1 6/ b7E All Wifh?? i713)? tio exem to b(7)exceptasrothwewise noted. Approved for public release. - - 5376/6 seem UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. This matter is before the court on the government?s Motion for Reconsideration, ?led _rders issued by this court For the reasons hereinafter stated, the motion is denied in part-and granted in part. A review of the procedural history in Docket No. - will be useful in understanding the issues presented by the Motion. Amman I 5 a - Derived from: Pleadings and Transcript in Docket No.- Declassify on: X1 - January 31. 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 1 of 40. All withheld information'exempt under b(7) except as othwewise noted. Approved for public release5'1" a ?3 Da 0 5 ?ndings to authorize electronic surveillance and physical search under the Foreign Intelligence Surveillance Act of 1978, as amended, so U.S.C. 1301-1311 and 1821-1829 a January 31, 2018. Public Release. - EFF v. DOJ Document 2. Page 2 of 40. All withheld information exempt under?bu b(7) except as othwewise noted. Approved for public release. WW January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 3 of 40. All withheld information exempt under bt?l), b(7) except as othwewise noted. Approved for public release. 2 Regarding natural persons, PISA de?nes a U.S. person to include ?a citizen of the United States [and] an alien lawfully admitted for permanent residence (as de?ned in section101(a)(20) of the Immigration and Nationality Act." 50 U.S.C. 18016). January 31, 2018, Public Release. EFF v. DOJ Dociiment 2, Page 4 of 40. 11 All withheld information exempt under b(63, b(7) except as othwewise noted. Approved for public release. January 31, 2018. Public Release. EFF v. DOJ Document 2, Page 5 of 40. All withheld information exer?'pt undeF except as othwew?ise noted. Approved for public release. . - January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2. Page 6 of 40. All withheld information exempt under 15(7) except as othwewise noted. Approved for public release. . H. Mogtness I A case becomes moot ?when the issues presented are no longer ?live? or the parties lack a legally cognizable interest in the outcome.? g;ng of line v. Bay's 529 U.S. 277, 287 (2000) (quoting Qoggc of Q5 gagelgs 1. Days, 440 U.S. 625, 631 (1979)). More speci?cally, the standard for whether a previously justiciable case has become moot is whether (I) it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur, and - (2) interim relief or events have completely and irrevocablyeradicated the e?'ects of the alleged violation. 12m}, 4-40 U.S. at 631 (internal quotations omitted). ?When?both canditions are satis?ed it may be said that the case is moot because neither party has a legally cognizable interest in the ?nal determination of the underlying questions of fact and law." Id. 1 January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 7 of 40. All?withheld information exempt under as othwewise noted. Approved for public release. The court ?nds that these conditions are not met The court cannot say with assurance that there is no reasonable expectation that the government will resume the practices at issue.7 The court therefore concludes that the case presents ?live? issues in which the government retains ?a legally cognizable interest in the outcome.? 529 US. at 287 (internal quotations omitted); goalie E. at 288 (city suffers ?an ongoing injury because it is barred from enforcing? an ordinance; the challenged ordinance is found constitutional, then [?ne city] - to result in mootness, it must be absolutely clear that, absth me Degial and the Supplemental ?rm the FBI Vite]: v, long, 445 U.S. 480, 487 (1980) (case was not moot where it was ?not absolutely clear, absent the injunction [issued by the district court against the challenged practice], that the allegedly wrongful behavior could not reasonably be expected to recur?) (inter?nalquotations omitted); accord, e. g, I I c.-v.La1dlaw vironrnental Servs. [11:29), [gen 528 11.8. 167, 189 (2000) standard we have announced for determining whether a case has been mooted by the defendant?s voluntary conduct is stringent A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur-3') (internal quotations omitted). January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 8 of 40. All withheld information exempt under b(7) except as othwewise noted. Approved for public release. can enforce it, and the availability of such relief is suf?cient to prevent the case from being Accordingly, the enurt turns to the merits.? lI. Targeting and Direcg'on of ELSA Surveillances For an order authorizing electronic surveillance under PISA to be issued, this court must ?nd, inter alia, ?probable sense to believe that (A) the target of the electronic surveillance is a foreign power or agent of a foreign power . . and (B) eac a 'litie laces at which elmmc is directed is being med. or is about to be 9g, by a foreign power or an agent of a foreign power." 50 U.S.C. 1805(a)(3) (emphasis added). The order must also specify, te; alia, ?the identity, if known, or a description of the target of the electronic surveillance,? ?the statute and location of each of the facilities or places at which the electronic In addition, with tea to the second re uirement for mootness stated in Davis, the the court cannot conclude that such is the case on the current record. In any case, under current minimization practices, the themselves would remain in the 'pdssession f0 Accordingly, with respect to this issue, the court cannot ?nd ?that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation," 440 U.S. at 631, Such that it has ?become[] impossible . . . to grant any effectual relief whatever.? Bay's 529 U.S. 311287 (internal quotations omitted). ekem?iei Emma? 9 January 31. 2018, Public Release. I EFF v. DOJ 16-CV-02041 Document 2. Page 9 of 40. NI withheld informatiori'exempt under b(7) except-as othwewise noted. Approved for public release. surveillance will be directed, if known,? and ?the type of infonnation sought to be acquired and the type of communications or activities to be subjected to the surveillance.? Id. As the government recently stated in a different matter, PISA [n ?e El?onic and Data Surveillance De?m'tigng, Memorandum of Law and Fact Regarding Electronic and Data Communications Surveillance Under the Foreign Intelligence Suweillance Act, ?led November 5, 2003, at 4. 