememm?m?
retrieved through the use of a United States person identi?er as a selection term in accordance 
with revised 702 minimization procedures. Indeed, given the small probability that an
incidentally acquired communication of a United States person that is not to, from, or about a
tasked selector would contain foreign intelligence information or evidence of a crime, it is highly
unlikely that NSA would disseminate any information from that incidentally acquired
communication, let alone information concerning the United States person. 

 

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22 See footnote 22 below. CS)

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NYT DOJ, 16 CIV 7020_000392

 

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c. The May 2 Letter states that NSA is not presently bio of "se aratin out
individual ieces of information" contained within?
*May 2 Letter at 3. Please explain why and state whether it

would be feasible for NSA to implement such capability, either at the time of
acquisition or thereafteerESaLFS-L?w

Can ?be identified as distinct from

other, discrete communications between users, either- at the time of acquisition or
thereafter? If so, can ?lter its Section 702 collection on this basis? 

 

 

Except as described?above, at the time of acquisition, NSA is not presently capable of
separating out transactions that contain multiple electrOnic communications into logical
constituent paits without destabilizing and potentially rendering unusable some or all of the
entire collected transaction, including any particular communication therein which is in-fact to,
from, or about the tasked selector. Each electronic communication provider develops

 

   
 
  

protocoli?hat the 
ther factors that the rovider considers important. 

 

25 An NSA analyst would, however, be able to copy a portion of the rendered View of a transaction
contained in a NSA?corporate store and then paste it into a new record on a different system, such' as an
?F'fnnaiytic store. would be regained?in the

 

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3

Each of the major providers change protocols often to ?suit their own business purposes, and it is

therefore generally not possible for NSA to isolate or separate out individual pieces of
information contained Within single transactions at the time of NSA acquisition. Any protocol in

use todai could easily be changed by the provider tomorrow

   

described above, at the time of acquisition it is not technologically feasible for
cm, or about a tasked selector Within a

   

NSA to extract any particular communication that is to, fr
transaction containing multiple discrete communications. 

For the same reasons that protocol volatility and myriad user settings prevent the
extraction of only discrete communications at the point of acquisition, it is not technologically
feasible to extract, post-acquisition, only the speci?c communication(s) to, from, or about a
tasked selector within a. transaction without destabilizing -- and potentially rendering unusable --
some or all of the collected transaction, including any particular communication therein which is 
to, from, or about the tasked selector. Thus, an NSA analyst cannot, for example, simply cut out
the discrete communication that contains the tasked selector, paste it into a new record, and then

discard the remainder. 

The Ma 2 Letter notes that NSA uses Internet Protocol (IP) ?ltering and-
to prevent the intentional acquisition of

communications as to which the sender and all known recipients are inside the United

 

 

. 

Please describe how NSA applies 1? ?ltering in the context of 

a.

    

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NSA acquires Internet communications by collecting the individual packets of data that
make up those communications. As required by targeting procedures, all Internet
communications data packets that may contain abouts information that NSA intercepts through
its Section 702 upstream collection must either pass through an "Internet Protocol ?lter to ensure
that the person ?om whom it seeks to obtain foreign intelligence information is located

      

 

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acquisition of, or even mark for separate treatment, ose types of transactions that may feature

multiple discrete communications 

b. In the collection of "to/from" communications, are the communica?nts always the

individual users of particular facilities or does NSA
sometimes consider Please

explain. 

In the collection of communications, NSA considers the communicants as
benig. the individual users of particular selectors. More particularly, NSA considers those
individual-users to be. the senders and intended recipients of "ior?i?rom" enmm?eatieng??
Conversely, NSA does not conside

(misml?

4. to ms of numbers and volume, does collection 0W
under Section 702 compare with the co cc 1011
Internet communications (such as e?mail messages) between or among individual users?



As a result of the present technological limitationsm i
NSA cannot precisely measure the number of at rrni con am 0 .-

  

   

re resentin several discrete communications

for a in that ?gure with transactions containing a single, -
discrete communication without manually examining each transaction
that NSA has acquired. owever,.1n an a emp 0 provide an estimate of the volume of such
collection at the Court's request, NSA performed a series of queries into the SIGINT ColleCtion

- _ecord that holds the relevant transactions in question.

 

  

    
   
  

_ed manuall to co rm co ectron 

Results'were reviewed for three randomly selected days in April, averaged to pro-uce an
estimated ?gure of collection of* for the month of Apn'l. This ?gure -

. was then compared to the total take of Sect10n upstream Collection of web activity for the
month. From this sarn 1e NSA estimates that approximately 9% of the Section 702

upstream collection 0,?26 It is important

"?26'NSH'n?otes?that it"is-likeiy that this ?gure 
him/herself. 

 
  

   

 

NYT DOJ, 16 CIV 7020_000396

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WW

note that this virus a manually intensive and imprecise means to quantify the volume of


collection and should not be interpreted to suggest that any technological method
ofpre??ltering can be applied to the collection before it is available to the analyst. 

5. Given that some of the information acquired through upstream collection is likely to

constitute "electronic surveillance" as de?ned in 50 U.S.C. 1801(t)(2) that has not
been approved by this Court, how does the continued acquisition of, or the further use
or dissemination of, such information comport with the restrictions of 50 U.S.C.

180
I.

and 

THE CONTINUED ACQUISITION, USE, AND DISSEMNATION OF
INFORMATION ACQUIRED THROUGH UPSTREAM COLLECTION DOES
NOT VIOLATE 50 U.S.C. 

 

A. Introduction (U)

Section 702 Of PISA, as codi?ed at 50 U.S.C. 1881a, provides that ?[n]otwithstanding
any other provision of law,? upon the issuance Of an appropriate Order from the Court, the

Attorney
targeting
States to

General (AG) and the Director of National Intelligence (DNI) may jointly authorize the
Of non?United States persons reasonably believed to be located outside the United 
acquire foreign intelligence information as long as certain conditions set out in

subsection 702(b) are met. The joint authorizations of the AG and the DNI authorized 

upstream

acquisition of communications that are to, from, or about atasked selector. The Court,

in tmn, approved the implementing certi?cations as Well as the use of proffered targeting and
minimization procedures. Accordingly, because the acquisition of communications to, from, or
about a tasked selector was authorized by the AG and DNI, and the Court- approved the
certi?cations and procedures used to implement those authorizations, acquisition of such

As noted above, the readily acknowledges that it did not fullydesciibe to the
Court-that the upstream collection technique would result in NSA acquiring

types of Internet transactions that could include multiple individual, Escreie 

communications upstream does not constitute unauthorized electronic surveillance and,
therefore, does not violate the 50

1809. -

 

communications As
discussed below, however, this omission does not invalidate the A an 5 prior
authorizations. Nor does it mean that the incidental acquisition of communications that are not

to, from,
. from a tasked selector or contain reference to a tasked selector, exceeds the scope of those

or about a taslced selector as a consequence of obtaining communications that are to or

 

authorize

trons. or the same 

NYT DOJ, 16 CIV 7020_000397

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this Court upon which those authorizations rely likewise remain valid. Thus, Section 1809 .is not
implicated by upstream collection activities under Section 702. 

B. Statutory Framework (U)
i. Section 1809 (U)

Under Subsection 1809(a), a person is guilty of a criminal offense if he or she
?intentionally (1) engages in electronic surveillance under color of law, except as authon'zed by
this Act . .. . or (2) disclose[s] or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was obtained through
electronic surveillance not authorized by this Act?? (U)

For purposes of Section 1809 the issue is whether the Government?s prior failure to fully
explain in the Court the steps NSA must take in order acquire communications to, from, or about
a tasked selector, and certain technical limitations regarding the IP address ?ltering it applies,
means that the acquisition of such communications was not authorized by the DNI and AG, and
inconsistent with Court approval of the targeting and minimization procedures. 

ii. Section 702 Collection 

Pursuant to 50 U.S.C. I1881a(a), ?notwithstanding any other provision of law,? the AG
and the DNI may jointly authorize fora period of up to one year the targeting of non-United 
States persons reasonably believed to be located outside the United States to acquire foreign
intelligence information, subject to targeting and minimization procedures approved by this
Court, and certain limitations set out in ?1881a(b). Authorizations are premised on certi?cations
to the Court, in which the AG and DNI attest to the fact that, among other things, the targeting
and minimization procedures comply with certain statutory requirements and the Fourth

 

23' This Court has previously noted that the legislative history of this provision focuses on a

provision 61130th and codi?ed.
See Mem. Op.
at 6?7 (Dec. 10, 2010). Yet, both the predecessor bill and the codi?ed provision use wor 
intentionally, which has been described'as ?carefully chosen? and intended to limit criminal culpability to
those who act with a ?conscious objective or desire? to commit a violation. See HR. Rep. No. 95-1283,
pt. 1,1at 97 (1978) (?The word ?intentionally? was carefully chosen. It is intended to re?ect the most strict
standard for criminal culpability. . . . The Government would have to prove beyond a reasonable?doubt
both that the conduct engaged in was in fact a' violation, and that it was engaged in with a conscious
objective or desire to commit a violation?). Based upon discussions between responsible NSA of?cials

- and the Department of Justice (DOJ) and the Of?ce of the Director of National Intelligence (ODNI) and



indication that there was a conscious objective or desire to violate the authorizations hereIr-r .- . . .2. .3 

NYT DOJ, 16 CIV 7020_000398

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Amendment. 50 U.S.C. 1881a(g)(2). Authorizations become effective ?upon the issuance of
an order [of this Court]? approving the certi?cation and the use of the targeting and minimization
procedures as consistent with the statute and the Forum Amendment. Id. 1881a(a) (AG and
DNI authorizations go into effect upon ?issuance of an order?); (laying out scope

of FISC review)? 

Thus, if an acquisition is authorized by the AG and DNI, and the certi?cation and
targeting and minimization procedures which implement that authorization are approved by the
Court, and the authorization remains valid, then the acquisition does not constitute unauthorized
electronic surveillance under 50 U.S.C. and is not a violation of 50 U.S.C. 1309.



C. At a Minimum, the Upstream Acquisition of Single, Discrete Communications

 

To, From, or About a Tasked Selector Was Authorized The relevant AG and DNI authorizations and the targeting procedures the AG approved
explicitly permit the acquisition of Internet communications that are to, from, or about a tasked
selector. See, NSA Targeting Procedures at (describing the safeguards used in the
acquisition of ?about? as compared with ?to/from? communications). In addition, the
accompanying Af?davits of the Director of NSA described upstream collection in a paragraph
detailing the various methods of obtaining such acquisitions. See, 702(g) -
Certi?cation Af?davit of General Keith B. Alexander,
Director, NSA, ?led July 16, 2010, 4. Thus, it is clear that the authorizations permit at a
minimum the upstream acquisition of single, discrete communications to, from, or about a

tasked selector. 

As desciibed in detail in response to questions 2 and 3 above, due to certain technological
limitations, in general the only way NSA can currently acquire as part of its upstream collection

single, discrete communications to, from, or about a tasked selector ?is

transaction can include either a single, discrete communication to, from, or about a tasked

 

23 For reauthorizations, the AG and the DNI submit, to the extent possible, a certi?cation to the
FISC laying out, among other things, the targeting'and minimization procedures adopted at least 30 days
prior to the expiration of the prior authorization. The prior authorization remains in effect,
notwithstanding the otherwise applicable expiration date, pending the issuance of an order with
respect to the certi?cation for reauthorization. 50 U.S.C. 1881a(i)(5). The scope of the court?s review
is the same for reauthorizations as it is for initial authorizations. Id. 18813(i)(5)(B). (U)

. .Cl. 33 . :1 -2

NYT DOJ, 16 CIV 7020_000399



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selector or several discrete communications, only one of which may be

to, from, or about a tasked selector?(W

. Where an Internet transaction includes multiple communications, not all of which are to,
from, or about a tasked selector, it currently may not be technologically feasible for NSA to

. separate out, at the time of acquisition or thereafter, the discrete electronic communications
within that transaction that are to, from, or about a tasked selector. Indeed, at the time of
acquisition, upstream Internet collection devices are, with limited exceptibn, not capable I

of distinguishing or further separating discrete electronic communications? 

within a single Internet transaction. Thus, in some cases, NSA can co co
communications to, ?our, or about a tasked selector, as authorized by the ceiti?cation, only by
obtaining the Internet transaction of which those communications may be just a part.

{mamm? -

   

 

In this respect, the upstream acquisition of Intemet transactions which contam multiple,
discrete communications not all of which are (and, in some instances, only one of which is) to,
?'om or about a tasked selector is akin to the Government?s seizure of a book or intact file that
contains a single page or document that a search warrant authorizes the government to seize. In
United States v. Wuagneux, 683 F.2d 1343, for example,'the Eleventh Circuit rejected appellants?
argument that a search was unreasonable because the agents seized an entire ?le, book, or binder
if they identi?ed a single document within the ?le, book, or hinder as being within the
authorization of the warrant. As the court explained, ?a search may be as extensive as
reasonably required to locate items described in the warrant.? Id. at 1352. It was therefore .
?reasonable for the agents to remove intact ?les, books and folders when a particular document
within the ?le was identi?ed as falling within the scope of the warrant.? Id. at 1353. 'See also
United States v. Rogers, 521, F.3d 5, 10 (lst Cir. 2008) (concluding that a videotape is a
?plausible repository of a photo? and that therefore a warrant authorizing seizure of ?photos?
allowed the seizure and review of two videotapes); United States v. Christine, 687 2d 749, 760
(3d Cir. 1982) (en bane) (emphasizing that ?no tenet of?the Fourth Amendment prohibits a search

. . . .. .- with.surgicalprecision. .. N013. (10.65. ?le. . - - . ..

prohibit seizure of an item, such as a single ledger, merely because it happens to contain other
information not covered by the scope of the warrant.? United States v. Beusch, 596 F.2d 871,
876-77 (9th Cir. 1979) (rejecting argument that ?pages in a single volume of written material
must be separated by searchers so that only those pages which actually contain the evidence may

be seized?). {reassem?

That the certi?cations by the AG and DNI did not Speci?cally describe this aspect of
NSATS upstream collection does not mean that collection was unauthorized by the AG and DNI.
of searches conducted pursuant to criminal search

warrants is instructive on this point. For example, in Delta v. 

(1979), the Supreme'CouIt recognized that "'[ojften in executing a warrant the police-may ?ndit. .
_3

i: ?34

NYT DOJ, 16 CIV 7020_000400 I

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necessary to interfere With privacy rights not explicitly considered by the judge who issued the
warrant." Id. at 257. See United States v. Grubbs, 547 US. 90, 98 (2006) ("'Nothing in the
language of the Constitution 01 in this Court's decisions interpreting that language suggests that,
in addition to the [1equirements set forth 1n the text], search warrants also must include a
speci?cation of the precise manner in which they are to be executed?) (quoting Dalia, 441 U. S.
238,257 (1979)). This is especially true where, as in Delta, "[t]here IS no indication that [the]
intrusion went beyond what was necessary" to effectuate the search authorized. Dalia20. (assassins)?

Like the seizure of an entire book or ?le simply because it contained a single page or
document within the scope of the warrant, NSA only acquires an Internet transaction containing
seve1 al discrete communications if at least one of these communications within the transaction is
to, hem, of about a tasked selector. Moreover, unlike the agents in Wuagneux, who presumably


limited circumstances, NSA has no choice but to acquire the whole Internet tiansaction in order
to acquire the to, from, or about communication the DNI and AG authorized NSA to collect.
NSA only acquires an Internet transaction if infect it contains at least one communication to,
from, or about a tasked selector. acquisition of Internet transactions containing several
discrete commimications, only one of which is to, from, or about a tasked selector, is therefore
"as extensive as reasonably required to locate the items described" in the DNI and 
authorization, and thus cannot be said to exceed the scope of that authorization. 

Moreover, as described in response to questions 1(b)(ii) and the Government has
concluded that such collection fully complies with the statutory requirements and the Fourth
Amendment. Having now considered the additional information that is being presented to this
Court, the AG and DNI have continued that their prior authorizations remain valid.
Accordingly, Government personnel who rely on those authorizations to engage in ongoing
acquisition are not engaging in unauthorized electronic surveillance, much less' doing so

?1ntentionally 

D. The Court Approved the Certifications and Targeting and Minimization
Procedures Used to Implement the Authorizations of the?AG and DNI WSW

A second issue concerns whether this Court?s orders cover the ?ill scope of the
authorizations, and, if not, whether that affects the validity of the AG and DNI authorizations.
Like the AG and DNI autho1izations, 1n approving the applicable certi?cations and the use of the
proffered targeting and minimization procedures this Court? 3 Opinions and Orders clearly
and? appre-ved? seine- upstream? collection of_ commruncations ton?orn, _oi;_abont_a_
target._ See, Mam. Op. at l5 l7 (describing acquisition of communications to, fromNYT DOJ, 16 CIV 7020_000401

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



and about a target).29 Thus, for the reasons described above, the acquisition of Internet

transactions that include at least one communication to, item, or about a target falls within the
scope of the Court?s Orders even if additional communications are also incidentally acquired

due to limits in technology. 
The fact that the Government did not fully explain to the Court all of the means by which

such communications are acquired through NSA's upstream collection techniques does not mean

"smartest?wan intestine?titans 

that such acquisitions are beyond the scopeof the Court?s approval, just as in the criminal context
a search does not exceed the scope of a warrant because the Government did not explain to the
issuing court all of the possible means of execution, even when they are known beforehand and
could possibly implicate privacy rights. See Delta, 441 U.S. at 257 n.19 (noting that "[11]othing
in the decisions Of this Court . . . indicates that of?cers requesting a Warrant should he
constitutionally required to set forth the anticipated means for execution even in those cases
where they know beforehand that [an additional intrusion such as] unannounced or forced entry
likely will be necessary. In addition, as discussed herein, the incidental acquisitions do not go
beyond what is reasonably necessary to acquire the foreign intelligence information contained in
a communication to, from, or about a targeted selector within a transactionany event, the Government believes that the additional information should not alter the
Court?s ultimate conclusion that the targeting and minimization procedures previously approved
are consistent with the statutory requirements, including all the requirements of 1881a(b), and
the Fourth Amendment, and the Court?s orders therefore remain valid. Cf ranks- v. Delaware,
438 US. 154 (1978) (establishing that a search warrant is valid unless it was obtained as the

result of a knowing and intentional false statement or reckless disregard for the truth and the
remaining content is insuf?cient to establish the requisite probable cause needed to obtain the

warrant). 

Pursuant to 1881a, the Court reviews the folloWing issues: whether the AG and DNI
certifications contain all the required elements; (ii) whether the targeting procedures are
consistent with 1881a(i)(e)(1); and (iv) whether the targeting and minimization procedures are
consistent with the requirements of the Fourth Amendinent. 50 U.S.C. 1881a(i)(2), (3). See.
also id. (specifying that reauthorizations are to be reviewed under the same

 

29 Each of the relevant 2010 FISC Orders is based on the ?reasons stated in the Memorandum
Opinion issued contemporaneously herewith.? These Opinions, in turn, rely on the analysis conducted by

.andrelyron.theanalysisnf earlien- m- 

FISC Opinions, including Docket 702(iJ?0a01. 

.1 3'6 1.: -3. 

NYT DOJ, 16 CIV 7020_000402

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WW

standards). The Govemment believes that the Court?s ultimate with respect to each
of these issues should not change based on the additional information provided. 

First, there is no suggestion that the prior certi?cations failed to contain all the required

elements. 

Second, while the Government acknowledges that it did not fully explain to the Court the
steps NSA must take in order to implement its Section 702 up stream Internet collection
techniques, and certain technical limitations regarding its IP address ?ltering, the Court did

approve the certi?cations and the use of targeting and minimization procedures which

authorized the acquisition of communications to, from, or about tasked selectors. As discussed
above'and in resPonse to questions l(b)(ii) and 3, Internet transactions are collected because
they contain at least one discrete communication to, ?rom, or about a tasked selector. Each
tasked selector has undergone review, prior to tasking, designed to ensure that the user is a non?

 

United States person 1easonab1y believe to be located outside the Umted States. Moreover, with
respect to ?abouts? communications, for the reasons discussed the response to question .
targeting procedures are reasonably designed to prevent the intentional

acquisition of any communications as to which the sender and all intended recipients are known

at the time of acquisition to be located in the United States.30 Thus, NSA is targeting persons

reasonably believed to be outside the United States and is not intentionally acquiring

in-which both the sender and all intended recipients. are known at the time of
acquisition to be in the United States. 

Third, as described throughout, in many cases, it is not technologically feasible for NSA

. to acquire only Internet transactions that contain a single, discrete communication to, from, or

about a tasked selector that may be contained in an Internet communication containing multiple
discret_communications. As discussed in detail in response to questions
1(b)(ii) and this does not mean that procedures do not adequately minimize the
acquisition of any U. S. person information that may be contained within those transmissions.
Rather, the mininnzation proceduies fully comport with all statutory requirements. {I?SlfSii?i?i??)

 

30 As the Court is aware, 1881a(b)(4) provides that an acquisition authorized under section 702, ?may
not intentionally acquire 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 . . Although this prohibition could be

. read at ?rst glance to be absolute, another provision of Section 702 indicates otherwise. Speci?cally, 

18813(d)(1)(B) provides that the targeting procedures that the AG, in consultation with the DN1, must
adopt 111 connection with an acquisition authmized under section 70?. need only be ?reasonably designed
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.? 

 

 

NYT DOJ, 16 CIV 7020_000403

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Finally, as described in response to question the targeting and minimization
procedures fully comply with the Fourth Amendment. 

Thus, the additional information the Government has provided concerning details of its
upstream collection does not in the Government?s view undercut the validity of the targeting

. or minimizatiOn procedures. 
IE. Compliance with the Authorizations: Use and Disclosure 

As described above, 1809(a)(2) criminalizes the intentional use and disclosure of
electronic surveillance, ?knowing or having reason to know that the information was obtained
through electronic surveillance not authorized by this Act.? Having concluded that the upstream
collection conducted by NSA falls within the scepe of the relevant authorizations, the

Government respectfully submits that the continued use and disclosure of- such information is
in
detail in response to questions 1(b)(ii) and are -

 

 

6. Please provide an update regarding the over collection incidents

described in the government's letter to the Court dated April 19, 2011.

The Apiil 19, 2011, notice to the Court described two overcollection incidents involving

entirel unrelated communications that had been?
The notice also adv1se at as part investigation into these incidents, NSA would examine other systems to determine whether

issues occurred in those systems. 

The ?rst incident described in the April 19 notice involved

simila

  
 

 

  
 

- a eas
. abouta. ection_7_02__-_taske_d_se 
tmrelated communications. This overcollection started

 

3 1 Although this analysis has focused on acquisitions conducted pursuant to the 2010 Section
1881a Authorizations, the Government believes that, for all of the reasons discussed herein, the upstream
collection conducted pursuant to previous certifications authorized under Section 1881a of the Foreign

Intelligence Surveillance Act u_ 8 as amended the Protect America Act of 2007, Pub. L. No. 

   

   

NYT DOJ, 16 CIV 7020_000404

Approved for public release. All withheld information exempt under 13(1) and 13(3) except as otherwise noted.



 

   

All such communications will be processed in accordance with
adyise the Court of the ?nal disposition

of these 

The second-described 'ncident involved overcollectio

.As described' 111 the Aplil
19 notice, on March 28, 2011, NSA discovered a of Section 702?acquired
communications that had not been r0 erly

contrast to the
communications 'overcollected between scussed above, the

aciuired as a result of the-overcollection incident involved fewer communications

 

 

. 32 In particular, section of NSA's Section 702 Minimization Procedures state:

Peisonnel will exercise reasonable judgment in whether information
acquired must be minimized and will destroy inadvertently acquired communications of
or concerning a United States person at the earliest practicable point in the processing
cycle at which such communication can be identi?ed either: as clearly not relevant to the
authorized purpose of the acquisition the communication does not contain foreign
intelligence information); 01, as not containing evidence of a crime which may be
disseminated unde1 these proceduies. Such inadveitently acquired communications of or
concerning a United States person may be retained no longer than ?ve years in any event.
The communications that may be 1 stained include electronic communications

. acquired because of limitations on ability to ?lter communications.

 

(Emphasis added). mesa

NYT DOJ, 16 CIV 7020_000405

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As in the _incident, each ontains at least one communication that is to,
from, or about a Section 702etasked selector. 

1 communications

 
 

As of April 11, 2011, NBA began to sequester in its Collection Stores a1
involvin the affected

    
 
  

   
 

. was erate overmc uswe a mg
objects to the while some of these objects include Waiter objects
consist of only one communication to, from, or about a Section -tas se ectcr.


Since the ?lin of the April 19 notice, NSA has continued to evaluate collection from!
and has observed no evidence of issues other than 

 

       
   

       
 

above~described issues

 

 

3

NSA has identi?ed no reporting based upon overcollected communications and is

 

The April 19 notice also advised the Court that NSA would "examine? I
. and other upstream collection systems to ensure that similarqpro ems are no

occurring in those systems.? NSA new reports that Unlike the mos recen

NYT DOJ, 16 CIV 7020_000406

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

Approved for public release.


these other 3 stems were designed

33-

      
 

7.. Are there any other issues of additional information that should be brought to the
Court's attention while it is considering the certi?cations and amendments filed in the

above-captioned doclcets?
At this time, the Department of Justice (DOJ) and Of?ce of the Director of National

Intelligence (ODNI) are currently investigating certain possible incidents of non?compliance
about which the Department of Justice intends to ?le preliminary notices in accordance with the

rule of this Court. These incidents do not relate to any of the matters discussed in this ?ling and,


that the nature of these incidents is suf?ciently serious such that they would hear on the Court's
consideration of the certi?cations and amendments ?led in the above-captioned dockets.



 

33 As discussed in response to uestion 2(6) and NSA has the ability to separate out individual pieces
of information in certain cases In the course of the
investi ation into the most recent met cut, a itiona 1 enti?ed

on testmg emonstrate
communications could have been forwarded through the SIGLNT system, NSA has identi?ed no actual

overcollection that occurred as a result. NSA is currently in the process of develoPing a software ?x

designed to properly process such communications under the limited circumstances in which
vercollections couldoccur. Until such a ?x can be tested and deployed, NSA will continue to monitor

 
     
  
  

    

 

  
 
 

    

NYT DOJ, 16 CIV 7020_000407

 

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Follow-up Questions Regardingr Section 702 Certi?cations
June 17, 2011

l. The government?s Response to the Court?s Brie?ng Order of May 9, 2011 (?June 1
Submission?) states that Internet transactions acquired by NSA in its upstream collection may
contain not only multiple discrete communications some of which are neither to from nor about
a tasked selector but also

  
 
 

 

June 1 Submission
at 25.

     

a. Please rovide some exam les of the

b. What is the likelihood that sue pertain to persons other
than the users of tasked selectors, including persons in the United States or US. persons?

 

2. The June 1 Submission states that ?no NSA analyst has yet discovered in repositories a
wholly domestic communication.? June 1 Submission at 9.
a. What is meant by ?wholly domestic communication? in this statement? Does the term
include the discrete communications that might be embedded within acquired
transactions?
b. What is the likelihood that an analyst viewing information obtained through a
transactional acquisition would have a basis for determining that a discrete
communication embedded within the transaction is purely domestic?

3. a. Might the non?targeted portion of a transaction ever be the sole basis for that
transaction being responsive to an analyst?s query?
b. Upon retrieving information in response to a query, can an analyst readily distinguish
that portion of a transaction that contains the targeted selector from other portions of a
transaction?

4. a. Please describe the manner in which the government minimizes discrete 
communications and other information that is contained within acquired Internet
transactions but that is neither to, from, nor about the user of a targeted selector.

b. In particular, please explain how the government applies the provisions of 
minimization procedures that use the term ?communication? to the discrete
communications and other non-target information contained within the transactions that
are acquired. Si, egg NSA Minimization Procedures 2(c) (de?ning
?[c]ommunications of a United States person?); 2(e) (defining ?foreign
communication? and ?domestic communication??), (discussing determination

domestic communications).

. . 3 

. unr-

NYT DOJ, 16 CIV 7020_000408

. ?domestic?. of. 

 

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WW
0. Would all communications and? Within a transaction be

treated the same when the minimization procedures are applied, or would there be
different treatment?

5. a. Once NSA has identi?ed a portion of a transaction that does not contain targeted
information, is it possible to mask or otherwise minimize the non-target information
contained within the transaction?

b. Why 18 NSA unable to delete and replace, or alter, an original transaction that contains
non-target information? See June 1 Submission at 27 28.

6. The government states that an Internet transaction that is acquired ?is . . . not divisible into the
discrete communications within it even once it resides in an NSA corporate store.? June 1
Submission at 22. Please reconcile that statement with the government?s acknowledgment that
?an analyst would . . . be able to copy a portion of the rendered View of a transaction contained in
a NSA corporate store and then paste it into a new record on a different system.? at 27 n.25.

7. Please reconcile the government?s statement that the ?communicants? of to/from

communications are ?the individual users of articular ele 1 Submission at 30)
with elsewhere in its

response to the Court?s questions (Q, gg?, at 6 (discussing application of IP ?ltering?.

  
 

8. What is the factual basis for assertions that ?a United States erson would use.

 

onl in a minute ercent of cases? and that?

 
 

See, June 1 Submission at 11, 12.

9. What is the factual basis for suggestion that 

See; June 1 Submission at 8 n9

10. The government repeatedly characterizes as ?unintentional? collection of discrete
non-target communications as part of transactional acquisitions,

Assuming arguendo that such collection can fairly be characterized as unintentional, please
explain how 50 U.S.C. 1806(i) applies to the discrete, wholly domestic communications that
might be contained within a particular transaction.

11. Please provide a thorough legal analysis supporting your view that the knowing and
intentional acquisition of large volumes of Internet transactions containing discrete
communications that are neither to, from, nor about a targeted selector (as well as other
information not pertaining to the users of targeted selectors) is merely ?incidental? to the

antho?zsdpurpass 9f thasgllestionas awhole, and therefore reasonable under theFourth__ . 

I Amendment.

NYT DOJ, 16 CIV 7020_000409

 

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511W

12. The statute requires the targeting procedures to ?be reasonably designed to ensure that any
acquisition . . . 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. 188 1a(d)( 1). How can procedures that contemplate the knowing
acquisition of huge volumes of transactions that will include quanti?able amounts of information
relating to non-targets, including information of or about US. persons abroad or persons located
in the United States, meet this statutory requirement?

13. In its discussion of the Fourth Amendment, the government asserts that ?upstream
collection? in general is ?an essential and irreplaceable means of acquiring valuable foreign
intelligence information that promotes the paramount interest of protecting the Nation and
conducting its foreign affairs.? June 1 Submission at 16.

a. To what extent can the same be said for the acquisition of Internet transaction-

in particular?

b. Is the acquisition of Internet transactions via upstream collection the only source for

certain categories of foreign intelligence information? If so, What categories?

c. Please describe with particularity what information NSA would acquire, and what

information NSA would not acquire, if NSA were, in comparison to its current collection,

to limit its ac uisition of Internet communications to: 1 ac uisitions conducted with the
assistance or* and (2)
the upstream collection of discrete communications to from or about tasked selectors
that are (in. at 2. n2).

14. The Fourth Amendment also requires the Court to examine the nature and scope of the
intrusion upon protected privacy interests. How can the Court conduct such an assessment if the
government itself is unable to describe the nature and scope of the information that is acquired or
the degree to which the collection includes information pertaining to US. persons or persons
located in the United States?

