UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, RC. 1 B3 QFTNIGN AND GREEK the above-captioned matter, the Court issued an order er requiring the govemmt to submit a report on speci?ed matters and holding abeyanca the motion, to authorize electronic surveillance, pursuant to the Farcagn Bl government submitted a to Order( Respense?). After B3 review?ng the Response, the Court has granted the Manon. This Opinion and Order addresses the scope 0f acquisino which mi WW1 dwib?d? B1 BB August 20, 2018 Public Release EFF V. DOJ 16-CV-02041 Document 2, 1 of 15 B1 B3 August 20, 2018 Public Release EFF V. DOJ Document 2, 2 0f 15 B1 B3 B7E B1 B3 . B7E- have acknowledged that at least some of acquisitio constituted unauthmized alectmnic surveillance. August 20, 2018 Public Reiease EFF V. DOJ Document 2, 3 of 15 In its Response, however, the argues that acquisitio did not involve unauthorized electmm'c surveillance. For reasons noted the 0rd eelrom?e unau?'lonzed el er and discussed herein, the Court concludes that were has been surveillance . whether and to what extent the acquisition this matter stall presents a live controversy regarding constituted unauthorized eleeironic surveillance. The govemment voluntary cessation of allegedly unlaw?ll conduct renders a case moot when 1) it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.? Count): of Los Angeles v. Davis, 1.3.8. 625, 63} 6979) (intemal quotations and citations omitted). Both conditions must be satis?ed for moomess to obtain. m. In this 035e, ii is clear that the second condition is not satis?ed (the Court does not express an opinion on th identify and destroy August 20, 2018 Public Release 6 ?rst). The government has undertaken, but not completed, a process to . .. such that the effects ofhaving acquired have not been complete} eradicated EFF V. DOJ Document B7B B1 B3 B7B August 20, 2018 Public Release EFF V. DOJ 16-CV-O2041 Document 2, 5 of 15 B1 B3 B7 .. It has been undmtood ?'em the inceptioa of PISA that minimization pmwdures could include limitations on what communications may b9 acquired from surveillance directed at an o?iemise authe?zed facility? When tha government disregards such a iimitatien, thereby acquiring wmmunicatiens in axcess of what the order an?uoztizes, those acquisitions constitute unauthorized electronic survei?ance even though gig minimization rules may be directad 301313; at retention or dissemination, such that violation of those rules would net typically rasult in mau?mrized electronic surveillance. 1 B3 B7B August 20, 2018 Public Release EFF V. DOJ 16-CV-02041 Document 2, 6 of 15 B1 B3 8713 B1 B3 B7B Augqst 20, 2018 Public Release . EFF V. DOJ Document 2, 7 of $5 Bl B3 8713 B1 B3 B7B August 20, 2018 Public Release EFF V. DOJ Document 2, 8 of 15 B1 B3 B7B were supposed to have contemplazad B7B electremceillance directed at they fa?ed (as Show below) to com 1 with several statutory requirements. B1 B3 B7B August 20, 2018 Pubiic Reiease EFF V. DOJ 16-CV-02041 Document 2, 9 of 15 B1 B3 in Eng ude ?the Identity, ifknown, or a meillancef? 50 USS. 1804(a 2 5:2 was required to include ?a statement of the facts and relied upon by the applicant to justify his belief that . . . each of the facilities or places at which the electonic surveillance is directed is being used, 0 is about to he used, 1) a foreign power or an agent_fa0__ foreign powerAugust 20, 2018 Public Release EFF V. DOJ Document 2, 10 of 15 B1 B3 B7B B1 B3 B7 ted de?ciencies substantially impeded those interests: the Ceurt was deprived of an adequate of the at known to NSA and even tf the government were correct that acquisition authorized, a deaf and express record of that aumemation 13 lacking 1 B3 B7 11 August 20, 2018 Public Release EFF V. DOJ 16-CV-02041 Document 2, 11 of 15 August 20, 2018 Public Reiease DOJ Document 2, 12 of ?15 B1 B3 B7B Noth?mg in the record provides any reason why the Court would or shouid? have taken such liberties wi?a statuta We}: ormposed gretaer restrictions on survaillance directed at These anomahes an can all} be 3/ adaptmg the more reasonable Interpretation thai the P?mary Order {pre~amendment) did not authorize the acquisition I The Court is uaded that this is the better interpretati?n . The gavermnent?s madam provides additional reason to remse?m expansive interpreta 0 . advanced by the gavel-Imam. Tc put it mildly, imerpretatio 1 the government is in no position to claim unfair surprise at the Them is every reason to think that the 1 authanzatxon would have spoken more cleaxly and explicitly to the acqui ?on of - B3 B7B Inexcusably, the govemmwt not dzsolosethose fact Moreover, the government?s failures in this case are net isolated ones. The government has exhibited a chmnic tendency t9 misdesm?ibe the actual scope acquisitions in its B1 - B3 B7B August 20, 2018 Public Reiease EFF V. DOJ Document 2, 13 of 15 submissions to this Court. ?3 These inaccuracies have previously conuibuted to unauthorized electronic surveillance and other forms of statutory and constitutional de?ciency. ?9 It is evident that the govermnent needs every incentive to provide accurate and complete infomation to the Court about NSA operations, whenever such information is material to the case. Resolving in the government?s favor an ambiguity that resulted from the govemment?s failme to disclose known material facts about the scope of ongoing NSA surveillance woul? only diminish such incentives, to the detriment of the Cow?s ability to discharge its statutory responsibilities in an ex genie process. Rmuirement FISA crimimlly prohibits ?intentionally . . . disclos?ng] or us[ir.g] infomation obtained under color of law by electronic surveillance, knowing or having reason to know that the information was. obtained through electronic surveillance not authorized? ISA 0th ?express statutory authorization 50 [1.8 The govermnent reports that NSA is in the process of identifying and purging information obtained from the acquisition In View ofthe fact that such information is withm pmtew eenon 1809(a}(2) pml?ubi?ons, it is HEREBY ORDERED that the government shall submit a report providing an update on the status of these efforts no later than and at thirty-day intervals max-cam; until it reports that such process has been comp eted. If 14 August 20, 2018 Public Release EFF V. DOJ Document i. :23: Chie?Deputy Clerk, RSC. certify that this document 13 a true and correct new of ihe original August 20, 2018 Public Release THGMAS F. HOG Judge, United States erei Intelligence Surveillance Court EFF V. DOJ Document