9 There is a limited exception to the requirements of 1805(c)(1)(C), but that exception does not-apply in this case. note 36 below. - Accordin 10 January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 10 of 40. -- All withheld information exempt under eicept as othwewise noted: Approved for public release. WW Moreover: ?the target ofthe Surveillance is the individual or entity about whom or ?'om whom infOnnation is sought.? HR. Rep. No. 95-1283, pt. 1, at 73 (1978), Quoted in in Le staged Egg, 310 F.3d 717, 740 (Foreign Int. Surv. Ct. m. 2002) (per cnriam). Since the purpose ofa FISA surveillance is to obtain women Finally, as discussed below, acqniring wire communications of U.S. persons unrelated to the target or. activities would violate principles of FISA minimization, except where such acquisition is reasonably necessary to acquire foreign intelligence information about the target and. activities. Moreover, it iS-dOUbt?ll that a surveillance that? ?in circumstance reasonably allowing a more narrowly directed surveillance would be constitutional.11 ?2 Under the Fourth Amendment, ?[d]etermining the reasonableness of any search involves a twofold inquiry: ?rst, one must consider ?whether the . . . action was justi?ed at its 11 January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 11 of 40. All?Withheld information exem?t under except a?s-othwewise noted. Approved for public release. 'mnuuw inception,? . . second, one must detezmine whether the search as actually conducted ?was reasonably related in scope to the circumstances which justi?ed the [action] in the ?rst place. New Jersex v. 469 U.S. 325, 341 (1985) (quoting Ten-x v. tho, 392 U.S. l, 20 (1967)). See al?g 526 U.S. 295, 299-300 established by the ?common law when the [Fourth] Amendment was framed," the reasonableness of a search is determined ?by assessing, on the. one hand, the degree to which .it inn-odes upon an individual?s privacy and, on the other; the degree to which it is needed for the promotion of legitimate governmental interestsJanuary 31. 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 12 of 46). All withheld information exempt under b(T) except as othwewise noted. Approved for public release. SEW Min ?mization of ELSA Smilaqu FISA requires that electronic surveillance applications include ?a statement of the proposed minimization procedures," 50 U.S.C. 1804(a)(5), and that electronic surveillance orders include a ?nding that the proposed minimization procedures meet the statutory de?nition of such procedures, 1805 and direct that the minimization procedures he followed. 1805(c)(2)(A). Information from a FISA electronic surveillance ?concerning any United States person may be used and disclosed by Federal of?cers and employees without the consent of the United States person only in accordance with the minimization procedures.? 1806(a). With respect to electronic surveillance, FISA de?nes ?minimization procedures," in pertinent part, as (1) speci?c procedures, which shall be adopted by the Attomcy General, gum {Emamx designed in light of mg purpose and technigue of the particular willing; to the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consisteut with the need of the United States to obtain, produce, and disseminate foreign intelligence information; [and] (2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as de?ned in subsection of this section, shall not be disseminated in a manner that identi?es any United States person, .r without such person?s consent, unless such person?s identity is necessary to understand foreign intelligence information or assess its importance. 13 January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 13 of.40. All withheld infomiaTiEWexempt under b(7) except as othwewise noted Approved for public release. {5 (emphasis added)" ?As is evident from the face of section 1801(h), minimization procedures are designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information.? Lu [e Sealed Qase, 310 F.3d at 731. As re?ected in the de?nition, minimization applies at the acquisition, retention, and dissemination stages. This case presents issues of acquisition and retention. The legislative history shows a preference for minimizing the acquisition of non-pertinent I . communicatiOns, where it is feasible for the government to do so, by real-time monitoring of intercepted telephone conversations to terminate recording once it is determined that a conversation does not pertain to the target or his activities." Speci?cally, ?Congress envisioned that, for example, ?where a switchbon line is tapped but only one person in the organization is ?5 This de?nition further states that such procedures will ?allow for the retention and dissemination of information that is evidence of a crime . . . and that is to be retained or disseminated for law enforcement purposes." 1801(h)(3). The govemment?s Motion does not rely on this provision. I 1? By minimizing acquisition, the committee envisions, for emple, that in a given case, where A is the of a'wireta?p, after determining that A?s wife is not engaged with him in clandestine intelligence activities, the interception of her calls on the tapped phone, to which A was not a party, would be discontinued as soon as it is reah'Zed that she rather than A was the . party. 3. Rep. No. 95?701 at 40, my; 1973 U.S.C.C.A.N. 3973, 4009; HR. Rep. No. 95? 1283, pt. 1, at 55. 14. January 31. 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 14 of 40. All withh'eld information exempt Lander b(7) except as othwewise noted. Approved for public release. the target, the interception should probably be discontinued where the target is not a party? to the communications? The advantage of minimization at the acquisition stage is clear. Information that is never acquired in the ?rst place cannot be misused. One of the reasons for which Congress required minimization under PISA was to avoid the kind of misusesof surveillance information concerning U.S. persons that had previously occurred. ?g S. Rep. No. 95-701 at 42, reprinted in 1978 U.S.C.C.A.N. at 401 1; HR. Rep. No. 95-1283, pt. 1, at 55. However, ?in practice FISA surveillance devices are normally left on continuously, and the minimization occurs in the process of indexing and logging the pertinent communications.? mm 310 F.3d at 740. The use of automatic recording is permitted by the standard minimization procedures applicable this case. FBI Standard Minimization Procedures for a U.S. Person Agent of a Foreign Power (?Standard Procedures?) 