 

15. In light of the government?s emphasis on the limited querying of Section 702 acquisitions
that is currently permitted (se_e June 1 Submission at 23), Why is it reasonable and appropriate to
broaden the targeting procedures to permit queryng using U.S.-person identi?ers?

16. The government acknowledges that it previously ?did not fully explain all of the means by
which . . . communications are acquired through upstream collection techniques? (June 1
Submission at 2), yet states that the ?[Attorney General] and [Director of National Intelligence]
have con?rmed that their prior authorizations remain valid? (Q at 35). At the time of each
previous Certi?cation under Section 702, were the-Attorney General and the Director of National

Intelli ence aware that the acquisitions being approved included Internet ?transactions?
*2 are the prior 

"Certi?cations and collections still valid?

NYT DOJ, 16 CIV 7020_000410

 

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43W
UNITED STATES 5?
1.1009151 1" 
FOREIGN INTELLIGENCE SURVEILLANCE (3012111113311 . 1

 

NOTICE OF FILING OF GOVERNMENTS RESPONSE .
TO THE SUPPLEMENTAL QUESTIONS OFJUNE 17, 2011 -

THE UNITED STATES OF AMERICA, through the undersigned Department of

Justice attorney, respectfully submits the attached factual and legal re3ponse to the

    

SEW
Classified by: It
Reason:
Declassify on: une 2036

NYT DOJ, 16 CIV 7020_000411

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WW
supplemental questions provided by this Court to the Government on June 17, 2011,
concerning the above-referenced matters. Given the complex nature of the Court?s
questions and the Government?s responses, the United States is prepared to provide
any additional/supplemental information the Court believes would aid it in reviewing
these matters. The Government may also seek to supplement and/or modify its 

response as appropriate during any hearing that the Court may hold in the above?

captioned matters. WSW

Respectfully submitted,

 

National Security Division
United States Department of Justice

NYT DOJ, 16 CIV 7020_000412 .

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VERIFICATION
I declare under penalty of perjury that the facts set forth in the attached. 
Goverimient's Response to the Court's Supplemental Questions of June 17, 2011, are
true and correct based upon my best information, knowledge and belief. Executed

pursuant to-Title 28, United States Codetg 1746, on this 28th day of June, 2011. 

 

 

    

Signals Intelligence Directorate Compliance rc utec
National Security Agency

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RESPONSE TO THE
QUESTIONS OF JUNE 17, 2011

1. The government?s Response to the Court?s Brie?ng Order of May 9, 2011 (?June 1
Submission?) states that Internet transactions acquired by NSA in its upstream collection 
may contain not only multiple discrete communications (some of which are neither to, from,
nor about a tasked selector), but also

  
 
 

 

 
  
 

June 1 Submission at 25;

les 0f the

 
 

instance could such ac uisitions include

 

  
 

b. What is the likelihood that we? pertain to persons other
than the users of tasked selectors, including persons in 1e nited States or US. persons?
As was more fully explained in the Government?slune 1 Submission, the presence of a
tasked selector is required in order for the National Security Agency?s (N SA) upstream Internet
collection devices to identify and then acquire Internet communications in the form of

transactions. See June 1 Submission at 1, 24?26. The Court?s question in La. further asks
whether such transactions could includ

 

information, including that of persons other than a user of a taslce se ectcr, could be acquired by
NSA in relation to any one or more of these communication services to the extent it is included
within a transaction. This, lioWever, is true even with respect to discrete communications to,

 

 

 
   
   

Classified by:
Attorney
Reason: 1.4(c)
Declassify on:

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from, or about a tasked selector, depending on what the communicants chose to include within,
the communication. 

 

Although personal information may be included in a transaction, the manner in which
NSA conducts its upstream collection signi?cantly diminishes the likelihood that such
information would pertain to U.S. persons or persons in the United States. As discussed more
fully in the Government?s response to question 14 below, NSA acquires certain transactions
because they contain a discrete communication to or from a tasked selector used by a person who,

 

1-11 n'l?

by virtue of the application or targeting proceduies, is a nun-United-S'tatespetsou
reasonably believed to be located outside the United States. NSA acquires transactions that
contain a discrete communication about a tasked selector using technical means that are designed
to ensure that such acquisition is directed at a person reasonably-believed to be located outside

- the United States. The Comt has previously recognized that ?fthe vast majority of persons who
are located overseas are non?United States persons and that most of their cormnunications are
with other, non?United States persOns, who are located overseas.? In. re Directives to Yahoo},
Inc. Pursuant to Section 1 05B of the oreien Intelligence Surveillance Act, Docket No.
Mem. Op. at 87 (USFISC April 25, 2008) (footnote omitted) (hereinafter ?In re
Directives to Yahoo! Mem. Op). Thus, it is reasonable to presume that most of the discrete
communications that may be within an acquired transaction are between non?United States

persons located outside the United States. ?S?x?fSh?fGG?i-P??

2. The June 1 Submission states that ?no NSA analyst has yet discovered in 
repositories a wholly domestic communication.? June 1 Submission MS.

a. What is meant by ?wholly domestic communication? in this statement? Does the
term include the discrete communications that might be embedded within acquired
transactions?

By ?wholly domestic communication? the Government means a communication as to
which the sender and all intended recipients are located within the United States. The
Government includes within this term any discrete communication within a transaction where the
sender and all intended recipients of the discrete communication were located in the United
States at the time the communication was acquired. With the previously described limited

NSA ?analyst
have yet to identify a wholly domestic communication in any ransac 1on acquired through

upstream collection systems. 
W999i"

2

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b. What is the likelihood that an analyst viewing information obtained through a
transactional acquisition would have a basis for determining that a discrete-
communicah?on embedded within the transaction is purely domestic?

The likelihood that an NSA analyst would recognize that a transaction containing either

a discrete an e-mail message) or multiple discrete communicationsends onanumberoffac ors

      

  

Might the non-targeted portion of a transaction ever be the sole basis for that
transaction being responsive to an analyst?s query?

Yes. All information acquired by NSA as a result of tasking the targeted foreign person?s
selector whether initially determined to be foreign intelligence information to, from, or about
that targeted foreign person (or foreign intelligence information concerning other foreign persons
or organizations) or incidentally acquired information concemjng other currently non?targeted
persons can be queried by for_foreig11 intelligence information. As a result, it is
possible that any portion of a transaction could be the sole basis for that transaction being
responsive to an analyst?s foreign intelligence query databases. Such queries (which are
subject to review), however, must be formulated by an analyst in accordance with NSA
minimization procedures which require that computer selection terms used for scanning, such as
telephone numbers, key words or phrases, or other discnminators, be limited to these selection
terms reasonably likely to return foreign intelligence infonnation. See, eg, Amendment 1 to

 

 

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Wean?

702(g) Certi?cation Ex. B, ?led Aug. 12, 2010, 
(hereinafter ?Current NSA Minimization Proce ures . 

3.b. Upon retrieving information in response to a query, can an analyst readily distinguish -
that portion of a transaction that contains the targeted selector from other portions of a
transaction?

Yes. The tasked selector that resulted in acquisition of any particular transaction
is discernable by reviewing information in response to a query. The analytic tools used
to display an acquired transaction allow NSA to identify the tasked selectors that
resulted in the acquisition of the transaction, thereby enabling to detennine the portion(s)
of the transaction in which that selector appears. In some instances, the analyst may need to
review the entirety of the transaction (including the underlying metadata or raw data) to identify
where the tasked selector a ears, but even in these situations, the tasked selector is included and
ti?able.

4.2. Please describe the manner in which the government minimizes discrete
communications and other information that is contained within acquired Internet
transactions but that is neither to, from, nor about the user of a targeted selector.

4.b. In particular, please explain how the government applies the provisions of 
minimization procedures that use the term ?communication? to the discrete
communications and other non-target information contained within the transactions that
are acquired. Sec, 6.0, ., NSA Minimization Procedures 2(c) (de?ning ?[c]ommunications
of a United States person?); 2(a) (defining ?foreign communication? and ?domestic
communication??), (discussing determination Whether a communication is
?foreign?ior ?domestic?), and 5 (discussing handling of domestic communications).

4.c. Would all communicationsqwithin a transaction be
treated the same when the minimization procedures are app 1e or would there be

different treatment?

 

3 The Government seeks the Court?s approval of revised NSA Section 702 minimization procedures that would
enable NSA to use United States person identifiers as selection terms if those selectionternis are rcasbnably

to return foreign intelligence information. See, 702(g) CertificationWI
k, Ex. 13, filed Apr. 20, 2011, (hereinafter ?Proposed NSA MinimiZ' l0 . (161'
these revised NSA Section 702 minimization procedures, the use of such selection terms must be approved in 
accordance with NSA procedures designed to ensure that the selection terms are reasonably likely to return foreign
intelligence infonnation. Id. The Government is still in the process of developing the NSA procedures governing
the use of United States person identi?ers as selection terms; Until those procedures are completed, NSA 
will not begin using United States person identi?ers as selection terms. 

WW

4

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As required by FISA, see 50 U.S.C. 1881a(e), 1801(11), and 182101), 
minimization procedures address the acquisition, retention, and dissemination of non-publicly
ayailable information concerning unconsenting United States persons. Sec Current Minimization
Procedures, 1.4 When NSA acquires an Internet transaction that contains multiple discrete
communications, NSA considers each of those communications to be separate
under its minimization procedures. Thus, for example, an NBA analyst
would consider each discrete communication within a larger Internet transaction as a separate
communication for puiposes of determining whether the communication is a foreign or domestic
communication under minimization procedures. See, tag, Current and Proposed NSA

Minimization Procedures, 

The manner in which acquisitions are conducted under Section 702 operates to minimize
the acquisition of information about United States persons. First, cettain transactions are
acquired because they contain a discrete communication to or from a tasked selector used by a
person who, by virtue of the application of FISC?approved targeting procedures, is a non?


recognized that ?the yast majority of persons who are located overseas are non~United States
persons and that most of their communications are with other, non?United States persons, who
are located overseas.? In. re Directives to Yahoo! Mem. Op. at 87 (footnote omitted).
Accordingly, it is reasonable to presume that most of the discrete communications that may be
within the acquired transaction even those that are not to or from a tasked selector are
between non?United States persons located outside the United States. Second, with respect to
transactions that contain a discrete communication about a'tasked selector, the technical means
by which NSA prevents the intentional acquisition of wholly domestic communications are
designed to ensure that the acquisition of transactions is directed at persons reasonably believed
to be located outside the United States. As a result, these persons reasonably also can be
presumed to be non?United States persons, and most of their communications including those
that are not about a tasked selector can be presumed to be with other non-United States
persons located outside the United States. This combination of targeting non?United States
persons located outside the United States and-directing acquisitions at persons located outside the
United States operates to significantly diminish the amount of information pertaining to United
States Jersons or persons in the United States that NSA acquires through its upstream collection.
See Mem. Op. at 23 (recognizing that ?[t]he targeting of communications pursuant to
Section 702 is designed in a manner that diminishes the likelihood that US. person information

will be obtained?). 

To be sure, it is possible that a transaction containing multiple discrete communications
only one of which is to, from, or about a tasked selector could contain US. person information.
The acquisition of such information is an unavoidable by?product of the acquisition of the
foreign intelligence infonnation the communication to, from, or about a tasked selector)
within the transaction. Yet it is important to note that, for purposes of the application of 
current and proposed minimization procedures, the Government does not consider its acquisition

 

4 NSA's prepdsed minimization procedures currently before the Court address these same issues. See Proposed
NSA Minimization Procedures? l. -

.5.

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of a discrete communication within a transaction that is not to, from, or about a tasked selector to
be ?inadvertent.? Subsection cf current and proposed minimization procedures
require inadvertently acquired communications to be destroyed if they are ?identi?ed either: as
clearly not relevant to the authorized purpose of the acquisition the communication does
not contain foreign intelligence information); or as not containing evidence of a crime which
may not be disseminated under these procedures.? Current and Proposed NSA Minimization

Procedures, 

As described below in the Govenmient?s response to question 10, the Government
considers a discrete communication that is not to, from, or about a tasked selector within a
transaction to be acquired ?incidentally,? rather than ?inadvertently.? In the context of
minimization, ?incidental? and ?inadvertent? should not be considered synonymous. Given that
the acquisition of the transaction is intentional, and given the Government?s knowledge that such
transactions may also include information that is not to, from, or about a tasked selector, the
acquisition of this additional information is not ?inadvertent.? By contrast, the additionally

 

 

acquired information is ?incrdental? in that it is not the basis for the collection but-israther a
necessary yet unavoidable consequence of acquiring foreign to, from, or about a
tasked selector. See- Mom. Op. at 40 (concluding that the Government?s minimization
procedures ?constitute a safeguard against improper use of information about US. persons that is
inadvertently or incidentally acquired?) (emphasis added).5 Otherwise, subsection of
current and proposed minimization procedures would require the destruction of the entire
transaction even the very foreign intelligence information that resulted in the transaction?s
acquisition in the first place if any discrete communication therein contained United States
person information and was not to, from, or about a tasked selector. 

Such an absurd result simply cannot be squared with Congress?s explicit intent that non-
pertinent information should be destroyed only if ?feasible.? See HR. Rep. No. 95-1283, pt. 1,
at 56 (?By minimizing retention, the committee intends that information acquired, which is not
necessary for obtaining[,] producing, or disseminating foreign intelligence information, be
destroyed where feasible.? (emphasis added)). Congress recognized that in some cases, pertinent
and non?pertinent information may be co?mingled in such a way as to make it technOIOgically
infeasible to segregate the peninent information from the non?pertinent infonnation and then

 

5 The Government notes that at a single point in its June 1 Submission, it incorrectly described the acquisition of a
discrete communication that is not to, from, or about a tasked selector within a transaction to he acquired
?inadvertently.? See June 1 Suhmi ssion at 13 (?The issue for the Court in light of the above-described nature and
scope of upstream collection is whether, in light of a governmental interest ?of the highest order of
magnitude,? targeting and minimization procedures sufficiently protect the individual privacy interests of
United States persons whose communications are inadvertently acquired"). However, the Government otherwise
consistently described the acquisition of such communications as "incidental,? see, id. at 15 upstream
collection may incidentally acquire information concerning United States persons within transactions containing
multiple discrete communications, only one of which is to, from, or about a person targeted under Section id.
at 19 (?The fact that other, non-pertinent information within the transaction may also be incidentally and
unavoidably acquired simply cannot render the acquisition of the transaction unreasonable?); id. the extent
that United States person information is incidentally acquired in the acquisition of a whole transaction by 

upstream collection, such" information will be handled in accordance with strict minimization procedures?). .

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destroy the latter. See id. (?The committee recognizes that it may not be feasible to cut and paste
?les or erase part of tapes where some information is relevant and some is not?). Here,it is not
technologically feasible for NSA to extract, post-acquisition, only the discrete communication
that is to, from, or about a tasked selector within a transaction. Thus, in order for NSA to retain

the foreign intelligence information within a transaction, it must retain the entire transaction,
including any incidentally acquired information about U.S. persons or persons in the United

States contained therein. 

This incidentally acquired information in transactions is subjected to the same restrictions
on use and dissemination that govern information obtained through other means pursuant to
Section 702 (such as through collection at Internet Service Providers).6 The Court-has
previously found these restrictions on use and dissemination in current minimization
procedures to be consistent with the Act and the Fourth Amendment. See, e. g, In re 

Certification Mem. Op. at 8?12 (USFISC In
re Certi?cation Mem. Op. at 8?1 

  
 
 

 

 

2009). Of course, the Government seeks the Court?s approval of revised-NSA?Seetion nu.
minimization procedures that would enable NSA to use United States person identifiers
as selection terms if those selection terms are reasonably likely to return foreign intelligence
information. As discussed in its reaponse to question 14 below, the Government respectfully
suggests that these revised NSA minimization procedures are also consistent with the Act and the

Fourth Amendment?WSW?

In sum, SA treats each discrete communication contained within a larger Internet
transaction as a separate communication for purposes of its minimization procedures. Although
it is possible that certain discrete communications containing United States person information I
will be retained, as described above, they remain subject to the same restrictions on use and
dissemination by minimization procedures. 

5.a. Once NSA has identi?ed a portion of a transaction that does not contain targeted
information, is it possible to mask or otherwise minimize the non?target information
contained within the transaction?

No. The analytic tools used to display the acquired data to NSA do nothave a
capability to mask information or otherwise minimize the non-target information contained
within a transaction. See additional details provided in response to question 6 below.



 

'6 Moreover, as discussed in response to question 3.b. above, inability to separate the discrete
communications post-acquisition also means that the discrete communications are not displayed in SC-SSRs
as separate communications, but rather clearly retain their-connection to the entirety- of the original transaction,
making it more apparent to NSA the discrete conununication?s relationship to a tasked selector.

 

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5.b. Why is NSA unable to delete and replace, or alter, an original transaction that contains
non-target information? See June 1 Submission at 27?28.

The answer to this question is included in the reSponse to question 6 below. 

6. The government states that an Internet transaction that is acquired not divisible
into the discrete communications within it even once it resides in an NSA corporate store.?
June 1 Submission at 22. Please reconcile that statement with the government?s
acknowledgment that ?an analyst would . . . be able to copy a portion of the rendered view
of a transaction contained in a NSA corporate store and then paste it into a new record on
a different system.? 15L. at 27 11.25. 

As discussed in the example oi-information on pages 27?28 of the June 1
Submission the data within such transactions is organized in a fashion meant to be displayed

 

using Wm?y?mmat?in which
discrete communications that may contame wr tin the transacnon are distinguishable. In
order for NSA to identify and separate a transaction containing multiple communications into
those component parts, the transaction would require processing, parsing, and reformatting for
those components intended for subsequent retention as separate communications. This is true at
the point of acquisition and at any point post?acquisition, including at the point of display to the
analyst, whether the-intent is to separate out a particular conmnmication from the transaction for
ur ose of deletin it, re lacing it, masking it, or otherwise altering it. 

   

    

Absent -apabilities as discussed above, attempts by NSA to delete,
replace or otherwise alter mask or otherwise minimize the non-target information contained
within the transaction) 3 portion of a transaction intercepted through upstream collection
techniques could similarly corrupt the integrity of the collection, destabilizing and potentially
rendering un'us able some or all of the collected transaction, including any particular
therein for analytic or other purposes. Maintaining the integrity of original
transactions is paramount to retention and dissemination processes. Speci?cally, NSA
has developed and implemented a comprehensive purge process designed to improve the
completeness of data purges. The ef?cacy of this process depends in large measure on 
ability to trace data back to the original object (such as a transaction) in a SIGINT Collection 
Source Systems of-Record Maintaining the integrity of original transactions is also
important for ensuring quality control of foreign intelligence analysis of Internet
communications, which frequently may contain more than one tasked selector or could be used
by more than one analyst, depending on the target, mission, or speci?c foreign intelligence need
to which it pertains. Thus, preserving the integrity of the data is dependent upon the retention of

the original transaction in its original form?assailed in the W73- . .-

 

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The government?s representation that an Internet transaction that is acquired ?is. L. not
divisible into the discrete communications within it even once it resides in an NSA cor crate
store? was intended to convey that it is not technologically feasible for NSA to create_
processes to divide transactions into discrete communications. Footnote '25 on page 27 of the
June 1 Submission refers to the fact that it is possible for individual to copy some of the

information from a transaction in NSA corporate stores into a new document or file stored on a
See, rag, 702(g) Certi?cation

se arate stein, such as a?
Wof Proceedings at 20?21 *010) (for a
discussion of . .The fact that such a copy or act can be made,
however, does not mean that the underlying transaction can then be altered in the cor crate store.
For exam le if an analyst copied a portion of a transaction from an into a 
mt'ged the transaction from the the data cepied into the

would likewise have to be purged -- even if it contained foreign

intelligence information copied from a communication to, from, or about a tasked selector 
because it could no longer be traced back to an object present in an 

  
  

   

7. Please reconcile the government?s statement that the ?communicants? of to/from
communications are ?the individual users of particular selectors? (see June 1 Submission at

30) wit! elsewhere in
its response to the Court?s questions see e. ., 1 . a tscussmg ofIP,
filtering?. 

 
  
  
   

The Government believes its statement ma?a
the ca to/from communications is fully consistent wit tie overnmen escnp 1011 ow
NSA Hm determine if one end of a
to/from is outside of the United States. ?a on page 30 of the June 1
Submission, the in to/from communications are the in ividual users who are the
senders and intended recipients of those communications, rather thanh


ith resect to IP ?lterin_, however, in many instances it is not possible for NSA to
. See June 1

  
   
 
   

   
 

   

- mission at 6?7.

As described in the June 1 Submission, there are scenarios under which NSA could
unknowingly and unintentionally acquire a to/from communication in which the sender and all
intended recipients are in the United States at the time of acquisition for example, if that

 

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1-. 1" .I.

  

communication 7 In the unlikely event that NSA

does unintentionally acquire such a will purge the conununication unless
its continued retention is authorized by the Attorney General in accordance with 50 U.S.C.

1806(i). If the communication is itself contained within a transaction that contains other
discrete communications, the whole transaction will be purged unless its continued retention is
authorized by the Attorney General in accordance with 50 U.S.C. 18060), regardless of
whether those other discrete communications are foreign. 

    

gag June 1 Submission at

 

These factual assertions'byNSA are 
ence (SIGINT) personnel, who have been involved in Section 702 acquisitions

Intelli 
initiation of that collection, and many of whom have experience

        
   

factual assertions in the June 1 Submission are also base on its review 0 a samp mg of Section
702?acquired which is described on page 9 of the June 1 Submission. As is
more fully discussed in that filing, review of records between these two tests

records indicative of a non-targete user 
in the United States. Furt ier researc revea is 

records were actually copies of the same transaction, and NSA found no indication that any
wholly domestic communications were within this transaction. NSA assesses that the results of
these tests are consistent with the assessments made by SIGINT personnel in the June 1

Submission. 

9. What is the factual-basis for suggestion that 

. ?e_c June 1 Submission at 8 n.9.

  
  

 

 

. Wesc?bed, it would be very unlikely for 
in which the sender and all intended rempten are oca in . June 1
ubmission at 11. Moreover, with the previously described limited exceptimW
see id. at 6 n.5, NSA have yet to 1

communication acquired through upstream collection systems. See id. at 9 (noting NSA's experience to date

in test sam'l'es stating that the only records possibly indicative of a United Statcsebaseduser
id not reveal that any wholly domestic communications had been acquired).

  
 

10

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10. The government repeatedly characterizes as ?unintentional? ection of
discrete non-target communications as part of transactional acquisitions, 

Assuming arguendo that such collection can fairly be characterized as
unintentional, please explain how 50 U.S.C. 1806(i) applies to the discrete, wholly
domestic communications that might be contained within a particular transaction.

Subsection 1806(i) provides that circumstances involving the unintentional
acquisition by an electronic, mechanical, or other surveillance device of the contents of any
corrnnunication,8 under circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes, and if both the sender and all
intended recipients are located in the United States, such contents shall be destroyed upon
recognition, unless the Attorney General determines that the contents indicates a threat of death
or se1ious bodily hann to any person.? (U) -

The Government?s June 1. Submission described for the Court that at the time of
acquisition, Section 702 upstream Internet collection devices are generally not capable of
distinguishing transactions containing only a single discrete communication to, from, or about a
tasked selector from transactions containing multiple discrete communications, not all of which 

 

3 Subsection 18066) originally covered only radio communications, but was amended in 2008 to cover all
ceimnunications to make it technology neutral. See 154 Cong. Rec. 86133 (daily ed. June 25, 2008). (U)

 

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may be to, from, or about a tasked selector at the time of acquisition.9 See June 1 Submission at
7, 27?28. The Government considers the acquisition of communications within a transaction that
are not to, from, or about a tasked selector to be incidentally acquired communications.
However, the Govenunent does not intend to acquire transactions containing corrununications

  
     
 
     
 

that are wholly domestic in nature and in fact has implemente means to prevent the
acquisition of such transactions. - - - as was the case
involving the - - - or be

_'cumvented

   

nevertheless not intending to acquire who a omestic 101 . in the context of

acquiring Internet transactions containing multiple discrete not all of which

may be to, from, or about a tasked selector, the Government recognizes that subsection 1806(i)

could potentially be implicated to the extent that one of those discrete communications is a

communication in which the sender and all intended recipients were located in the United States

at the time of acquisition. Accordingly, in the event NSA recognizes a wholly domestic

communication which is not to, from, or about a tasked selector winch-it-haseanintentionally?
acquired in the course of conducting its Section 702 upstream Internet collection, NSA would

handle the entire transaction in accordance with subsection 18066) and either purge it or, if

appropriate, seek authorization from the Attorney General to retain it.

minimization procedures, adepted by the Attorney General in consultation with
the Director of National Intelligence, allow the Director of NSA to execute a waiver permitting
the retention of wholly domestic corrnnunications. See Current and Proposed NSA Minimization
Procedures, 5. However, this provision applies to the acquisition of domestic communications
when the Government has a reasonable, but mistaken, belief that the target is a non?United States
person located outside the United States because NSA is intentionally but mistakenly acquiring
such communications.10 This domestic communications carve-out does not apply to an
unintentionally acquired transaction that contains a wholly domestic communication (when
recognized as such by NSA) along with other discrete communications, which is not to, from, or
about a tasked selector. As described previously, Section 702 upstream Internet
collection devices are generally incapable of distinguishing transactions containing only a single
discrete communication to, from, or about a tasked selector from transactions centaining multiple
discrete not all of which may be to, from, or about a tasked selector at the time
of acquisition; moreover, NSA cannot separate transactions containing multiple discrete
communications into logical constituent parts post?acquisition. Thus, in the event that 
Section 702 upstream Internet collection resulted in the unintentional acquisition of a transaction
containing a wholly domestic communication, consistent with subsection 1806(i), NSA would
purge the entire transaction, unless the Attorney General has authorized its retention after ?rst

 

9 NSA additionally advised the Court that except in certain limited circumstances, NSA cannot separate transactions
into logical constituent pairs post-acquisition either without rendering the transaction unusable for analytic or other

purposes. See June 1 Submission at 27 132?. 

10 See Government?s Analysis-of Section 18060), 702(g) Certi?cation-locket No. 70201?0801,.
?led Aug. 28, 2008; -Mem. Op. at 25-27. -

 

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determining that its contents indicated a threat of death or serious bodily harm to anyperson.11



11. Please provide a thorough legal analysis supporting your view that the knowing and
intentional acquisition of large volumes of Internet transactions containing discrete
communications that are neither to, from, nor about a targeted selector (as well as other
information not pertaining to the users of targeted selectors) is merely ?incidental? to the
authorized purpose of the collection as a whole, and therefore reasonable under the Fourth

Amendment.

Fourth Amendment reasonableness is concerned only with the effect on Fourth
Amendment protected interests. Thus, in evaluating reasonableness under the Fourth
Amendment, the relevant issue for the Court in considering the acquisition of communications
incidental to the purpose of this collection is the extent to which such incidental communications

 

 

involve United States persons or persons located in the?Uniied States. Cf. git/ism. Op. at
37?38 (recognizing that non?US. persons outside the United States ?are no pro ted by the
Fourth Amendment? (citing United States v. Verdugo?Urqidez, 494 US. 259, 274-75 (1990)).
For the reasons more particularly explained in the Government?s responses to question 1 above
and question 14 below, most of the communications incidentally acquired pursuant to this
collection have no effect on any Fourth Amendment protected interests. The Government
acknowledges that it is possible that a transaction containing multiple discrete communications
only one of which is to, from, or about a tasked selector could contain information pertaining to
United States persons or persons located in the United States. That, however, does not mean that
the acquisition of multiple discrete communications is any more likely to result in the acquisition
of United States person information than in the collection of single, discrete? communications to,
from, or about a non?United States person located outside the United States. This is particularly
true because the technology NSA uses to prevent the acquisition of wholly domestic
communications also acts to limit the acquisition of communications among and between United

States persons.12 W969i?)

 

See also the Government?s response to question '7 above, which explains that there are other scenarios under
which NSA could unknowingly and unintentionally acquire a wholly domestic communication. [11 the unlikely
event that NSA does unintentionally acquire such a communication, NSA will purge the communication upon
recognition unless its continued retention is authorized by the Attorney General in accordance with subsection 
1806(i). Ifthe communication is itself contained within a transaction that contains other discrete conununications,
the whole transaction will be purged unless its continued retention is authorized by the Attorney General in
accordance with subsection 18060), regardless of whether those other discrete communications are foreign.



'2 For exam lo. the Court has ex ressed particular concern regarding the acquisition of

 

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WW

Moreover, even with respect to those instances in which US. person information is
acquired, courts in both the FISA and criminal (Title contexts have recognized that the
acquisition of communications incidental to the purpose of a collection may be necessary to
achieve the goal of a search or surveillance, as well as reasonable under the Fourth Amendment.
See, e. In re Directives Pursuant to Section 1053 of the Foreign Intelligence Surveillance Act,
551 F.3d 1004, 1015 (Foreign Int. Surv. Ct. Rev. 2008) (hereinafter ?In re Directives?) (?It is
settled beyond peradventure that incidental collections occurring as a result of constitutionally
permissible acquisitions do not render those acquisitions unlaw?il.?) (citations omitted)); United
States v. Bin. Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y. 2000), a??d sub mm. In re Terrorist
Bombings of US. Embassies in East A?'ico, 552 F.3d 157 (2d Cir. 2008), cert. denied sub nom.
El-Hage v. United States, 130 1050 (2010) interception of a person?s
conversations during an otherwise lawful [Title surveillance is not violative of the Fourth

Amendment?) 

In cases where NSA acquires Internet transactions that include multiple discrete

 

conununications, the Government considers any discrete communications not to, from, or "bout
the tasked selector to be incidentally acquired. Speci?cally, the Government?s purpose in
acquiring such a transaction is to acquire the foreign intelligence information likely contained
within the discrete communication to, from, or abOut a tasked selectOr. However, because it is
technologically infeasible for upstream collection systems to extract only the discrete
communication that is to, from, or about a tasked selector, the only way to obtain the foreign
intelligence information in that discrete communication is to acquire the entire transaction. Thus,
the acquisition of the other discrete communications within the transaction is properly considered
?incidental,? because it is a necessary but unavoidable consequence 0f achieving the
Government?s goal of acquiring the foreign intelligence infermation contained within the
discrete communication to, from, or about a tasked selector. See HR. Rep. No. 95?1283, pt. 1, at
55 (1978) (noting that ?in many cases it may not be possible for technical reasons to avoid
acquiring all information? when conducting foreign intelligence surveillance); see also'id. at 56
may not be possible or reasonable to avoid acquiring all conversations?); of. United States
v. McKinnon, 721 F.2d 19, 23 (lst Cir. 1983) (?Evidence of crimes other than those authorized in
a [Title wiretap warrant are intercepted ?incidcntally? when they are the by-product of a bona

- frde investigation of crimes speci?ed in a valid warrant?). 

