Hearing Date: June 7, 2017 Committee: SSCI Member: Senator Feinsteln Witnesses: Director Coats, DNI Mr. Rosenstein, DAGIFBI Mr. McCahe, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) Pursuant to the USA FREEDOM Act of 2015 (ER. 2048, EL. 114-23), the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review are authorized to appoint quali?ed attorneys to serve as amicus shrine "in any instance as such the court deems appropriate." In November 2015, when the FISC approved the government's proposed Section 702 certi?cations, the court invited the participation of an outside counsel to serve as an amicus curiae, to provide the court with arguments relating to the constitutionality of the government's proposed use of Section 702. I was glad to see the FISA court using this provision, and I think the court bene?ted iron: the insights and advocacy of the outside counsel. 93911231: Does the Department of Justice believe it would be helpful to require the FISC to appoint an unions to participate in the court's proceedings whenever the government seeks court approval of an annual certi?cation? Ifnot, why not? new (U) The USA FREEDOM Act of 2015 granted the F180 and FISC-R the authority to appoint amicl curiae to present those courts with the views of individuals outside of government. In a number of FISA matters, including during its review of the 2015 Section 702 certi?cations, the FISC has exercised its authority to appoint an amicus curiae. We believe that vesting the discretion of whether to appoint an amicus curiae with the FISC and FISC-R strikes the appropriate balance. Indeed, absent a written ?nding that such appointment is not appropriate, FISA already requires the F180 or to appoint an amicus curiae in cases that present a ?novel or signi?cant interpretation of the law.? 50 U.S.C. 1803(i)(2)(A). In all other matters, these courts may appoint an amicus cmiae, ?including to provide technical expertise, in any instance as such court deems appropriate.? Id. (U) The appointment of an amicus curiae is not without e?iect. Notably, it is likely to increase the time needed for the government to obtain the authorities it is seeking. For instance, in 2015 when the F130 appointed an amicus curiae in connection with its review ofthe Section 702 certi?cations, the Court ultimately extended the time for its consideration of the 2015 Section 702 certi?cations by 90 days, issuing an opinion and order approving those certi?cations more than two months alter the statute otherwise would have required. As the government noted at that time, such a delay could be hannful to national security under certain scenarios, for instance if the government were to submit an additional certification or make an important time sensitive change in the Section 702 targeting or minimization procedures. (U) Separately, when submitting renewal certi?cations, there may be few, if any, changes to those certi?cations or accompanying procedures compared to prior years. Indeed, renewal certi?cations submitted by the government often look substantially the same as the certi?cations they are renewing, and have often been accompanied by at least some sets oftargeting or minimization procedures that are identical, or virtually identical, to those previously approved by the Court. In cases where renewal certi?cations essentially keep the status gun, the mandatory appointment of an amicus curiae would add little value to the deliberations. (U) In sum, the government believes that current approach with respect to the appointment of amici curiae is appropriately deferential to the F150 and Pisa-R, and grants these courts proper discretion to determine whether such appointment is appropriate or informative to the Court?s consideration. Were the F150 stripped ofthat discretion, there would, at best, be delays and unnecessary eXpendimres oftime and resources and, at worst, harm to the national security. Hearing Date: June 7, 2017 Committee: 8801 Member: Senator Feinstein Witnesses: Director Coats, DNI Mr. Rosenstein, DAGIFBI Mr. McCabe, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) The following questions are directed to the NSA and the please answer separately as it pertains to Section 702 collection: mention 1: Who can request that your agency unmask a U.S. person identi?er? Anger: (U) For Senator Feinstein and Senator Blunt's questions, we understand the term to mean the dissemination of us. person identifying information in response to a request from a recipient of an intelligence product that did not originally contain such identifying information. (U) At NSA, any authorized recipient ofa particular NSA alomr report can make a request to receive identifying US. person information that was not originally included in the report. (U) Similarly, at FBI, any authorized recipient of an FBI report may request that FBI provide identifying infonnation that was not originally included in the report. Hearing Date: June 7, 2017 Committee: SSCI Member: Senator Feinstein Wimesses: Director Coats, DNI Mr. Ro sen stein, m. McCabe, Acting DIEBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 (U) The following questions are directed to the NSA and the please answer separately as it pertains to Section 702 collection: saying}: What is the process for nnmaslring a U.S. person identi?er? earner: (U) Each agency?s court-approved Section 702 minimization procedures establish the legal requirements for disseminating identifying U.S. person information acquired through Section 702 collection, whether in a report in the ?rst instance or in response to a request from a recipient ofa report that did not originally contain that identifying information. US person information acquired through Section 702 may not be disseminated unless it satis?es the requirements of the court- approved minimization procedures. Therefore, if US person information can be disseminated under the minimization procedures, whether the agency continues to mask that information is a matter of internal policy and practice. Section 702 minimization procedures allow NSA to disseminate U.S. person information acquired ?