3(d) ?The reasonableness of this approach depends on the facts and circumstances of each case . . . . I Given the targets of PISA surveillance, it will often be the case that intercepted communications will be in code or a foreign language for which there is no contemporaneously available translator, and the activities of foreign agents will involve multiple actors and complex 131015;" such circumstances can justify less minimization at mm 310 F.3d at 731 (quoting HR. Rep. No. 95-1283, pt. 1, at 55-56). 15 January 31, 2018. Public Release. EFF DOJ 16-CV-02041 Document_2, Page 15 of 40. ?All withheld information exempt Under b(7) except as othwewise noted. Approved for public release. the acquisition stage. in re Case, 310 .3d at 740-41; HR. Rep. No. 95-1283, pt. 1, at 55 (?in many eases it may not be possible for technical reasons to avoid acquiring all information?); S. Rep. No. 95-701 at 40 ?primarily for technological reasons, it may not be possible to avoid acquiring all conversations?), reprinted in l978 U.S.C.C.A.N. at 4009. ?By minimizing retention, Congress intended that ?infonnation acquired, which is not necessary for obtaining[,] producing, or disseminating foreign intelligence information, be deStroyed vvherever feasible.? re Sealed gage, 310 F.3d at 731 (quoting Rep. No. 95? 1283, pt 1, at 56; emphasis in original); mt; H.R. Rep. No. 95-1283, pt. 1, at 60 (?the better practice is to allow the destruction of information that is not foreign intelligence information or evidence of Criminal activity"); 3. Rep. No. 95-701 at 40 (?By minimizing retention, the committee intends that information acquired, vvhich does not relate to the approved purposes in the minimizntion procedures, be destroyed"), reprinted in 1978 U.S.C.C.A.N. at 4009. However, because ?it may not be feasible to cut and paste ?les or erase part of tapes where some information is relevant and some is not . . . minimizing retention can also include other measures designed to limit retention of such irrelevant material to an essentially non?usable form.? HR. 95-1283, pt. 1, at 56. Under the Standard Procedures, FBI personnel monitoring previously recorded phone conversations maintain a ?permanent written record or on which they make entries .surmnarizing relevant communications. Standard Procedures ?[?dentities or of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime . . . may not be logged or summarized.? 151. MW 16 January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 16 of40. All withheld information exempt under except asuothwewise noted. Approved for public release. mm A separate provision further restricts the handling of intercepted phone conversations I This provision does 1mm collection of information which may involve the conduct of criminal activities as set forth in Mathew La? Two other provisions of the Stande Procedures are potentially relevant to the minimization (1) Section 3(i) rovides tha I (2) Section provides that cominunications ?will be the subject of continuing analysis to establish categories of communications that are not pertinent to the authorized purpose of the surveillance." "These categories should be established after. a reasonable period of monitoring the communications of the target" and are to be stated in the application. (6). Communications falling within these categories ?normally should not be logged, summarized or indexed," but information from such communications ?may be logged? if it ?appears to be forei intelli once information.? (5). 17 January 31, 2018. Public Release. EFF v. DOJ Document 2, Page 17 of 40. All withheld information exempt under b(T) except othwewise ?noted. Approved for public release. A. Appligtigg of the Standard Exceedgges 2" This case involves the marking 0? can be decided on the statutory basis of rninimizntion requirements. This Opinion takes no View on the lawfulness of similarly marking the communications of- or on any constitutional questions that such marking practice might present. 18 January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 18 of 40. All withheld information exempt under b(7) eicept as othuT?Wise noted. Approved for public release. Section of the Standard. Procedures refers to the ?103?? as permanent written recor Section 4(a) of the Standard Procedures, captioned ?Indexing,? refers to entries ?into the general FBI indices" and the ?Electronic Surveillance Index.? Seem Motion at 7 n2 conversation is logged if the monitor creates a permanent documentary or electronic record of the conversation, which is usually a summary of the conversation. It is indexed if information from the log is' uploaded into the electronic surveillance it could perhaps he argued that, because the notations in question are limited to a ?working copy? of the recorded conversations and thus are overwritten after_ the notations do not involve logging or indexing under the Standard ProCedures, and therefore are permitted by the Standard Procedures. The court does not ?nd this interpretation of the Standard Procedures plausible. On this interpretation, the Standard Procedures would permit the FBI to summarize anv US. person as long as the summaries were not entered into the pennanent ?log,? and to take any steps to facilitate the retrieval of US. person communications, other than making entries into certain speci?ed indices. Such a reading would reduce the 7 protections afforded to the privacy of US. person communications to a point where" the Standard Procedures would no longer be ?reasonably designed . . . to minimize the acquisition and 19 January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 19 of 40. All withheld information exempt under b(7) except as othwewise noted. Approved for public release. retention, and prohibit the dissemination, of nonpublicly available information concerning tmoonsenn'ng United States persons consistent Wi foreign intelligence needs. 