That is not to say, however, that the acquisition of non?pertinent information is
reasonable in all cases simply because the collection of that information is ?incidental? to the
purpose of the search. United States v. Ulrich, 228 Fed. Appx. 248, 252 (4th Cir. 2002) (noting
that ?fishing expeditions? or ?a random exploratory search or intrusion? violate the Fourth
Amendment) (quotation marks omitted). Here, acquisition of transactions is conducted in
accordance with FISC?approved targeting procedures reasonably designed to ensure that the
acquisitions are directed ?toward communications that are likely to yield the foreign intelligence
information sou glrt, and thereby afford a degree of particularity that is reasonable under the
Fourth Amendment.? -Mern. Op. at 39-40 (footnote omitted). The fact that such
transactions may contain non?pertinent information even in signi?cant amounts does not by
itself render the abquisition of those tranSac'tion's unreasonable under the Fourth Amendment.
See Scott v. United States, 436 U.S. 128,140 (1978) (recognizing that ?there are surely cases,

Wm

14

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such as the one at bar [involving a Title wiretap], where the percentage of nonpertinent calls
is relatively high and yet their interception was still reasonable?); Abraham v. County of 
Greenville, 237 F.3d 386, 391 (4th Cir. 2001) overbearing is endemic to
United States v. Doolittle, 507 F.2d 1368, 1372 (5th Cir. 1975) (?There is no
question that some irrelevant and personal portions of gambling conversations were intercepted
or that certain nonpeitinent conversations were intercepted. But this is inherent in the type of
interception authorized by Title and we do not view the simple inclusion of such
conversations, without more, as vitiating an otherwise valid see also, e. Board of
Educ. v. 536 U.S. 822, 837 (2002) Court has repeatedly stated that reasonableness
under the Fourth Amendment does not require employing theleast intiusive means, because the
logic of such elaborate less?restrictivealternative arguments could raise insuperable barriers to

the exercise of virtually all search-and?seizure powers?) (internal quotations marks omitted)).

-

As such, the incidental collection at issue here is reasonable under the Fourth

 

Amendment because it is a necessary and unavordable lay?product oiive the
foreign intelligence information contained within a discrete communication that is a part of a
larger transaction which could contain non?pertment communications. See United States v.
Wuogneux, 683 F.2d 1343, 1352-53 (1 Cir. 1982) (observing that ?a search may be as
extensive as reasonably required to locate the items described in the warrant,? and on that basis
concluding that it was ?reasonable for the agents [executing the search] to remove intact ?les,
books, and folders when a particular document within the-?le was identi?ed as falling within the
scope of the warren?); United States v. Benson, 596 F.2d 871, 876?77 (9th Cir. 1979) (rejecting
argument that ?pages in a single volume of written material must be separated by searchers so
that only those pages which actually contain the evidence sought may be seized?). Moreover, as
described in the response below, NSA takes the steps it can to ensure that it conducts its Section
702 upstream collection in a manner that minimizes the intrusion into the'personal privacy of

United States persons. 

12. The statute requires the targeting procedures to ?be reasonably designed to ensure that
any acquisition . . . 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. 1881a(d)(1). How can procedures that
contemplate the knowing acquisition of huge volumes of transactions that will include
quanti?able amounts of information relating to non-targets, including information of or
about U.S. persons abroad or persons located in the United States, meet this statutory

requirement?

 

?3 These cases upholding the Fourth Amendment reasonableness of Title surveillances that resulted in the
acquisition of signi?cant amounts of nonpertinent communications are particularly noteworthy given that Title
Iainfs requirement to minimize the acquisition of such communications is considerably stricter than See
HR. Rep. at 56' (?It is recognized that given the'nature of intelligence gathering,--mininuzing - 
acquisition should not be strict as under [Title with respect to law enforcement 

 

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WW

- For the reasons more particularly discussed in its response to question 1.b.ii. in the June 1
Submission, which took into account the means by which communications to, from, or about a
tasked selector are acquired through upstream Internet collection teclmiques, the
Government respectfully submits that targeting procedures are reasonably designed to
ensure that an authorized acquisition 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 within the United. States. See June 1 Submission at 3-12, 20-24. As?
discussed in the Government?s June 1 Submission, for acquisition of both to/frorn
communications and abouts the person being ?targeted? is the user of the
tasked selector, who, by operation of the targeting procedures, is a non?United States person
reasonably believed to be located outside the United States. See June 1 Submission at 3?4. This
remains true for all Section 702 upstream acquisitions, including the acquisition of transactions
containing several discrete communications, only one of which may be to, from, or about the

user of a tasked selector. 

Speci?cally, the sole reason a transaction is selected for acquisition is that it contains the
presence of a tasked selector used by a person who has been targeted in accordance with 
targeting procedures.14 Indeed, at the time a transaction is acquired, NSA cannot always know
whether the transaction includes other data or information representing communications that are
not to, from, or about the tar et, let alone always have knowledge of the parties to those
communications. Mem. Op. at 18?19 (noting that with reapect to abouts
communications, ?the goverrunent may have no knowledge of [the parties to a communication]
prior to acquisition?). it therefore cannot be said that the acquisition of a transaction containing
multiple discrete cormnuniCations results in the intentional targeting of any of the parties to those
communications other than the user of the tasked selector. Cf. Bin Laden, 126 F. Supp. 2d at 281
(acknowledging that in light of United States v. Verdugo-Urqur?dez, 494 US. 259, 265 (1990),
and Title ?.?incidental interception? case law, overseas surveillance of a United States person
terrorism suspect would have posed no Fourth Amendment problem ?if the Government had not
been aware of [his] identity or of his complicity in the [terrorism] enterprise?). The fact that a
transaction acquired pursuant to the targeting procedures may also contain communications to,
from, or about persons other than the user of the tasked selector does not mean those persons are
likewise being targeted by that acquisition. Cf HR. Rep. No. 95?1283, pt.? 1, at 50 (explaining,
with regard to electronic surveillance as de?ned by 50 U.S.C. 1801(f)(l), that ?[t]he term
?intentionally targeting? includes the deliberate use of surveillance techniques which can monitor
numerous channels of among numerous parties, where the techniques are
designed to select out from among those communications the to which a
particular US. person located in the United States is a party, and where the communications are

 

 

16

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selected either by name or by other information which would identify the particular person and
would select out his Rather, as discussed in the response to question 11
above, the acquisition of such non?pertinent communications is incidental to the purpose of the
collection as a whole and therefore reasonable under the Fourth Amendment. 

Similarly, to the extent that one of the discrete non?pertinent communications within an
acquired transaction is a communication in whidh the sender and all intended recipients were
located in the United States at the time of acquisition, the acquisition of this wholly domestic
communication would be incidental and, as discussed in response to question'IO above,
unintentional. targeting procedures require that, in conducting upstream collection of
abouts communications, NSA either employ ?an Inteinet Protocol ?lter to ensure that the erson

eeks to obtain forei intelligence infonnation is located overseas? or 
Amendment 1 to 702(g)

Certi?cation Ex, A, filed 2010 at 1?2; see also
Mom. Op. at 19. The Court has previously found tha iese neans were

?reasonably designed to prevent the intentional acquisition or communications as to which all

parties are in the United States,? while recognizing that it is sible that a wholly
Wii?i could be aciuired as a result of thew

Mom. 7 n. 17. As discussed in the

"ii I iubmission, apart from one exception involving
NSA have yet to identify a wholly domestic communication acquired

through upstream collection systems. See June 1 Submission at 8?9. Accordingly, the

Government continues to believe that - means for preventing the acquisition of
wholly domestic communications remain ef?cacious, and that the theoretical scenarios in which

NSA would acquire a wholly domestic communication do not prevent the Court from continuing

to ?nd that targeting procedures are reasonably designed to prevent the intentional
acquisition of communications as to which the sender and all intended recipients are known at

the time of acquisition to be in the United States. 

      
  
 
 

  
  
 

   
  
 

   
   
 

To the extent that NSA does unintentionally acquire and then recognize such a wholly
domestic communication within an acquired transaction, as described in response to question 10
above, NSA would be required to purge the entire transaction, unless the Attorney General
determined ?that the contents indicate[d] a threat of death or serious bodily hann to any person.?

WW9-

13. In its discussion of the Fourth Amendment, the gavernment asserts that ?upstream
collection? in general is ?an essential and irreplaCeable means of acquiring valuable foreign
intelligence information that promotes the paramount interest of protecting the Nation and
conducting its foreign affairs.? June 1 Submission at 16.

a. To what extent can the same be said for the acquisition of Internet transactions -
in particular?

 

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b. Is the acquisition of Internet transactions via upstream collection the only source for
certain categories of foreign intelligence information? If so, what categories?

c. Please describe with particularity what information NSA would acquire, and what
information SA would not acquire, if NSA were, in comparison to its current

collection, to limit its acquisitionm to: aciuisitions
nducted with the assistance of
about tasked selectors that are

at 2, 

     

The assertion that upstream collection is ?an essential and irreplaceable means
of acquiring valuable foreign intelligence information that promotes the paramount interest of
protecting the Nation and conducting its foreign affairs? is equally applicable to its acquisition of
Internet transactions. This is true because the Government?s acquisition of Internet transactions
is not a subset of its upstream collection of Internet Instead, acquisition of
Internet transactions is the technical means by which all Upstream collection of Internet

communications accounts are acquired. 

Section 702 upstream collection of Internet communications provides NSA with certain
types of information (further described below) which are extremely valuable to its national
security mission. Disseminated end product reports derived from this collection have proven to
be of critical value to high?level customers, including the White House, State Department, Joint
Chiefs of Staff, the National Countelproliferation Center, Central Intelligence Agency (CIA),
Defense Intelligence Agency, Federal Bureau of Investigation (FBI), and others. In addition,

II

Section 702 upstream collection offers unique opportunities to detect target information,
including but not limited to the following examples: 

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recognized, upstream collection is ?unique 3) capable of acquin'ng certain types of
targeted containing valuable foreign intelligence information.? In re 

Cem?caaon mat 25?26 (USFISC - 2009)
(emphasis added; internal citations omitte .

Additionally, Section 702 upstream collection would not acquire many of the
above categories of ceimnunications, and thus the foreign intelligence contained within these
communications, if upstream collection were limited to acquisition solely of discrete

communications to from, or about tasked selectors that are?
referenced in footnote 2 on page 2 0 tie une missmn. urren y,

    

 

 



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WW

 

The Comt?s question asks for ?categories of foreign intelligence information? that can be
obtained exclusively through acquisition of Internet transactions via upstream collection.
This is a dif?cult question to answer, as types of foreign intelligence may be conveyed through a

munication means. For example, 

   
 
   

 

as described above, it is entire posm 13 us co
be acquired through Section 702 upstream collection of conununications other than those

In an effort to fully answer the Court?s question, however, the Government respectfully
submits the following examples of instances where NSA has obtained substantial foreign
intelligence information from Section 702 upstream collection. The examples detail only a few

 

2c

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earn collection has provided such substantial

Approved for public release.

of the many instances in which Section 702 upstr

foreign intelligence. In man of these exam les, Section 702 upstream collection provided
important loads that led to Although all forms of
Section 702 upstream collection have proved to be 0 cnt1ca impo ance to the national

lve the acquisition by Section 702 upstream collection

   

security mission, the examples below invo
of communications other than



 

NYT DOJ, 16 CIV 7020_000434

 

Approved for public release. All withheld information exempt under b(t) and b(3) except as othenrvise noted14. The Fourth Amendment also requires the Court to examine the nature and scope of the
intrusion upon protected privacy interests. How can the Court conduct such an assessment
if the government itself is unable to describe the nature and scope of the information that is
acquired or the degree to which the collection includes information pertaining to US.
persons or persons located in the United States? 

Although, as discussed above, it is dif?cult for the Goverrunent to fully describe to the
Couit every possible type of information that may be contained within a transaction acquired
through upstream collection, the Government respectfully suggests that the Court can
nonetheless assess whether upstream collection of such transactions is reasonable under

the Fourth .

First, the Supreme Court has recognized that an appreciation of all of the possible ways a
search can intrude upon interests protected by the Fourth Amendment is not an indispensable
component of assessing the reasonableness of the search. See Dalia v. United States, 441 US. .
238, 257 1979) (?Often in executing a warrant the police may ?nd it necessary to interfere with
privacy rights not explicitly considered by the judge who issued the warrant?); cf. Payton v. New
York, 445 US 573, 601-02 (1980) (recognizing that ?for Fourth Amendment purposes, an airest
warrant founded on probable cause implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect is within,? even
though ?an arrest wairant requirement may afford less [privacy] protection than a search warrant .
requirement?). Thus, the Government respect?illy suggests that the Court can assess the Fourth
Amendment reasonableness of upstream collection even if the Government cannot ?illy
describe every possible type of information that collection may acquire. 



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Moreover, while it may be dif?cult for the Government to describe the full scope of the
types of information that may be acquired by upstream collection, it is nevertheless
possible to ascertain the degree to which that information would pertain to United States persons
or' persons located in the United States. For the reasons discussed below, the Government does
not believe that information about United States persons or persons located in the United States .
would be acquired through upstream collection of transactions to a greater degree, in
relative terms, than other types of communications acquired under Section 702%

First, certain transactions are acquired because they contain a discrete communication to
or from a tasked selector used by a person who, by virtue of the application ofNSA?s 
approved targeting procedures, is a non?United States person reasonably believed to be located
outside the United States. This Court has recognized that ?the vast majority of persons who are
located overseas are non-United States persons and that most of their communications are with -
other, non?United States persons, who are located overseas.? In re Directives to Yahbo! Mem.
Op. at 87 (footnote omitted). Accordingly, it is reasonable to presume that most of the discrete 
communications that may be within the acquired transaction are between 11011- United States
persons located outside the United States. Second, with respect to transactions that contain a
discrete communication about a tasked selector, the technical means by which NSA prevents the
intentional acquisition of wholly domestic communications is to ensure that the acquisition of
transactions is directed at persons reasonably believed to be located outside the United States.
Again, these individuals reasonably can be presumed to be non?United States persons, and most
of their communications can-be presumed to be with other non-United States persons located
outside the United States. Id. This combination oftargeting non? United States persons located
outside the United States and directing acquisitions at persons located outside the United States

- operates to significantly diminish the likelihood that information pertaining to United States
persons or persons in the United States will be acquired. WSW)

To be sure, it is possible that a transaction containing multiple discrete communications
only one of which is to, from, or about a tasked selector could contain information pertaining to
United States persons or persons in- the United States. That, however, does not by itself mean
that the volume of such information in transactions will be greater than in the collection of other

es of corrununications that have previously been discussed and approved.

 

Moreover, the fact that within an acquired transaction'there may be multiple discrete
communications containing information pertaining to United States persons or persons in the
United States cannot by itself render the acquisition of. that transaction unreasonable under the

Fourth Amendment. As discussed above, the acquisition of such 'i'nfomiation is incidental to the 
ptupose of the transaction?s acquisition the acquisition of the discrete communication(s) to,

23

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from, or about a tasked selector within the transaction. See In re Directives, 551 F.3d at 1015
(?It is settled beyond peradventure that incidental collections occurring as a result of
constitutionally permissible acquisitions do not render those acquisitions unlawful?) (citations

omitted?. 

In any event, any information pertaining to a United States person or person located in
the United States present in a transaction containing multiple discrete communications would be
handled under the NSA minimization procedures in the exact same manner as if that information
appeared in a discrete communication to, from, or about a tasked selector. For example, the use

.and dissemination of United States person information acquired from 
I would be subject to the same restrictions as United States person it orma ion acquire



 

 

15. In light of the government?s emphasis on the limited querying 01 Section 702
acquisitions that is currently permitted June 1 Submission at 23), why is it reasonable
and appropriate to broaden the targeting procedures to permit querying using U.S.?person
identi?ers? - -

Although current minimization procedures prohibit the use of United States
person names or identi?ers to retrieve any Section 702-acquired communications in NSA
systems, see Current NSA Minimization Procedures, the statute requires. no such
limitation. Rather, it is reasonable and appropriate for the Court to approve the 
proposal to enable NSA to use United States person identi?ers as selection terms
because the request is consistent with the statutorily required minimization procedures. See
Proposed NSA Minimization Procedures (providing, in peitinent part, that ?[c]omputer
selection terms used for scanning, such as telephone numbers, key words or phrases, or other
discriminators, will be limited to tlrose selection terms reasonably likely to return foreign
intelligence information. Any United States person identifiers used as terms to identify and
select communications must be approved in accordance with NSA procedures?) (emphasis

added). 

Minimization procedures must be designed to minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly availably information concerning unconsenting'United
States persons consistent with the need of the United States to obtain, produce, and disseminate
foreign intelligence information. 50 U.S.C. 1801(11)(1). Where, as here, ?it may not be
possible for technical reasons to avoid acquiring all information,? Congress has recognized that
minimization procedures ?must emphasize the minimization of retention and dissemination.?
H.R. Rep. No. 95?1283, pt. 1, at 55. Congress also acknowledged that ?a signi?cant degree of
latitude be given in counterintelligence and counterterrorism cases?f with respect to retention and
dissemination of information. Id. at 59. In light of such latitude, ?rigorous and strict controls?
should and will be placed on the retrieval of United States person information and ?its
dissemination or use for purposes other than Countetintel'ligence or counterterrorism? Id.



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With respect to acquisition, the Govermnent?s proposal to use United States person
identi?ers as selection terms does not broaden the scope of what the Government can acquire
under the certi?cations. Because, for the reasons detailed above, it is not possible ?to avoid
acquiring? the incidentally obtained information, the focus will be on the retention and
dissemination provisions of the procedures. Id. at 55. As a general matter, minimization
procedures contain detailed provisions regarding the retention and dissemination of United States
person infonnation that the Court has previously approved. See, augment. Op. at 21-32,
40-41. In'addition, the Government?s proposal provides that United on'identifiers
may only be used ?in accordance with NSA procedures? governing the circumstances under
which US. person infonnation can be queried. Although the Government is still developing
such procedures, and NSA will not begin using United States identi?ers as selection
terms until they are completed, the Government will ensure that the procedures contain ?rigorous
and strict controls? for the retrieval and dissemination of United States person infonnation to
ensure that only selection terms likely to produce foreign intelligence information are retrieved,
and dissemination is limited to counterintelligence and counterterrorism purposes. Moreover,
the Government?s proposed changes to minimization procedures require that NSA
maintain records of all United States person identi?ers approved for use as selection terms and
that NSD and ODNI conduct oversight .ofNSA?s activities. See Proposed NSA Minimization

Procedures 

16. The government acknowledges that it previously F?did not fully explain all of the means
by which . . . communications are acquired through upstream collection techniques?
(June 1 Submission at 2), yet states that the [Attorney General] and?lDirector of National
Intelligence] have con?rmed that their prior authorizations remain valid? (EL at 35). At
the time of- each previous Certi?cation under Section 702, were the Attorney General and

the Director of National Intelli ence aware that the acquisitions being approved included
Internet ?transactions? If so, why was the Court not informed?
If not, why are the prior Certifications and co ections still valid?

The Government acknowledges that its prior representations to the (loud and to the
Attorney General and Director of National Intelligence regarding the steps NSA must take in
order to acquire single, discrete conununicationsto, from, or about a tasked selector did not fully
explain all of the means by which such communications are acquired through upstream
Internet collection techniques. See June 1 Submission at 2. That said, for the reasons described

in the answer to question 5 in the June 1 Submission, both the prior Certifications and collection
remain valid. See June 1 Submission at 31-38. 

The Certifications executed by the AG and DNI and submitted to the Court for approval
were based on an understanding that Section 702 collection would, at a minimum, acquire
discrete that are to, from, 01' about a tasked selector. As described in detail
previously, due to certain technological limitations, in general the only way that NSA can
acquire certain Internet communications upstream that are to, from, or about a tasked selector is
by acquiring an lute-met transaction which may include a single, discrete communication-to, from,
or about a tasked selector an e?mail message) or may include several discrete

 

NYT 16 CIV 7020_000438

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WW

communications, only one of which may be to, from, or about a tasked selector.? See June 1
Submission at 27?28. In this respect, the acquisition is comparable to the Government?s seizure
of a video, book, or intact ?le that contains a single photo, page, or document that a search
warrant authorizes the Govemment to seize. See, e. g, United States v. Rogers, 521 F.3d 5, 10
(lst Cir. 2008) (concluding that a videotape is a ?plausible repository of a photo? and that
therefore a warrant authorizing seizure of ?photos? allowed the seizure and review of two
videotapes, even though warrant did not include videotapes); Wimgneux, 683 F.2d at 1353
(holding that it was ?reasonable for the agents to remove intact ?les, books and folders when a
particular document within the ?le was identi?ed as falling within the scepe of the warrant?);
United States v. Christine, 687 F. 2d 749, 760 (3d Cir. 1982) (en bane) (emphasizing that ?no
tenet of the 'Fourth Amt-indolent prohibits a search merely because it cannot be performed with
surgical precision. Nor does the Fourth Amendment prohibit seizure of an item, such as a single
ledger, merely because it happens to contain other information not covered by the scope of the -
warrant?); United States v. Bensch, 596 F.2d 871, 876?77 (9th Cir. 1979) (rejecting argument
that ?pages in a single volume of written material must be separated by searchers so that only

 

these pages which actually contain the evidence may be seized?). None of these cases even hint
that the warrant is somehow invalid because the magistrate did not know in advance that the
search or seizure of authorized documents or photos would also encompass the search or seizure
of additional, intermingled documents or photos, even in cases where such documents could
have been physically separated from the larger ?les or books in which they were contained.
Rather, it is wellnestablished that warrants need not state with Speci?city the precise manner of
eitecution, and, so long as it is reasonable, a search or seizure will be upheld even if conducted in
a manner that invades privacy in a manner not considered at the time the warrant was issued.
See United States v. Grabbs, 547 US. 90, 98 (2006) (?Nothing in the language of the
Constitution or in this Court?s decisions interpreting that language suggests that, in addition to
the [requirements set forth in'the text], search warrants also must include a speci?cation of the
precise manner in which they are to be executed?) (citation omitted); Dalia, 441 US. at 259
(?Often in executing a warrant the police may ?nd it necessary to interfere with privacy rights
not explicitly considered by the judge who issued the warrant?). 

Moreover, having considered the additional information that is being presented to this -
Court, the AG and DNI have continued that the collection fully complies with the statutoty
requirements of Section 702, as well as the Amendment, and that therefore the prior
Certifications and collection remain valid. See June 1 Submission at 35. 

As discussed previously, transactions are only acquired if they contain at least one
discrete communication to, from, or about a tasked selector. Each tasked selector has undergone
review, prior to tasking, to ensure that the user is a non?United States person reasonably believed
to be outside the United States. Moreover, with respect to ?abouts conununications,? the
targeting procedures are also reasonably designed to prevent the intentional acquisition of any
communication as to which the sender and all intended recipients are known to be located in the

 

    

l7

2'6

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Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted.



United States at the time of acquisition. See id. at 3?12, 28?30. Just as the Government?s
acquisition of an entire book based on the fact that a single page falls within the scope of the
warrant does not call into question the warrant?s specificity, the incidental acquisition of
additional communications that are not to, from, or about the tasked selector does not negate the
validity of the targeting procedures that are relied on to acquire a particular transaction.



Moreover, the AG and DNI have con?rmed that the additional information regarding
incidentally acquired does not alter the validity of their prior Certi?cations. See
id. at 35. As discussed in detail previously, the minimization and targeting procedures fully
comport with all of the statut01y requirements, including the requirement that the targeting
procedures are reasonably designed 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 within the United States, see id. at 3?12, 20?24; and the procedures and guidelines are
consistent with the requirements of the Fourth Amendment, see id. at 13?24. 

 

2'7

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UNITED STATES

FOREIGN INTELLIGENCE SURVEILLANCE COURTIW p; 1,0
on}? I I
WASHINGTON, D.C. 

 

MOTION FOR ORDERS EXTENDING TIME LIMITS PURSUANT
TO 50 U.S.C. 1881a(j)(2) 

THE UNITED STATES OF AMERICA, through the undersigned Department of
Justice attorney, respectfully moves the Court to issue orders pursuant to 50 U.S.C.
1881 of the Foreign Intelligence Surveillance Act of 1978, as amended (the Act),
extending to September 20, 2011, the time limits for the Court to complete its review of
and issue orders concerning 702(g) Certification? and
the amendments to their respective predecessor certifications. As discussed below, the
government respectfully submits that there is good cause for the extensions of the time

limits, and that such extensions would be consistent with national security. 

Classi?ed by:

Reason:
Declassify on:

 

NYT DOJ, 16 CIV 7020_000441

Approved for public release. All withheld inforglation exempt under b0; and b(3) except as otherwise noted.

I. Procedural Background-(8}
A. The 2011 Reauthorization Certifications and Related Amendments 

On April 20, 2011, the government submitted to the Court 702(g)

Certi?cation -were the targeting and minimization procedures to be used by the

National Security Agency (NBA), Federal Bureau of Investigation (FBI), and Central

intelligence Agency (CIA) under that certification. 702(g) Certificatio-

reauthorizes 702(g)Certificati01?

 

- which was set to expire on- 2011. In accordance with 50 U.S.C.

1881a(g)(2)(D)(i), 702(g) Certification -also included an effective date
for the authorization that is at least thirty days after its submission to the Court 

- 

702(g) Certification- also included amendments to its predecessor

certifications, 702(g) Certification- Specifically, these

amendments authorize the use of the minimization procedures attached as Exhibits 

and to 702(g) Certificatior- in connection with foreign intelligence

WSW
2 .

NYT DOJ, 16 CIV 7020_000442

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information acquired in accordance with 702(5) Certifications-

- 'l?hese amendments also have an effective date of- 2011. 

NYT DOJ, 16 CIV 7020_000443

 

Approved {or public release. . b(3) except as othemise noted.

NYT DOJ, 16 CIV 7020_000444

 

Approved for public release. . . (3) except as otherwise noted.

  

B. Two Matters Reported to the Court 15%

1. Overcollection 

On April 19, 2011, the government filed with the Court pursuant to Rule 13(b) of
the Rules of Procedure for the Foreign Intelligence Surveillance Court, a preliminary
notice of two compliance incidents, both of which concern NSA's collection of-
that, in addition to targeted communications, contain communications
that are not to, from, or about selectors tasked for acquisition in accordance with section

702 of the Act. One of these incidents concerns NSA's overcollection of-

because of?
The government respectfully incorporates herein by

reference this notice dated April 19, 2011. 

2. Clarification Concerning Upstream Collection 
On May 2, 2011, the government filed, pursuant to Rule 13(a) of the Rules of
Procedure for the Foreign Intelligence Surveillance Court, a preliminary notice
clarifying certain facts concerning NSA's upstream collection of electronic
communications. Specifically, this notice provided the Court with additional details

concerning one specified category of Internet communications NSA acquires through its

The other incident reported in this notice concerned overcolleclion 0f?
On March 15, 2011, NSA terminated collection

 

 

NYT DOJ, 16 CIV 7020_000445

Approved for public release. 3) except as otherwise noted.

  

As stated in the notice, at that time,

NSA, NSD, and ODNI were still reviewing this matter and assessing its import,
including what effect, if any, this type of Internet communications collection has on the
efficacy of the means by which NSA prevents the intentional acquisition of Internet
communications where the sender and all intended recipients are known at the time of
acquisition to be located in the United States. The government respectfully incorporates
herein by reference this notice. dated May 2, 2011. 

C. Prior Motion to Extend?63

On May 5, 2011, the government filed with the Court a motion to extend the time
limits for the Court to complete its review of 702(g) Certificatio-
On May 9, 2011, the Court approved this motion, extending until
July 22, 2011, the time limits to complete its review of these certifications. The
government respectfully incorporates herein by reference the government's motion of
May 5, 2011, and the Court's orders of May 9, 2011, approving this motion?(57'

D. Subsequent Filings with the Candis;?

On May 9, 2011, the Court issued a briefing order that required the government
to submit responses to specific questions about both th- and upstream
collection matters described above. in accordance with the Court's order, the
government filed its response on June 1, 2011. On June 17, 2011, the Court provided the

goverrunent with additional questions about the government's representatiOns

TOW
6 .

NYT DOJ, 16 CIV 7020_000446

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regarding aspects of NSA's upstream collection. The government filed responses to
these additional questions on June 28, 2011. The government respectfully incorporates

herein by reference these four documents. 

II. The Issuance of Orders Under 50 U.S.C. 1881a(j)(2) is in These
Cases ?65)

Upon the government's submission of 702(g) Certification -on
April 20.2011?
- the thirty-Clay time periods in which the Court is required to review the
certifications began to run. ?gs 50 U.S.C. The thirty?day time periods
for the Court to review the amendments to the predecessor certifications also began to

run on those same dates. See 1881a(i)(C). Accordingly, the time limit for the Court

 

to complete its review of 702(g) Certification -and the amendments to its
predecessor certifications was May 20, 2011. 



The Court may, however, "extend[] that time as necessary for good cause in a

manner consistent with national security." 50 U.S.C. 1881a(j)(2). As discussed above,
by orders dated May 9, 2011, the Court extended the time limits until July 22, 2011, to

--review-DNI/AG 702(g) Certification?and the amendments.- - -

to their respective prior certifications. For the following reasons, the government

. 7 .

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respectfully submits that there is good cause for further extensions of the time limits,
and that such extensions would be consistent with national security. 

A. There Is Good Cause for the Court to Further Extend the Time Limits for Its
Review 

The government believes that there is good cause for the Court to further extend
the deadlines for the Court to complete its review of 702(g) Certifications-
and the amendments to-their respective predecessor certifications.
Specifically, as explained below, the government intends to supplement the record
concerning the matters discussed above in a manner that will aid the Court in its review
and in making the determinations necessary to issue orders under 50 U.S.C.
1881a(i)(3). However, the government will?not be in a position to supplement the
record until after July 22, 2011. 

On July 2011, the Court orally invited the Government to supplement the
record in this matter by providing additional information further responding to the
Court?s June 17 questions about the nature and scope of the types of communications
NSA acquires through its upstream collection systems. The Government is currently in
the process of compiling this additional information. In addition, the Government is
examining whether enhancements to NSA's systems or processes could be made to
further ensure that information acquired through NSA's upstream collection is handled

- in-accordance?with the?requirements of the 
be completed Luitil after July 22, 2011. {?51%erij
WW
.. 8

NYT DOJ, 16 CIV 7020_000448

Approved for public release. All withheld infogmation exempt under bit) and b(3) except as otherwise noted.
I. 1.

B. Extending the Time Limit for the Court's Review Is Consistent with
National Security. 

As this Court has recognized, "[t]he government?s national securityr interest in
conducting these acquisitions [under section 702] 'is of the highest order of magnitude.""
In re Certification- No. op. at 37 (USFISC Sept. 4,
2008) (quoting In re Directives Pursuant to Section 1058 of the Foreign Intelligence
Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev. 2008)). For example, the foreign

intelligence information the government acquires under 702(g) Certification

 

.Affidavit of Lt. General Keith B. Alexander, Director, NSA, ?11 6. 

Were the Court to issue orders under 50 U.S.C. extending the time
limits for its review of the certifications and related amendments so that the Court could
consider these additional materials, the authorizations in the certifications being

reauthorized, 702(g) Certification would, by

operation of 50 U.S.C. continue despite their expiration dates.2 The

 

3 The government's filing of 702(g) Certification- on April 20, 2011,?
comported with 50 U.S.C. 1881a(i)(5)(A), which

requires that it the government seeks to reauthorize an authorization issued under 50 U.S.C. 1881a(a),
the government must, to the extent practicable, submit to the Court a new certification exocuted under
50 with supporting documents, at least thirty days before the expiration of the -
certification being reauthorized. It a new certification is ?led in accordance with 50 U.S.C.
1881a(i)(5)(A), 50 U.S.C. '1 881a(i)(5)(15) provides that the existing certification being reauthorizcd shall
WW
. 9 .

NYT DOJ, 16 CIV 7020_000449

 1- . 3) except as othemise noted.

Approved for public release. 

    
 

government respectfully submits that this result would be consistent with national
security, because it would allow the government's acquisition of vitally important

foreign intelligence information under 702(g) CertificatiOi-j,

to continue pending the completion of the Court's review of the

reauthorization certifications, 702(g) Certificati?
respectively. 

