b6 b7C UNITED STATES FOREIGN INTELLIGENCE SURVEELANCE COURT WASHINGTONb7c OPINION AND ORDER ES: 131 the Court entered an order (th Order?) 111 the above~eaptioned b3 matter dir eating the government to ?le a memorandum addressing the COurt?s concern that some 153 oi 1313.999ng on ElectromTurveillance??led By the I I government 0 77777 (the ?Return?) may have exceeded the scope of the authorization re?ectedinthe Court": on lthe ressing the issues raised by the 7Oo1111 1 I.rder For the reasons set faith below the C011 1 that exceec-e authority granted in th1 1 ESE-E I Background . 7 ESE 7777777777777 7777777777777 . . . b1 In th the Court authonzed the United States to conductl I SE b3 EE b6 .E. b'7c l" - 77777 ESE contalnedl ESE- f?an Othe by U16 36111163 p101 A ESE ereafter are subscribed to ESE-E 1805(c)(2)(B) at 5 b1 According to the Return. the Federal Bureau of Investigation learned ir ESE b3 b6 b7C August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 27, page 1 of 6 hisupon rovmg pr0V131oninthe I on to b1 b3 b6 expressed concern that the commencement of surveillance lumber might hav 6 Court explainec that ?[b]ecause th 3.3 7, .. i3 is? pursuant to Section 1805(c)(2). neceort directed the 3 government to ?le a memoran um me has [3 for its belief that the roving authority 5.3 granted bv the Court oe itted the FBI to initiat - or 1? 777777 E337 and to ?describe the government?s proposed ?118me acqmre from ?roving? coverage of that facility in the event the Court concludes that such coverasve was not autho ?red.? at 2.2 As noted above, the government ?led its Memorandum or El II. Analysis .. . .. .7 . 7 7 7 The government contends that t1- ?authorized ?roving? electronic surveillance cl I b7E Wlthout endorsmg or adoptmg every ?513 pec ve un?t-v analvsust bout! a ees that it could have authorized such coverage. The languageofth 77777777777 however, precludes the conclusion that such ihl auth'onty was in fact granted ere . . b1 33 b3 b6 . b7C The government acknowledged that thel '53 :1 .- 2 Or the Court granted the government?s application fo authority ea: b6 b'7C b7E Page 2 August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 27, page 2 of 6 Dem At the government?s request, the Court "?'Silwi'ggue?d'q to assist in th{ 0f m- these ?thl b'7E I The third category -ttumbers authorized for surveillance included the ?j?iso-called ?roving? authority. Speci?cally, thel I, A 7 I requiring 0 thin the meaning roving authO?ly?isnot routinely b1 granted by the Court. Rat er, it IS granted only when the Court ?nds, upon request bythe b3 government and based on ?speci?c facts, that ?the actions of the target .may have the effect i NE of thwarting the identi?cation of a speci?ed person? whose assistance is ?necessary to accomplish the electronic surveillance.? 50 U.S.C. 1805(c)(2)(Bj. For example, the Court might approve a request for roving coverage when the Spe i?c facts oresented (e a ?story of service rovider chan es) suggest that the target is likely it rto,-or iEl i3? obtains From, a different service provider. hen the (.?ourt grants rovmg authority, 3 survei?lianc?e SCGI?ltaiin certain ?specifications? and ?directions.? Subsection requires that such an order direct that, upon the request of the applicant, a speci?ed communication or other common carrier, landlord, custodian, or other speci?ed person, or in circumstances where the Court ?nds, based on speci?c facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identi?cation of a speci?ed person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance . . . 50 U.S.C. 7 Page 3 August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 27, page 3' of 6 rh-E- 77777 ""'mitis'siiesa'rovin' directing the recipient thereof to assist the government in 1 effectin ~ inthe~event ESE that the 33319,an or a orewousb umdentitied provrder becomes necessary, the government can -- on that provider to implement coverage. b1 As the foregoing discussion establishes, the] I 33 :2 ?513,111 1 Eh) . . . HE -- rDr0v1ded bv th servrce prov1der(s) Spem?ed 1n the order F0 ESE - he roving authority on the other hand, applie 0 er is? persons wh assistance become necessary bLWen??ed at the tirneof the rider, . and roving provisions of th clearly di?erea inamther important respect. ut the roving authority applied more broadly to EEIE The government acknowledges that thel fersto'" ?unidenti?ed? nrnviderq Memorandum at ?i Tt contends hnwever ESE: - ""rbl 3 a For purposes of later-identi?ed gin-E b3 7 the government contends thal is 'b7E WW I_d. Those contentions are unpersuasive Under the more ESE orderiE a?3peci?ed" provider and not an ?unidenti?ed? provider for purposes of ai? authonties granted by the Court. ?313: bl b3 b7E ESE August 20, 2018, Public Release Page 4 EFF V. DOJ 16-CV-02041 Document 27, page 4 of 6 The Court does not doubt that it could have authorized coverage 01 iSrI I In other cases in which the government has requested made the required thwarting showing, the government has proposed, and the Court has approved," 77777 77777 7 53: various forms of language eXpressly authorizing i 1.115 (LILIU penod covered by the order, without the issue here. rig? Docket Nr deed. the Court aourov U. such a request in the most rece renewal this matter. Docket But the government made no 5' adopted without revision the prOpose i5? application; Theapplicationtrackedthe lv requesting 'lar request ir the above-captioned docket. The Court at the government attached to its additiona andservicedby?ltrm.wmw y_ separately requesting authority 4 The Corresponding provisions of the government?s applicatio ?1 likewise provide no View?? as a no ?funidenti?ed?. provider- See Docket Nr :ould have been clearer and more at &11 (using terms ?heretofore unidenti?ed persons? and ?persons . . . who have not yet been identi?ed? to describe same category of providers); at 6 10 (using terms ?service provide?s) speci?ed herein? and ?Speci?ed persons? to refer to same class of providers); i at 11 (arguably referring to both categories of providers as ?said specified persons?i). Nevertheless, the language of the order does not support the conclusion that a provider such as order, could also qualify as an unidenti?ed provid' August 20, 2018, Public Release Ewen-Ba." Iwhich was identi?ed by name in the BI. Page 5 EFF V. DOJ 16-CV-02041 Document 27, page b7C b?7E b1 b3 b7E new a b1 for surve1llance and re, urnng asnstance of b3 nidenti?ed persons id at 47 and differentiating between liirected to specified b6 i? ?1 personsanda?roimi 7777777 directed to unidenu persons 1 at 42 Althou_ i 3 57? other portions of the application spoke more generally of a request for additiona b?7E I the application, read as a whole, cannot fairly be understood to have requested authority for . Conclusion In light of the foregoing, the Court concludes that the tithe-above captioned-docket did not authoriz x, 55 ?-Ei-i The government shall nandle the traits of the unauthorized surveillance in accordance Wit? applicable law and report to the Court in accordance with FISC Rule b7E It is so ORDERED, this is; THOMAS P. HOGAN Judge, United States ei Intelligence Surveillance Court 6 Although the Court concludes that there has been an overcollection, the Court sees no indication of bad faith on the part of the agents or attorneys involved. Arguably, at least, ?roving? practice has not been entirely consistent, see Memorandum at 4 11.2., and the language in the application and orders in this matter could have been clearer, see note 5, EILEE- The government has agreed to make clarifying changes to its proposed orders in ?iture ?roving? cases that are likely to reduce the risk of misunderstandings like the one that occurred in this matter Id at 16 17 3: .. Page6 . . ?9 E?mmdcomt . .43. {1 15.3 - - the original. b6 b7C .. ("Ill August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 27, page 6 of 6