50 U.S.C. In addition, a reading of the Standard Procedures under which FBI personnel i would be free to adopt any of a range of practices for summarizing or marking US. person communiCations, as long as a practice was not expressly prohibited by the Standard Procedures, would not satisfy the requirement that minimization procedures be ?speci?c.? I_d. Rather, the Standard Procedures describe the authorized means of processing U.S. person information acquired during surveillances. Alternative or additional means of recording the contents of US. person communications, including the identities of persons who are parties to such communications, are not authorized under the Standard Procedures. Accordingly, the court concludes that the practice of marking the identities of non~target U.S. persons for the purpose of facilitating subsequent retrieval of those persons' communications violates the Standard Procedures, unless one of the circumstances stated in Section 3(h) applies. Since the FBI only marked communications that could not be logged and indexed under Section the marking practice violated the Standard Procedures. 13- WW In the Motion, the government notes that this court may, and in some cases has, approved minimization procedures that are less restrictive than the standard minimization procedures that would otherwise apply. However, in order to do so, the court must ?nd, under 50 20 January 31, 2018, Public Release. I EFF v. DOJ Document 2, Page 20 of 40. All withheld information exempt under b(7) except as noted. Approved for public release. U.S.C. 1805(a)(4), that the proceduresput forward by the governmentn satisfy the de?nition of . minimization procedures at 50 U-S.C. 18010:). If the court ?nds that the proposed procedures do not satisfy this de?nition, it may modify the procedures so that they conform to Of particular signi?cance in this case is Section requirement of ?speci?c procedures . . . that are reasonably designed in 1i ht. and techni no of the articular inf?Vd?epg, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistentwith the need of the United States to obtain, produce, and disseminate foreign intelligence information" (emphasis added). In applying this standard, the court ?rst notes that "the purpose . . . of the particular page 11 above. However, the communications to be marked 22 FISA minimization procedures must also ?be adopted by the Attorney General." 50 U.S.C. 1801(h)(l). That criterion is satis?ed in this case by virtue of the Attorney General?s having approved the Application, which incorporates minimization procedures that would expressly authorize the marking practice at issue. I 23 3g 50 U.S.C. 1805(a) (upon the required ?ndings, ?the judge shall enter an ex parte order as requested gr as modi?ed approving the electmni?c surveillance?) (emphasis added); S. Rep. No. 95-701 at 41 (?the judge, in approving the minimization procedures, could require speci?c restrictions on the retrieval of [retained] information"), reprinted in 1978 at 4010; HR. Rep. No. 95-1283, pt. 1, at 56 (same); lg. at 60 (minimization procedures adopted by the Attorney General ?will be reviewed and approved, modi?ed, or disapproved by the judge approving the surveillance?); id. at 61 (?If the judge believes a modi?cation [to the procedures] is called for, he should require it?) id. .at 78 (?judge has the discretionary power to modify" proposed minimization procedures); see also 5 Sealed Qase, 310 F.3d at 731 (court ?hvas entitled to impose? minimization procedures, but ?misinterpreted and misapplied? minimization principles in that case). 21 January 31, 2018, Public Release: EFF v. DOJ 16-CV-02041 Document 2, Page 21 of 40. I All withheld information-exempt under bf1), b(7) except as othw?ewise noted. Approved for public release. are ones that cannot be logged or indexed under Section 3(h) of the Standard Procedures. Section 3(h) gives the FBI considerable latitude regarding? - The Mag practice communications that do not meet even this broad standard for information about the target. Therefore, the govemrn?ent?s justi?cation for the marking practice that it would facilitate the future identi?cation and retrieval of such communications is unrelated to the purpose of this particular surveillance. To state the point differently, the purpose of this particular surveillance would not be furthered by permitting the marking practice. Second, the? 22' January 31, 2018, Public Release. EFF V. Document 2, Page _22 of 40. All withheld information exempt under 15(6), except as othwevliise noted. Approved for public release. mm For that reason, the instant case presents a surprising occasion for the government to seek a relaxation Of the Standard Procedures applicable to The cxceptionally broad range 0? _eg HR. Rep- No. 95-1283. pt. 1, at 55? (where minimization at the acquisition stage is not technically feasible, ?the reasonable design of the procedures must emphasize . . minimization? at later stages). 3 DJ January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 23 9f 40. All withheld inf??iation exempt und?r 5U b(7) except as othwewise noted?f Approved for public release. surveillance is especially likely to acquire communications that pertain to activities protected by the First Amendment, minimization procedures should be tailored to address the heightened concern that information could be used-in a way that chills such activity. 91's. Rep. No. 95-701 at 42 (?The committee is concerned that the surveillance authorized . . . not result in the retention or dissemination of information which would adversely affect the exercise of ?rst amendment rights?), reprinted 1111978 U.S.C.C.A.N. at 4009; HR. Rep. No. 95-1283, pt. 1, at 61 (for a wiretap of ?a foreign spy acting as a neWSpaper reporter, - . . the committee expects that the minimization procedures . . . would he more strict to assure that information unrelated to his spy activities was not misused?)