The government further submits that it would be consistent with national
security for the Court to extend its consideration of the above-discussed amendments,
which authorize the use of the NSA and CIA minimization procedures submitted with
702(g) Certifications? in connection with foreign
intelligence information acquired in accordance with the predecessors of those
certifications. The NBA and CIA minimization procedures currently approved for use
under those predecessor certifications, however, differ in some respects from the NSA
and CIA minimization procedures submitted with 702(g) Certification-

The government believes that authorizing NSA and CIA to use

a single set of minimization procedures each agency's respective minimization

procedures submitted with 702(g) Certification?

for the entirety of each agency's holdings of foreign intelligence information acquired

under section 702 will result in a more uniform application of minimization standards

 

remain in effect, notwithstanding its expiration date, until the Court issues an order under 50 
1881a(i)(3) with respect NYT DOJ, 16 CIV 7020_000450

Approved for public release. t' b(3) except as otherwise noted.

to that information. Authorizing each agency to use a single set of minimization
procedures for that information also will significantly simplify oversight of each
agency's adherence to those standards?W

111. Conclusion 

For the foregoing reasons, the government resPectfully submits that there is good
cause for the Court to issue orders under 50 U.S.C. 1881a(j)(2) extending to September
20, 2011, the time limit for the Court to complete its review of, and issue orders under
50 use. 1881a(i)(3) concerning, 702(g) Certification-
and the amendments to their respective predecessor certifications, and that such an
extension would be consistent with national security. The government also requests

that the Court issue the proposed Notice of Extension, attached herewith. 

Respectfully submitted,

 

National Security Division
United States Department of Justice

WW
. 11 .

NYT DOJ, 16 CIV 7020_000451

Approved for public release. All withheld information exempt under and b(3) except as otherwise noted.

APPROVAL
I find that this motion regarding AG 702(g) Certificatim-
- and the amendments to their respective predecessor certifications satisfies the
criteria and requirements set forth in the Foreign Intelligence Surveillance Act of 1978,

as amended, and hereby approve its filing with the United States Foreign Intelligence

Surveillance Court. 

 

Eric H. Holder, Jr.
- Attorney General of the United States

 

James M. Cole
Deputy Attorney General of the United States

at 1 

Lisa 0. Monaco
Assistant Attorney General for National Security

12

NYT DOJ, 16 CIV 7020_000452

Approved for public release. All withheld information exempt under b(1) and b(3) except as otherwise notedUNITED STATES ?5 Elfin"; {it 
FOREIGN INTELLIGENCE SURVEILLANCE COURHBH [6 2: 16
WASHINGTON, DC. y? 1i 

 
    

NOTICE OF FILING OF GOVERNMENTS SUPPLEMENT TO ITS SUBMISSIONS
OF IUNE 15t AND JUNE 28TH. 2011

 

THE UNITED STATES OF AMERICA, through the undersigned Department of
Justice attorney, respectfully submits the attached supplement in further support of the

Classified by: a Gauhal?IDep'uty Ass"

  

Reason: .
Declassify on: ugust 2036

DOJ, 16 CIV 7020_000453

Approved for public release. - All withheld information exempt under b(1) and b(3) except as otherwise noted.


arguments set forth in submissions of June 1st and June 28th, 2011,- concerning the above-
referenced matters. This supplement explains the methodology behind and sets forth
the results of a manual review by the National Security Agency (NSA) of a statistically
representative sample of the nature and scope of the Internet communications acquired
through NSA's FISA Amendments Act Section 702 upstream collection during a six?
month period. The Government respectfully submits that the data provided herein
supplements and supports the Government?s Responses to the Court? s?Bi?iefing Order of
'May 2011, and supplemental questions of June 17, 2011, and'will further assist the
court in concluding that the certifications and procedures submitted in the above-
referenced matters satisfy the requirements of the Act and are consistent with the
Fourth Amendment to the Constitution of the United States. Witt-E).

Given the complex nature of the information provided in this-supplement, the
United States is prepared to provide any additional information the Court believes
would aid it in reviewing these matters. The Government may also seek to supplement
and/or clarify the information provided herein as appropriate during any hearing that

the Court may hold in the above?captioned matters. 

 

National Security Division
United States Department of Justice



2

NYT DOJ, 16 CIV 7020;000454

Approved for public release. All withheld exempt under and b(3) except as otherwise noted.

NSA Characterization of Upstream Data: Process and Results

I. Introduction

WW This report explains the methodology behind and provides the results of a manual
review of a statistically representative sample of internet communications acquired through NSA's FISA
Amendments Act (hereinafter section 702 upstream. collection during a six-month period.1 The
purpose of this review was to assemble data to assist the Court in understanding the nature and scope
of the communications acquired through NSA's upstream collection. The data assembled consisted of:

The volume of transactions containing single, discrete communications to, from, or about a
selector used by a person targeted in accordance with NSA's section 702 targeting
procedures (hereinafter "tasked selector") versus transactions containing multiple
communications (hereinafter "Multi?communication Transactions" or not all of
which may be to, from, or about a tasked selector;2

The types of discrete communications contained within MCTs 

'and

 

1W Additionally, as described on pages 8-9 of the Government?s June 1, 2011 Response to the Court's
Briefing Order of May 9, 2011, NSA conducted two tests of FAA 702 upstream collection in May 2011 using 
information from NSA's technical databases in an attempt to determine the likelihood of collecting an internet
transaction between a user in the United States and_ NSA also attempted to further determine
the extent to which those tests might be statistically representative of NSA's 702 upstream collection and repeated
these tests in July 2011 using alternative data sets. Because ofthe technical limitations for automatically
identifying transactions containing multiple communications, NSA assesses that the results ofthese tests are not
comparable to eachother or with the results ofthe separate manual analysis discussed herein. Furthermore, for
the same reason of technical limitation, the results do not express as high a degree ofgranuiarity and accuracy as
the manual analysis discussed herein, which took more than one month of careful review by experienced -
to complete. None ofthe results discussed herein and in the Government's June 1 Response, however, are

inconsistent.

As described on pages 27-28 of the Government's Junel, 2011 Response to the Court's Briefing
Order of May 3, 2011, NSA's inability to separate out individual pieces of information from internet
communications acquired by NSA's upstream collection systems does not extend to all forms of transactions. NSA
has developed the capability to - identify transactions whic?

and, in certain other limited instances, transactions where an "active user" (as described
more fully below) is a tasked selector; Based on a test ofthis capability from July 16th?29th 2011, NSA estimates

that approximately only-of NSA's current upstream collection under FAA section 702 could be identified
through. processes as communications to, from or about NSA's tasked selector. As reflected by the
results ofthis manual review, this figure is significantly under-representative of the total proportion of NSA's
upstream collection assessed to be communications to, from or about a tasked selector.

    
 

Derived From: NS CSSIVI 1?
Dated: 20 108

Declassify 0n: 2 3607

NYT DOJ, 16 CIV 7020_000455

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

I The volume of MCTs that NSA assesses contain a wholly domestic communication not to,
from, or about a tasked selector.3

II. (U) How the Statistically Representative Sample Was Assembled

NSA assembled the sample of communications acquired through its upstream
collection by first identifying all Internet communications acquired under section 702 both from
-N5A upstream collection and collection from Internet service providers either by or with the assistance
of the Federal Bureau of Investigation (hereinafter during a six-month period from
January through June 30th, 2011, and present within ofJuly 14, 2011. As of that date,
140,974,921 Internet communications were present within Of'these, 127,718,854 (or
approximately 91%) were acquired from PRISM collection, and 13,256,067 (or approximately were
acquired through NSA's upstream?collection.6

    
  
 

The approximately 13.25 million Internet communications acquired through 
upstream collection (hereinafter "transactions") were then "shuffled" by NSA statisticians to ensure a
random sample any sample drawn would be statistically representative of the total 13.25 million
transactions). NSA statisticians estimated that a manual review of a sample of approximately 50,000 of
these randomized transactions would enable characterization of all 13.25 million transactions with a
statistically high level of confidence and precision.7

(U) How the Manual Review Was Conducted and the Results of the Review

I the leadership of NSA's Deputy Director, an experienced interdiSciplinary

- team consisting of experienced intelligence attorneys from Office of General Counsel,
representatives from NSA's Office of the Director of Compliance, NSA statisticians, representatives from
NSA's Network Analysis Center, and representatives from NSA's Office of Oversight and Compliance was
assembled to conduct the review described herein and compile this report. A team of experienced NSA

 

3W This aspect of the review required to perform intensive analysis on discrete

communications which did not contain the target?s selector within MCTs, to determine if the sender and all
intended recipients of those discrete communications were located in the United States. Such in-depth analysis is 
not typically conducted by in their daily foreign intelligence analysis. Instead, an analyst would tend to
focus-hi5 or herattentlon on those discrete communicatlons within the MCT that are to, from, or about their
assigned target, and would Only perform a deeper inspection ,ofthose communications to confirm they were not
wholly domestic if they werein-fact pertinent to the analyst's evaluation of foreign intelligence information and
therefore worth further analysis for potential use. 

This figure does not include Internet communications that were acquired during this six-month

period but were purged prior to July 14, 2011. 

We) See Figure A of Appendix A, attached hereto.

1W9). Details for the basis for NSA's statistical assertions are set forth in Appendix B, attached hereto.
2 I I

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intelligence was assigned to conduct a manual review ofthe transactions. Ultimately, that
team of NSA intelligence collectively reviewed a total of 50,440 individual transactions. 

Witt?) In order to ensure consistency among the in their review, before
beginning the manual review, the team members were trained to recognize MCTs and how to
characterize the discrete communications contained within them. The team members were given
training materials created specifically for this effort, which included screenshots depicting typical
examples of the types of transactions acquired through NSA's upstream collection. NSA's Office of
General Counsel, Office of Oversight and Compliance, and Office of the Director for Compliance
reviewed all training materials and provided guidance throughout the manual review.

W) For quality assurance, some transactions (approximately 10 out of every 5,000).
underwent independent reviews by more than one analyst. in addition, the team lead performed spot
reviews oftransactions that had already undergone review (approximately 1 out of every 100). The
team lead also personally reviewed any transaction that team members were unable to immediately
characterize as clearly being a discrete communication or an MCT, as well as any MCT identified as
potentially concerning a person located in the United States. Both the quality assurance overlap and the
reviews performed by the team lead revealed no discrepancies among how characterized any
of the transactions subjected to these overlapping reviews.

WW in conducting the manual review, NSA took the following steps and made
the following findings:

1. Determined if the transaction was a single, discrete communication or an MCT.3 if the 
transaction was determined to be a single, discrete communication, no further analysis was
done. Transactions determined to be MCTs were further analyzed, as described below.

9 Of the 50,440 transactions reviewed, 45,359 (approximately 90%) were determined to
be single, discrete communications. The remaining 5,081 transactions (approximately
10%) were determined to be iViCTs.9

2. Characterized the discrete communications within the 5,081 MCTs as being

I .

0 Of the?5,081 MCTs reviewed,

For any objects that the initial reviewer was uncertain about how to characterize if the
transaction contained data requiring further processing to render it intelligible to the analyst), the team lead
performed a second review. As a result, each of 50,440 transactions reviewed were able to be characterized as

being either a single, discrete communication or-an MCT. 

See Figure of Appendix A.

3

 

NYT DOJ, 16 CW 

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3. Determined whether the 5,081 MCTs contained any discrete communications as to which
the sender and all intended recipients were located in the United States. As discussed in
more detail below, in many cases?NSA were able to make these determinations
based on the location of the ?active user" of the In other: cases, NSA had to rely on
content analysis because the MIT did not contain technical information sufficient to
identify the active user or to determine the active user's location. There were, however,

instances where the MCT did not contain sufficient technical information or content for NSA
to assess whether the MCT contained any wholly domestic communications.

 

0 Of the 5,081 MCTs, 713 (approximately 14%) had a tasked'selector as the active user
. No further

analysis of these MCTs was done to determine whether they contained wholly
domestic communications. That is because the user of the tasked selector, who by
operation of the NSA targeting procedures is a person reasonably believed to be
located outside the United States, would be either the sender or an intended recipient
of each of the discrete communications contained within the Accordingly, all of
the discrete communications within those MCTs would have at least onecommunicant
reasonably believed to be?located outside the United States the target) and thus
would not be wholly domestic.

9 Of the 5,081 MCTs, 2,668 (approximately 52%) had an active user that was not a tasked
selector but wasnonetheless an electronic communications account/address/identifier

 

1% See Figure of Appendix A.

When NSA acquires an Internet transaction between an individual using an electronic
communications account/address/identifier and his/her service provider, that individual is the "active user" for
that transaction. Such transactions can have, at most, one "active user."

14W In this context, a communication to or from the target includes communications to or from the
tasked selector itself an e-mail sent to a tasked e-mall account), as well as communications where the tasked

selector appears in other_communications attributable to the target 

See in re Certificatio-

Docket No. Mem. Op. at 17 n.14 (USFISC Sept. 4, 2008).

4

NYT DOJ, 16 CIV 7020_000458

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reasonably believed to be used by a person located outside the United States.15 No
further analysis of these MCTs was done to determine whether they contained wholly
domestic communications. That is because the foreign?based active user would be
either a sender or intended recipient of each of the discrete communications within
the transaction. Accordingly, all ofthe discrete communications within those MCTs
would have at least one communicant reasonably believed to be located outside the
United States the foreign?based active user) and thus would not be wholly
domestic.

9 Of the 5,081 MCTS, 8 (approximately 0.16%) contained an electronic communication
account/address/identifier of a non-targeted active user who appeared to be located
in the United States, but none of the discrete communications within the MCT were
determined to be wholly domestic because at least one of the communicants to each
discrete communication was reasonably believed to be located outside the United
States Specifically, the 8 MCTs virere determined to concern six non- -targeted active
users two of the MCTs were duplicates):

0 Four MCTs (including both duplicates)?

contained at least'one e-mail message from a tasked selector as well as

other e-mail messages from accounts/addresses/identifiers reasonabl believed
to be used by a person located outside the United States.? i

'0 Three MCTs _Ivith the users of accounts/addresses/identifiers
who were reasonably believed to be located outside the United States. 17

0 One MCT?where further technical analysis revealed

that the active User was reasonably believed to be located outside the United
States.

    

0 Of the 5,081 MCTs, 10 (approximately contained an electronic communication
account/address/identifier of a non?targeted active user who was located in the United
States, and the MCTs contained at least one discrete communication that was wholly

 

15% To determine the location ofthe non-targeted active user, NSA performed the same sort of
analysis it would perform before tasking an electronic communications account/address/ldentifler In
accordance with its FAA Section 702 targeting procedures. 

To determine the location ofthe senders of each ofthese discrete e- mail messages, NSA performed
the same sort of-analysis it would perform before tasking an electronic communications
account/address/identifier In accordance with its FAA Section 702 targeting procedures.

To determine the location of? NSA performed the same sort of

-analysis.it would. perform before tasking an electronic communications accountladdress/identifier in
accordance with its FAA Section 7.02 targeting procedures. .

5

NYT DOJ, 16 CW 7020_000459

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and all 10

 
    
 

domestic. Specifically, all 10 of these MCTs were
involved persons using
all 10 of these MCTs, onl

9 of the 10? were attributed to a single U.S.?based user.

Each of these 9 10 total e?mail messages. The

9 were not completely duplicative, but many of the 10 e-mail
messages were duplicative?. .

0 Two of the messages -in each of the 9?

contained a tasked selector and thus were not assessed to be wholly
domestic.

Three of the messages in each of the 9?
were_which is located in the United

States) and thus were assessed to be wholly domestic.

The remaining e-mail messages?

were between the U.S.?based user and persons reasonably believed to be
located outside the United-States (and thus net assessed to be wholly
domestic) or whose location was unknown.19

0 The other? was attributed to a different user.
This 15 total e?mail messages:

0 One of the-e?mail messages was from a tasked selector and thus
was not assessed to be wholly domestic. 

it One of the- e-mail messages appeared to be a message that the
U.S.-based user sent to himself and thus was
assessed to be wholly domestic. 

6 One of.the_ e-mail messages appeared to be a message sent by an

associate _account and thus was assessed to be wholly

domestic. 

6 The remaining e-mail messages
were between the U.S.?based user and persons reasonably believed to be

 

_13 FEE ?le)

19% To determine the location of the other communicants, NSA performed the same sort of
analysis it would perform before-tasking an electronic communications account/address/identifier-in accordance
with its FAA Section 702 targeting procedures.

NYT DOJ, -16 CIV 7020_000460

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



located outside the United States and thus were'not assessed to be wholly
domestic.20

0 Of the 5,081 MCTs, 1,682 (approximately 33%) required further, ln~deptl_
- analysis because they lacked information sufficient for NBA to readily identify
the active user or determine the active user's location. In most of these cases, the
transactions did not contain enough information for NBA to readily determine which
electronic communication account/address/identifier appearing in the transaction was
that of the active user. In other cases, NSA was able to determine which electronic
communication account/address/identifier appearing in the transaction was that of
the "active user," but NSA was unable to determine the active user?s location. NSA's
furthe? analysis of these 1,682 MCTs revealed:

0 For 1,220 ofthese 1,682 MCTs, NSA analysis 6? data

indicated that they were characteristic of a foreign use

0 For 152 ofthese 1,682 MCTs, NSA anal sis of data
indicated that they were

0 . For 86 of these 1,682 MCTs, NSA analysis of a combination of technical data and
content revealed that they appeared to contain communications of persons
located outside the United States through further content analysis, NSA
were able to identify the active users of some .MCTs and information
indicative of those users' locations). 

    

0 thhe 5,081 MCTs, NSA cannot determine whether 224 MCTs contained wholly
domestic communications, because these MCTs lack information sufficient for NSA to
identify the active user or determine the active user's location. Nevertheless, NSA has
no basis to believe any of these MCTs contain wholly domestic communications.

0 For 182 of these 224 MCTs, NSA technical analysis indicates that they were
characteristic of

  

For 1 of these 224 MCTS, NSA initially determined that it contained an electronic
communication account/address/identifier of a non-targeted active user who
appeared to be located in the United States, but whose location could not be
determined on further technical anal sis. ecificall

 

2W0 determine the location of the other communicants, NSA performed the same sort of-

analysis it would perform before taski'ngan electronic communications account/address/identifier-in accordance
with its FAA Section 702 targeting procedures.

DOJ, 16 CIV 7020_000461

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23 of'these 224 MCTs were not further analyzed'because, although they were
present in-as of the date the sample was assembled, they were 
subsequently purged and/or placed on Master Purge List.

0 18 of these'224 MCTs could not be further characterized by NSA 
IV. (U) Conclusions Drawn from the Random Sample

Based on a random sample ofthe approximately 13.25 million total lnternet
communications acquired by NSA through "upstream" techniques pursuant to FAA section 702 for the
six-month period discussed, NSA assesses that the volume of transactions containing multiple
communications not all of which may be to, from, or about a tasked selector is approximately between
1.29 and 1.39 million With respect to the types of discrete communications
contained Within multi-communication transactions manuall reviewed NSA anal 

    

MW) As described in Appendix B, which details NSA's Statistical Methodology for this
review, the data compiled during the above?discussed manual review of a random sample of lnternet
communications acquired during a six?month period can be used to characterize with a statistically high
degree of con?dence a simulta neous confidence level of 95% for these intervals collectively) the
nature and scope of the entirety of the approximately 13.25 million Internet communications from

 

21W) As calculated in the attached Appendix detailing NSA's Statistical Methodology for this review, these
figures are based on the 45,359 ofthe 50,440 transactions (89.93%) ma?nually reviewed by NSA as
containing single, discrete communications and the 5,081 transactions (10.07%) manually reviewed by NSA .
as containing multiple communications. See also Step 1, supra page 3.




 

00 

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which the random sample was drawn. Specifically, NSA assesses that of these approXimately 13.25
million lnternet communications acquired through NSA upstream collection:

In between approximately 11.87 and 11.97 million are transactions that
contain only single, discrete communications to, from, or about a tasked selector;

in between 168,853 and 206,922 are transactions that contain multiple
communications, all of which are either to or from a tasked selector;

between 1,042,838 and 1,113,947 are transactions that contain multiple
communications, at least one of which is to, from, or about NSA's tasked selector, but all of
which are believed to either be to or from non?targeted persons reasonably believed to be -
located outside the United States; 

between 48,609 and 70,168 are transactions that contain multiple
communications, at least one of which is to, from, or about tasked selector, and at
least one of which is a communication between non-targeted persons not to, from or
about a tasked selector) that lacks sufficient information for NSA to identify the location of.
the sender and all intended recipients of that communication; and

I between 996 and 4,965 contain a wholly domestic communication not
to, from, or about a tasked selector.

?fTS?Sly?fNFi? ln sum, while there was insufficient information present for 224 multi?
communication transactions for NSA to characterize the likelihood that they may contain wholly

demestic communications (the majority of which were attributable 
for the reasons explained in detail

 

As calculated in the attached Appendix, these figures are based on 713 of the 5,081 MQTS (14.03%)
and 50,440 total transactions reviewed by NSA as containing a tasked selector as the active user

See also Step 3. supra page 4-

calculated in the attached Appendix, these figures are based on 4,134 ofthe 5,081 MCTs

(81.36%) and 50,440 total transactions reviewed by NSA as containing discrete communications
believed to be to or from non-targeted persons located outside the United States. More specifically, this total
includes the following MCTS manually reviewed by NSA 2,668 that had an active user reasonably

believed to be a person located outside the United States; 8 that included at least one communicant reasonably 
believed to be located outside the United States for each communication therein; 1,220 that are characteristic 0-

oi
and 86 that all communications contained therein were to or from persons

located outside the United States. See Step 3, supra pages 4-6.

27W) As calculated in the attached Appendix, these figures are based on 224 of the ,081 MCTs (4 41%)
and 50, 440 total transactions (0. reviewed- by NSA that lacked sufficient information to identify the

active user or the active user's location. See Step 3, supra page 6.

9

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above, NSA has no basis to believe any of the remaining Internet communications reviewed in the
50,440 sample are wholly domestic beyond those 10 discussed above.28 Moreover, each of those 10
Internet communications has been placed on NSA's Master Purge List.

The remainder of this page intentionally left blank. 

 

Figure of Appendix A.
10

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(U) 

(.U) I declare under penalty of perjury that the fagts set forth in the foregoing 
Characterization of Upstream Data: Process and Results" are truaand correct ba?sed up?on'my?best?
informatidn,. knowledge and belief. Exocutedgpurs'uant to Title 28, United ,St'a?tes Code, 1746, on this
16th day of August, 2011.

 

DirEctorate Compliance?Archit'ect?
National Security Agen?y

11'

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

Appendix A

Fig, A Total FAA 702 Fig. Total Upstream Sample

140,974,921 Internet Communications 50:440 objects manually reviewed

  
    

DISCRETE
PSTREAM 05,359
13.25 million 90%

9%

PRISM
127.7 million
91%

MCT
5,081
10%

 

Acquired Janua 1?June 30,2011
Present 01* as ofJuly 14, 2011

Fig. Type Fig. Summary

5, 081 objects 50,440 objects

   

Not indicative of

Location
224
[0.43%

150,206. . WhollyDomestic
"99.5% 10
0.02%

I- I-Forelgn 2unlque users

'Forelgn? Imam a tnmacll'an at leastthe
slanderou- an [mended recipient is reasonably
beieuzd to be located outside the United States.

 

 

NYT DOJ, 16 CIV 7020_000466

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Appendix B: Statistical Methodology FAA Section 702 Upstream Manual Review

(?TWUsing statistical analysis NSA determined the proportions of transactions
satisfying certain criteria proportion of FAA Section 702 upstream Internet transactions
that are Multi?communication Transactions (MCT) versus transactions containing single,
discrete communications). As further described below, transactions were categorized in various
ways. The categorization process can be complex; to minimize categorization error, NSA used
a statistical approach involving actual examination of an appropriate sample of transactions by
experienced intelligence (The use of only a sample' IS a cencession to the la1 ge
volume of transactions and the labor ~intensive nature of the categorization p1ooess That IS,
NSA t1 aded "categorization error? fo1 "statistical en 01?; the latter refe1s to the fact that by
considering only a 1andomly sampled portion of the unive1 se of transactions NSA estimated
the true proportions (as they exist in. the unive1se) with en 01 bounds and levels of confidence
that can be stated justi?ably.

WEE SAMPLE. As discussed more fully in the Characterization of
Upst1ea1n Data: P1 ocess and Results,? NSA identi?ed 13,256,067 transactions acquiled tluough
NSA's FAA 702 upstream collection during a six-month period from Janua1y 1St through June
30th, 2011. Of those approximately 13. 25 1111111011 tiansactions, a team of experienced
carefully examined 50,440 ove1 a nearly one-month time period. The
transactions were presented to the in a randomized order, ensuring that a simple
random sample would serve as the basis for conclusions supported by statistical theory 
about the true proportions of the 13.25 million?transaction universe.

ESTIMATES AND CONFIDENCE INTERVALS. The proportions formed
from the sampled transactions serve as unbiased estimates of the corresponding proportions of
the 13,256,067?transaction universe. Further, for (six) selected proportions, NSA states a
con?dence interval for each. Collectively, these intervals have a simultaneous con?dence level
of 95%. This means that the intervals were produced by a procedure calibrated to produce, for
at least 95% of the sample sets NSA could have drawn, intervals which a_ll cover the
corresponding true universal) proportions. Individually, each interval has a higher level of
con?dence associated with it; component con?dence levels are quoted below.

For each of the six categories, NSA also states a con?dence interval for. the actual
number of that category?s transactions within the 13,25 6,067?transaction (January?June, 2011
upstream) universe. Such an inteival is simply an equivalent representation of the
corresponding proportion?intelval (it is obtained by multiplying the endpoints of the proportion-
interval by 13,256,067), and so the inclusion of such intervals does not affect the level of
simultaneous con?dence. .

W) Speci?cally: By sampling a subset of the universe (or population) of upstream

transactions, NSA estimated the following six proportions. (Hereinafter, denotes 13 25 6 067
the size of that universe, denotes the (unknown) actual numbe1 of MCTs 111 that universe)

a N: the propo1tion of the population comprising 

 
  
  

Derived From: NSA
Dated:
Declassify :20360801



NYT 16 CIV 7020_000467

    

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0 N): the proportion of the population comprising discrete transactions;

a the proportion of the population comprising MCTs in which. all communications are
either to or from tasked selector (hereinafter labeled ?Target? 

0 the proportion of the population comprising MCTs in which all communications are
believed to either beto or from non-targeted persons located outside the United States
(hereinafter labeled ?Foreign? 

?0 the proportion of the population comprising MCTs in which the nature of one or more
communications between non- targeted persons lacked suf?cient information for NSA
to identify the location of the sende1 and all intended recipients (heleina?ei'
labeled ?Unknownable? -

the pioportion of the population comp1ising MCTs that NSA assessed contain a
Wholly domestic not to, f1 om 01 about a tasked select01 (he1 einaftet labeled ?Con?rmed

Wholly Domestic?).

(The ?rst of these proportions equals the total of the last four.) In the following,
lower?case letters denote transaction counts as realized in the sample, in categories
corresponding to their upper-case counterparts. That is, is the number of transaCtions
sampled (this turned out to be 50,440), and is the number of MCTs in the sample.

(if?SW OUTLINE OF PROCEDURE. NSA designed a procedure that accepts a size-n
simple random sample of the population, and produced from it estimates and con?dence
intervals f01 the six ??true 2propo1tions NSA sought. The estimates NSA produced are simply
the corresponding ploportions as found In the sample? 6. the sample proportion 111/12 was
estimate of the population propoltion such a sample propo1tion is unbiased3 f01 its
population counterpart, meaning that were a sample proportion to be computed for each of the
possible size?n samples'that could be drawn, the average of these sample preportions would
equal the ?true? (population) proportion.

 

1 W) A simple random sample is one that is drawn in a way that ensures that all possible size?n subsets
of the (size-N) population have an equal chance of being selected; this sampling technique enables statistically
justifiable claims by avoiding potential (known or unknown) sources of bias in the population a periodic
trend in the population over time).

?True? refe1s to proportions that relate to the entile population, which cannot be determined for
certain, as is smaller than N. 

3W Unbiasedness means that the estimate is aiming for the 1ight ?ta1 get? however, it indicates nothing
about the precision of the estimate. An estimation procedure can be unbiased whethei it Is based 011 a small 01

laige sample size n.
2

NYT DOJ, 16 CIV 7020_000468

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To express precision appropriately, NSA designed its procedure to p1oduce
con?dence intervals one for each of the (six) population propo1tio11s of interest? having a
simultaneous con?dence level of 95%. This means that: 

0 Based on a sample, the procedure will produce a collection of intervals, each asserted to 
contain the true (population) proponion it targets.

0 Because the procedule operates on a random sample, the interval endpoints are random
variables, the particular collection of intervals a particular sample yields may fail to
cover one or more of the population p1oportions it targets. But the procedure 1s
designed so that this failure probability? whatever the true proportions are is no more
than that is, for at least 95% of the (size?12) simple random samples it might
process, the procedure will produce intervals which all cover their targeted population
proportions.

In order to achieve this level of confidence about a collection of intervals
simultaneously, the p1ocedu1e is designed so that the respective failure probabilities
associated with the component intervals total no more than In particular, this 5%
was allocated as follows:

0 2.5% to the proportion of ?Con?rmed Wholly Domestic?;

0.67% to each of the ?Target,? ?Foreign,? ?Unknown? proportions;

0.5% to the proportion of MCT N). As the proportions of discrete and
MCT transactions are complementary they total 1), the confidence interval
for the proportion cf discrete transactions is obtained by subtracting each of the
endpoints for the MCT-inte1val from 1 and it is the case that one of these
intervals will cover its population target if and only if the other does. Therefore,
there is no need to separately allocate ?failure probability? to the proportion-of?
discrete. 

{reassess The probability of drawing a sample resulting in one or more ?failing? intervals is
no more than the sum of the failure probabilities of the respective component intervals, hence
the claim of 95% con?dencefor the procedure outlined here. The ?no more? qualification
makes this technique conservative: relationships (complicated and left unanalyzed) between the
random variables involved may make the practical con?dence level higher; 95% represents a
worst-case claim. To achieve simultaneous 95% con?dence, the 5% failure probability could
have been allocated in any way; (Broadly: the lower the con?dence level the higher the
failure probability), the narrower the intelvals the procedure will produce. An extreme
example: a procedure for 100% con?dence intervals would produce uselessly wide intewals, as
it would have to be able to claim that its intervals cover truth for every possible size?n sample it
could have received.) This procedure for simultaneous inte1vals is conservative in a further
way: Just as the sum of the discrete and MCT proportions equals 1, so does the sum of the

- discrete, ?Target,? and ?Con-?nned Wholly Domestic? proportions. It
is dif?cult to exploit this latter constraint properly; NSA utilized the conseivative method
described here to ensure that its assertions about the procedure?s performance are valid.

"3
reasseasr?eemavr?vereaa?