-om Section 702 only if doing so meets one of the speci?ed reasons listed in minimization procedures, including that the U.S. person consented to the dissemination, the U.S. person information was already publicly available, the U.S. person identity was necessary to understand foreign intelligence information, or the communication contained evidence of a crime and is being disseminated to law enforcement authorities. As a matter of internal policy, even if NSA would be allowed to disseminate the U.S. person identity pursuant to its minimization procedures, NSA frequently masks the U.S. person identity when issuing the report and only unmasks the identity if an intelligence consumer makes a request that satis?es the requirements of the Section 702 minimization procedures. (U) Similar to the NSA, the Section 702 minimization procedures allow the FBI to disseminate non-publicly available information regarding unoonsenting U.S. persons acquired under Section 702 only when the information is foreign intelligence information, necessary to understand foreign intelligence information or assess its importance, or evidence of a crime. However, the FBI's internal policies regarding "unmasking? differ ?om largely due to the dual mission as both a domestic intelligence and law enforcement agency. (U) The mission, authorities, and investigative interests are almost entirely U.S. person focused and involve domestic operations. As a resl?t, when consistent with the minimization procedures, the FBI regularly disseminates intelligence with U.S. person information provided and not "masked? - in orderto protect the United States against national security and criminal threats. For example, the FBI may disseminate to a city's police department the identity ofa city o?icial where the FBI has observed indications that a terrorist group poses a threat to that o?icial. The identity ofthe city of?cial can be disseminated under the FBI's minimization procedures because it is necessary to understand foreign intelligence information, see 50 U.S.C. (?information that . . . is necessary to? the ability of the United States to protect against actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power?). Dissemina?ng such information, moreover, is at the core of the mission: protecting the American people. When the FBI disseminates a U.S. person identity, such as this one, it does not do so broadly. The FBI only disseminates U.S. person information to the relevant national security or law enforcement entity, or entities, with responsibility for addressingthe threat. Hearing Date: June 7, 2017 Committee: 8301 Member: Senator Feinstein Witnesses: Director Coats, DNI Mr. Ros enstein, DAGIFBI Mr. McCahe, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) The following questions are directed to the NBA and the please answer separately as it pertains to Section 702 collection: gm: Who at your agency has the authority to unmask US. person identi?ers? Answer: (U) Pursuant to internal policies, and subsequent delegations made by the director of the NSA (DIRNSA), there are a total of 20 individuals serving in 12 positions across the Agency who possess authority to approve the unmasking and dissemination of US. person identity information for foreign intelligence purposes. Those individuals include DIRNSA and senior of?cials in the National Security Operations Center. The circumstances under which each of these individuals may approve a dissemination varies based on the US. person identity in question and the facts surrounding the request. Only DIRNSA or the General Counsel may approve the dissemination of evidence of a crime solely for a law enforcement purpose. (U) The FBI does not restrict the decision to disseminate U.S. person information to select positions. Rather, the decision whether to disseminate US. person information typically resides with the FBI agent and conducting the fully predicated investigation in which the FBI acquires the Section 702 information. This level of decision making comports with the domestic-focused mission, as discussed above in the answer to Question 2. A sampling of those decisions to disseminate U.S. person information are subsequently reviewed by the Department of Justice to determine whether those dissemination decision were consistent with the Section 702. minimization procedures. 10 Hearing Date: June 2017 Committee: SSCI Member: Senator Wyden Witnesses: Director Costa, DNI Mr. Rosenstein, Mr. McCahe, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 (U) During the Committee's open hearing, Director Coats stated that would be asking trained NSA to conduct intense identity veri?cation research on potential persons who are not targets of an investigation. From a privacy and civil liberties perspective, I ?nd this unpalatable." M991: Have the privacy and civil liberties implications of providing an estimate or "relevant metric" for the number oi'U.S. persons or persons inside the United States subject to incidental collection under Section 702 been formally analyzed by the Privacy and Civil Liberties Oversight Board the ODNI's 0mm of Civil Liberties, Privacy and Transparency; or any other relevant entity within the US. government? Ifso, please