? This examination of ?the purpose and technique of the particular surveillance? militates against a relaxation in this case of the Standard Procedures for minimization of- The technique in question results in an overbroad acquisition of communications that are_ and therefore to the purpose of the particular surveillance, but that do relate to activities of non-target U.S. persons protected by the First Amendment. The court new considers the arguments in the Motion that permitting the marking practice would be consistent with the standard of ?reasonableness? under 50 U.S.C. 1801(h)(l). The Motion portrays the proposed relaxation of the'Standard Procedures as modest and I 2? Of course, lawful lobbying activities, and ??lawful gathering of information preparatpry to such lawful activities,? cannot be the predicate for targeting U.S. persons for PISA surveillance. In 3 Sealed ng, 310 F.3d at 739 (quoting HR. Rep. No. 95-1283, pt. 1, at 40)? . i 24 January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 24 of 40. I "All withher information exempt under b(7) except as othwewise n'oted. Approved for public release 3. a The court does-not ?nd these arguments persuasive. First, under minimization principles, it is not suf?cient to assert that, because the Standard Procedures already permit the FBI a great deal of latitude, it is reasonable to grant a little more. This argument fails to assess the proposed minirnization procedures ?in light of the purpose and technique of the particular surveillance.? It also fails to take into account the iniportant distinction between information related to the target or I activities and information that bears no such relation. For example, the government cites (Motion at 10) to legislative history recognizing thc'need for ?some ?exibility? I when the purpose of the surveillance?isto gather foreign intelligence information as described in 50 1801(e)(l)(B) or (C) counterintelligence or counterterrorism information): ?Innocuouseounding conversations may in fact be signals of important activity, information on its face innocent when analyzed or considered with other information may become critical. Rep. No. 95-1283, pt. 1, at SS. Fairly read, however, this discussion refers to information WW 25 January 31, 2018, Public Release. - EFF v. DOJ Document Page 25 of 40. All withheld information exempt under b(7) except as o'thwewise noted. Approved for public release. I about US. persons that is somehow connected to the target or .activities. E. at 58- 59 If understood to apply to US. person information unrelated to the target, the point made in the above-quoted passage would be singularly weak: on what basis, if not by some connection to the target, should one suSpect that the seemingly ?innocuous? and ?innocent? may really point toward clandestine intelligence or international terrorism activities? The same degree of theoretically possible connection to such activities could be attributed to any piece of information about anyone, acquired by any means. Additionally, the government?s argument too readily assumes that restrictions will always aeronowed. so; Motion at 15-1? But, as this case demonsu'ates, the FBI does not always adhere to applicable minimization procedures. It is partly for this reason that Congress intended that minimization rules would not only prohibit misuse, but also create circumstances in which it is impossible, or much more dif?cult, for misuse to occur. Thus, Congress intended that, whenever practical, minimization occur at the acquisition stage. 5; pp. 14-15 above. Information that is never acouired can never be misused. Similarly, Congress intended that, wherever feasible, the government would destroy information to be minimized at the retention stage. p. 16 above. 26 January 31, 2018, Public Release. - EFF v. DOJ 16-CV-02041 Document 2, Page 26 of 40. All withheld information exempt under b(7) except as othwewise noted. Approved for public release. Destruction ?safeguard[s] the privacy of individuals more effectively, insuring that irrelevant information will not he ?led.? S. Rep. No. 95-701 at 42, reprinted in 1978 at 4011; HR Rep. No. 95-1283, pt. 1, at 60. If destruction is not feasible, information maybe minimized by reducing it to a non?usable form. p. 16 above. The Standard Procedures rest on the implicit premise? ms may means of retrieval would facilitate, rather than frustrate, the potential misuse of information concerning these_ In this case, the government acknowledges that any retrieval by such markings without further court authorization would be tantamount to conducting unauthorized electronic surveillance of The fact that the markings are overwritten in several months may lessen the potential for such misuse, but does not eliminate it.? I 1? HR. Rep. No. 95-1233, pt. 1, at 60 (contrasting FISA minimization with Title requirement to retain recordings for ten years for evidentiary reasons); S. Rep. No. 95-701 at 4142 (same), 1978 at 4010?1 1. -- ?a The court does not imply that, in this case, FBI personnel intend to use the marked communications in any way other than as described in the government?s pleadings. However, the court is persuaded that the reasonable design of minimization procedures includes making a realistic allowance for the possibility that overzealous or ill?intentional personnel might be inclinedto misuse information, if given the Opportunity. . 27 January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 27 of 40. All withheld information?exempt under b(7) except as othwewi?e noted. Approved for public release. The government also argues that if any, Fourth Amendment interests are implicated by the marking practice, and that to the extent that such interests are touched on, the practice is reasonable under the Fourth Amendment. Id. at 22-25. The Motion cites several cases holding that a warrant may authorize the seizure of items beyond the evidence being sought,? or that officers exeCuting a warrant may seize such items even without such express authorization,? if it is not practical before seizure to identify items named in the warrant and separate them from other Property? However, they do not support the proposition that no Fourth Amendment interests are implicated by the ?agging of communications of identi?ed non?targets or that such a practice is reasonable under the Fourth Amendment. Rather, they show that the government must take reasonable steps to limit, so far as possible, the infringement on privacy and property interests from an unavoidably overbroad inspection and seizure." Finally, insofar as PISA minimization procedures are intended to have a 1? gith v, lgis, 255 F.3d 325, 334?35 (6th Cir. 2001); mtg: State; 3.1m, 231 F.3d 630, 636-37 (9th Cir. 2000), 534 U.S. 353 (2001). 