NYT DOJ, 16 CIV 7020_000469

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PROCEDURE FOR A SINGLE
PROPORTION. As outlined above, the procedure for simultaneous con?dence
intervals was achieved by producing component con?dence intervals based on (individually
higher) levels of con?dence 99.5% for N). The construction of component con?dence
intervals can be understood via the following example, using the target. For the sample

- of size to be observed, represents the (random) number of MCTs to be realized in the
sample. Formally, 711 has a hypergeometrz?c distribution (arising from sampling transactions
?without replacement?); to make the mathematical computations tractable, NSA approximated
this distribution by a binomial distribution corresponding to sampling with replacement (in
which each sampled transaction would be replaced after it is drawn, and hence would be
eligible to be drawn multiple times). This approximation is uniformly conservative; it will

result in wider intervals. The proportion to be estimated, N, appears as the (unknown)
parameter (now denoted p) of this binomial distribution. Treating as a binomial random
variable based on 11 trials, NSA'used an accepted method (the Clapper?Pearson method) as the
basis to devise its confidence-intewal procedure for p. (Below, the notation B(zz,q) refers to an
n-trial binomial random variable having parameter Upon observing m, NSA:

I Determines, for each of various proportions between 0 and paramete1s and 1
such that

is the probability that a 19(12, q) random variable takes a Value of at least 112 (but
1f m?O take to be 

(O. x) is the probability that a B(n,r) random variable takes a value no larger
than 112 (but if m=n, take 7? to be 1). 

exceeds q; the pair [gm] determines an interval.

a Detennines the narrowest of all such intervals and reports it as the (99. 
con?dence interval for p= -

(SEW Practicallycomputed using inverse Beta ?mctiom, and
computer software can ?nd the narrowest interval ef?ciently.

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public release.

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

RESULTS:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of transactions Sample Con?dence intewal for Con?dence interval for
in sample proportion corresponding universal the actual number (of
(of 702 proportion the 13.25 million) .
upstream) . 
Discrete 45,359 0.8993 0.8955 0.9030 11,870,284 11,970,275
MCT 5,081 0.1007 0.0970 0.1045 1,285,792 - 1,385,783
of Sample Con?denceinter'val for. . Con?dence interval
transactions in proportion correSpOndin?g? universal for the actual
sample (of MCT) (MCT) proportion number (of the 13.25
. . '1 . million)
TARGET 713 0.01414 0.01274 168,853 206,922
FOREIGN 4,134 0.08196 007867 0.08532 1,042,838 1,130,947
UNKNOWABLE 224 .__0.004441 0.003667 0.005293 48,609 70.168
CONFIRMED 10 1 0.0001983 0.00007508 ?.0.0003746 996 4.885
WHOLLY 
DOMESTIC

 

 

 

 

 

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I NYT DOJ, 16 CIV 7020_000471

?9

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VERIFICATION
I declare under penalty of?perju?ry that the facts set ?01111 in this Appeiidix: are tr'u'e and
correc: based upon my best and belief. 'ExeCuted pui??uhnt?to Title-"28,

United States Code, Section 1746, on this 11?h day of'Augus?t, 201 1.

 

[Statistician]
National Security-Agency

NYT DOJ, 16 CIV 7020_000472

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T: 

52.25.: i

at

UNITED STATES Vi: i i. i' "il ii 
FOREIGN INTELLIGENCE SURVEILLANCE tome 30 PH 1.: 12

L?s; -

WASHINGTON, DC. ?(it I

 

NOTICE 
THE UNITED STATES OF AMERICA, through the undersigned Department of
Justice attorney, respectfully submits the following clarifications for the record in the

above-referenced matters. The first two clarifications below concern certain statements

 
     

Classified by: Assistant

Attorney 
Reason: 1.4(c)
Declassify on: ugust 2036 

NYT _v DOJ, 1s CIV 

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



made in documents previously submitted to this Court in the above?referenced matters.
The third and fourth clarifications below concern how-the National Security Agency
(NSA) will?apply its section 702 minimisation procedures to discrete communications
within Multi?Communication Transactions (hereinafter Specifically, outlined
below is a multi?layered approach to help ensure that any United States per50n
information contained Within MCTs is treated in accordance with NSA's section 702
minimization procedures. This approach will not be altered without prior notice to this
Court?(WW

I. CLARIFICATIONS

A. NSA Will Purge Any MCT Containing One or More Single, Discrete, Wholly
Domestic Communications Upon .

As noted in the Government's submission of June 28, 2011, NSA does not
intentionally acquire transactions containing wholly domestic communications, and has
implemented - means which are reasonably designed to prevent the acquisition
of such transactions. Notice of Filing of Government?s Response to the Court's
Supplemental Questions of June 17, 2011 (hereinafter "June 28th Submission?) at 12.
. The lune 28th Submission further asserted that "in the event NSA recognizes a wholly

domestic communicationll] which is not to, trem, or about a tasked selector which it has

 

1 As 'riot'ed in the Govermnent'S'Iun'e 28th" Submission, the Government defined a "wholly domestic
communication" to be a communication as to which the sender and all intended recipients are located
within the United States. The Government further noted that it included within that term any discrete
communication within a transaction where the sender and all intended recipients of the discrete

ems/teem
2

NYT DOJ, 16 CIV 7020_000474

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unintentionally acquired in the course of conducting its Section 702 upstream Internet
collection, NSA would handle the entire transaction in accordance with subsection

"1806(i) and either purge it or, if appropriate, seek authorization from the Attorney
General to retain it." Id. Accordingly, in the event that NSA's section 702 upstream
collection of Internet communications resulted in the unintentional acquisition of a
transaction containing a wholly domestic communication, NSA would purge the entire
transaction upon recognition, unless the Attorney General authorized its retention after
first determining that its contents indicated a threat of death or serious .bodily harm to
any person. 

I To aid in the recognition of wholly domestic communications within an MCT, if

an NSA analyst seeks to use a discrete communication within the MCT (for example, in
a PISA application, intelligence report, or section 702 targeting), the analyst will first
perform checks to determine the locations of the users of the electronic communications
accounts/addresses/identifiers referenced inthat discrete communication within the
MCT to the extent reasonably necessary to determine whether that communication is

wholly domestic. For example, if the "active user"2 is a tasked selector, no checks need

 

communication were located in the United States at the time the communication was acquired. See June
28th Submission at 2. W)

2 As noted' in the Government' 5 filing on August 16, 2011, the Government defined the "active user" as
follows: NBA acquires an Internet transaction between an individual using an electronic
communications account/addross/identifier and his/her service provider, that individual' is the' active
user? for that transaction." NSA Characterization of Upstream Data. Process and Results, filed August 16,
2011 (hereinafter "August 16th Submission") at 4 n.13. 638%)

MW
3

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be done, because the user of the tasked selector, who by operation of the NSA targeting
procedures is a non-United States person reasonably believed to be located outside the
United States, would be either the sender or an intended recipient of each of the discrete
communications contained within the MCT. If the active user is not a tasked selector,
NSA would attempt to determine the active Liser?slocati01i;3if that check indicates that
the active user is located outside the United States, no further checks need be done,
because the foreign?based active user would be either a sender or intended recipient of
each of the discrete communications within the MCT. In the absence of a more efficient
land'effective means of recognizing the presence of a wholly domestic communication
within an MCT, the Goverrunent submits that this process is reasonably designed to
recognize and purge at the earliest practical point in the analytic process any
unintentionally acquired wholly domestic communication. 

B. Clarification of Certain Information Contained within the Government?s August
16, 2011 Submission. (8)

In the August 16th Submission, the Government advised the Court that NSA
conducted a manual review of a statistically representative sample of Internet
communications acquired through section 702 upstream collection. As-explain'ed
in the August 16th Submission, NSA identified 5,081 transactions within the

representative sample as being MCTS. NSA- determined that of those 5,081 MCTs, 4,847

 

3 To determine the location of the non-targeted active user, NSA would perform the same sort of
-analysis it would perform before tasking an electronic communications
account/address/identitier in accordance with its section 702 targeting procedures. 

WW
4

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WW 
contained discrete communications believed to be-to or from persons located outside
the United States and thus are not believed to contain any wholly domestic
communications.4 NSA further determined that 10 of the 5,08l MCTs appeared to
contain at least one wholly domestic communication. However, NSA was unable to
definitively determine whether the remaining 224' MCTs contained Wholly domestic
communications, because those MCTs lacked information sufficient to identify the
active user or determine the active uSer?s location. Nevertheless, NSA asserted that it
had no basis to believe any of these 224 MCTs contained whollydomestic
communications. I
I ?ts noted above, these 224 MCTs lack any de?nitive technical data or content that 
would enable NSA to characterize the communications Within them as being wholly
domestic. Despite the absence of such definitive information, it is nevertheless
reasonable to presume that none of the discrete communications contained within these
MCTs are wholly domestic. Specifically, each of these MCTs was acquired because it
contained at least one discrete communication to, from, or about a tasked selector used
by a person who, by operation of NSA's Section 702 targeting procedures, is a .
person reasonably believed tobe located outside the United States. With reSpect to

MCTs that contain discretecommtmicatidns to or from a tasked selector, it is reasonable

 

4 This figure 4,847 is. the" sum of 713 MCTs reviewed as containing a tasked selector as
the active user and 4,134 MCTs reviewed by NSA as containing discrete communications
believed to be to or from non-targeted persons located outside the United States. See August 16th
Submission at 5 1111.15 8: 16. 



NYT DOJ, 16 CIV 7020_000477

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to presume, given the abSence of information to the contrary, that the active user of the
MCT is likewise a non?US. person reasonably believed to be located outside the United
States. See In re Directives to Yellow, Inc. Pursuant to Section IOSB of the Foreign Intelligence.
Surveillance Act, Docket No. Mem. Op. at 87 (USFISC Apr. 25, 2008)
(hereinafter "Yahoo Directives Mem. Op?) (recognizing that "the vast majority of
persons who are located overseas are non?United States persons and that most of their .
communications are with other, non?United States persons, who are located overseas")
(footnote omitted). Similarly, because it is reasonable to presume that the active user of
the MCT is a non-US. person reasonably believed to be located outside the United
States, one can also reasonably presume, given the absence of information to the
contrary, that the other persons with whom the active user has been in contact are also
non-United States persons located outside the United States. fTS??Sit??-Ft

Of note, an experienced team of NSA manuallyreviewed the content of
each of these 224 MCTS and did not observe any US. person information within any of
the discrete communications contained therein. . NSA are trained to use their
best judgment to recognize and identify US. person information that may be present
within any SIGINT collection'and to apply minimization procedures to such
information as required by the authority?under which that information was acquired.
While the technical information present for each of these transactions was not indicative

of the location of the sender or all intended recipients of any communication other than


6

NYT DOJ, 16 CIV 7020_000478

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WW
those more specifically to or from NSA's tasked selector, none of the information or data
intelligible to those conducting the review was identifiable as US. person
information. 

Moreover, with respect to MCTs acquired because they contain discrete
communications about a tasked selector, tit-means by which NSA ensures it
does not intentionally acquire wholly domestic communications limits, in all but a
minute percent of cases, the acquisition of MCTs to persons located outside the United
States, who reasonably can be presumed to be non?United States persons. Thus, to the
extent that the MCTs of those non-United States persons contain discrete
communications that are not to, from, or about. a tasked selector, those communications
are unlikely to be to or from United States persons or persons located in' the United
States. Id. To be sure, the -means by which NSA ensures it does not
intentionally acquire wholly domestic communications are not perfect, and it is possible
that NSA may Lurintentionally acquire MCTs containing wholly domestic
communications. Indeed, as previously explained to the Court, NSA was able to
identify MCTs containing wholly domestic communications in the representative
sample. NSA was able to do so, howeyer, only because the communications in those
MCTs bore recognizable indicia of being wholly domestic they contained concrete

information contrary to, the presumption). The 224 MCTs here lack any such indicia,

NYT DOJ, 16 CIV 7020_000479

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Accordingly, it is reasonable to presume that these 224 MCTs do not contain wholly

domestic communications. 

C. Clarification Concerning How NSA Will Apply its Section 702 Minimization
Procedures to Discrete Communications Within MCTs. 

In order to help ensure that NSA intelligence handle any United States
person ?information they encounter within a discrete communication within an MCT5 in
accordance with section 702 minimization procedures, NSA will apply the
following multi?layered approach:

0 NSA will train its to recognize MCTS and how to appropriately
handle the discrete communications contained within them, as further
described below.

9 NSA seeking to use a discrete communication within an MCT (for
example, in a PISA application, intelligence report, or Section 702 targeting)
will assess whether the discrete communication is to, from, or about a tasked
selector. 

0 If the discrete communication is to, from, or about a tasked selector, any
US. person information in that communication will be handled in
accordance with the NSA minimization procedures.

0 If the discrete communication is not to, from, or about a tasked selector,
and also is not to or-from an identifiable US. person, that communication

 

5 NSA extracts metadata from Internet communications acquired through its section 702 upstream
collection, including discrete commtuiications within MCTs. architecture for the extraction,
analysis, and storage of metadata from Internet communications acquired pursuant to section 702 differs
markedly from the architecture NSA use to analyze content trom such corruntuiications.
Currently, it is not operationally feasible in an effective or a timely manner for NSA to identify
and fin-ther- evaluate the nature of upstream Internet communications from the extracted metadata within

metadata re-positories.- Nevertheless, ifan Internet communication has been identified for purge
(for any reason, including its having been identi?ed as containing a wholly domestic communication) in
one of NSA's content repositories, any corresponding metadata extracted from that communication and
stored in NSA's metadata repositories is also purged: 

WOW
8

NYT DOJ, 16 CIV 7020_000480

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(including any US. person information therein) will be handled in
accordance with the NSA minimization procedures.

0 If the discrete communication is not to, from, or about a tasked selector
but is to or from an identifiable US. person, that communication cannot
be used for any purpose other than to protect against an immediate threat
to human life force protection or hostage situations). NSA will
report any such use to the Office of the Director of National Intelligence
and'to the National Security Division of the Department of Justice, which
will notify the Foreign Intelligence Surveillance Court of such
use. 

0 To reinforce training and awareness of these aspects of NBA upstream
collection, NSA will add a cautionary banner to the tools NSA use to
View the content of communications acquired upstream Lmder section 702.6
The banner will direct to consult guidance on how to identify 
and how to handle them.

9 Prior to using any one or more discrete communications contained in an MCT
(for example, in a FISA application, intelligence reporting, or section 702
targeting), an NSA analyst must:

0 verify either that the discrete communication is to, from, or about a tasked
selector or that it is not to or from a US. person}? 

 

5 BeCause NSA currently lacks -neans to reliably identify MCTs, the cautionary banner will be
broadly displayed on tools NSA use to View the content of all upstream transactions, except in
those limited number of transactions that can be first identified

 
   

As noted in the August 16th Submission, rowever, 
barmer 15 over? applied to upstream collection the majority of the time NSA estimates that the
banner will be over?applied more than approximately 83% of the time to single, discrete communications
in upstream collection) See August 16th Submission at 1 11.2.The1e will also be circumstances in which

the banner' Is undei? applied to NSA's upstream collection due to issues such as 
we

there may be more efficient and effective means of handling MCTs in the long term and may seek to
revise or discontinue use of the banner at a later time. Regardless, NSA will not implement any such
revisions without prior notification of the Court. W)

7 To help determine whether adiscrete .comnumicationnot to, from, or about a tasked selector is to or
from a US. person, NSA would perform the same sort 0 analysis it would perform before
- tasking an electronic communications account/address/identifier in accordance with its section 702

targeting procedures. {iF?lfSh?f-N??) 

NYT DOJ, 16 CIV 7020_000481 

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WW

0 verify that the discrete communication is not a wholly domestic
communication; and

appropriately document these verifications.
.

D. Clarification Concerning How NSA Will Conduct Queries of Communications
Acquired Under Section 702 Using U.S. Person Identifiers. 

Subsection of the NSA minimization procedures currently pending before
the Court provide:

Magnetic tapes or other storage media containing communications

acquired pursuant to section 702 may be scanned by computer to identify

and select communications for analysis. Computer selection terms used

for scanning, such as telephone numbers, key words or phrases, or other

discriminators, will be limited to those selection terms reasonably likely to

return foreign intelligence information. Any United States person

identifiers used as terms to identify and select communications must be

approved in accordance with NSA procedures.
As discussed in the previous filings, the Government acknowledged that "rigorous and
strict controls'i will be placed on the-retrieval of U.S. person information consistent with
statutory requirements and Congressional intent. See Government's Response to the
Court's Briefing Order of May 9, 2011 (hereinafter ?lune Submission?) at 23; June
28th Submission at 24?25; cf. HR. Rep.'No. 95?1283, pt. 1 at 59 (1978) (Congress
recognized that minimizing the retention of information Concerning U.S. persons for
counterintelligence or counterterrorism purposes can be accomplished through the .
application of "rigorous and strict controls"). In light of the results of NSA's manual
review of upstream collection described in the Government's August 16th Submission,


10
NYT DOJ, 1'6 CIV 7020_000482

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TOW
NSA will limit the'use of United States person identifiers as computer selection terms to

identify and select communications for analysis to communications acquired from -

Internet etevtdete 
unless NSA can later develop a capability or

procedures to strictly limit such queries to portions of NSA's upstream-COllection that
contain only discrete communications to, from, or about tasked selector.
Accordingly, United States. person identifiers will not be used as computer selection
terms for communications acquired through upstream collection unless such
capabilities are later developed by NBA. NBA would not begin querying upstream
. collection using United States person identifiers without prior notice to the Court. I

111. CONCLUSION
As previously explained to the Court, the Government believes that NSA's
upstream collection is consistent with the Act and the Fourth Amendment even though
such collection may result in the acquisition of MCTs containing discrete
communications that are not to, from, or about a tasked selector, or that are wholly
domestic in nature. The Government respectfully submits, for the reasons explained in
the previous filings and herein, including the multi?layered approach described above, .
that the results of NSA's analysis of a representative sampleof its upstream collection
provide a basis upon which the Court can approve, as consistent with the Act and the

11

NYT DOJ, 16 CIV 7020_000483

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'Fourth Amendment, continued acquisition of foreign intelligence information
through its section 702 upstream collection. 
first, the results of NSA's analysis of a representative sample of its upstream
collection indicates that the scope of the intrusion into Fourth Amendment-protected
interests caused by NSA's upstream collection is reasonable. Speci?cally, NSA's review
revealed that the vast majority of the Internet communicationsacquired by 
upstream collection approximately 90% are single, discrete communications to,
from, or about a'tasked selector. See August l8th Submission at 3. Since the first
702(g) certification, this Court has consistently found the acquisition of such
to be in accordance with the Act'and the Fourth Amendment. See 
-Mern. Op. at 15?20, 32-41; see also, 6.8., In re Certificatim Docket .
No._ Mem. Op. at 22?27, 29 (USFISC Apr. 7, 2009). Contributing
significantly to that finding, in the Court's view, was the application of robust
minimization procedures similar to those used in other collections authorized under the
Act. See, (2.3., - Mem. Op. at 29?31, 4041. (TW- I
NSA's review of its upstream collection further revealed that of the 
approximately 10% of Internet communications acquired through upstream collection
that are MCTs, approximately 14% of those MCTs are those of persons targeted in
accordance with NSA's targeting procedures. See August 18th Submission at 4. As s_u_ch, I

all of the discrete communications within those MCTs are communications to or from

12 .

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TOW

the target; This Court repeatedly has found that the acquisition of communications to
or from the target to be consistent with the Act and the Fourth Amendment. Sec, 2.3., 
-Me1n. Op. at 15-17, 33. The fact that multiple such communications may be
acquired within a single MCT of a target should not alter that conclusion. 
NSA's review also found that approximately 52% of the other MCTs featured an I
active user who was located outside of the United States. See August 18th Submission-
at 4?5. Additionally, although approximately 33% of the other MCTs required further
research, such research ultimately led NSA to conclude that all discrete communications
in those MCTS included at least one user who was located outside of the United States.8
See id. at 7. Although these two sets of conununications which combined represent
approximately 85% of all MCTs were not communications to or from a tasked selector,
the Court has found that NSA's acquisition of single, discrete "abouts? communications
featuring a tasked selector is consistent with the Act and the Fourth Amendment, see,
Mem Op. at 17-20 8: 11.17, 32?41, and the Government has asserted that
NSA's acquisition of MCTs containing such discrete communications is consistent with
both the Act and the Fourth Amendment, see lune Submission at_3-24; June 28th
Submission at 13?17, 22?24. Notably, the nature of these MCTs further supports

assertions made by the Government in those previous filings. For instance, the. 

 

.3 Although no further substantive information is available on the. 224 MCTs thatNSA is otherwise unable
to definitively determine are not wholly domestic, for the reasons more specifically discussed above, the
Government submits that it is reasonable for the Court to presume that these 224 MCTs do not contain

wholly domestic communications. 

13 

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Government asserted that "it is reasonable to presume that most of the discrete
communications that may be within the acquired transaction even those that are not
to or from a tasked selector are between non?United States persons located outside
the United States.? June 28th Submission at 5; see also id. at 23; cf. Yahoo Directives Mem.
Op. at 87 (recognizing that l?the vast majority of persons who are located overseas are
non United States persons and that most of their communications are with other, non-

. United States persons, who are located overseas") (footnote omitted), said, 551 F.3d 1004
(FOreign Int. Surv. Ct. Rev. 2008). 

I In sum, NSA's review revealed that more than 99% of the MCTs it collects and

therefore more than 99.9% of its Overall upstream collection do not feature wholly
domestic communications; the acquisition of such MCTs does not violate either the Act

or the Fourth Amendment. Although NSA has determined that less than one percent

the MCTs acquired through its upstream collection and thus less than 0.1% of its

overall upstream collection ?likely include wholly domestic communications, 9 see

 

9 Even in those cases where an MCT contained a wholly domestic communication, review
indicated that a majority of the total discrete communications were not wholly domestic. For instance, of
the 25 discrete communications included in the ten MCTs that did contain wholly domestic
communications, a majority of those discrete communications (at least 15) were assessed to not be wholly
domestic. See August 18th Submission at 5?7. This finding further bolsters some of NSA's assessments in

the previous filings. For example, NSA assessed 

See June 1 submission at 11. Similarly, NSA also assessed

     

"thata UnitedStates?based user. would

only in a minute percentage of cases." Id; 523 also id. at 9 

acquisition of transactions or single Internet communications between

?currently occurs only in a very small percentage of cases"). 

TOP 
14

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August 18th Submission, NSA's acduisition of such MCTs is nevertheless permissible
tuider the Act and the Fourth Amendment. As described in detail in the'previous
filings, NSA is currently incapable of preventing the acquisition of MCTs, regardless of
whether they contain wholly domestic communications, without ceasing its upstream
collection entirely (except for See Iune 
Submission at 27-28; June 28th Submission at 9?10. Given the significant foreign .
intelligence information obtained through NSA's upstream collection, along with?the
multi?layered approached described above including specialized training given to
a banner applied to upstream collection containing MCTs, restrictions on use
of MCTs, destruction of MCTs containing a wholly domestic communication, and a

prohibition on using U.S. person identifiers to query section 702 upstream collection 

The remainder of this page intentionally left blank 

15

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WOW

the Government submits that NSA's acquisition of foreign intelligence information
through upstream collection, including the acquisition of MCTs, is reasdnable and

consistent with the Act and the Fourth Amendment. 

Respectfully submitted,

 

Office of Intelligence
National Security Division

United States Department of Justice

16

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[it . . .
VERIFICATION.
I declare under pe?alty of perjury that the facts set forth in thefore'going "NOtico
of Clarifications" are true and Correet'basecl upon my'best information,knoWIEdge and
belief. EXe?cuted purwant to Title 28, United States Cod 1746, oh this 30th day 'of

August, 2011. (U)

 

Signals Intelligence Directorate Compliance Architect.
National Security Agency

17

NYT DOJ, 1e CIV 7020;000489

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UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE asset 3 i 1
WASHINGTON, DC. 

 

GOVERNMENTS Ex PARTE REQUEST FOR ISSUANCE OF NOTICES {sa?

THE UNITED. STATES OF AMERICA, through the undersigned Department of
Justice attorney, respectfully requests the Court, to issue the notices attached hereto.
These notices inform certain electronic communication services prOviders that have
received directives pursuant to 50 U.S.C. 1881a(h) of the Foreign intelligence
surveillance Act of 1978, as amended (PISA or ?the Act"), that the Government's
acquisition of foreign intelligence information under such directives may continue
while this Court reviews amendments to the -above?captioned Certifications.

1. On October 3, 2011, this Court issued a Memorandum Opinion and Order
concerning the following matters: (1) the "Ooveritment's Ex Parte Submission of

Reauthorization Certification and Related Procedures, Ex Parte Submission Of

  
     
  
       
    
 

"Class" ~1e ant Attorney

1.4(c) -
31 October 2036 

   

Reason:

DOJ, 16 CIV 7020_000490

 . oM?_ 

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WOW
Amended Certi?cations, and Request for an Order Approving Such Certi?cation and

- Amended Certi?cations" for 702(g) Certi?catio_
Whiswassedmipszo,2011.? 

2. The Court's Order granted in part and denied in part the Government's
request for the Court to approve 702(g) Certi?cations 
- Order at 2. In particular, the Court .found that the certi?cations contained
all of the required eiements. id. at 2-3. The Court. further found that with respect to

the acquisition of- discrete Internet communications from Internet service providers-

targeting and minimization procedures were consistent with the

requirements of the Act and the Fourth Amendment to'the Constitution of the United
States. 592 id. at 3. However, in the context of the National Security'Agency's (NBA)

. I 2

NYT DOJ, 16 CIV 7020_000491

 

upstream collection,1 with respect to the acquisition of certain Internet transactions
featuring multiple, discrete communications, the Court found that NSA's minimization
procedures did not meet the Act's definition of minimization procedures, and that 
targeting and minimization procedures were not consistent with the Fourth
Amendment to the Constitutionof the United States. See Order at 3. 
3. On October 4, 2011, the Government respectfully requested, and the Court
issued, secondary orders re?ecting the Court's approval in part, as described in the A
Co'urt's Memorandum Opinion and Order of October 3, 2011, to the electronic 
communication service providers who provide the Government with information,
facilities, or assistance necessary to accomplish PRISM collection. 
These secondary orders specified that, with
respect to the acquisitions conducted with the assistance of these providers, the Court's
October 3, 2011, Order found that the certifications contained all of the required
elements and that the targeting and minimization procedures submitted with those

certifications were consistent with the Act and the Fourth Amendment. 

 

1 Pursuant to its Section 702 authorities, NSA collects information from facilities (such as e-mail accounts)
in two ways: through PRISM collection, with the assistance of Internet Service Providers
or by selecting for acquisition communications to, from, or aboutthose facilities that ar'

   
   

  

This second method of collection is referred to as "upstream" collection of communications.

 

NYT DOJ, 16 7020_000492

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4. On October 5, 2011, the Government respectfully requested, and the court
I issued, secondary orders re?ecting the Court's approval in part, as described in the
Court's Memorandum Opinion and Order of October 3, 2011, to the electronic
communication s?ervicelproviders who provide the Government with information,
facilities, or assistance necessary to accomplish NSA'supstream collection.- -

_These Emmy

orders specified that the Government could continue to acquire foreign intelligence
information with the assistance of these electronic communication service providers
during the time period that the Government was electing to either correct the
deficiencies identified Court in its October 3, 2011, Opinionand Order Within 30
days, or cease implementation of the certifications insofar as they permit the acquisition
1? of certain Internet communications. 

I 5. On October 31, 2011, the Attorney General, in consultation with the Director
of National Intelligence (DNI), adopted amended NSA minimization procedures for use I
With 702(g) Certifications?On October 31, 2011, 
the Attorney General and DNI amended 7OZlg) Certifications?
_to permit the use of the revised NSA mininiization procedures under those

certificatiOns. The amendments to 702(g) Certifications?

 

NYT DOJ, 16 CIV 

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-along with the amended NSA minimization procedures, were submitted to the
Court on October 31, 2011, and became effective immediately. wearer)?

6. Pursuant to 50 1881a(i)(1)(B), this Court has 00 days from the date of .
submission of a certification to review, and issue an order concerning, the certification
and the targeting and minimization procedures submitted therewith. Because the
amended certifications, with amended NSA minimization procedures, were submitted
to the Court on October 31, 2011, the Court will have until November 30, 2011, to -

complete its review, and issue: an order, concerning the amendments to 702(g)

Certifications and the amended NSA minimization

procedures. This time period extends beyond November 2, 2011, the date specified in
the Court's OCtober 5, 2011, Secondary orders to the electronic communications service
providers asSisting NSA in conducting upstream collections. Accordingly, the
Government respectfully requests that the Court issue the notices attached hereto,
which inform such providers that the Government may continue to acquire Internet

communications with the assistance of such providers until the Court issues an order

 

NYT DOJ, 16 CIV 7020_000494

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.. Ian
UNITED STATES 
. itit?t'i'?i 9H5 
FOREIGN INTELLIGENCE SURVEILLANCE COURT i? 
. 11x1.
WASHINGTON, DC. ET

 

IN RE 702(g) {57 UNDER SEAL

Docket No-

 

 

GOVERNMENTS EX EARTE SUBMISSION OF AMENDMENT
TO 702(3) CERTIFICATION-AND EX PARTE SUBMISSION 0F
AMENDED MINIMIZATION PROCEDURES 

In accordance with subsection of the Foreign Intelligence
Surveillance Act bf 197 8, as amended ("the Act"), the United States Of America, by and
through the undersigned Department of Justice attorney, hereby submits ex parte the
attached Amendment to 702(g) Cer??catior-. Attached as Exhibit to
this Amendment to 702(g) Certi?cation- are the amended minimization
procedures to be used under the certi?cation. 

702(g) Certi?cation -5 amended, contains all of the elements.
required bir the Act, and the minimization procedures to be used under the certi?cation,

as amended, are consistent with the requirements of the Act and the Fourth

I Amendment to the Constitution of the United States. Accordingly, the Government

 

 

31"Octob?er 2036

 

NYT DOJ, 16 CIV 7020_000510

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respectfully requests that this Court enter an order pursuant to subsection 702(i)(3)(A)
of the Act approving 702(g) Certi?cation- as arriended, and the 'use of

the minimization procedures attached as Exhibit to the Amendment to 

 

Certification 
Respectfu?y submitted,
National Security Division
United States Department of Iustice

NYT DOJ, 16 CIV 7020_000511

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UNITED STATES

FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC.

 

 

 

IN RE 702(g) CERTIFICATION- Docket No. -

ORDER

For the reasons stated in the Memorandum Opinion issued contemporaneously
herewith, and in reliance on the entire record in this matter, the Courtl?nds, in the
languageof 50 U.S.C. 1881a(i)(S)(A), that the certi?cation submitted in the above?
captioned docket,.as amanded, "contains all the required elements'_' and that the revised
minimization procedures submitted with the amendment "are consistent with the
requirements of [Section 1881a(e)] and with the fourth amendment to Constitution of .

the United States." 

Accordingly, it is hereby ORDERED, pursuant to 50 U.S.C. 1881.216) that

such amendment and-the use of such procedures are approved. -

Entered this day of November 2011, at - Eastern Time.

 

JOHN D. BATES 
Judge, United States Foreign
Intelligence Surveillance Court

 

    
  

 
 

II Derived From:

 
   

to the 
in Docket Number 

NYT DOJ, 16 CIV 7020_000512

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.l
CERTIFICATION OF THE DIRECTOR OF NATIONAL INTELLIGENCE AND THE

ATTORNEY GENERAL PURSUANT TO SUBSECTION 702(g) OF THE 5:10
INTELLIGENCE SURVEILLANCE ACT OF 1978, As 

. t? 1



Amendment to 702(g) Certi?cation-

.. 
. .


