UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. 3, SWPLEWNTAL ORDER On the Court issued orders authorizing the installation and use of poo-register and trap and trace devices as requested by the govenunont in the above- captioned docket In accordance with the government?s Veri?ed Memorandum of Law Regarding the Coiioction of Post-Cut?Through Digits Through Telephone: Pen Register Survciilanoe Under the Foreign intelligence Surveillance: Act, which it ?lled with the Court or herea?cr?Mcmorandum?), thf: govenunent?s appiication explicitly requested authority to record or docodc post-cut- through digits. Application, at 940. Also in accordance with the Memorandum, the government undertook not to make any af?rmative investigative use, through pen register authorization, of post?cut-through digits that do not constitute call dialing, muting, addressing or signaling mfonnation, and added for tho ?rst timc in an application to this Court: ?except in rare cases in order to prevent an ironiodiate danger of death, serious Do August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 12, page 3, physical injury, or harm to the national security.?I E, at 10. The Court?s Order directs the government to notify this Court ?of any such af?rmative use and explain the reasons therefore." Order, at 5. The relevant orders and authorities will expire on l?l The Memorandum indicates that, in some cases, post-cut-through digits, digits dialed from a targeted telephone number after the initial call set-up is completed or ?cut through,? may constitute call content; for example, when a caller connects to a and enters; number. MemOrandum at" 2 Under existing telephone pen register orders, some service providers supply the government with all post-cut-through digits. 1d, at 4. Collecting this information is necessary to determine the call identifying information, because in many instances, the targeted telephone number places credit card, calling card or collect calls by ?rst dialing a carrier access number, then, after this initial call is connected, dialing the phone number of the destination party. id, at 5. Th??'eunent de?nition of ?pen register? authorizes the August 20, 2018, Public Release government to collect dialing, routing, addressing or signaling information, but expressly The government provided an oral brie?ng to the Honorable Michael J. Davis {then a Judge of the FISC) regarding the procedures for avoiding the collection and investigative use of content in the Operation of pen registers and trap and trace devices ?Several months" prior to Submitting its Memorandum. Memorand at 12. The subject of this oral brie?ng was FBI guidance that was issued to all ?eld of?ces I. o' resainse to a Memorandum from former Deputy Attorney General, Larry utlining the Department of Justice policy on the collection of post-cul- is; throu cnmma. en re sters. 1d. Both of these documents were attached to the government?s Memorandum 0 i5) EFF V. DOJ 16-CV-02041 Document 12, page 'b3 [b1 133 131 133 provides ?that such information shall not include the contents of any communication. . so use. ?1s41(2) (incorporating by ritfercnce the de?nition in 18 use. ?3127(3)). Accordingly, the government in its Memorandmn undertakes to impose the restriction in all applications and proposed orders subsequently ?led with this Court that the government will make no a??mnative investigative use, through pen register authorization, of post-eut?through digits that do not constitute call dialing, routing, addressing or signaling information, except in a rare case in order to prevent an immediate danger of death, serious physical injury, or harm to the national security. Memorandum, at 12-13l-Slw his Conn an an owl Idirectingthegovermnentto g3?; su out a wntten rief, no later tha: WM Smith?s opinion in In re App marten oftlre United Statesfor an Order Authorizing (I) i3) Use ofa Pen Register and Trap and Trace Device or Process, (2) Access to Customer Records, and (3) Cell Phone Tmc?ng, F.5uyp.2d_, 2006 W12033877 (SD. Texas, 2006) affects the government?s analysis as set forth in its Memorandum. 3 August 20, 2018, Public Release EFF V. DQJ 16-CV-02041 Document 12, page 3 of 5 b1 b3 In light of the foregoing, the government is ordered to submit a report, under oath and no later than (I) An explanation ofhow the government is implementing its obligation to make no af?rmative investigative use, through pen register authorization, of post-cut- through digits that do not constitute call dialing, routing, addressing or signaling information, except in a rare case in order to prevent an immediate danger of death, serious physical injury, or harm to the national security, addressing in particular: August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 12, page 4 of 5 whether post-cut-through digits obtained via PISA pen register surveillance are uploaded into {El ?am. ma if so, what procedures are in place to ensure that no a?'mnative investigative use is made of post?cut?through digits that do not constitute call dialing, routing, addressing or signaling information, including whether such procedures mandate that this inforrnation be deleted from the relevant system. (2) An explanation of what procedures are in place to ensure that the Court is noti?ed, as required pursuant to the Court?s Order in the above captioned matter, whenever the government decides to make af?rmative investigative use of post-cut?through digits that do not constitute call dialing, routing, addressing or signaling information in order to prevent an immediate danger of death, serious physical injury, 01' harm to the national security. SO ORDERED, this COLLEEN KOLL -KOTEL Judge, United States Foreign Intelligence Surveillance Court :5 Karen Sutton, Clerk, certify that this document n; =3 rrue the original. August 20, 2018, Public Release EFF V. DOJ 16-CV-02041 Document 12, page