provide that analysis to the Committee. er: (U) ODNI and NSA considered the privacy and civil liberties implications associated with e?'orts to generate an estimate or relevant metric for the number ofU.S. persons or persons inside the United States subjectto incidental collection under Section 702. More speci?cally, over the course of many months, Civil Liberties and Privacy Of?ce (CLPO) thoroughly exan?ned the different approaches for developing a meaningful and reliable estimate of the number ofU.S. person communications incidentally collected under Section 702. These efforts were documented in a letter shared 1with the Committee on July 17, 2017. A copy of the letter is attached, which sets forth our analysis. As discussed in the letter, this e??ort was done in close collaboration with ODNI's O?ice of Civil Liberties, Privacy and Transparency (CLPT). In addition, guidance was sought from the PCLOB and civil society. 13 Hearing Date: June 7, 2017 Committee: 8801 Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosensteln, DAGIFBI Mr. Mchbe, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 (U) During the open hearing, Director Coats referred to "scores of that would have to be shifted from key focus areas such as countertemdsm, counterinteliigenee, counterproliferatlou, issues with nations in which, such as North Korea, we need - and Iran- we need continuous and critical intelligence missions." He added can't justify such a diversion of critical resources and the mass of critical resources that we would need to try to attempt to reach this, even without the ability to reach a de?nite number." Qu?on 3: Has the IC conducted a formal assessment of the resources, including the number and time of personnel, needed to produce an estimate. range or "relevant metric" for the number of us. persons or persons inside the United States subject to incidental collection under Section 702? If so, please provide that assessment to the Committee. Anger: (U) Yes, as provided to the committee in the in the 17 July 2017 letter to the House Judiciary Committee, a copy of which was provided to the appropriate oversight committees. 14 Hearing Date: June 2017 Committee: SSCI Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosenstein, Mr. McCahe, Acting DIFBI ADM Rogers, DJNSA Info Current as of: July 14, 2017 During the open hearing, Dh'ector Coats stated want to provide one ?nal example that I have, for the purposes of today's hearing, chosen to declassify using my authority as the Director of rational-Intelligence to further illustrate the value of Section 702. mention How does this declassliication process differ from the consideration ofwhether to declassify information related to Section 702 collection in the context of criminal proceedings? AME (U) Under section 3.1(d) of Executive Order 13526, the Director of National Intelligence may declassify information ifhe determines that the ?public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.? A?er consulting with the relevant agency heads, Director Costs relied on this authority to declassify a care?rlly worded description of how Section 702 collection contributed to the successful removal of Islamic State of Iraq and the Levant operative Haiji Iman from the battle?eld. The IC undertook this process in response to'numerous requests from Congress for a declassi?ed example of how Section 702 makes Americans safer. (U) Similarly, in the context of criminal proceedings involving classi?ed information, consistent with 51.0. 13526, the relevant agency o?clal has a responsibility to properly protect classi?ed information and must determine "whether the public interest in disclosure omweighs the damage to the national security that might reasonably be expected from disclosure." ED. 13526 Based on a variety of factors, the IC agency o?icial assesses whether the declassi?cation of information, at any given time, may lead to an unacceptable risk of compromising ongoing hives?gations or operations, and whether it may lead to an unacceptable risk of compromising sensitive techniques, sources, methods, techniques, or infonnation. 15 Hearing Date: June 7, 2017 Committee: SSCI Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosensteiu, Mr. McCab e, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) The declassi?ed version of the April 26, 2017, Memorandum and Opinion and Order of the FISC 19) states: "At the October 26, 2016 hearing, the Court ascribed the government's failure to disclose those 16?: and OCO reviews at the October 4, 2016 hearing to an institutional 'lack of candor' on NSA's part and emphasized that 'this is a very serious Fourth Amendment issue.? The court's concerns about the government's failure to provide prompt noti?cation is further described on page 68, footnote 57, of the opinion. Please explain the reason for the failure to disclose and any remedial or institutional reform measures the government has taken in response to the court?s concerns. emu (U) The National Secmity Agency takes its duty of candor to the Foreign Intelligence Surveillance Court and other oversight bodies with the utmost seriousness. (UIIFOUO) The NBA representatives at the 4 October hearing did not know the stems of the compliance review that was being condumd by the NSA Of?ce of Inspector General or of the existence of the compliance review that was being conducted by the Of?ce of Compliance. NSA reported the results ofboth compliance reviews to the Court once they becmne available. While the Court was surprised to learn the results of the compliance reviews three weeks after the 4 October hearing, no NSA personnel had intended to withhold information from the Court. In fact, the Agency employs a formal process that is designed to provide the Court with accurate and fully veri?ed mformation in its ?lings to the Court. 