On April 13,2011, based on supporting af?davits, the Director of National Intelligence
and the Attorney General executed in writing and under oath 702(g) Certi?cation-
.pursuant to subsection 702(g) of the Foreign Intelligence Surveillance Act of 1978, as
amended or "the Act"), thereby authorizing the targeting of non-United States persons
reasonably believed to be outside the United States to acquire foreign intelligence information.
Speci?cally, the Director of National Intelligence and the Attorney General certi?ed that:
(1) there are procedures in place that had been approved or would be submitted with the 
certi?cation for approval by the Foreign Intelligence Surveillance Court 
that'are reasonably designed to -- I
a. ensure that an acquisition authorized pursuant to subsection 702(a) of the Act is
limited to targeting persons reasonably believed to be located outside the United 
States; and
b. prevent the intentional acquisition of any communication as to which the sender
and all intended recipients are known at the time of acquisition to be located in i

the United States;

 

Speci?cally, the targeting procedures to be used by the National Security Agency (NSA) and the Federal Bureau of
Investigation (FBI) were submitted as Exhibits A and C, respectively, to the certi?cation. {97496339?

 

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(2) the minimization procedures with respect to such acquisition 

a. meet the de?nition of minimization procedures under subsections 101(h) and
301(4) of the Act; and

b. had been approved or would be submitted with the certi?cation for approval by
the . 

(3) guidelines have been adopted in accordance with subsection 702(1) of the Act to
ensure compliance with the limitations in subsection 702(b) of the Act and to ensure
that an application for a court order is ?led as required by'the Act;

(4) the procedures and guidelines referred to in sub-paragraphs (2), and (3) above are
consistent with the requirements of the Fourth Amendment to the Constitution of the
United States;

(5) a signi?cant purpose of the acquisition is to obtain foreign intelligence infonnation;

(6) the acquisition involves obtaining foreign intelligence information from or with the
assistance of an electronic communication service provider; and

(7) the acquisition complies with the limitations in subsection 702(b) of the Act.

702(g) Certi?cation-including supporting af?davits and targeting and
minimization procedures, was submitted to the FISC for review on April 22, 201 

In accordance with subsection 702(i)(1)(C) of the Act, 702(g) Certi?cation

-is hereby amended. Specifically, the use of the NSA minimization procedures attached

 

--

were submitted as Exhibits B, D, and B, respectively, to the certi?cation. 6499.3419NYT DOJ, 16 CIV 7020_000514

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


hereto as Exhibit under 702(g) Certi?cation-is authorized. These
minimization procedures --
a. meet the?de?nition of minimization procedures under subsections 10101) and 301 (4)

of the Act; and

b. will be submitted with this certi?cation for approval by the FISC.



These minimization procedures are consistent with the requirements of the Fourth
Amendment to the Constitution of the United States?(W
This authorization, as amended, shall be effective immediately. All other aspects of

702(g) Certi?cation-remain unaltered and are incorporated herein. 

The remainder of this page intentionally left blank 

NYT DOJ, '16 CIV 7020_000515

 .. 

?c - - 

Approved for public release. All withheld informatiOn exempt under b(1) and b(3) except as othenNise noted.



VERIFICATION (U) 

I declare undef penalty of 13te my that the facts set forth in- the foregoing amendment-

702(g) Certi?cation-are true and correct to the best of

my lmowledge and belief. Executed pursuant to 28 U.S.C. 1746 on October 31, 2011. 

    

Eric H. Holder, r.
Attorney General of the United States

NYT DOJ, 16 CIV 7020_000516

Approved for public release. All withheld information exempt under b(1) and b(3) except as olhenNise noted.



VERIFICATION (U)

I declare under penalty of petj ury that the facts set forth in the foregoing amendment-

702(g) Certi?cation -are true and correct to the best of

my knowledge and belief. Executed pursuant to 28 U.S..C. 1746 on October 31, 2011:653-

 

 

Director of National Intelligence

NYT DOJ, 16 CIV 7020_000517

Approved for public release. All withheld information exempt under 5(1) and except as otherwise noted.

 

EXHIBIT . Silli If.

MINIMIZATION PROCEDURESUSEI) BY THE NATIONAL s??lit?iih?ohih?rhit

CONNECTION ACQUISITIONS OF FOREIGN INTELLIGENCE, 

INFORMATION PURSUANT TO SECTION 702 OF THE 



SURVEILLANCE ACT OF 1973, AS vi

Section 1 - Applicability and Scope (U)

.These National Security Agency (N SA) minimization procedures apply to the acquisition,

retention, use, and dissemination Of non-publicly available information concerning
unconsenting United States persons that is acquired by targeting non-United States persons -
reasonably believed to be located outside the United States in accordance with section 702 of
the Foreign Intelligence Surveillance Act of 1978, as amended ("the Act"). (U)

If NSA determines that it must take action in apparent departure from these minimization
procedures to protect against an immediate threat to human life force protectiOn or
hostage situations) and that it is not feasible to Obtain a timely modi?cation ?of these
procedures, NSA may take such 'action'immediately. NSA will report the action taken to the
Of?ce of the Director of National Intelligence and to the National Security Division of the

Department of Justice, which will notify the Foreign Intelligence Surveillance

Court of such activity. (U)

For the purposes of these procedures, the terms "National Security Agency" and 
personnel" refer to any employees of the National Security Agency/Central Security Service
or and any other personnel engaged in Signals Intelligence (SIGINT)
Operations authorized pursuant to section 702 of the Act if such operations are executed
under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA). (U)

Section 2 De?nitions (U)

In addition to the de?nitions in sections 101 and 701 of the Act, the following de?nitions 
will apply to these? procedures: 

Acquisition means the collection by NSA or the FBI through electronic means of a non-i
public Communication to which it is not an intended party. (U)

Communications concerning a United States person include all communications in which
a United States person is discussed or mentioned, except where such communications
reveal only publicly-available information about the person. (U) 

(0) Communications of a United States persOn include all communications to which a United
States person is a party. (U)

 

NYT DOJ, 16 CIV 7020_000518

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



Consent is the agreement by a person or organization to permit the NSA to take particular
actions that affect the person or organization. To be effective, consent must be given by
the affected person or organization with- suf?cient knowledge to understand the action
that may be taken and the possible consequences of that action. Consent by an
organization will be deemed valid if given on behalf of the organization by an of?cial or
governing body determined by the General Counsel, NSA, to have actual or apparent
authority to make such an agreement. (U)

Foreign communication means a communication that has at least one communicant
outside of the United States All other communications, including communications in
which the sender and all intended recipients are reasonably believed to be located 1n the
United States at the time of acquisition, are domestic 

Identi?cation of a United States person means (1) the name, unique title, or address of a
United States person; or (2) other personal identi?ers of a United States person when
appearing in the context of activities conducted by that person or activities conducted by
others that are related to that person. A reference to a product by brand name, or
manufacturer's name or the use of a name in a descriptive sense, "Monroe Doctrine,"
is not an identi?cation of a United States person'CS?STJ"

Internet transaction, for purposes of these procedures, means an Internet comimmication
that is acquired through NSA's upstream collection techniques. An Internet transaction

ma contain information or data representing either a discrete communicatio 
or multiple discrete communications .

Processed or processing means any step necessary to Convert a communication into an
intelligible form intended for human inspection. (U)

Publicly available information means information that a member of the public could
obtain on request, by_ research 1n public scurces, or by casual observation. (U)

Technical data base means information retained for traf?c analytic, or
signal exploitation 

United States person means a United States person as de?ned 1n the Act. The following
guidelines apply' 1n determining whether a person whose status is unknown 13 a United
States person: (U)

(1) A person known to be currently 111 the United States will be treated as a United States
person unless positively identi?ed as an alien who has not been admitted for
permanent residence, or unless the nature or circumstances of the person? 
communications give rise to a reasonable belief that such person is not a United

States person. (U)

(2) A person known to be currently outside the United States, or whose location 13
unknown, will not be treated as a United States person unless such person can be

 

NYT 16 CIV 7020_000519 I

Approved for public release. - All withheld information exempt under 11(1) and b(3) except as otherwise noted.

WW

positively identi?ed as such, or the nature or circumstances of the person' 
communications give rise to a reasonable belief that such person is a United States

person. 

(3) A person known to be an alien admitted for permanent residence loses status as a.
United States person if the person leaves the United States and 15 not in compliance
with 8 U. S. C. 1203 enabling re?entry into the United States. Failure to follow the
statutory procedures provides a reasonable basis to conclude that the alien has
abandoned any intention of maintaining his status as a permanent resident alien. (U)

(4) An unincorporated association whose headquarters or primary of?ce is located
outside the United States is presumed not to be a United States person unless there is
information indicating that a substantial number of its members are citizens of the
United States or aliens Iaw?illy admitted for permanent residence. (U)

Section 3 Acquisition and Processing General (U)
Acquisition (U)

The acquisition of information by targeting non-United States persons reasonably behaved to
be located outside the United States pursuant to section 702 of the Act .will be effected in

accordance with an authorization made by the Attorney General and Director of National
Intelligence pursuant to subsection 702(a) of the Act and will hrs-conducted in a manner
designed, to the greatest extent reasonably feasible, to minimize-the acquisition of . .
information not relevant to the authorized purpose of the 

Monitoring, Recording, and Processing (U)

(1) Personnel will exercise reasonable judgment in determining whether information
acquired must be minimized and will destroy inadvertently acquired communications
of or concerning a United States person at the earliest practicable point in the
proCessing cycle at which such communication can be identi?ed either: as clearly not
relevant .to the authorized purpose of the acquisition g. ., the communication does
not contain foreign intelligence information); or, as not containing evidence of a
crime which may be disseminated under these procedures. Except as provided for in
subsection below, such inadvertently acquired communications of or
concerning a United States person may be retained no longer than ?ve years from the
expiration date of the certi?cation authorizing the collection in any event. 

(2) Communications of or concerning United States persons that may be related to the
authorized purpdse of the acquisition may be forwarded to analytic personnel
responsible for producing intelligence information from the collected data. Such
communications or information may be retained and disseminated only in accordance

 

 

w1th Sections 4, 5, 6, and 8 or these procedures. 

 

NYT 16 CIV 7020_000520

Approved for public release. All withheld information exempt under 13(1) and b(3) except as otherwise noted.

 

(3) Magnetic tapes or other storage media that contain acquired communications may be
processed. 

(4) As a communication is reviewed, NSA analyst(s) will determine whether it is a
domestic or foreign communicationto, from, or about a target and is reasonably
believed to contain foreign intelligence information or evidence of a crime. Only
such communications may be processed. All other communications may be retained
or disseminated only in accordance with Sections 5, and 8 of these procedures.

ease? . .

(5) Processing of Internet Transactions-Acquired Through NSA Upstream Collection
Techniques 

a. Notwithstanding any processing mired may be 
required to render an Internet transaction mte g1 to an ys 3, NSA will take

reasonable steps post?acquisition to identify and segregate through technical

means Internet transactions that cannot be reasonably identi?ed as containing
single, discrete communications where: the active user of the transaction the
electronic communications account/address/identi?er used to send or receive the
Internet transaction to or ?cm a service provider) is reasonably believed to be
located in the United States; or the location of the active user is unknown?(T3158-

1. Internet transactions that are identi?ed and segregated pursuant to subsection
will be retained in an aeoess-controlled repository that is accessible
only to NSA who have been trained to review such transactions for
the purpose of identifying those that contain discrete communications as to
which the sender and all intended recipients are reasonably believed to be .
located in the United States. 

Any information contained in- a segregated Internet transaction (including
metadata) may not be moved or COpied from the segregated repository or
otherwise used for foreign intelligence purposes unless it has been
determined that the transaction does not contain any discrete
communication as to which the sender and all intended recipients are
reasonably believed to be located in the United States. Any Internet
transaction that is identi?ed and segregated pursuant to subsection
and is subsequently determined to contain a discrete
communication as to which the sender and all intended recipients are
reasonably believed to be located in the United States will be destroyed

upon recognition. $574849?

- Any information moved or copied from the segregated repository into
repositories more generally accessible to NSA will be processed
'6 With? sees ?b dew "and handled 
the other applicable provisions of these procedures. -

 

NYT DOJ, 16 CIV 

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

WW

(0) Any informationmoved or copied from the segregated repository into
repositories more generally accessible to NSA will be marked,
tagged, orotherwise identi?ed as having been previously segregated
pursuant to subsection 

2. Internet transactions that. are not identi?ed and segregated pursuant to
sub section a. will be processed in accordance with sub section 3(b)(5 
below and handled in accordance with the other applicable provisions of these
procedures. 

b. NSA seeking to use (for example, in a FISA application, intelligence
report, or section 702 targeting) a discrete communication within an Internet
transaction that contains multiple discrete communications will assess Whether the
discrete communication: 1) is a communication as to which the sender and all
intended recipients are located in the United States; and 2) is to, from, or about a
tasked selector, or otherwise contains foreign intelligence information. 

1. If an NSA analyst seeks to use a discrete within an Internet
transaction that contains multiple discrete communications, the analyst will
?rst perform checks to determine the locations of the sender and intended
recipients of that discrete communication to the extent reasonably necessary to
determine whether the sender and all intended recipients of that 
communication are located in the United States. 

2. If an NSA analyst seeks to use a discrete communication within an Internet
transaction that contains multiple discrete communications, the analyst will
assess whether the discrete communication is to, from, or about a tasked

selector, or otherwise contains foreign intelligence information. 

- If the discrete communication is to, from, or about a tasked selector, any
U.S. person information in that communication will be handled in
accordance with the applicable provisions of these procedures-WT)"

If the discrete communication is not to, from, or about a tasked selector
.but otherwise contains foreign intelligence information, and the discrete
communication is not to or ?om an identi?able U.S. person or a person
reasonably believed to be located in the United States, that communication
(including any U.S. person information therein) will be treated in
a?cordance with the applicable provisions of these procedures. 

If the discrete communication is not to, from, or about a tasked selector
but is to or from an identi?able U.S. person or a person reasonably
believed to be located in the United States, the NSA analyst will document
U'th'at' "are "felWan?t' 
__po_ssib1e or reasonably feasible. Such discrete communication cannot be 
used for any purpose other than to protect against an immediate threat to 

 

NYT 16 CIV 7020_000522

Approved for public release. All withheld information exempt under b(1) and except as othenNise noted.

human life force protection or hostage situations). NSA will report
any such use to the Of?ce of the Director of National Intelligence and to
the National Security Division of the Department of Justice, which will
notify the Foreign Intelligence Surveillance Court of such use.



3. An NSA analyst seeking to use a discrete communication within an Internet
transaction that contains multiple discrete communications in a PISA
application, intelligence report, or. section 702 targeting must appropriately
document the veri?cations required by subsections . and 2. above.



4. Notwithstanding subsection above, NSA may use metadata extracted
?'om Internet transactions that are not identi?ed and segregated pursuant'to
subsection 3(b) without ?rst assessing whether the metadata was
extracted from: a) a discrete communication as to which the sender and all
intended recipients are located in the United States; or b) a discrete
communication to, ?om, or about a tasked selector. Any metadata extracted
from Internet transactions that are not identi?ed and segregated pursuant to
subsection will be handled in accordance with the applicable
provisions of these procedures. Any metadata extracted from an Internet
transaction subSequently determined to contain a discrete communi?ation as to
which the sender and all intended recipients are reasonably believed to be
located inside the United States shall be destroyed upon recognition. 

(6) Magnetic tapes or other storage media containing communications acquired pursuant
to section 702' may be scanned by computer to identify and select communications for
analysis. Computer selection terms used for scanning, such as telephone numbers,
key words or phrases, or other discriminators, will be limited to those selection terms
reasonably likely to return foreign intelligence information. Identi?ers of an
identi?able US. person may not be used as terms to identify and select for analysis
any Internet communication acquired through NSA's upstream collection techniques.
Any use of United?States person identi?ers as terms to identify and select
communications must ?rst be approved in accordance with NSA procedures. NSA
will maintain records of all United States person identi?ers approved for use as
selection terms. The Department of .TustiCe's National Security Division and the
Of?ce of the Director of National Intelligence will conduct oVersight ofNSAfs
activities with respect to United States persons that are conducted pursuant to this

paragraph. 

(7) Further processing, retention and dissemination of foreign communications will be
made in accordance with Sections 4, 6, 7, and 8 as applicable, below. Further
processing, storage and dissemination of inadvertently acquired domestic



 

NYT DQJ, 16 CIV 7020_000523

Approved for public release. All withheld information exempt under cm and b(3) except as otherwise noted.

WW

(0) Destruction of Raw Data {63'

Teleihoni communicationsi Internet Communications acquired?

from Internet erv1ce rov1 ers, and
other discrete forms of information including that reduced to graphic or "hard copy"
form such as ?that do not
meet the retention standards set forth in these procedures an at are own to
contain of or concerning United States persons will be destroyed
upon recognition, and may be retained no longer than ?ve years from the expiration

'date of the certi?cation authorizing the collection in any event. 

(2) Internet transactions acquired through upstream collection techniques that do

not contain any information that meets the retention standards set forth in these

procedures and that are known to contain communications of or concerning United

States persons will be destroyed upon recognition. All Internet transactions may be

- retained no longer than two years from'the expiration. date cf?the certi?cation

authorizing the collection in any event. The Internet transactions that may be retained
include those that were acquired because of liniitations on ability to ?lter
communications. Any Internet communications acquired through upstream
collection techniques that are retained in accordance with this subsection may be
reviewed and processed only in accordance with the standards set forth in subsection

of these procedures-6574513?

Change in Target's Location orStatus 

(1) In the event that NSA determines that a person is reasonably believed to be located

outside the United States and after targeting this person learns that the person is inside
the United States, or if NSA concludes that a person who at the time of targeting was
believed to be a non~United States person is in fact a United States person, the
acquisition ?'om that person will be terminated without delay. 

(2) Any communications acquired through the targeting of a person who at the time of

targeting was reasonably believed to be located outside the United States but is in fact

located inside the United States at the time such communications were acquired, and

any communications acquired by targeting a person who at the time of targeting was
believed to be a non?United States person but was in fact a United States person, will
be treated as domestic communications under these 

Section 4 - Acquisition and Processing Attorney?Client CommunicatiOns {Ca-

As soon as it becomes apparent that a communication is between a person who is known to
be under criminal indictment in the United States and an attorney who represents that
individual in the matter under indictment (or someone acting on behalf of the attorney),
identi?ed? 
attorney-client cpmmunication in a log maintained for that purpose. The relevant portion of
the communication containing that conversation will?be segregated and the National Security

 

NYT DOJ, 16 CIV 7020_000524

Approved for public release. All withheld information. exempt under b(1) and b(3) except as olhenNise noted.



Division of the Department of Justice will be noti?ed so that appropriate procedures may be
established to protect such communications from review or use in any criminal prosecution,
While preserving foreign intelligence information contained therein. Additionally, all
proposed disseminations of information constituting United States person. attorney-client
privileged communications must be reviewed by theNSA Of?ce of General Counsel prior to

dissemination. ?637?1?8'13'
Section 5 Domestic Communications (U)

A communication identi?ed as a domestic communication will be destroyed upon
recognition unless the Director (or Acting Director) of NSA speci?cally determines, in

writing, that. 

(1) the communication is reasonably believed to contain signi?cant foreign intelligence
information. Such communicationmay be provided to the FBI (including United 
States person identities) for possible dissemination by the FBI in?accordance with its
minimization procedures; ~653?

(2) the communication does not contain foreign intelligence information but is
reasonably believed to contain evidence of a crime that has been, is being, or is about
to be committed. Such communication may be disseminated (including United States
person identities) to appropriate Federal law enforcement authorities, in accordance 
with 50 U.S.C. 1806(b) and 1825(c), Executive Order No. 12333, and, where
applicable, the crimes reporting procedures set out in the August 1995 "Memorandum
of Understanding: Reporting of Information Concerning Federal Crimes,? or any
successor document. Such communications may be retained by NSA for a reasonable
period of time, not to exceed six months unless extended in writing by the Attorney
General, to permit law enforcement agencies to determine whether access to original
recordings of such cornn'mnications is required for law enforcement purposes, 

(3) the communication is reasonably believed to contain technical data base information,
as de?ned in? Section or information necessary to understand or assess a
communications security vulnerability. Such communication may be provided to the
FBI and/or disseminated to other elements of the United States Government. Such
communications may be retained for a period suf?cient to allow a thorough
exploitation and to permit access to data that are, or are reasonably believed likely to
become, relevant to a current or future foreign intelligence requirement. Suf?cient
duration may vary with the nature of the exploitation. 

a. In the context of a effort, maintenance of technical data bases
requires retention of all communications that are enciphered or reasonably
believed to contain secret meaning, and suf?cient duration may consist of any
period of time during which material' 13 subject to, or of use in,



 

NYT DOJ, 16 CW 7020_000525

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



b. In the case of communications thatare not enciphered or otherwise thought to
contain secret meaning, suf?cient duration is ?ve years from the expiration date
of the certi?cation authorizing the collection unless the Signal Intelligence
DireCtor, NSA, determines in writing that retention for a longer period is required
to respond to authorized foreign intelligence or counterintelligence requirements;

or-fofS?B'

(4) the communication contains information pertaining to ,a threat of serious harm to life
or property. {33?

- Notwithstanding the above, if a domestic communication indicates that a-target has
entered the United States, NSA may advise the FBI of that fact. Moreover, technical data
regarding domestic communications may be retained and provided to the FBI and CIA
for collection avoidance purposes. 

Section 6 - Foreign Communications of or Concerning United States Persons (U)
Retention (U) . - .

Foreign communications of or concerning United States persons collected in the course of an
acquisition authorized under section 702 of the Act may be retained only:

if necessary for the maintenance of technical data Retention for this purpose is
permitted for a period suf?cient to allow a thorough eXploi'tation and to permit access
to data that are, or are reasonably believed likely to become, relevant to a current or
future foreign intelligence requirement. Suf?cient duration may vary with the nature
of the exploitation. 

a. In the context of a effort, maintenance of technical data bases
requires retention of all communications that are enciphered or reasonably
believed to contain secret meaning, and suf?cient duration may consist of any
period of time during which material IS subject tothe case of communications that are not enciphered or otherwise thought to
contain secret meaning, suf?cient duration is ?ve years from the expiration date
of the certi?cation authorizing the collection unless the Signals Intelligence
Director, NSA, determines in writing that retention for a longer period is required
to respond to authorized foreignintelligence or counterintelligence requirements;

(2) if dissemination of such communications with reference to such United States persons
would be permitted under subsection below; or

(3) 1f the informatlon is evidence of a (3nt that has been ,?i?S?beI?g, 01? IS 313001 130 be 
an_d isprovided to appropriate federal law e?orcementauthorities21NYT DOJ, 16 CIV 7020_000526

Approved for public release. All withheld information exempt under b(1) and b(3) except as othemrise noted.

Dissemination 

A report based on communications of or concerning a United States person may be
disseminated in accordance with Section 7 or 8 if the identity of the United States person is
deleted and a generic term or symbol is substituted so that the information cannot reasonably
be connected with an identi?able United States person. OtherWise, dissemination of
intelligence reports based on communications of or concerning a United States person may
only be made to a recipient requiring the identity of such person for the performance of
of?cial duties but only if at least one of the following criteria is also met:

(1) the United States person has consented to dissemination or the information of or
concerning the United States person is available publicly; -

. (2) the identity of the United States person is necessary to understand foreign intelligence
information or assess its importance, e_ g. the identity of a senior of?cial 111 the
Executive Branch;

(3) the communication or information indicates that the United States person may be:
a. an agent of a foreign power;
b. a foreign power as de?ned in Section 101(a) of the Act;

e. residing outside the United States and holding an official position in the
government or m?itary forces of a foreign power;

d. a. corporation or other entity that is owned or controlled directly or indirectly by a
foreign power; or - - 

e. acting in collaboration with an intelligence or security service of a foreign power
. and the United States person has, or has had; access to classi?ed national security
information or material; - -

(4) the communication or infonnation indicates that the United States person may be the
target of intelligence activities of a foreign power;

(5) the? communication or information indicates that the United States person is engaged
in the unauthorized disclosure of classi?ed national security information or the
United States person identity is necessary to understand For assess a comniunications
security vulnerability, but only after the agency that originated the information
certi?es that it' 15 properly classi?ed;

the communication or information indicates that the United States person may be
e?g?aging international terrorist activmes - -

 

NYT DOJ, 16 CIV 

Approved for public release. All withheld information exempt under b(1) and b(3) except as othenNise noted.

 

(7) the acquisition of the United States person's communication was authorized by a
court order issued pursuant to the Act and the communication may relate to the
foreign intelligence purpose of the surveillance; or

(8) the communication or information is reasonably believed to contain evidence that a
crime has been, is being, or is about to be committed, provided that dissemination is
for law enforcement purposes and is made in accordance with 50 U.S.C. 1806(b)
and 1825 (0), Executive Order No. 12333, and, where applicable, the crimes reporting
procedures set out in the August 1995 ?Memorandum of Understanding; Reporting of
Information Concerning Federal Crimes," or any successor document. (U)

Provision of Unminimized Communications to CIA and 

(1) NSA may provide to the Central Intelligence Agency (CIA) unrninimized
communications acquired pursuant to section 702 of the Act. CIA will
identify to NSA targets for which NSA may provide unminiinized
communications to CIA. CIA will process any such unminimized
communications received from NSA in accordance with CIA minimization
procedures adopted by the Attorney General, in consultation with the Director

- of National Intelligence, pursuant to subsection 702(6) of the 

(2) NSA may provide to the FBI unminimized communications acquired pursuant to
section 702 of the Act. The FBI will identify to NSA targets for which NSA may
provide unminimized communications to the FBI. The FBI will process any such
unminimized communications received from NSA in accordance with FBI
minimization procedures adopted by the Attorney General, in consultation with the
Director of National Intelligence, pursuant to subsection 702(e) of the Act. 'fofSi')?

Section 7 - Other Foreign Communications . (U)

Foreign communications of or concerning a non-United States person may be retained, used,
and disseminated' in any form in accordance with other applicable law, regulation, and policy.

(U)

Section 8 - Collaboration with Foreign Governments?{Stray?

Procedures for the dissemination of evaluated and minimized information. Pursuant to'
Section of Executive Order No. 12333, as amended, NSA conducts foreign
liaison relationships with certain foreign governments. Information acquired
pursuant to section 702 of the Act may be disseminated to a foreign government. Except
as provided in subsection 8ij of these procedures, any dissemination to a foreign
government of information of or concerning a United States person that is acquired
pursuant to section 702 may only be done 1n a manner consistent with subsections 
arid 7 of these NSA minimization procedures ?m 

 

 

NYT DOJ, 16 CIV 7020_000528

Approved for public release. All withheld information exempt under cm and b(3) except as otherwise noted.

 

Procedures for technical or linguiStic assistance. It is anticipated that NSA may obtain 
information or communications that, because of their technical or linguistic content, may
require further analysis by foreign governments to assist NSA in determining their

meaning or signi?cance. Notwithstanding other provisions of these minimization

procedures, NSA may disseminate computer disks, tape recordings, transcripts, or other
information or items containing unminimized information or communications acquired
pursuant to section 702 to foreign governments for further processing and analysis, under
the following restrictions with respect to any materials so disseminated: {53-

(1) Dissemination to foreign governments will be solely for translation or analysis
of such information or communications, and assisting foreign governments
will make no use of any information or any communication of or concerning
any person except to provide technical and linguistic assistance to NSA. 

(2) Dissemination will be only to those personnel within foreign governments
involved 1n the translation or analysis of such information or communications.
The number of such personnel will be restricted to the extent feasible. There
Will be no dissemination within foreign governments of this minimized data.

[?fsi?

(3) Foreign governments will make no permanent agency record of information or
communications of or concerning any person referred to or recorded on
computer disks, tape recordings, transcripts, or other items disseminated by
NSA to foreign governments, provided that foreign governments may
maintain such temporary records as are necessary to enable them to assist
NSA with the translation or analysis of such information. Records maintained
by forei g1 govenmients for this purpose may not be disseminated within the
foreign governments, except to personnel involved in providing technical or
linguistic assistance to NSA. 

(4) Upon the conclusion of such technical or linguistic assistance to NSA,
computer disks, tape recordings, transcripts, or other items or information
disseminated to foreign governments will either be returned to NSA or be
destroyed with an accounting of such destruction made to NSA. 

 

NYT DOJ, 16 CIV 7020_000529

 .. . HQ. 
- v: . ?hurt w?

ed r35 rei??gg- - I I I exempt under em and b(3) except as otherwise noted.

- .3 -. 

Approv

 

Any information that foreign governments provide to NBA as aureeult of such
technical or. linguistic assistance may be disseminated by NSA 1n accordance

with these minimization procedures, f5}

 

 

Date Eric H. Holder, Ir.
Attorne'y General of the United tes

13

NYT DOJ, 16 CIV 7020_000530

. 

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


(33 
UNITED STATES . 
FOREIGN INTELLIGENCE eo?iiz?if PH 5:28
WASHINGTON D. c. .5 

 

. GOVERNMENTS RESPONSE TO THE 5
BRIEFING ORDER OF OCTOBER 13, 2011 .

THE UNITED STATES OF AMERICA through the undersigned Department of
Justice attorney, reSpectfquy submits the following response to the Court's Brie?ng

Order of October-13, 2011; 

 

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?l?he Court's Briefing Order of October-13, 2011, in the above-captioned matters
(hereinafter "October 13 Brie?ng Order") enumerated six issues to be addressed by the
Government. Items 1. and 2. in the October 13 Brie?ng Order are addressed together
starting on page 3 belowiresponses for items 3. through 6. begin on page 39. 

As an initial matter, as this Court is ayvare, amended section 702 minimization 

procedures for the National Security Agency (NSA) were adopted by the Attorney
General and approved by the Attorney General and ljirector of National Intelligence for . 
immediate use on October 31, 2011 that same day-the procedures were submitted to the
Court for review, amended section 702 minimization procedures provide, inter

I alia, that "[a]ll Internet transactions may be'retained no longer than two years from the
expiration date of the certification authorizing the collection in any event." See, 
Amendment to 702(g) Certi?catior- Ex. B, ?led Oct. 31, 2011, 
(hereinafter "2011 Amended NSA Minimization In the past, NSA has
tried to maintain consistency of its minimization procedures across acquisitions
pursuant to multiple. certi?cations. NSA- is unable to apply in fullthe 2011 Amended
NSA Minimization Procedures to information acquired prior to October 31, 2011, for
technical reasons primarily related to its inability to segregate certain previously 

collected categories of information in accordance with section of the amended

 

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procedures.I Nevertheless, in furtherance of maintaining consistency across data
acquired through its'upstream collections, and as described in greater detail below,

NSA is taking steps to age off of its systems Internet transactions that were collected
through its upstream. collection platforms pursuant to Docket Nos.?
the Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat; 552 (Aug. 5, 2007)
(hereinafter FAA), and certifications issued under section 702 of the Foreign Intelligence
Surveillance Act of 1978, as amended, 50 U.S.C. 1801, et seq. (hereinafter PISA or "the 
Act") Where, such authorizations expired more than two years ago. NSA anticipates that
it will complete this age-off process no earlier than March 2012?. 

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. 

2.. The extent to which information acquired under Section 1881a, the FAA, and 
Docket Nos? falls within the criminal prohibitions set forth" in
Section 1809(a). f5)- .

The Government responds to these two items as follows?f5)?

 

1 It is'"fo'rt1'us reason that NSA has not sought to amend prior certi?cations topermit'the'use of the 2011
Amended NSA Minimization Procedures to information acquired under those certi?cations. 

 

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I. The Application of Section 1809 to the Government?s Acquisitions Pursuant to

Section 1881a, the FAA, and Docket Nos. 