119ith States 1, Walker, 275 F.3d 931, 985-86 (10th Cir. 2001), mm, 535 vs. 1069 (2002); 778 F.2d 609, 615-16 (11th Cir. 1985). 31 Thus, privacy interests were not ?adversely affected" by the seizure and subsequent ?examination of the documents off the premiseslevant Santarelli, 778 F.2d at 616 (emphasis added). In Walser, a computer . i 28 January 31, 2018, Public Release. . EFF v. DOJ Document 2, Page 28 of 40. 11 -- W'With??ld information exempt under on) ?eibe'pt as othwewise noted. Apia?roiled for public release- WW prophylactic effect, Lg, to create circumstances in which misuse is impossible or at least dif?cr?t, it is unpersuasive to argue that the proposed procedures should be approved merely because their faithful implementation would not directly involve a Fourth Antendment violation.32 1n the government?s view, the advantage of resuming the marking practice would be to facilitate the future identi?cation and review of thee. if court authorization is obtained; Such facilitation would ease the burden of the FBI in retrieving these such event, and thus would be ?consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." Motion at 19-20. However, the foreign intelligence value of the marking practice is, on the current record, unrevealed. I was seized to permit the identi?cation of ?les related to drug transactions, as described in the warrant. While inspecting the computer?s ?les, an of?cer found child pornography. He stopped insPecting the computer?s contents and obtained a second warrant for evidence of child pornography before resuming his search. The court noted that, had the of?cer ?conducted a more extensive search . . . by rummaging in folders and ?les beyond those he [actually] searched, he might well have exceeded the bounds of the warrant? "and the standards of reasonableness under the Fourth Amendment applied in gang States 172 F.3d 1263, 127_1-74 (10th Cir. 1999). Walser, 275 F.3d at 987. I 32 Because this decision is based on statutory grounds, the court does not reach the question of whether the minimization procedures preposed by the government would satisfy the Fourth Arnendrnent. ,S_e_e In re Sealed Qase, 310 F.3d at 740 (?at least some circuits have determined? that minimization procedures for law enforcement wiretaps under Title of the Omnibus Crime Control and Safe Streets Act of 1968, as amcnded, 18 U.S.C. 2510-2522, .?are constitutionally signi?cant?); United States 33. Ealls, 34 F.3d.674, 680 (8th Cir. 1994) (imposing minimization requirement on video surveillance for law enforcement purposes to ensure with Fourth Amendment); United States v. 311? Laden, 126 F. Supp.2d 264, 286 (S.D.N.Y. 2000) (assessing minimization of foreign intelligence surveillance of us. citizen overseas for compliance with reasonableness requirement of Fourth Amendment). 29 January 31, 2018, Public Release. . EFF v. DOJ 16-CV-02041 Document 2. Page 29 of 40. All withheld information eit?mpt'under 5f" b(7) except as o'thweiivise noted._ Approved for public release. WOW There is no assurance that the court will grant, or even that the govemment will for authority to review previously acquired conversations involving Any foreign intelligence bene?t of the marking practice is speculative and contingent on future events. In contrast, the identi?cation of these non?target communications would present an immediate potential for misuse.34 Accordingly, the court determines that the proposed modi?cation to the Standard Procedures to authorize the marking practice would result in procedures that, in the circumstances of this case, do not satisfy the de?nition of minimization procedures at 50 U.S.C. 1801(h). The government?s request for authorization to engage in the marking practice is denied. eutorl' tinf'ectiveoubit oiedP dures The Motion requests clari?cation ofthe Denial Order's directive to ?le revised minimization procedures, in the event that the court denies the government's request for I - 3* The government also suggests that the marking practice would further the privacy interests of other monetargets whose communications have been acquired, by eliminating the need for FBI personnel to listen to their communication This claimed bene?t to privacy protection is just as speculative as the foreign intelligence bene?t described above. 30 January 31, 2018. Public Release. EFF v. DOJ Document 2. Page 30 of 40. ?ll Withheld information exempt under b(7) except as othwewis-e?rioted. Approved for public release. authorization of the marking practice. Motion at 29-30. The Motion states that the Government is unable to determine whether procedures that expressly prohibit the marking practice would be suf?cient, or whether procedures that put ?trther restrictions on the handling of non?target communications would be required. Id. at 30. The Standard Procedures were crafted predominantly with the typical case in mind. An oveibroad surveillance calls for minimization procedures that offer more, not less, protection for non-target communications than is a?brded by the Standard Procedures. This court necessarily relies on the government for its views on whether particular minimization practices are likely to be effective, practical or unduly burdensome in the context of FBI investigative, recordkeeping, and information management practices. With that caveat, the courtsuggests consideration of the following Specific measnres for minimizing information ?om obtained from overbroad wire communications surveillances: 31 January 31, 2018. Public Release. . EFF v. DOJ Document 2, Page 31 of 40. All withheld information exempt under b(T) except as othwewise noted. Approved for public release. it The court urges the government to begin work on special procedures for use in such overbroad surveillances and to pursue that Work with diligence. at 25-29. However, the court ?nds that this practice is inconsistent with the speci?c statutory requirements of PISA. I FISA surveillance orders must include a ?nding that ?each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or 'an agent of a foreign power," 50 U.S.C. 1805(a)(3)(l3); that ?the proposed minimization procedures meet the de?nition of minimization procedures," i3. 