16 Hearing Date: June 7, 2017 Committee: SSCI Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Mr. McCabe, Acting DIFBI ADM Rogers, DINSA Into Current as of: July 14, 2017 (U) FISA requires that individuals must he provided prior- noti?catlon whenever the government intends to "use or disclose" information "obtained or derived from" electronic surveillance of that person in "any trial, hearing, or other proceeding" against him or her before a court or other authority. M111: Please provide any policies or guidelines de?ning "derived from" in this context. Acme: (U) As we have publicly stated previously, the Department has concluded that in determining whether infonnation is ?derived from? FHA-authorized surveillance, including Section 702, the appropriate standards and analyses are similar to those applied in the context of surveillance conducted pursuant to the criminal Wiretap Act, Title ofthe Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2522. As such, the ?derived from" standard mcorporates a ?fruit of the poisonous nee? analysis analogous to that conducted under the Fourth Amendment exclusionary rule context. The general question under 9. analysis is whether the evidence was acquired as an indirect result of the surveillance, taking into account doctrines such as independent source, inevitable discovery, and attenuation. 18 Hearing Date: June 7, 2017 Committee: 8501 Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosenstein, Mr. McCabe, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 (ii) In February 2015, then-General Counsel for the ODNI Robert stated that "the Governmentw?l use information acquired under Section 702 as evidence against a person in a criminal case only in was related to national security or for certain other enumerated serious crimes." Mr. listed eight types of crimes, other than those related to national security, one was "tansna?onai crimes." Qggtion 8: Is this the policy of the current administration? Ifnot, please describe any changes. Mme (U) Yes, the policy announced by Mr. Litt remains in effect without any changes and has been memorielized in the attached Department of ustiee memorandum. 19 Hearing Date: June 7, 2017 Committee: SSCI Member: Senator Wyden Wimeesee: Director Coats, DNI Mr. Roeenstein, Mr. McGuire, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 (U) In February 2015, then-General Counsel for the Robert Litt: stated that "the Govemmentwiil use information acquired under Section 702 as evidence against a person in a criminal case only in cases related to national security or for certain other enumerated serious crimes." Mr. Litt listed eight types of crimee, other than those related to national security, one of which was "tr'anenational crimes." Question Please provide a further description of "unusual-lone] crimes" in this context. (U) To date, the only criminal cases in which information obtained or derived from Section 702 collection has been used against an aggrieved person have all been prosecutions for terrorism- related offenses. In the event the government seeks to use such information in a prosecution for a non-terroriam-related o?'ense, a determination will be made at that time regarding the types of speci?c offenses that fall within the listed category. No such determination has yet been made regarding "transnational crime.? As a general point of reference, please note that transnational crime was extensively discussed in the 2011 Presidential Strategy to Combat Transnational Organized Crime. 20 Hearing Date: June 7, 2017 Committee: 5801 Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosenstein, DAGIFBI Mr. McCabe, Acting ADM Rogers, DIN SA Info Current as of: July 14, 2017 (U) The USA FREEDOM Act requires the DNI to make publicly available for the preceding 12-month period a good faith estimate of the number of queries concerning a known 1325. person of unminimlzed non-content information obtained through acquisition authorized under Section 702. The DNI has reported that one IC element remains currently unable to provide that number. w: What IC element is that, and why is it currently unable to provide that number? Me (U) CIA does not currently have the technical capability to track its metadata-only queries. However, CIA is currently workhg to develop the capability to track time queries as it re?nes internal processes for data management. As re?ecbd in the certi?cation accompanying the ODNI's Annual Transparency Report, based on infonnation provided by CIA, we anticipate that the CIA will have the capability to track its metedata-only queries by the end of calendar year 2018. 21 Hearing Date: June 7, 2017 Committee: 8801 Member: Senator Wyden Witnesses: Director Coain, DNI Mr. Rosen stein, DAGIFBI Mr. McCabe, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) The USA FREEDOM Act requires the PM to make publicly available for the preceding 12-month period a good faith estimate ot'the number of queries concerning a known U.S. person of unminimiaed non-content information obtained through acquisition authorized under Section 702. The DNI has reported that one IC element remains currently unable to provide that number. 