A. Section 1809 is a Criminal Statute Designed to Address Intentional Violations of
the Law 

 

As. acknowledged earlier this year, the Government concluded that its prior
representations to the Court'regarding the steps NSA must take in order to acquire 
single, discrete communications to, from, or about a tasked selector did not fully explain
all of the means by which such communications are acquired through NSA's upstream
collection techniques. The Government submits that that oversight, although
regrettable, does not support a finding that the Government intentionally engaged in -
unauthorized electronic surveillance, thus implicating a criminal statute. Section 1809
by its terms imposes criminal sanctions (including iinprisonment and a substantial fine)
on an individual who intentionally engages in unauthorized electronic Surveillance or
uses or discloses the fruits of unauthorized electronic surveillance.2 Congress did not
intend these stringent penalties to apply to intelligence professionals who, in good faith,
reasonably believed that they were acquiring foreign intelligence information in
. conformity with authorizations by this Court or by the Attorney General and Director
of National Intelligence 

Section 1809(a) criminalizes "intentionally (1) engag?ng] in electronic

surveillance of law, except as authorized . . or (2) disclos[ing]' 

 

2 Section 1810 of PISA exposes anindividtral who violates section 1809 to substantial civil penalties?ES)

 

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or us[ing] information obtained under of color of law by electronic surveillance,
knowing or having reason to know that the information was obtained through

electronic surveillance not authorized by [statute]." 50 U.S.C. 1809(a). Section 1809
provides a complete defense for law enforcement and investigative officers engaged in
official surveillance "authorized by and conducted pursuant to a search warrant or .
court order of a court of competent jurisdiction." Id. 18090:). Accordingly, by its
terms section 1809(a) is violated only Where there is intentional conduct and
unauthorized electronic surveillance is involved?ES)? -

FISA's inclusion of criminal sanctions re?ects a'balance between competing
priorities. On the one hand, the threat of criminal sanctions reinforces FleA's central
edict: before engaging in electronic surveillance, Government agents must obtain the
necessary statutory authorization 4? typically (though not always) by securing advance
judicial approval. On the other, those agents who in good faith obtain and effectuate
authorization under the FISA framework are thereby shielded from ciVil and criminal
liability.? FISA's proponents stressed that iar from chilling lawful intelligence collection,
the bill's clear delineation of the scope of criminal liability actually serves to protect law? 

I abidingGoxternrnent agents:
[I]ndividual intelligence agents will know'to the letter what is required of them;
They will know that what they do pursuant to ?a warrant is lawful. And they will

be protected in the future against criminal prosecutions and civil suits arising .
from the surveillance as long as they donot 

 

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Foreign Intelligence Surveillance Act: Hearing on HR. ?7303 Before the Subcommittee on I
Courts, Civil Liberties, and the Administration of justice, House Committee on the Judiciary,
95th?Cong. .111 (1978) (statement of Rep. Mazzoli). To that end, "[t]he word
?intentionally' was carefully chesen. It [was] intended to re?ect the most strict standard
for criminal culpability. . . . The Government Would have to prove beyond a reasonable
doubt that the . . . [conduct] was engaged in With a consciou's' objective or desire to
commit a violation." H.R. Rep. No. 95-1283, pt. at 97 (1978) (quotation omitted). In
other words, "mtentionally" in the context of section 1809 means not only that an
individual intentionally undertook electronic surveillance, but undertook electronic
surveillance with the knowledge and intention to violate the requirements of FISA. As
noted in the Government's Response to the Court?s Briefing order of May 9, 2011, 
'lw1ased'upon discussions between responsible NSA officials and the Department of

Iustice (DOD and the Cities of the Director of National Intelligence (ODNI) and 
and ODNI's revievv of documents related to this matter, and ODNI have not found
any indication that there vvas a conscious objective or desire to violate the 
authoriz?ationshere." Government's Response to the Court's Brie?ng Order of May 9,
2011, Docket Nes?, ?led June 1, 2011, at 32
n2? (hereinafter "June 1 Submission"). In addition, and have not found any

indication of a conscious objective or desire to violate the authorizations under the FAA

 

swam?ai-

 

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l?he enacted version of section 1809 contrasts markedly with a criminal?sanctions
provision in a? draft bill "that wouldlhave? swept more broadly. The earlier proposal
would, among other things, have criminalized intentionally ?violat[ing] .. any court
order pursuant to this title." H.R. Rep. No. 95-1283, pt. at 96?97 (discussing
predecessor bill). Criminalizing all manner of PISA violations "generated. considerable
debate" and was suggested to have a "deleterious effect on the morale of intelligence
personnel." Id. at 96. _The "any order" language was ultimately stricken from the final
bill enacted by Congress. In liiniting FISA's criminal penalties to instances in which the
Government had failed to obtain prior authorization- or intentionally exceeded the -
boundaries. of the authorization obtained, Congress made clear that it envisioned
section 1809 as anarrowly tailored sanction, not a comprehensive framework for
remedying. all manner of Government errors in the course of obtaining or effectuating
PISA authorities. 
I Given its underlying purpose, the Government respectfully suggests that section
1809 does not provide the appr0priate framework for cases in which the "surveillance,
though based on an erroneous factual premise, was authorized by and conducted
pursuant to an order issued by the Note, The Notice Problem, Unlawful Electronic . -

Surveillance, and Civil Liability under PISA, 61 U. Miami L. Rev. 393, 427 (2007) (arguing

that although this limitation of section 1809 was "appropriate for criminal liability," 

1318A should be amended to liability in such 5.0

 

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understood, section 1809 accords with other criminal offenses that hinge on the absence
of valid authorization. 'For example, in Theofel Pam/Jones, 359 F.3d 1066, 1072 (9th Cir.?
2004), the Ninth Circuit construed "the meaning of the word 'authorized? in section
2701" of the Stored Communications Act (SCA), 18 U.S.C. 2702. The defendant in
Tlieofel had obtained access to communications. by serving a "patently unlawful"
subpoena on a third party. Id. At issue was whether compliance with that ?awed
subpoena constituted valid consent -- qualified as an "authorized" disclosure under
the SCA. 
Holding that the answer depended on whether the authorization was procured
in "bad faith," the Court of Appeals explained:
Because the Stored Communications Act defines a criminal offense and includes
an explicit melts tea requirement, see 18 U.S.C. ?2701(a)(1), we do not think a
defendant can be charged with constructive knowledge [of the authorization?s 
invalidity] on a showing of mere negligence. Rather, the defendant must have
consciously procured consent "authorization"] through improper means. In
this case, the magistrate found that defendants had acted in bad faith. That is-
enough to charge them with knowledge of [the third party's] mistake. See Black's
Law Dictionary 139 (6th ed. 1990) (defining "bad faith" as "not simply bad
judgment or negligence, but . . . conscious doing of a wrong because of dishonest
purpose or moral obliquity?).
Id. at 1074 n.2. In addition to recounting the defendant's "badfai and "constructive
knowledge" of the subpoena's invalidity, the decision stressed that consent .

procured by a known mistaketo qualify as a defense would seriously impair the I

'gaaia's'ssgaea? atom?Howeaajtsr as teasers discuss?ad'h'e?rEi?fthe 

 

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I Government submits that the orders of the Court in'the four authorities at issue here
were not "procured by a known mistake." 

The Government submits that the same considerations exclude from criminal
liability under section 1809 instanCes in which judicial approval and authorization of
the Director of National Intelligence and the Attorney General were obtained In good
faith, premised on incomplete descriptions of how the acquisitions were to be

conducted-(IPSW?

B. The Authorizations Remain Valid Despite the Government's Incomplete
Description of the Technical Means of Acquisition??3).

Congress intended that the "criminal penalties-for intelligence agents under
should be essentially the same-as for law enforcement officers under title 18." .
Conf. Rep. No. 95?1720, at 33 (1978). Therefore, the law-enforcement context
provides instructive guidance with respect to the scope of what should qualify as
intentional unauthorized surveillance for purposes of section 1809(a)(1). Provided it
was obtained in good faith, a valid authorization to conduct law?enforcement
surveillance is not rendered "void" or "invalid" because it was premised on a factual
error or misstatements-(5}

Under case law developed in the suppression context, it has long been settled

that the Government?s "[i]nnocent mistakes or negligence alone are insufficient to void a

"saint?" ?magnetism. mega, 

 

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Delaware, 438 U.S. 154,171) (1978)).3 Recognizing that everyone including the agents.
who serve the Government -- will at times commit errors, the Supreme Court has
emphasized, in a variety of circumstances, "the need to allow some latitude for honest
mistakes. Maryland o. Garrison, 480 US. 79, 87 (1987),: see also Brinegar v. United States,
338 U.S. 160, 176 (1949) (emphasizing that "room must be allowed for some mistakes on
- [the Government's] part"). I
In the three decades since Franks, it has become hornbook law that a discovery of

a good faith misstatement or omission4 in the application for a warrant 9- even one that .

is material -- does not transform an authorized search into an unauthorized one. See' 

 

Class: 0. Washington State, No. 10-35085, F.3d 2011 WL 5304125, at *16 (9th Cir.
Nov. 7, 2011) (?It is well established that omissions and misstatements resulting from

negligence or good faith?mistakes will not invalidate an affidavit which on its face

 

5 The decision in Pranks came down in June 1978, just prior to FISA's enactment. But the core holding of
Franks was anticipated by many courts. See, United States v. Marthart, 492 F.2d 897, 900 n.4 (8th Cir.

1974) ("We agree with the Seventh Circuit that completely innocent misrepresentation should not support
suppression even if material"). The Second Circuit has suggested that orders should be governed
by the principles set forth in Pranks Delaware." United States v. Duggan, 743 F.2d 59, 77 n6 (2d Cir. 1984).
Under the Second Circuit's standard, the fact of a negligent misstatement in a PISA application is not
grounds for suppression or even an evidentiary hearing -- on the issue of whether the surveillance was
properly authorized. To warrant 'a hearing, the court explained, a suppression motion asserting that the

Government?s surveillance was not authorized by PISA "would be required to make ?a substantial 
preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included? in the application and that the allegedly false statement was 'necessary' to the
FISA judge?s approval of the application." Id. (quoting Pranks, 438 U.S., at 155?156). (S)

4%1though-Franks Government 
that its "reasoning. . . ?logically extends . . . to material omissions.? United States v. Iohnsoa, 696 F.2d 115,
118 n.21 Cir.l1982) (quoting 2 W. Harare, search and BeiZure', 4.4 (Supp. 1982)); 

 

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establishes probable cause") (quotation omitted); United States v. Andrews, 577 F.3d 231,
238?39 (4th Cir. 2009) ("In challenging a search warrant on the theory thatthe officer's
atfidavit omitted material facts with the intent to make, or in reckless disregard. of .

. whether they thereby made, the affidavit misleading, the defendant must show (1) that
the of?cer deliberately or recklessly omitted the information at issue and that the
inclusion of this information would have defeated probable cause") (quotation and 
citation omitted). The appropriate inquiry looks to the Government's good faith in
submitting the application, and the fact that an error may be attributable to an internal
nuscommunication within the Government, or to gaps in the Government?s
understanding, is not itself an indication of bad faith. See, (2.3., United States v. Yasa? 461
F.3d 374, 378 (3d Cir. 2006) (in performing the Franks analysis, lower court "erred by
failing to recognize that government agents should generally be able to presume that
information received from a sister governmental agency is accurate"); United States v.
Radtke, 799 F.2d 293, 310 (7th Cir. 1986) (finding no ?deliberate falsehood" where a police 
officer of one department compiled erroneous information derived from another 

department?s investigation).5 

 

5 The case law "hold[s] the government accountable for statements made . . . by the affiant [and]
statements made by other government employees which were deliberately or recklessly false or
misleading insofar as such statements were relied upon by the affiant in making the affidavit." United
States 1). Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997). See also United States v. Hammett, 236 F.3d 1054,
. . .
warrant, it is?highly probable that there was a misconmtunication between Officer Correia and'Detective
Boles that led to the misstatiament in the therefore reject'the position'that'the warrant is
invalid . . . United States v. Wapnick, 60 F.3d 948, 956(2d Cir. 1995) (invalidation turns on whether

 

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The Pranks framework has been extended to mistakes in Title applications._ As
Judge Posner has eXplained:

[I]f government agents execute a valid wiretap order and in the course of

executing it discover it was procured by a mistake . . . the record of the

conversations is admissible in evidence . . . . The discovery of the mistake does

not make the "search unlawful from its inception.
United States v. Ramirez?,uz F.3d 849, 851 (is Cir. 1997); see also Matted States v. asst
785 F.2d 214, 222 (8th Cir. 1986) (applying Praitks? standard to a Title 131 Wiretap); United 
States v. Ippolito,77iiF.2d 1482, 11185 (9th Cir. 1985) (same), United States v. Southard, 700
F.2d 1, 8 (let Cir. 15*. - 1

Although the Government has not located cases applying the Franks standard to
illegal wiretapping prosecutions (presumably because cases raising- that fact pattern are
rarely, if ever, prosecuted), Pranks also delineates the scope of an "illegal search" in civil
litigation under 42 U.S.C. 1983._ See, Pest v. City of Detroit, 502 F.3d 557, 570 (6th 
Cir. 2007) ("In cases involving search warrants . . . the law is clear that an of?cer may be
held liable under 42 U.S.C. 1983 tor ?an illegal search . . . when the officer 'knowingly
and deliberately,_or with a reckless disregard for the truth' makes ?false statements or
omissions that create a falsehood' andn'such statements or omissions are material, or

necessary, to the ?nding of probable cause") (citing Wilson v. Russo, 212 F.3d 781, 786-

787 (3d Cir. 2000)). When it enacted section 1809, Congress surely did not intend to

 

anydne in the insula?ed] ai?'ants? from? information material to the determination 
of probable cause") (emphasis added); United States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (same). 

12

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impose a less forgiving standard of criminal liability in the national security context than 
generally exists for civil liability in the law?enforcement context. 

"the Government submits that the Court should consider the latitude afforded
the Government in the law?enforcement context equally appropriate for surveillance
conducted under the aegis of national security investigations, in which the
Government's focus will often-be "less precise . . .Ithan [surveillance] directed against
more conventional types-of crime." united Statesvl. United tates District Court (Keith),
407 US. 297, 322 (1972). All of which is not to suggest that the Goverrunent bears
diminished responsibility for mistakes inthe record. Upon becoming aware of its
failure to communicate to the Court certain salient aspectsof its collection activities, the

Government bore responsibility for correcting its past statements. I See FISC Rule 13(a).

When mistakes happen notwithstanding the Government?s best efforts, they are

regrettable. Nevertheless, the Government respectfully submits that the potential
exposure to liability -.- and the resultant 'civil liability under section 1010 -- is
not the appropriate means to respond to such nuscommunications 1L?vithin the
Government. 45)-
C. The Authorities at Issue 
1. Section 1881a 

Beneath the heading section 702 in pertinent part empowers

the Attorney General and?the Director?of National Intelligence, upo'nthe issuanceof an . 

 

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order from this Court approving a certification and the use of targeting and
minjniization procedures, to "authorize jointly, for a period of up to 1 year . . . the
targeting of persons reasonably believed to be located outside the United States to
acquire foreign?intelligence information." 50 U.S.C. 1881a(a). Acquisitions authorized
. under section 702 must be conducted in accordance with targeting and minimization
procedures adopted by the Attorney General and in conformity?with a certification- 
submitted to the FISC. See 50 U.S.C. 1881a(c)(1). Accordingly, section 702 accords the
. Court a crucial role in ensuring that the Government?s targeting and minimization
procedures are consistent with the statutory requirements of section 702 and the Fourth
Amendment to the Constitution of the United States. See 50 U.S.C. 1881a(i) (providing
that the FISC 'ishall have jurisdiction to review [the]? certi?cation. . . and the targeting
and minimization procedures?): Nevertheless, while the Government cannot
commence or Continue acquisition Without Court approval, the statute commits
responsibility for "authorization? to the Attorney General and the Director of National
Intelligence. I
Section 702 provides for two potential outcomes of iudicial review, neither of
- which appears to vitiate a past determination of the Attorney General and Director of

National Intelligence to authorize acquisitions in ?good faith. The first is in

whichlevent the Court "enter[s] an order approving the certification and the use . . . of

- the procedures for the acquisition." .1881a(i)(3) (A). The secondis .a

 

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OF in which event the Court "shall-issue an order directing
the Government to, at the Government?s election . . . correct any de?ciency identi?ed
by the Court's order . . or (ii) cease, or not begin, the implementation of the
authorization for which such certification-was submitted." 50 U.S.C. 
Notably, section 702 maltes no provision for an order requiring the Government to
purge information acquired under authorizations from the Attorney General and
Director of National. Intelligence in the event the Government chooses to discontinue its
collection after receipt of a deficiency order;6 

In keeping with the above, the operative certifications, and the targeting and
minimization procedures adopted by the Attorney General for use with those
. certifications, were submitted by the Government to the FISC and approved pursuant to
- 50 U.S.C. 1881a(i), albeit vvithout provision of certain information relevant to the
manner in which NSA acquires Internet transactions to, from, or about a tasked selector
through its upstream collection. - The Attorney General and Director of National
Intelligence at all-times acted in good faith in discharging their responsibilities under
section 702. As the Court has already found, each prior certifiCation Contained all of the"

required statutory elements. See In re 702 Certifications 

 

5 In this respect, section 702 appears to represent a departure from the "traditional" PISA framework, -

-- -which-expressly--?--and? pursuanttosurve?lance . 

activities authorized by the Attorney General without a court order and later rejected by the Court. See,
8.3., 50 . - - - 

 

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-, at an Memorandm

Opinion at 12 8.: 11.11 (USFISC Oct. 3, 2011) (hereinafter "Oct. 3 Mem. Moreover,
as the Government noted in its June 1 Submission, the Attorney General and Director of
National Intelligence have con?rmed that their prior section 702 authorizations
continued to be valid and in force, notwithstanding the acquisition of Internet
transactions featuring multiple discrete. communications. (hereinafter See June
1'Si1brnission at 35; see also Government's Response to the Court's supplemental
Questions of June 17, 2011, Docket Nos.?, filed
June 28, 2011, at 26?27. Accordingly, the Government respectfully submits that
personnel ?echo relied on those authorizations and followed those procedures in
acquiring MCTs did'not engage in unauthorized surveillance, and did not intend to
engage in surveillance that was not authorized under FISA. W.
2. The - I
Section 105B of the PAA likewise empowered the Director of National
Intelligence and the Attorney General to "authorize the acquisition of foreign
intelligence information concerning persons reasonably believed to be outside the
United States." 105B, 121? Stat. at 552?55. Such acquisitions were specifically exempted
from?FISA's definition of "electronic surveillance." See id. 121 Stat. 552." As
- arsenseeajoa Pee .Ereri?E?iEiB?F?El ewe 

- - used to implement-those authorizations, but the review was limited by statute. Under ..

 

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the PAA, the Attorney General was required to submit to this Court "the procedures by
which the Government determines that acquisitions conducted pursuant to [its
statutory authority] do not constitute electronic surveillance." Id. 105C(a), 121 Stat. at
.555' The Court, in turn, was then required to assess whether the Government?s
determination was "clearly erroneous." Id. 105C(b), 121 Stat. at 555. As this Court has



- noted, the deferential"clear1y erroneous" standard of review would not entitle a
reviewing court to reverse the [Attorney General's] finding . . . simply because . it
would have decided the case differently.? In re 105B Certi?cations 
- - Mem. Op. at 6 (USFISC Ian. l5, 2008) (hereinafter i?PiitA Mem. Op.i') (quoting
Anderson I). City of Bessemer City, 470 US. 564,573 (1985)). Moreover, judicial review
was limited to "certain aspects of the certification process." Idat 4. "Executive branch
determinations . . . regarding the purpose of the acquisition and the adequacy of
minimization procedures [were] not subject to judicial review" at all. Id. at 6.


Applying the PAA's ?clearly erroneous" standard of review, this Court found the
Government?s targeting procedures were "reasonably designed to ensure that the users I
of tasked facilities are reasonably believed to be located outside the United States." Id.

at 15. As to "abouts" communications, the Court "ad0pt[ed] the [Government?s]

inte_r_pretation_that . . . surveillance [of lab?outs? communications] is"directed' at the

users of tasked-email accounts . (ii) at-those-par-ties to acquired communications

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who . . . are reasonably believed to be outside the United States; or at both these
classes of persons." Id. at 21. Just as in the section 702 context, Government personnel
who relied on the PAA authorizations to acquire MCTs did not engage in unauthorized
surveillance, let alone did so intentionally. 

3. 1?65} 

The issues concerning upstream collection techniques raised during the

Court? 5 consideration of the above?captioned dockets potentially implicate the

applications approved by the Court' in In re 
Docket


With respect to Docket No.- the Governrnent sought, and the Court
approved, "authorization to direct electronic surveillance" at_- that the
Government believed were being used, or were about to be used, by its targets to
communicate. In its order approving-the surveillance, the Court stated that it I

"'underst[ood] that, in certain instances, NSA may collect non-target [internet] 

communmaiomt in 
_DocketNo -Mem 0p were

(USFISC Apr. 6, 2007) (hereinafter -Mern. Op. just as the Court understood

- that "[a]1th0ugh NSA surveillance will be designed to acquire only international

 

-- [telephone] communications Where one commurucant. 15 outside the United..States, .. .. .

 

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. the manner in which routes communications-do not permit complete assurance
that this will be the case,'l id. at 7?8 The Court approved the?collection with the - .
expectation that NSA would "handle these communications in accordance with its
standard PISA minimization procedures, as described and modi?ed herein." Id. at 9 n.9,
see also id. at 7~8 n.7. Accordingly, Government personnel who relied on that approval
and acted in accordance with those prOcedures in no way engaged in unauthorized
surveillance, and certainly did not do so with "a conscious and objective desire to.
commit a violation." H.R. Rep. No.95-1283, pt. 1, at 97 (1978) (quotation omitted).

eastwa?

I With respect to Docket No.?the Goverrunent acknowledges that its .
application did not fully explain the methodology through which 
Internet communications upstream would "ensure that all communications forwarded
--to NBA . .i are indeed communications that have been sent or received using, and that
'refer to' or are 'about,? email accounts/addresses/identifiers Ifor which there is probable 
cauSe to believe are being used, or are about to-be used, by [the targets.]" Deal. of Lt. .
Gen. Keith B. Alexander, Docket No.- ?led May 23, 2007, at 21. But for-the
reasons discussed in greater detail above, this good faith mistake does not render the
prior authorization void or the surveillance collected thereunder "unauthorized,"

thereby exposing Government personnel to potential criminal and civil liability. On the 

 

 

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WW
contrary, such good faith mistakes can and should be meaningfully redressed without

recourse to section 1809. 

H. Should the Court Determine that Unauthorized Collection Occurred, Only the
Acquisition of Certain Subsets of Communications Acquired Through NSA's
Upstream Collections Conducted Pursuant to the Authorities at Issue Would
Constitute Electronic Surveillance, as Defined by the 

By its terms section 1809(a) applies only to unauthorized electronic surveillance

as that term is de?ned in FISA. 'Ihus, the extent to which section 1809(a) applies to

acquisitions under the authorities at issue herein depends on whether or not those

acquisitions constitute "electronic 

upstream Internet collections under all four authorities have acquired

only communications?

As such, any communication that NSA has acquired through 

its upstream Internet collections conducted- pursuant to the four authorities at issue
would be a "wire communication," as defined by the Act that is, a "communication I
While it is being carried by a wire,?cab1e, or other like connection furnished or operated
by any person engaged as a common carrier in providing or operating such facilities for
the transmission of interstate or foreign communications.? Id. 1801(1). 

The Act defines "electronic surveillance" in four different ways. See id. 1801(f).

th?g?foti?yp?s I

upstream collections conducted pursuant to the authorities discussed in the Court's

 

NYT DOJ, 16 CIV 7020_000550

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Briefing Order. The first type. of electronic surveillance, which requires "intentionally
targeting" a "particular, known United States person who is in the United States,"_ id.
1801(f)(1), is not implicated, because none of the authorities at issue here permitted
the targeting of United States persons inside the United States.7 Siinilarly, the third type
oi electronic surveillance, which involves the-acquisition of the contents of certain radio
communications, see id. l801(f) (3), is not implicated, 
.

For the reasons discussed below, the second type of electronic surveillance
de?ned by the Act, which involves the acquisition of certain types of Wire
communications, ?see 1.801(f) (2), is potentially implicated to varying degrees (or not

I at all) in each of the four acquisition authorities at issue. Sec, 8.3Docket No- Application at 18?19, filed Dec. 13, 2006; In 

 

7 Speci?cally, in Docket No. -, the authority granted by the Court required that ?[a]ll selectors shall

be telephone numbers or e-mail addresses that NSA reasonabl believes are bein used by persons
outside the United States," In re

Docket No. Primary Order at 12 (USFISC Apr. 6, 2007)

I (hereinafter '-1I?ri1nary Order"); in Docket? the authority granted by the Court was

?limited to the surveillance of telephone numbers and e-mail accountsiaddressesfidentifiers which the
NSA reasonabl behaves are being used, or about to be used, by persons outside the United States,? In re

   
   
 
     

   
   
 

  
       

Docket No. - Primary Order at 11 (USFISC Aug. 24, 2007) (herein ter
Primary order"); under the PAA, the Government was only authorized to acquire "foreign gence
information concerning persons reasonably believed to be located outside the United States," 510% 

1?21"Stat; at 

through "the targeting of persons reasonably believed to be located outside the United States," 50 U.S.C.
'and'is preliibi't'ed?fror'n "intentionally targ?e?t?iig] any person known'at the time of acquisition
to be located in the United States," id. 1881afb)(1). 

 

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TOP 

Docket No.- Application at 16-17, filed May 24, 2007.8 As noted
above, all communications acquired through NSA's upstream collections under the four
authorities are wire communications, as de?ned by the Act. Because the fourth type of
electronic surveillance specifically excludes the-acquisition of wire communications, see .
id. 1801(f) (4), it does not apply to NSA's upstream collections under the? authorities at
issue. ask/sums) 

I ?Pursuant to the authority granted by this Court in Docket Nos. 
- NSA acquired wire communications through its upstream collections. To the
eXtent that such wire communications (including any discrete communications within
an' MCT) were to or from a person inside the United States, the acquisition of those
communications would have constituted electronic surveillance as defined in
subsection Most of that electronic surveillance was speci?cally contemplated
and approved by the Court in these dochets. However, upon closer review of the
record and as described below, certain wire communications to or from persons located
in the United 'States acquired through NSA's upstream collections may not have been

specifically contemplated by the Court at the time authorization orders were issued in

Docket Nos._ 
a .

TOP 

 

NYT DOJ, 16 CIV 7020_000552

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WSW
- Section 105A of the PAA "carved out" of the FISA Title I definitions of electronic
surveillance, a surveillance directed at a person reasonably believed to be located
outside of the United States. 105A, 121 Stat. at 552 (?Nothing in the de?nition of.
electronic surveillance under section 101(f) 50 U.S.C. 1801(f)] shall ids-construed to
encompass surveillance directed at a person reasonably believed to be located outside
oi the United States"). As explained in detailbelow, NSA's acquisitions pursuant to the
PAA were at all times the product of surveillance directed at persons reasonably
believed to be located outside the United States and thus did- not constitute electronic
surveillance as defined by the Act. Accordingly, section 1809(a) is not impIiCated by
NSA's acquisition of any communications pursuant to PAA -- even those. that may not
have been specifically contemplated or considered by the Court at the time it reviewed
and approved NSA's targeting procedures as required by Section 155C of the PAA.9

Unlike the PAA, section 702 did not exempt-from the Act's definition of

electronic surveillance the acquisiticins contemplated by section 702. Many, if not most,

 

9 As noted above, the scope of judicial review under the PAA was narrow. Section 105B(c) required the
Attorney General to transmit to the Court a copy of each certi?cation. See 105B(c), 121 Stat. at 553.
Section 105C(a) required the Attorney General to submit to the FISC "the procedures by which the
Government determines that acquisitions conducted pursuant to section 1053 do not constitute electronic
surveillance.? Id. 105C(a), 121 Stat. at 555. Following such submission by the Attorney General, the
Court was required to assess the Government's determination by applying a clearly erroneous standard.
See id. 1056303) 121 Stat at 555 ?Attorney General ?and Director of National Intelligence determinations-- - 
regarding the purpose of the acquisitions and adequacy of the minimization procedures were not subject:
to Court review under section 105C 137' 

 

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of the wire communications NSA has acquiredthrough its section 702 upstream -

collections were specifically contemplated and considered by the Court during its
review and approval of NSA's targeting and minimization procedures as required by
section 702(1) of the Acltw However, NSA has also collected certain other i 
communications to or from persons located in the United States through its upstream
collections. pursuant to section 702 authorizations that were not speci?cally

contemplated or considered by the Court at the time it reviewed and approved NSA's

minimization and targeting procedures. 