1305(a)(4); and that the upplication contains all required statements and certi?cations, and that, ?if the target is a 32 January 31, 2018, Public Release. EFF v. DOJ Document 2, Page 32 of 40. All withheld information exempt under b(7) except as othwewise noted. Approved for public release. WW United States person, the certi?cation or certi?cations are not clearly erroneous on the basis of the statement made under [50 U.S.C. id. 1805(a)(5). PISA surveillance orders must also Specify, among other things, the target?s ?identity, if known,? id. 1805(c)(1)(A); ?the nature and location of each of the facilities or places at which the electronic surveillance will be directed, ifknownfid. 1305(c)(1)(B); ?the means by which the electronic - surveillance will be effected," {3 1805(c)(1)(D); and, ?thenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the devices involved and what minimization. procedures shall apply to information subject to acquisition by each deVicc," id. 1805(c)(l)(F). PISA has parallel requiremmts for the government?s application, which must include ?the identity, if of the target, i_d. 1804(a)(3); ?a statement of the facts and circumstances relied upon by the applicant to justify his belief that . . . each of the facilities or places at which the electronic surveillance is directed is being used,-or is about to .be used, by a foreign power or an agent of a foreign power," id statement of the proposed minimization procedures,? ?a detailed description of the nature of the infonnation sought and I the We of communications or activities to be subjected to the surveillancef? 1804(a)(6); and, l?whenever more-than one electrtinic, mechanical or other surveillance device is to be used with reSpect to a particular proposed electronic surveillance, the coverage of the devices involved I I 33 January 31, 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2, Page 33 of 40. All withheld information exempt under except as othwewise noted. Approved for public release. and what minimization procedures apply to information acquired by each device,? id l804(a)(1 For this reason, neither primary order alone would appear to satisfy the requirements of both l805(c)(l)(A) (identi?cation of the target) and I 1805(c)(l)(B) (nature and location of each facility or place), and neither application would appear to satisfy both parallel requirements of and 1304(a)(4)(n). Similarly, -- an arrangement that scrutiny of both orders, I . 35 Under 50 1804(b) 180581), certain other'Wise required information maybe omitted if (1) the target is a foreign power, as de?ned in 1801(a) (2), or and (2) ?each of the facilities or places at which the surveillance is directed is owned, leased, or exclusivel b? _i mm 34 January 31, 2018. Public Release. EFF v. DOJ Document 2, Page 34 of 40. All withheld information'exem?pt under b(7) except as othwewise noted. VF Approved for public release. WW separately or together, would not reveal - one may try to patch together from both cases the required statements, ?ndings, and Specifications for that surveillance. However, the istatute plainly does not contemplate such mixing and matching. Rather, it is clear that, .to the extent known for a particular surveillance, the target, the facilities and places, the means of surveillance for each facility and place, and applicable minimization procedures are to be described in one case. This requirement is not a mere technicality. Rather, it is necessary to ensure that the court?s ?ndings of probable cause, review of certi?cations (particularly for US. person targets), and assessment of the proposed minimization procedures rest on an adequate understanding of the facts. This requirement also furthers the important interest in creating a clear and express record of what the court authorizes and on what ?ndings its authorization is based. Qt. ?rghl. mm, No. 02?811, 2004 WL 330057, at *6 (1.1.5. Feb. 24, 2004) (requiring ?Written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioued in the af?davit?). Relying on an analogy to the ?plain View" exception to the Fourth Amendment?s warrant requireruent, the government centends that no further authorization is required to use - menace directed at m? Under the "plain View? doctrine, ?if police are lawfully in a position from which they View an ohject, if its incriminating character is immediately apparent, and if the of?cers have a lawful right of access .torthe obiect, they may seize it without a Warrant? WM 508 US. 366, 375 (1993); We, 496 128, 136-37 (1990). The court does not ?nd this analogy suf?ciently Glace to the facts of this case to justify departure from the speci?c statutory 3.5 January 31, 2018. Public Release. EFF v. DOJ 16-CV-02041 Document 2. Page 35 of 40. All withheld informatiOn exempt under b(7) except as othwewi?e noted. Approved for public release. 4mm . requirements discussed above.33 It may be ?inunediately apparent" to FBI monitoring personnel to determine if theyr should be logged and indexed under the minimization rules Because this opinion rests on statutory grounds, it is not necess to rule on any constitutional issues presented by deliberate use of the i However, the court?s understanding of the requirements of PISA is consistent with the statement in Miran v. United States, 275 U.S. 192, 196 (1927), that the particularity requirement of the Fourth Amendment ?pi-events the seizure of one thing under a warrant describing another.? The government suggests tha't't?his statement in Matron has ?superseded,? at least to some extent, by subsequent development of the ?plain view" doctrine, under which of?cers executing a search warrant may, in some circumstances, seiZe items not speci?ed in the warrant. S_e__e Motion at 27 n6. However, for the reasons explained above, the court is not persuaded that this analogy to ?plain view? principles provides a suf?cient basis to depart 'from applying express requirements to this case. f" Moreover, contrary to the government's suggestion (Motion at 29 11.7), full explanation of the means of, and facilities to be subjected to, surveillance of a particular target will guard against, rather than invite,? or other government subterfuge. GREQEHIQ lemma 36 January 31. 