93mg: In calendar year 2016, how many times did FBI personnel receive and review Section 702-acquired information based on a query concerning a known U.S. person (not limited to queries designed to return evidence of a crime unrelated to foreign intelligence)? nuance (U) As noted in the legislative history for the USA FREEDOM Act, the FBI lacks the capacity to provide a reportable number of the times the FBI queries miminimized Section 702-acquired information using 3 us. person identi?er. See H. Rep. 1 14-109, part 1, at 26 (2015). Hearing Date: June 7, 2017 Committee: 8801 Member: Senator Wyden Wlmesses: Director Coats, DNI Mr. Rosensteiu, DAGIFBI Mr. McCube, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 (U) The ODNI's Apr-112017 Amendments Act: Fact Sheet states: "Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime." The Fact Sheet also states that "queries can assist the 10 in identifying situations where a US. person may he the subject of an imminent direct with the goal of protecting the 11.8. person from harm." Questipn 12: Other than that example, is it necessary for a Us. person to be suspected of wrongdoing before he or she can be the subject of a query of Section Tin-acquired content or non-content? Mm (U) The agencies? Court-approved Section 702 minimization procedmes permit authorized personnel to conduct queries of Section 702 information, including queries using U.S. person identi?ers, only if reasonably designed to return foreign intelligence information or, in the case of FBI, evidence of a crime. Queries for purposes other than identifying foreign hitcliigence information or evidence ofa crime?for example for political, personal, or ?nancial interest?are strictly prohibited. (U) In the fall orzors, the Foreign Intelligence Surveillance Court appointed an amicus curiae to closely examine the query provisions of the minimization procedures, including ability to query to identify evidence of a crime. After carotid consideration, the F180 concluded in an Opinion released to the public in April 2016 that the existing query provisions comport with both the Foreign Intelligence Surveillance Act and the Fourth Amendment. 23 Hearing Date: June 7, 2017 Committee: 5501 Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosenstein, DAGIFBI Mr. McCahe, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) The April 2017 Amendments Act: Fact Sheet states: "Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime." The Fact Sheet also states that "queries can assist the IC in identifying situations where a US. person may be the subject of an imminent threat with the goal ofproteetlng the U.S. person from harm." Questign 13: If yes, what is the standard for establishing that suspicion? Ifnot, what restrictions apply to these queries? ?atter: (U) As noted above, the Court-approved minimization procedures only permit queries that are reasonably designed to return foreign intelligence information or, in the case of FBI, evidence of a crime. Under the minimization procedures, the Department of Justice and Of?ce of the Director of National Intelligence are required to conduct strict oversight over agencies? querying of Section 702 data to ensure that the queries comply with that standard. As part of the audits, D01 . reviews all US. person identi?ers approved by NSA for querying unminimized Section 702- acquired information, and all of CIA and US. person queries with accompanying justi?cation statements. ODNI reviews a portion of these queries. As part of its regular ?eld of?ce reviews (approximately 27-30 a year). D01 reviews a random sample of ?eld of?ce personnel queries to assess whether these queries meet the standard articulated in the procedures. 24 Hearing Date: June 7, 2017 Committee: 8801 Member: Senator Wyden Witnesses: Director Coats, DNI Mr. Rosemteln, DAGIFBI Mr. McGuire, Acting ADM Rogers, DINSA Info Current as of: July 14, 2017 (U) Under Section 702, the government may direct an electronic communication service provider to provide "assistance" necessary to accomplish acquisition. Qpestion 1g: Does Section 702 provide authority to direct a provider to circumvent or weaken the in a service or app that it offers and, if so, has that occurred? Answer; (U) Section 702(h) provides that, with respect to an authorization pursuantto section 702(a), the Attorney General and Director of National Intelligence may direct, in the form of a written directive, an electronic commrmication service provider to ?provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition.? 50 U.S.C. To the extentthat a provider does not fully provide such information, facilities, or assistance, FISA provides a means for the government to require the provider?s compliance. Speci?cally, ?the Attorney General may ?le a petition for an order to compel the electronic communications service provider to comply with the directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition? 50 U.S.C. 18813006). The muse of the "information, facilities, or assistance necessary to accomplish the acquisition" may vary among providers, services, and technologies. The government has not to date sought an order pm?suanttc Section 702(h)(5) seeking to compel an electronic communication service provider to alter the afforded by a service or product it offers. 