For the reasons more particularly discussed above, the Government maintains
that it did not engage in unauthorized electronic surveillance, let alone did so
intentionally in violation of section 1809(a)(l). Should the Court determine that
portions of the acquisitions under the four pertinent authorities were not authorized,
the following summarizes the extent to which the Government believes section 
1809(a)(2), which would govern the further disclosure or use of unauthorized
acquisitions, would be implicated. For purposes ofclarity and ease of understanding,

this discussion categorizes the communications at issue in the same manner this Court

 

1" Pursuant to section 702, the Court has jurisdiction to review certifications and minimization and
targeting procedures and any amendments thereto. See 50 U. S. C. 1881a(i)(1)(A). Certi?cations are
reviewed to ensure that they contain all required elements. Id. 1881a(i)(2)(A). Minimization procedures
are reviewed to assess whether they meet the requirements of the Act and are consistent with the Fourth
Amendment. Id. 1881a(i)(2)(C) Targeting procedures are reviewed to assess whether they are

reasonably designed to ensure that acquisitions -?are limited to- targeting persons reasonably .. 

located outside the United States, and to prevent the intentional acquisition of wholly domestic
communications. Id. . - - --.- 

 

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did in its opinion of October 3, 2011. In addition, as used in this discussion, the term
"communication" refers ?to a, single discrete communication within an Internet -
transaction.11 

. A. Active User is the 'l?arget {Si-

Under Docket Nos? the FAA, and section 70;, section 1809(a)
is not implicated at all with respect to the acquisition of 'communications where the
active user is the target. That is because such acquisitions wore clearly authorized
under all four authorities. See, In re DNIIAG 702 Certifications-

-et .1. 
Oct. 3, 

 

11 An Internet transattion may consist of one or more single, discrete communications. See Oct. 3 Mom.

Op. at 15W

12' The Government also notes that the acquisition of communications where the active user is the target in
man cases does not constitute "electronic surveillance." 'With respect to Docket No! Docket No.
and section 702, the acquisition of communications where the active user is target constitutes
electronic surveillance only to the extent that such communitations are to or from a person in the United
States. Under the PAA, the acquisition of all communications where the active user of the transaction is
the target even communications to or from a person in the United States -- is not "electronic
surveillance." As discussed above, the PM removed from FISA's definition of surveillance
"surveillance directed at a person reasonably believed to be located outside of the United States." 105A,
- 121 Stat. at 552. Where the active user of the acquired communication was the target, the surveillance
resulting in that acquisition was directed at a person reasonably believed to be located outside the United



as the persons at whom surveillance is Accordingly, such acquisitions are not "electronic
surveillance" under - - - . .. - .. - 

 

NYT 00.1, 16 CIV 

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13. Active User is Not the Target and is Located overseas 
Under Docket No.- and section 702, the acquisition of communications

where the active user of the conununication is not the target but is located overseas

potentially implicates-section 1809(a), but only under very limited circumstances. First;

section 1809 is not unplicated if the communication of the non-target active user
located outside the United States is_to or from another person located outside the I
United States (including the user of a tasked selector), because the acquisition of such a
communication is not "electronic surv.eillance."13 Second, if the communication of the
non-target active user located outside 'the United States is to or from a ?person located in
the United States (and its acquisition is thu's"e1ectronic surveillance"), section 1809(a) is -

not implicated if the communication is one of the-types of "abouts" communications

- recognized by the Court in Docket No- see In re 

Primary 

Order at 1344. (USFISC Aug. 24, 2007) (hereinafter Primary Order?); under the

PAA, see Op. at 17 section 702, see, 6.3., In re Certification
- Docket No. Mem. Op. at 17-18 n.14 (USFISC Sept. 4, 2008)

(hereinafter "-Mem. It is only in cases Where a communication of the

 

13 Moreover, to the extent that such communications were to or from the user of a tasked selector a

target), the acquisition of such communications was authorized' in any event. 

examPlex as explained by the Court In approving DNIIAG 702(s) Ceruaceeon It?? 3 I

Categories of "abouts" communications include where:

 

NYT DOJ-, 16 CIV 7020_000556

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non-target active user outside theUnited States is (1) to or from a person located in the
United States and (2) either is not one of_ the - types. of "abouts" communications
described to the Court, or the communication does not contain a tasked selector at all,
that section 1809(a) is implicated by the acquisition of cominunications where the active
?user of the transaction is a non?targeted person located overseas. 
The acquisition of communications under Decket No.- where the active
user of the transaction is not the target but is located overseas implicates sect-ion 1809ia)

to an even lesser extent than similar acduisitions under Docket No.-and section

702. As with Docket No. -and section 702, the acquisition of a foreign?based

 

warmly): 

 

NYT DOJ, 16 CIV 7020_000557



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WW

active user's communication does not implicate section 1809(a) if the communication is
to or from another person located outside the United States (including the user of a

(tasked selector), because the communication is not acquired through "electronic
surveillance."15 Unlike Docket No.- and section 702, however, the scope of the 
acquisition 'of "abouts" communicationswas not de?ned under Docket No. - See
- Primary Order at 8_ 11.6 ("The Court understands that?
Will select?0t only international Internet communiCations to and
from agents of [the targeted'foreign powers], but also Internet communications in
which such agents are mentioned in
the Internet communication"). Thus, if the. communication of the non-target active user
located outside the United States is to. or from a person in the United States, its
acquisition was authorized so long as a tasked selector was present in the
communication, regardless of the type of "about" that conununiCation is. I It is only in
cases Where a tasked selector does not appear in a communication between a non?target
active user located outside the United States and a person in the United States that
section 1809(a) is implicated-WSW

Section 1809(a) is not implicated at all with respect to any communication

acquired under the FAA Where the active user of the comm?nication is?

 

 

1'5' Again, to the eX't'ent that such communications Were to or from the user of'a tasked selector a-
target), the acquisition of such communications was authorized in any event..- 

 

NYT DOJ, 16 CIV 7020_000558

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That is because all?such acquisitions under the

PAA resulted from surveillance directed at a person reasonably believed to be located -

outside the United States the non-target active user). Specifically, it the

is ieiween?
?16 The surveillance would also be directed at the non-

target active user located outside the United States it the acquired communication was a
communication sent to or from a person in the United States, even if the communication
did not contain a tasked selector. Cf. PAA Mem. Op. at 21 (accepting, inter alia, that

"abouts" surveillance is directed "at those parties to the acquired communications Who,

by virtue of the use of Internet Protocol filters or 

- are reasonably believed to be located outside the United States"). Accordingly,
such acquisitions do not implicate section 1809(a) because they do not constitute
"electronic surveillance" as defined by 

C. Active User is Not the Target and Whose Location is Not (and Cannot Be)
Known 

Section 1809(a) is not implicated by acquisition under the PM of any

communications Where the active user?s location?is not (and cannot be) known. This is

 

16' The Government also notes that the acquisition of such a communication would not be "electronic
surveillance' even in the absence of the {5 105A- cal-venue because the communication'isnot to or from a 

person in the United States. W.

 

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WSW

most evident when such communication is to. or from a person-located outside the

United States (including the user of a taslred selector),r at whom it can be said the

surveillance resulting in the acquisition is?directed. It is equally true, albeit somewhat

counter-hittiitively, for any communication between an active user whose. location is

not (and cannot be) known and a person located in the United States. As discussed -

above, section 105A of the PAA excluded surveillance that is directed at a person

"reasonably believed" to be located outside the United States from definition of
"electronic surveillance." The means described in the PAA targeting
procedures -- the use of_ 11? filters or 
operated to ensure that acquisitions were directed at a person
reasonably believed to be located outside the Uniied States. just because NSA
ultimately may be unable to determine the true location of the active user of the .
communication does not mean NSA did not reasonably believe, at the time of
acquisition, that the surveillance was being directed at a person located outside the
United States Cf. In re 105B Certifications Doolcet Nos.

Transcript of Proceedings at 47-48 12, 2007) (hereinafter, Transcript")

(recognizing possible wher?

 

NYT DOJ, 16 CIV 7020_000560

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. .
Section 1809(a)(2) is also not iinplicated With respect to acquisitions under

. Docket Docket No.- and section 702 where the Communication is
between a person outside the United States and an active user whose location is not
(and cannot be) known. Section 1809(a)(2), which makes it a crime to intentionally
"disclose[] or use[] information obtained under color of law by electronic surveillance,
knowing or having. reason to know that thelinformaiion was obtained through
electronic surveillance not authorized by this Act," among other authorities. If the
location of the non-target active user cannot be determined, and. the other communicant
is known to be located outside the United States, then one cannot "know[] or hav[e].

reason to know" that the communication was acquired through electronic surveillance

.atau. 
I Mem. Op. at 114 (USES-hereinafter Mem. Opi?) (recognizing .
that "it might not be apparent from available information whether the communication

to which a piece of data relates is to or from a person in the United States, such that
acquisition constituted electronic surveillance as defined in Section Section
1809(a) (2) can hardly be said to be implicated by the use or disclosure of

communications acquired under such circumstances. See id. alt-115 ("When it is not
known, and there is no reason to know,- that a piece of information was acquired

ilir_ou_g_h elecnpigsuryeiliance not authorized by the Court's prior orders, the

 

NYT DOJ, 16 CIV 7020_000561

Approyed for public release. - All withheld information exempt under b(1) and except as othenNise noted.
. information is not subject to the criminal prohibition in Section 

Under Docket No.- and section 702, it is only in cases where the active user
is. a non-target whose location is not (and cannot be) known communicates with a
person'in the United States that section 1809(a)(2) is potentially implicated. Yet if the
communication of a non-target active user whose location is not (and cannot be) known
is to or. from a person in the United States, its acquisition under those two authorities
does not implicate Section 180?(a) (2) if the acquired communication is one of the -
types of "abouts" communications recognized by the Court. Under Docket-No. -
and section 702, it is only in cases Where the communication is not one of these -
types of "abouts" communications, or the conununication does not contain a tasked 
selector at all, that implicated by the acquisition of a communication to or

I from a person in the United States Where the location of the non?target active user is not
(and cannot be) known. 

Acquisition under Docket No -of communications to or from a person in
the. United States where the location of the non-target active user of the communication
is not (and cannot be) known implicates section 1809(a)(2) to an even lesser extent than
similar acquisitions under Docket No.- and section 702. That is because, as

_dispussedlaboyedhescope of the acquisition of "abouts" communications was not

defined under Docket Thus-,if the-conununication is between anon-target.

 

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active user whose location is not (and cannotbe) known and a person in the United
States, its acquisition was authorized so long as a tasked selector was present in the
communication, regardless of the type oi "about" that communication is. It is only in 
'cases where a tasked selector does not appear in communication between a non?target
active user Whose locatiOn is not (and cannot be) known and a person in the United .
I States that Section l809(a)(2) is implicated-W 
D. Active User is Not the Target and is Located in the United States 

Section 1809(a) is not implicated at all with respect to the acquisition of
communications under the where the active user is not the target and is located in
the United States. Section 105A of the PAA excluded from the definition of "electronic
surveillance" surveillance that is directed at a person reasonably believed to be located
outside the United States; See 105A, 121 Stat. at 552. As discussed in more detail 
below, communications acquired under the PAA where the active user was located in
the United?States even? those that do not contain a tasked selector -- were the product
of surveillance directed at a person reasenably believed-to be. located outside theUnited
States, and thus did not constitute "electronic surveillance" by virtue of section 105A..



This conclusion is most obvious where the communication is between a 

ss?rs user and. @269?st the. __t112__ . 

surveillance is clearly directed at the foreignebased target. See PAA Mem. Up.- at 13

 

NYT DOJ, 16 CIV I

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is natural to think ofthe users of the tasked facilities as the persons at whom-
surveillance is Somewhat less obvious, but no less true, are instances 
where the communication is between a ased active user and a non-target
reasonably believed to be located outside the United States. Cf. PAA Mem. Op. at-21 I .

(accepting, inter alia, that "abouts" surveillance is directed "at those parties to the

acquired communications who, by virtue of the use of Internet Protocol ?lters or-

are reasonably believedto be located outside

the United States"); In re 105B Certi?cation - Ex. A (NSA Targeting
Procedures), filed Aug. 17, 2007, at 1-2 (?In addition, in those cases Where NSA seeks to
acquire communications about the target that is not to or from the target, will

either employ an Internet Protocol ?lter to ensure that the person from Whom it seeks to

obtain foreign intelligence information is located overseas, o?
In either event, NSA will direct surveillance at a

party to the communication reasonably believed to be outside the United States?).

I Under the PAA, even the acquisition of communications that were in fact sent
between an active user in the United States and another person in the United States did
not constitute "electronic surveillance," so long as at the time of acquisition NSA

reasonably believedlthat one of those communicants was located outside the United 

States. As discussed above,? section 105A of the PAA excluded surveillance that is

 

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WSW
directed at a person "reasonably believed" to be located outside the United States from
FISA's de?nition of "electronic surveillance." The means described in the NSA's PAA

targeting procedures is, the use of Internet Protocol (1P) ?lters or-
were reasonably designed to ensure
that each acquisition was directed. at a person reasonably believed to be located outside
the United States." That this reasonable belief may ultimately have proven to be
mistaken does not mean that the acquisition resulted from ?electronic surveillance"
because the. communication was in fact to or from a person in the United States. Cf. .

-Mem. Op. at 25 "the government is authorized [under section
702] to acquire communications when it has a reasonable, but mistaken, belief that a.

target is a non-US. person located outside the United States"); PAA Transcript at 4748

(recognize possible scenario-wher?




 

1? As previously explained to the Court, these means are employed with respect to any Internet
transaction acquired through NSA upstream collection, not just "abouts." 833 June 1 Submission, at 5.



13 The Court also concluded that "abouts" acquisitions were directed at the users of the tasked selectors

referred to in those. communications, rather than the senders or recipients of the communications. See

- -- -- 
government notes that the acquisition of wholly domestic "abouts" communications would not be

"electronic surveillance" under?tide theory either-[because such surveillance Would'have'been' direCted at

the foreign?based user of the tasked selector. 

 

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Of course, section 1809(a) is potentially implicated under Docket No. -
Docket No.- and section .702 in cases Where the active user is located in the
United States. That is because every such communication would be to or from a person
in the United States the U.S.-based active user) and, therefore, their acquisition
would constitute electronic surveillance as defined insection 1801(f)(2). Thus, the
relevant inquiry here focuses solely on whether such electronic surveillance was
authorized. Most obviously, section'1809(a) is not implicated by the acquisition of
communications between an actiVe user in the United States and a user of a tasked
selector, because such acquisitions would in all cases be authorized (2) electronic
surveillance. At the other end of the spectrum, the acquisition of the communications of
a U.S.-based active user that do not contain a tasked selector implicates section 1809(a)
if it is ultimately concluded that such acquisitions are not authorized. -
Falling between these two extremes is the acquisition?of "abouts" . 
communications of a U.S.-based active user. Under Docket N0.-, the acquisition
- oi all types of "abouts" communications of a U.S.?based active user would be authorized
(2) electronic surveillance because, as discussed above, the scope of the acquisition of .
"abouts" communications was not-defined under-. However, only those
"abouts" communications of aU.S.-based active user that fall Within th' types of

"abouts" described to the Court section 702 would be

authorized surveillance. 

 

NYT DOJ, 1s CIV 

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As with the?lSAA, the acquisition of wholly domestic "abouts" communications
under Docket and -does not implicate section 1809 To acquire a
communication under the authority granted in lDocket No. - NSAtwas required.
to establish probable cause to believe that at least one party to the communication was

outside the United States. See -Prnnary Order at 12 To establish this probable

NSA employed 1P ?lters either of these means

would ."reasonably ensur[e] that the [acquired] Communications originate or terminate
in a foreign COuntry." I d. That this probable cause determination may ultimately have
been proven wrong in a particular case does?not mean that the resulting acquisitions
did not comport with the Court's order and thus-were unauthorized. See,? 8.3., Illinois 
Rodriguez, 497 US. .177, 195 (1990) possibility of factual error is built into the 
probable cause standard"); Illinois v. Gates, 462 US. 215, 246 n.14 (1983) (?Probable
cause . . .'si1nply does not require. [1 perfectionfl). Indeed, this Court explicitly - I

. recognized that NSA's IP filters would not in all cases prevent the acquisition of all

wholly domestic communications. 58- Primary Order at 8 n.7 

 

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_"iesaawa 

The same holds true for the acquisition of wholly domestic "abouts"
communications under Docket No- Although the order entered in Docket _No.
_iid not require NSA to establish probable cause to-believe that a party to an
acquired communication be located outside the United States, the Goverrunent's
authority to acquire "abouts" communication-s under that docket viras nonetheless
limited to communications as to which reasonably believe[d] that the e?mail
account/address/identi?er [sending or receiving the labouts't communication was] being
?used, or_ [was] about to be used,- by persons located outside the United States." 
Primary Order at 15. The means approved by the Court for NBA to use to formulate
that reasonable belief were the same .methods used under Docket No. - See
a. at 21 (recognizing that?
IP'filters may be used "to increase the chances of collecting foreign
communications" and "to minimize acquisition of communications-Wholly Within the .
United States"). Again, like under the PAA and Docket No.-the fact that these
?mechanisms did not-in all cases prevent the acquisition of Wholly domestic

_communications is not with this reasoiiable belief_; nor. does it mean that an

 

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acquisition conducted under that reasonable belief was unauthorized. See, 
Rodriguez, 497 US. at 195,- Gates, 462 US. at 246 mill?W

Section 1809(a) is implicated by the acquisition of "abouts? communications
between a U.S.?based active user and another person in the United States under section
702. However, the Government notes that this Court recently held that NSA's targeting
procedures are reasonably designed to prevent the acquisition of such communications, 
and that their acquisition does not run afoul of section 702(b)(4). See Oct. 3 Mom. Op. at

47-48. 

3. Whether the collections under ?Section 1881a, the FAA, and Docket Nos. - 8:
-include information that was not authorized for acquisition, but is not
subject to the criminal prohibitions of Section 

Should the Court determine that NSA's upstream collection of communications
that included "abouts" communications outside of the-categories previously
speci?ed to the ?Court in Docket No.- the FAA, and section 702,19 as Well as those
discrete communications collected under. all four pertinent authorities that are not to,
from, or about a tasked selector, was not authorized, the Government believes that the

- following categories of information, although unauthorized, would not be subject to the

provisions of section 1809(a), because they do not constitute electronic surveillance, as

de?ned by 

 

1-9- As noted. above, the categories of "abouts" communications that could be acquired were not discussed 
or speci?ed under the authorities granted in Docket 

   

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(1) Where the active user is the targe_t: As discussed above, where the active user

 

is the target, all acquisitions were clearly authorized under all four authorities.
(2) lNhere the active user is outside the United States or the active ?user's location
is not (and cannot be) known: In such situations, acquisition would have been
unauthorized, but would not have constituted electronic sme?lance and
therefore not subject to section _1809(a) in two situations, both of which would
require the active user to be communicatin?

I - First, under Docket No.- the FAA, and sectiOn 702, collection
would be unauthorized where the acquired communication was about a tasked .
selector, but was not one of the lategories of "abouts" comtnunications
previously specified to the Court (seafootnote 14, supra). I Second, for all four
authorities, collection would be unauthorized, but'not subject to 
Where the discrete communication acquired (whether standing alone or within
the context of an MCT) was not to, from, or about a tasked selector. 
(3) Where the active user is located inside the United States: As described above,

I due to the user's location in the United States, any unauthorized acquisition
under Docket Nos-and- as well as section 702 would constitute

therefgtewopld 

be subject to section 1809(a). Acquisitions under'the PAA, which as discussed

 

NYT DOJ, 16 CIV 7020_000570

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4W

above were exempted from definition of electronic surveillance, would
have been unauthorized, but not subject to section 1809(a), where the acquired .
communication was about a tasked selectorpreviously described categories of "abouts" communications, or (ii) Where the
acquired discrete communication (Whether standing alone or within the context

I I of an MCT) was not to, from, or about atasked selector. 

4i 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 

As indicated above, NSA is implementing a reduced retention period of two years
for upstream Internet collection from Docket Nds.-and-, the FAA, and
section 702, thus accelerating the scheduled age-off of such collection in NBA systems.20
Doing so will require NSA to make significant adjustments to the software and
handling rules associated with its repositories, and NSA estimates that it may take until
at least March 2012 to responsibly complete the accelerated age?off without adyersely 
- affecting the data repositories and technical infrastructure NSA relies upon to
appropriately handle the information it acquires pursuant to its section 702 authorities.
NBA will update the Court on its progress at appr0priate intervals and provide final

noti?cation once the accelerated age?off process has been completed.21 The age-off will

 



'21?'In the course of effecting the actions described herein, may determine that it is necessary to'subm'it 
amended procedures in response to operational concerns. 45)? 

 

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q-r-J

Approved for release. All withheld information exempt under 123(1) and ms) except as otherwise noted.


result in a signi?cant reduction in the amount of data that might contain information
subject to section 1809(a)(2) should the Court determine that. certainasp?ects of NSA's 
collection of Internet transactions upstream was not authorized. 

The material collected pursuant to Docket 
10513 Certifications_ under the FAA, and section 762 is subject to a five?
year retention period, which is still in eifect fer all. of these authorities. Accordingly, the
oldest of. the material is not due to begin to age off until 2012. However, as set forth
above, NSA is currently in the process of applying an accelerated age?off to the 
upstream data collected pursuant to these authorities. 

As lot the time of this ?ling, SA has con?rmed that unevaluated Internet
transactions collected pursuant to PAA 105B Certi?cati0n__
?during the first twelve months it was in effect 22
all of which featured a one-year retention period, has aged-off in NBA collection stores,
corporate stores,_ and some, of NSA's backup systems; Thus, the data

from _emains in certain NSA backup. systems, but will eventually be



 

22 1053 Certification 08:01?

 

1053 Certi?cation 08-01. 

"'23 maintains backup and archivesystemswhose functionas to- provide data- recovery -i-n~the event of"
a system failure or other disaster.- The material which has not age d-off' 1n the backup systems is not
available for use by intelligence Because of the varied nature of the indiVidual backup Bystanis;' 
NBA will assure compliance with the retention periods for collected data by requiring each system to

 

NYT DOJ, 1'6 CIV 7020_000572

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

However? as noted

above, the accelerated age?off process Will remove the upstream data from 

. 1053 Certification 08-01 that is subject to the four?year extension, as well as Internet

transactions collected pursuant to the PAA to the extent that those transactions had
been evaluated, in Whole or in part, and determined to be suitable for retention in
accordance with the applicable minimization procedures. 

5. If the government has determined that it has acquired information that is subject
to Section 1809(a) or was otherwise unauthorized: {53- 

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). fS)- 
As noted above, for technical reasons, NSA will not be able. to apply retroactively

the segregation process described in section of the 2011 Amended NSA

Minimization Procedures to Internet transactions acquired via its upstream collection

- techniques prior. to October 31, 2011. . That data has already been distributed into NSA

repositories. It would not be technically feasible for NBA to reach into those
repositories and retroactively apply the segregation process described in section.
of the 2011 Amended NSA Minimization Procedures to data that is already

Within them. For that reason, and to' further maintain consistency of its minimization

 

maintain the integrity of the through?system requirements Which will ensure that aged?
off data is not reintroduced into collection, corporate, andfor analytic stores. 

 

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proceduresacross acquisitions pursuant to multiple 702(g) certi?cations, NSA
will train its to conduct the analysis set out in section of the 2011

Amended NSA Minimization Proeedures to all MCTs encountered by an analyst and

make use of only those portions of an MCT authorized by section 

Irrespective of the Court's ?nal determination regarding the application of

I section 1809 (2), NSA fully intends to apply the requirements of sections 
and 3(c) (2) of the 2011 Amended NSA MiliilniZation Procedures to any use of Internet
transactions previously collected through NSA's upstream collection techniques. Thus,
NSA will apply the applicable portions of the2011 Amended NSA -
Minimization Procedures to all MCTs collected through NSA's upstream collection
techniques prior to the Attorney Ceneral's adoption of the amended minimization
procedures on October 31, 2011, and like all other upstream collection, information that
does not meet the retention standards set forth in the amended procedures will only be
retained for two years in any event. 

b. ?That steps is NSA taking to ensure that such information subject to 1809(a)
is not used in proceedings before the Court??ES)? 

As re?ected in the Government's Notice of Clarifications filed on August 30, 2011,

NBA has implemented a process to review information from upstream Internet
- transactions prior to use in FISA applications or other submissions to this Court

- With section in the? 2011 Amended NSA Muurnlzatlon Procedures

See Notice of Clarifications, Docket Nos? filed

 

DOJ, 16 CIV 7020_000574

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August 30, 2011, at 9-10; see also 2011 Amended NSA Minimization Procedures,

NSA will work with the Department of Justice to implement the same
process for any communications acquired pursuant to the four pertinent authorities
whenlthose communications are relied upon in a submission-to this Court made by the

Central Intelligence Agency (CIA) or Federal Bureau of Investigation (FBI). See 2011
Amended NSA Minimization Procedures, 

c. What steps is the government taking to remediate any prior use of such
information in proceedings before this Court. 

For all new applications to the Court that rely upon NSA information contained
in a previous PISA application, the Government will ensure that information is
subjected to the same process described above that is required by . section of
the 2011 Amended NSA Minimization Procedures. In particular, as noted above, NSA
will work with the Department of Justice to implement that process for any
communications accluired pursuant to the four pertinent authorities when those

communications are relied upon in a submission to this Court made by CIA, FBI, or-

 

- 24 As discussed in the 2011 Amended NSA Minimization Procedures, NSA may not use
communications that are not to, from, or about a tasked selector, but are to or from US. persons or
persons located in the United States, except to "protect against an immediate threat to human life." See
2011 Amended NSA Minimization Procedures, Moreover, "if technically possible or
reasonably feasible,? NSA will document their determination that a discrete commur?cation not
to, from, or about a tasked selector is to or from an identi?able US. person or person reasonably believed
't'o'bEIo?t?ed intiteUrdtedStates.? Tome?extent the - -- - 
use of discrete communications in an MCT, those discrete communications (including any U.S.-person
- information contained the?rein) must be handled inaccord'ance With the applicable provision?s of the -

minimization procedures. See id. and 

 

45

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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 

This question necessarily encompasses two separate categories of information.
Because section 1809(a)(2) only reaches the disclosure or use of information a person
knows or has reason to know was obtained under color of law Via unauthorized
electronic surveillance as defined in section 1801(f) 0f PISA, the first category of_
information would include single, discrete communications within an where NSA 
does not know, and has no reason to know, that such communication was acquired
under color of law through electronic surveillance which was not authorized?5 For
example, and as described above, under certain circumstances when the
communication is between a person outside the United States and an active user whose
location is not (and cannot be) known, NSA may have no way to determine based on
available information whether a single; discrete communication (or metadata extracted

from that communication) was sent to or from a non-targeted person actually located in

the United States such that the acquisition constituted electronic surveillance. as defined

 

15 This Court has previously concluded that section 1809(a)(2) does not criminalize all disclosures or uses
of unauthorized electronic surveillance. Section 1809(a) (2) reaches disclosures Or use only by a person

"knowing or having reason to known that the information was obtained through" unauthorized electronic

surveillance. 50 U.S.C. 1809(a)(2). -"When it is not known, and there is no ?reason to know, that a piece

acquired --

orders, the information is not subject to the criminal prohibition in Section See Men-1'.

Op. at 115. f5}

 

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by section The second'category of information obviously wouldlinclude
single, discrete communicationslwithin an MCT which NSA knows or has reason to
know were not acquired through unauthorized electronic surveillance. Such
communications would include, for example, single, discrete communications within an

MCT as to which the active user is a non?target Who?is reasonably believed to be located

outside the United sette?
?T1e Government does

not believe that there should be any restriction on its ability to retain, access, or use
these two categories of information consistent with the applicable portions of 
minimization pro canes?W

Single, discrete conununications Within which do not contain the
presence of a tasked selector (and which fall into one of the two categories set out above)
may nevertheless containforeign intelligence information which is relevant to the
authorized purpose of the acquisitions conducted pursuant to the four relevant
authorities, and NSA is required to limit its queries to those which are reasonably
designed to return foreign intelligence information. 536, 3.3., 2011 Amended NSA
Minimization Procedures, Moreover, as described above-NBA has committed

to?applying section of its amended section 702 minimization procedures to its

 


information was obtained through unauthorized electronic surveillance, the Court has previously found
that "neither Section 1809(a)(2) nor any other provision Of law precludes it from authorizing the 
government to access and use this category of information." Mem. Op. at 115. (S)

--NYT DOJ, 16 CIV 7020_000577

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.. . I .
historical holdings, including transactions acquired pursuant to all four authorities at
issue. Accordingly, even if the Court were-to conclude that NSA's acquisition of certain
information historically was not authorized, application of section of NSA's

amended minimization procedures to its historical holdings would reasonably ensure
that only information in MCTs which does not constitute electronic surveillance as
defined by section 1801(f)(2) of Pisa would be used or disseminated. 

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. - 

After-a thorough review of these-collections, the Government has determined
that there are no other matters that need to be brought to the Court's attention at this

time that irnplicate section 1809(a) or that were unauthorized. 

Respectfully submitted,

Tashina Gauhar
Deputy Assistant Attorney General

 

National Security Division


 

NYT 16 CIV 

Approved for public retease, . All Withheld information exempt under b(1) and b(3) except as otherwise noted.
VERIFICATION
. I declare under penalty of perjury that the facts set forth in the. atteched
GOVernmeht's Response to the Cottrt's Erie?ng- Order of October 13, 2011, are tt'ite and
correct based upon my best information, knowledge and Belief. Exeeuted. pursuant to 

Title '28; United Stat'esCode, 1746 on this'?nd da 'of November, 2011.

   

Signals?Intelligence ComplianceArcl?tect
National Security Agency

 

NYT DOJ, 16 CIV 7020_000579

   
  
  

Approved for public release. I All withheld information exempt under b(1) and b(3) except as otherwise noted.

WW

UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT . EE
WASHINGTON DC. 5 .

ME
THE UNITED STATES OF AMERICA, through the undersigned Department of

Justice attorney, respectfully submits this notice concerning the above?captioned

matters. 

Tashina Gauhar Assistant
eneral, NSD, 

  
  
 

 
  

Class 1

   
    

Reason: 
assify on: 29 November 2036 .

NYT DOJ, 16 CIV 7020_000580

 

Approved for public release. All withheld information exempt under b(1) and b(3) except as othenNise noted.

WSW
On April 13, 2011, the Director of National Intelligence and the Attorney General
executed amendments to the above-captioned certifications. Those amendments
- authorized, inter alia, the use of the National Security Agency (NBA) section 702 
minimization procedures" submitted with 702(g) Certification?
- connection with foreign intelligence information acquired in accordance
with the above-captioned certifications. On October 3, 2011, this Court issued a
Memorandum Opinion and Order finding, inter alia, those NSA section 702
minimization procedures deficient in certain respectsCerti?cations _Docket Nos?
?Order at 3 (USFISC Oct. 3, 2011). The Court further ordered the
Government to, at its election, c'orrect within thirty days the deficiencies identified in
the Memorandum Opinion and Order, or cease the implementation of the certifications
to the extent they permit acquisitions implicating the deficiencies. See' id. at 3?4;
On October 31, 2011, the Director of National Intelligence and the Attorney
General executed amendments to Certi?cations?
1- Those amendments authorized the immediate use of amended NSA section 702
. minimiZatiOn procedures containing additional proyisions intended to correct the

deficiencies identified by the Court in its Memorandum Opinion and Order of October

 

2011'? 111? ?p articular?he?amended section70-2- minimization procedures require

 

DOJ, 16 CIV 7020_000581

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WW

that as certain specific types of Internet transactions are acquired under 702(g)
Certifications? those transactions shall be segregated and .
subjected to special access and handling rules. The amended NSA section 702 
minimization procedures also limit retention of all Internet transactions acquired .
under 702(g) Certi?cations and, impose additional
requirements that must be met before NSA contained in
?the transactions. The amended certifications, along with the amended NSA section 702
minimization procedures, were submitted to the Court for its review on October '31,
2011. 

As explained to the Court in the Government's Response to the Court?s Briefing
Order of October 13, 2011, the Government cannot retrospectively apply all of the
additional requirements in the amended NSA section 702 minimization prbcedures to
communications that have already been acquired under theabove-captioned
certifications, all of which have already expired. See Government's Response to the.
Court's Briefing Order of Oct. 13, 2011, Docket Nos?
_filed Nov. 22, 2011, at2-3 n.1. In particular, it is technically infeasible for
NSA to apply the above-discussed segregation process to communications that have
already been acquired under the above?captioned certifications. Id. at 2?3. The
Government continues to evaluate the most appropriate means of handling

communications acquired under the above-captioned certifications, and accordingly

3 .

NYT DOJ, 16 CIV 7020_000582

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WW
intends to expeditiously submit to the Court amended NSA minimization procedures.

In the interim, and as more specifically described in the Government?s Response
to the Court's Briefing Order of October13, 2011, NBA has been applying and will
continue to apply the additional requirements in the amended NSA section 702

minimization procedures that can feasibly be applied to Internet transactions that have

already been acquired under the above?referenced certifications. 

Respectfully submitted,

 

National Security Division
US. Department of Justice .

NYT DOJ, 16 CIV 7020_000583

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VERIFICATION.

I declare under pen-altyof perjury that; the fapts set forth in the attached Not-ice of-
Clar?i?tation, :are true and. correct- b'ased upon. my best information, knowiiedge and
belief. Executed pursuant to Title. 28, United States Code, ?2746, on this 29th day of

November, 201.1. 

    

Signals Intelligence Directorate'CoInpliame Architect:
ationalS?curity.Agency 

 

NYT DOJ, 16 CIV 7020_000584

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APPROVAL
Ihereby approve the filing of this Veri?ed Notice with respect to the above?

captioned docket mimbers With the United States Foreign Intelligence Surveillance

  
 

 

Court. 
Eric H. Holder, Ir. (I
Attorney General of the Uni States
i - 
Date

NYT DOJ, 16 CIV 7020_000585