2018. Public Release. EFF v. DOJ Document 2. Page 38 of 40. All withheld information exempt under b(7) except as othwewise noted. a Approved for public release. I This conclusion is consistent with-the reasoning and holding in BE Laden; 126 F. Supp.2d at 28 0?32, regarding the acquisition of the communications of Wadih El-Hage, a U.S. citizen, during an overseas foreign intelligence surveillance. In that case, the government argued that the acquisition of El-Hage?s communications was incidental to the surveillance of others who used the same telephones at premises believed to be an al Qaeda safe-house. The court held that El?Hage?s communications were not ?intercepted ?incidentally' because he was not an unanticipated user of those telephones Because he was believed to be a participant in the A activities being investigated.? Id. at 281. Accordingly-express Attorney General authorization to conduct surveillance of vvas required, despite the fact that the US. Intelligence 37 January 31. 2018, Public Release. EFF v. DOJ 16-CV-02041 Document 2. Page 37' of 40. All withheld information exempt under b(1 b(7) except as othwewise noted. Approved for public release. SE G. a gm Mm Community did not need?such authorization to conduct surveillance of the other users of those telephones. I In. at 281-82.? Based on the foregoing; the court makes the following ?ndings: 1. This case is not moot and the court has jurisdiction over it. 2. The marking practice in this case, whereby notations Were made on recorded communications as a means of identifying? The court recognizes that, under general Fourth Amendment principles that have developed principally in the context of law enforcement searches, the subjective intentions of of?cers conducting a search are irrelevant to whether their actions are objectively reasonable under the Fourth Amendment. See, e. 517 U.S. 806, 812-13 (1996); Horton, 496 U.S. at 134-42 ("plain View? doctrine does not require that discoVCry of item in plain view he inadvertent). Moreover, law enforcement search warrants ?are not directed at persons; they authorize the search of 'place[s]? and the seizrne of ?things,? and as a constitutional matter they need not even name the person ?-om whom the things will be seiz Eggher v. Sm?ord Daily; 436 U.S. 547, 555 (1978). Accordingly, absent some speci?c statutory limitation, see, 9. 42 U.S.C. 2000aa, law enforcement search warrants may be issued where ?there is probable cause to believe? that the items to be seized ?are located in the place to be searched," even if there is ?no probable cause to believe that the third party? whose property will be searched ?is implicated in the crime.? 1d. at 554. In contrast, FISA makes the concept of the target - ?the individual or entity about-whom orfrom whom hrfonnation-is sought," HR. Rep. No. 95-1283, pt. 1, at 73 - central to the authorization and conduct of a foreign intelligence surveillance. For this reason, the requirements for FISA surveillance orders, which must specify (or. at least describe) the target and require a ?nding of probable cause to believe that the target is a foreign power or an agent of a foreign power, are di?'erent than the . requirements for law enforcement search warrants. gr. W- 310 F.3d at 740 requires less of a nexus between the facilities and the pertinent communications than Title but more of a nexus between the target and the pertinent communications?). The distinction between incidental and non-mcidental collection drawn in this opinion follows closely from the centrality of the target to foreign intelligence surveillances. 38 January 31, 2018. Public Release. EFF v. DOJ Document 2, Page 38 of 40. All withheld information exempt under b(7) except as othwewise noted. Approved for public release. A under minimization procedures, violated those procedures for the reasons stated above. 3. The minimiZation procedures proposed by the government that would permit the marking practice do not, under the of this Case, satisfy the de?nitionof minimization procedures at 50 U.S.C. 1801(h), for the reasons stated abOVe. Accordingly, it is hereby ORDERED that: l. The govemrnent's Motion For Reconsideration'dated is GRANTED in part and DENIED in part, as follows; 2. The Dental Order dated? and the Supplemental Order dated both in this Docket, are hereby VACATED, in favor of the fuller discussion of the issues provided by this Opinion and Order; I 3. The requested authority for the government to engage in the above-describedmarking practice Within thirty days of this Opinion and Order, all notations made by the government on or'concerning _that could not be logged, sumr'naiized, or indexed tinder the applicable liBI standard minimization procediires, as interpreted herein, shall be sequestered with this court, and thereafter shall be destroyed. The submission for 39 January 31, 2018, Public Release. EFF v. 00.] 16-CV-02041 Document 2, Page 39 of 4D. All withheld information exempt under except as othwewise noted. Approved for public release. WW sequestratiOn shall include a sworn declaration that all such notations are being submitted for sequestration. In the event that some or all of such notations have been irreuievably erased or destroyed, through automatic over-recording or otherwise, the declaration shall set forth the circumstances of such erasure or destruction; 5. The government is directed.? ?Such procedures shall, in a manner consistent with this Opinion, afford a greater degree of protectiOn to information from U.S. person communications to which_ than is provided by the standard minimization procedures for electronic surveillance of a U.S. person agent of aforeign power.? 6. The government is directed, in the event that it intends to - in the manner discussed above, to seek, by motion or separate application, express authorization garold A. Baker, Judge, . Foreign Intelligence Surveillance Court from this court to effect surveillance of that target by such means. So ordered this 5% While only th- is before the undersigned judge, it is expeeted that the government will also submit such procedures in other applications involving similarly overbroad surveillances. - KarenESImunJ?erk. 4 so, cen?ythatthis document 0 1 true at?: ext -- copy January 31, 2018. Public Release. EFF v. DOJ Document 2. Page 40 of 40.