27 Hearing Date: June 7, 2017 Committee: SSCI Member: Senator King Witnesses: Director Coats, DNI Mr. Rosenstein, Mr. McCain, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 939399;: What is the difference between a Fourth Amendment "search" and a "query" of Section 702-aequlred information using a 11.8. person identi?er? Answer: (11) The use of US. person identi?ers to conduct queries of information law?rlly acquired pursuant to Section 702 is an important foreign intelligence and law enforcement capability. A query is a means to identify previously acquired data in US. government systems using terms such as names, email addresses, and phone numbers. Unlike a Fourth Amendment search, a query of Section 702 data does not collect any additional data, but rather only returns a subset of communications from a larger set that has already been law?rlly acquired by the goverrunent from the targeting of non-U33. persons located overseas. The Fourth Amendment does not require that a probable cause warrant or other court approval be obtained to query information that has already been lawfully collected and in government possession pursuantto Section 702 In fact. a complete review of all data law?rlly collected would clearly be constitutional, and so a more limited. focused review of a subset of data returned by a query is also constitutional. (U) Courts agree that once data has been lawfully acquired. an additional warrant or other court approval is not required to review or re-review the information. That is why all courts to consider the mutton?including, but not limited to, the FISC?have concluded that ?subsequent querying of a [Section] 702 collection, even if US. person identi?ers are used, is not a separate search and does not make [Section] 702 surveillance unreasonable under the Fourth Amendmen United States v. Mahmud, 2014 WL 2866749, at *24 (D. Or. June 24, 2014) (emphasis added); see also United States v. Hasbajrami, 2016 WL 1029500, at ?12 n. 20 (E.D.N.Y. March 8, 2016) agree with the government that would be perverse to authorize the unrestricted review of law?rlly collected information but then restrict the targeted review of the same information in reopen-re to tailored inquiries?); see also [Redacted] Memorandum Op. and Order. (FISC Nov. 6, 2015) at 24-36 and 39-45. available in redacted ?rm (hereinafter, (U) Even though a warrant is not required to review already law?rlly collected information, the Section 702 program??including querying?must still be conducted in a manner that is reasonable under the Fourth Amendment. To ensure that US. persons? information is handled in a manner that is reasonable under the Fourth Amendment, each agency that receives Section 702 information must comply with rides?referred to as ?minimization procedures??that restrict how Section 702 information is acquired, accessed, queried, retained, or disseminated to others. These minimization procedures are approved by the Attorney General, in consultation with the Director of National 32 Intelligence, and reviewed and approved for use by the F150. The FISC, on an annual basis, the procedures only after detennining that the procedures are consistent with FISA and the Fourth Amendment. These procedures permit queries of Section 702 information using US. person identi?ers only if reasonably designed to return foreign intelligence information or, in case ofthe FBI, evidence of a crime. Queries for purposes other than identifying foreign intelligence information or evidence of a crime?4?0:- exampie for political, personal, or ?nancial interests?are strictly prohibited. 33 Hearing Date: June 7, 2017 Committee: 8801 Member: Senator King Witnesses: Director Coats, DNI Mr. Rosenstein, DAGIFBI Mr. McGuire, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 Qngtipn What is the difference between a "query" and a "database check" under Section 702? (U) The term ?database check? refers to instances when FBI personnel run a term (eg, name, telephone number, email address, etc.) through FBI data holdings in order to identify and isolate records containing that term. These checks are ?mdamental to the mission ofthe FBI, as they allow investigators to quickly determine whether information already exists in the dam holdings that may contain investigative leads and other important information. FBI personnel can then analyze the results of the database check in an e??ort to identify threats to national security and criminal activity. A ?query? as de?ned in the Section 702 minimization procedures is atype of database check that is capable of reaming unminimized Section 702-aequired information for review. The term ?querf? does not include a database check where the FBI personnel conducting the check does not receive minimized Section 702-acquired information in response because either the personnel has notbeen granwd access to the unminimized information or because the personnel who has been granted such access has limited the query such that it cannot return uminimized Section 702-acquired information. The Section 702 minimization procedures are available on IContheReeord. 34 Hearing Date: June 7, 2017 Committee: 8801 Member: Sen stor King Witnesses: Director Coats, DNI Mr. Rosensteiu, Mr. MeCsbe, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 W: Annex A of the PCLOB's July 2014 report on?Section 702 includes a statement from Chairman David Medina and Board Member Patricia Weld recommending that each US. person identi?er be submitted to the HSC for approval before the identi?er may be used to query data collected under Section 702 for a foreign intelligence purpose, other than in exigent circumstances or where otherwise required bylaw. What would be the effect of implementing such a requirement? 81?: (U) Imposing a statutory requirement that the govermnent establish prob able cause andlor seek judicial approval before conducting a query of Section 702 infonnation using a U.S. person identi?er would impede, and in some cases, preclude the Intelligence Comnnmity?s ability to protect the nation against international terrorism and other threats. As discussed above in response to Question I, such a requirement is not required by the Fourth Amendment. It would also be impractical. It is rare that the Intelligence Community begins an investigation having already developed probable cause. Instead, in many criminal or national security cases, probable cause is deveIOped by ?rst looking at infonnation already in the government's possession, as well as other investigative techniques that are less intrusive than obtaining a traditional FISA warrant to build investigators? understanding of the threat. Over the last 15 years, several commissions have investigated a variety of terrorism incidents, including 9111, Fort Hood, the "Underwear Bomber,? the Navy Yard. and the Boston Marathon Bombing. Each one of those commissions concluded that removing barriers to appropriate identi?cation and use of the information already lawfully in the Intelligence Community?s possession is essential to better protecting the nation. 35 Hearing Date: June 7, 2017 Committee: SSCI Member: Senator King Witnesses: Director Coats, DNI Mr. Rosemteln, DAGIFBI Mr. McCabe, Acting DIEBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 4: How many queries of Section 702-noqulred information using a U.S. person identi?er NSA conduct in 2016? new: (UIIFOUO) NSA does not neck the total number ofactual queries of content that are made using approved U.S. person query terms, as the some U.S. person query term may he used to query more than once after it has been approved. In 2016, 2,280 U.S. person query terms were approved for use by NSA to query into Section 702 content. During the same period, NSA conducted 30,355 queries using U.S. person query terms into Section 702 metndata. 36 Hearing Date: June 7, 2017 Committee: 8801 Member: Senator King Mtnesaen: Director Coats, DNI Mr. Rosenzteln, DAGIEBI Mr. McCabe, Acting DIFBI ADM Rogers, DIN SA Info Current as of: July 14, 2017 MM: How many queries of minimized Section 702-11an information using a U.S. person identi?er did CIA conduct in 2016? m: (U) In calendar year 2016, CIA conducted 2,352 unique U.S. person queries. 37 Hearing Date: June 7, 2017 Committee: 8801 Member: Senator King Witnesses: Director Coats, DNI Mr. Rosenstein, DAGIFBI Mr. McCain, Acting DIFBI ADM Rogers, DINSA Info Current as of: July 14, 2017 MM: How many queries of unminimized Section 702-acquired information using a US. person identifier did FBI conduct in 2016? Answer: (U) As noted in the legislative history for the USA FREEDOM Act, the FBI lacks the capacity to provide a reportable number ofthe time; the FBI queries minimized Section 702-acquired information using a US. person identi?er. 38 OF NATIONAL INTELLIGENCE What-tractors. DC 20511 The Honorable Bob Goodlatte 7?10". Chairman Committee on the Judiciary U.S. House of Representatives Washington. DC 205 is The Honorable John Conyers. Jr. Ranking Member Committee on the Judiciary U.S. House of Representatives Washington. DC 2.05 l5 Dear Chairman Goodlatte and Ranking Member Conyers: (U) Thank you for your June 27. 2017. letter asking for additional information regarding the Intelligence Community?s efforts to quantify the number of U.S. person communications incidentally acquired under Section 702 of the Foreign intelligence Surveillance Act (FISA). We take seriously our obligation to respond to Congressional oversight requests and regret the delay in responding to your original inquiry. To be clear. this delay was not the result of inaction: rather. it is a reflection of how dill?tcult this question is to answer. Let me also be clear that the Intelligence Community (IC) and fully appreciate the importance of understanding the impact of Section 702 on U.S. person prrvacy. Indeed. as [explained in my June 13 letter to Chairman Goodlatte. the IC has provided a large volume ot?information about Section 702 through numerous congressional brie?ngs and reports and has publicly released thousands of pages of legal and policy documents. NSA in particular has undertaken. in good faith. to assess the impact of its implementation of Section 702 on U.S. person privacy and to provide relevant information to the Committee and. as appropriate. the public. This information includes ltey statistics that provide insight on Section 702?s potential impact on U.S. person privacy. including numbers of U.S. person queries and disseminations. For ease of reference. I am including below the summary 1 provided in the June [3 letter: 0 U.S. Person Targets under Titles I and Ill, and Sections 703 and 704. A key safeguard in Section 702 is the prohibition against intentionally targeting a U.S. person anywhere in the world. in order to intentionally target a U.S. person to collect that person's non-public communications. with limited exceptions an emergency]. the government must obtain an individualized court order under PISA. based on the court?s ?nding that there is probable cause to believe that the U.S. person is an agent of a foreign power. As reported in the most recent Annual Statistical Transparency Report (ASTR). in 2016 the government targeted U.S. persons under Titles 1 and Ill and Sections 703 and 704 of FISA. These U.S. persons Upon removal, of attachments. this document is UNCLASSIFIED comprised 19.9% of the total number of targets under those orders (note that Titles I and also apply to intentionally targeting any person. regardless of nationality, who is located inside the United States). . Section 702 Person Targets. Focusing on Section 702. the government has released the total number of targets under Section 702 collection. Recall that these are non- U.S. persons outside the United States. For 2016. there were 106E Section 702 targets. As previously discussed, these foreign targets may well have been in communication with some number of U.S. person communicants. While we do not believe that the number of U.S. person communieants can be accurately estimated as further discussed in this letter, the number of targets provides some sense of the scope of 702 collection. Note that public reports estimate that there are hundreds of millions of Internet users around the world. US. Person Queries. Another safeguard involves queries for U.S. person communications once that information has been collected under Section 702. Under court-approved minimization procedures, the government may query 702 collection using a U.S. person identi?er only if the queries are reasonably designed to identify foreign intelligence information (in addition, the FBI may query to identify evidence of a crime). The minimization procedures provide that such queries are subject to oversight by the Department of Justice and ODNI. The ASTR reported that in 2016. the NSA and CIA queried the contents of 702 collection using identi?ers a telephone number or email address) associated with a known U.S. person. U.S. Person Dissentlnations. A critical safeguard involves dissemination, a subject which has received considerable public attention of late. Information thatidenti?es a U.S. person may only be disseminated as permitted by court-approved minimization procedures. As reported in in 2016 the NSA disseminated 5421?} Section 702 reports that contained U.S. person information. The identifying information was originally masked in over half of those reports, and the NSA ultimately provided 1,211,, U.S. person identities in response to unmasking requests. 1 FBI Receipt and Review of Non-F1 Query Results. The ASTR also reported the number of times in which FBI personnel receive and review Section 702-acquired information that the FBI identi?es as concerning person in response to a query that is not designed to find and extract foreign intelligence-information (Le. a query for evidence of a crime that is not related to foreign intelligence). The reported that there was app such instance. Compliance Assessments. Implementation of Section 702 is subject to careful oversight. Compliance incidents are documented, investigated. and reported to the FISC and Congress. The Department of Justice and the ODNI assess compliance with Section 702. and prepare semiannual compliance assessments which are provided to the FISC and Congress in classi?ed form. Many of these reports have been redacted and made available to the public. These reports include important statistical information. While absolute numbers remain classi?ed, these assessments have released the compliance incident rate under Section 702. which has remained well below 1% (the rate was 029% as reported in the 15?1 semiannual assessment). (U) One statistic that the IC has been unable to provide is a reliable and accurate estimate of the number of U.S. person communications incidentally collected under Section 702. For well over a year. my of?ce has been consulting closely with the NSA to address requests to quantify the number of incidental US. person communications in Section 702 collection. including reviewing the approaches examined by the NSA to arrive at an accurate and reliable estimate or a meaningful alternative metric. in addition. within my first few weeks on thejob. I made this a personal priority. and met with Admiral Mike Rogers and with the technical experts to better understand the challenges with quantifying the number of incidental U.S. person communications collected under Section 702. i found that the NSA had diligently and in good faith examined a range of approaches. applying its analytic tradecraft to address these requests. (U) The core challenge is that the type of technical information that is needed to reliably identify the nationality andlor location of the parties that are in communication with an intelligence target does not exist. While the NSA conducts signi?cant research on its intelligence targets. it does not do so with respect to communicants about whom it does not have an intelligence interest. Even with such additional research. a large number ot'commanicaats Wottiti remain unidentified. and thus any resulting number would not constitute an accurate estimate of U5. person communications. Moreover. conducting such additional research would require signi?cant resources and could involve problematic privacy intrusions. (U) NSA has concluded that it is impossible to generate an accurate and reliable estimate. or to develop a meaningful alternative metric. have personally reviewed all of these matters with the NSA and fully support their conclusions. The NSA's efforts are detailed in the attached Classified Annex. which includes speci?c information you requested in your June 27 letter. Because these efforts involve information that relates to particular intelligence methods and capabilities, the Annex is classi?ed. (Ul As you know. Section 702 is vital to keeping our nation safe- it has generated critically important foreign intelligence information. We have provided both public and classi?ed examples of Section 702's value to national security. The It: works diligently to implement this key authority in a manner that complies with Section 702's stringent privacy protections. to include multilayered oversight mechanisms by all three branches of government. We remain committed to providing Members of Congress with Speci?c in?irmation about Section 702. as well as making infomtation available to the public consistent with the Principles of Intelligence Transparency. Daniel R. Coats Sincerely. Lu The Honofablo Bob Goodlatte The Honorable John Conyers, Jr W: House Permanent Select Committee on Intelligence Senate Judiciary Committee Senate Select Committee on Intelligence