UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. MEMORANDIM OPINION These matters are before the Foreign Intelligence Surveillance Couxt or . on: (1) the "Gove1'nment's Ex Parte Submission of Reatlthorization Certification and Related Procedures, Ex Parte Submission of Amended Certifioatiolm, and Request for an Order Approving Such Ceififioatioii and Amended Certifications" for 702(g} Certifications (bun, which was filed on April 20, 2011; (2) the "Govermne11t's Ex Parts Submission oi'Rcauthorization Certification and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certification and Amended I Certifications" for 702(g) Certifications was filed on April 22, 2011; and (3) the "Government's Ex Parte Submission of Reauthorization Certification and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications" for 702(g) Certifications which was also filed on April 22, 201 LI Througl1 these submissions, the gove11nnent seeks approval of the acquisition of certain telephone and Internet communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act or the 50 U.S.C. 188121, which requires judicial review for compliance with both statutory and constitutional For the reasons set forth below, the gove1'nrnent's requests for approval are granted in part and denied in part. The Court concludes that one aspect of the proposed collection the "upstream collection" of Internet transactions containing multiple -- is, in some respects, deflciention statutory and constitutional grounds. I For ease of reference, the Court will refer to these three filings collectively as the "April 2011 Submissions." Page 2 I. BACKGROUND A. The Certiticatioiis and Amendments The April 2011 Submissions include 702(g) Certification -- all of which were executed by the Attorney General and the Director of National Intelligence pursuant to Section 702. - previous certifications have been submitted by the government and approved by the Court pursuant to Section 702. 702 Dockets"). Each of the April 2011 Submissions also includes supporting affidavits by the Director or Acting Director of the National Security Agency the Director of the Federal Bureau of Investigation 1 two sets of targeting procedures, tlor use by NSA and FBI respectively; and three sets of minimization procedures, for use by NSA, FBI, and CIA, respectively." Like the acquisitions approved by the Court in the eight Prior 702 Dockets, collection 2 The targeting and rniniinization proceclures accompanying Certification - are identical to those accompanying As discussed below, the NSA t'getin rocdures an BI minimization procedures accompanying Certifications also are identical to the NSA targeting procedures and FBI minimization procedures that were submitted by the government and approved by the Court for use in connection with Certifications The FBI targeting procedures and the NSA and CIA'minirnigation procedures that accompany the April 2011 Submissions differ in several respects from the corresponding procedures that were submitted by the government and approved by the Court in connection with Certifications Page 3 under Certifications -- is limited to "the targeting of11on--United States persons reasonably believed to be located outside the United States." Certification The April 2011 Submissions also include emendmerits to certifications that have been submitted by the govermnerrt and approved by the Court in the Prior 702 Dockets. The aineiidnients, which have been authorized by the Attomey General and the DNI, provide that information collected under the certifications in the Prior 702 Dockets will, effective upon the Court's approval of Certifications be handled subject to the same -- 9 Page 4 $9 revised NSA and CIA minimization procedures that have been submitted for use in connection with Certifications B. The Mav 2 "Clarification" Letter On May 2, 2011, the government filed with the Court a letter pursuant to FISC Rule 13(a) titled "Clarification of National Security Agency's Upstream Collection Pursuant to Section 702 of ("May 2 Letter"). The May 2 Letter disclosed to the Court for the first time that NSA's "upstream collection" of Internet communications includes the acquisition of entire "transaction[s]" :4 According to the May 2 Letter, such transactions may contain data that is wholly unrelated to the tasked selector, including the full content of discrete communications that are not to, from, or about the facility tasked for collection. S_e_6_ ii at 2-3. The letter noted that NSAT uSe to ensure that "the person from whom it seeks to obtain. foreign intelligence information is located overseas," but suggested that the government might lack confidence in the effectiveness of such measures as applied to Internet transactions. i_c_L at 3 (citation omitted). 3 The term "upstream collection" re:fe1's1:o NSA's interception of Internet communications as they transit rather than to acquisitions directly from Internet service providers such as 4 The concept of "Internet transactions" is discussed more fully below. S_e? infra, pages 2741 and note 23. Page 5 49ESE C. The Government's First Motion for Extensions of Time On May 5, 2011, the government filed a motion seeking to extend until July 22, 2011, the 30-day periods in which the Court must otherwise complete its review of Certifications -- --, and the amendments to the certifications in the Prior 702 Dockets. Motion for an Order Extending Time Limit Pursuant to 50 U.S.C. 1881a(j)(2) at 1 ("May Motion"). The period for FISC review of Certification was then set to expire on May 20, 2011, and the period for review of the other pending certifications and amendments was set to expire on May 22, 2.011. LCL at 6.5 The government noted in the May Motion that its efforts to ad dress the issues raised in the May 2 Letter were still ongoing and that it intended to "supplement the record . . . in a manner that will aid the Court in its review" of the certifications and amendments and in making the determinations required under Section 702. Li. at According to the May Motion, however, the government would "not be in a position to supplement the record until after the statutory time limits for such review have expired." 1d,, The government further asserted that granting the requested extension of time would be consistent with national security, because, by operation of 5 50 U.S.C. I88la(i)(l)(B) requires the Court to complete its review of the certification and accompanying targeting and minimization procedures and issue an order under subsection 1881 a(i) (3) not later than 30 days after the date on which the certification and procedures are submitted. Pursuant to subsection l88la(i)(1)(C), the same time limit applies to review of an amended certification or amended procedures. However, 50 U.S.C. 1881a(i)(2) permits the Court, by order for reasons stated, to extend "as necessary for good cause in a manner consistent with national security," the time limit for the Court to complete its review and issue an order under Section 1381a(i)(3). - Page 6 statute, the governinentfs acquisition of foreign intelligence information under Certifications could continue pending completion of the Court's review. flag id; at 9-10. I On May 9, 2011, the Court entered orders granting the gover.t1n1ent?s May Motion. Based upon the representations in the motion, the Court found that there was good cause to extend the time limit for its review of the certifications to July 22, 2011, and that the extensions were consistent with national security. May 9, 2011 Orders at 4. D. The Maui 9 Bri efina Order Because it appeared to the Court that the acquisitions described in the May 2 Letter exceeded the scope ofoelleetion previously 'disclosed by the government and approved by the Court, and rnight, in part, fall outside the scope of Section 702, the Court issueda Briefing Order on May 9, 2011 ("Briefing Order" in which it directed the government to answer a number of questions in writing. Briefing Order at 3-5. 011 June I, 2011, the United States filed the "Government's Response to the Court's Briefing Order of May 9, 2011" ("June 1 Submission"). After reviewing the June 1 Suhrnission, the Court, through its staff, directed the government to answer a nurnber of follow--up questions. On June 28, 20-11, the government submitted its Written responses to the Court's followup questions in the "Gove1nment's Response to the Court's Follow-Up Questions of June 17 2011" ("June 28 Submission"). E. The (i'rovernrnent's Second Motion for Extensions ofTi1ne The Court met with senior ofiicials of the Departlnent of Justice 011 July 8, 2011, to Page 7 (bun, (bus) discuss the information provided by the government in the June 1 and June 28 Submissions. During the meeting, the Court informed the government that it still had serious concerns regarding acquisition of Internet transactions and, in particular, whether the Court could make the findings necessary to approve the acquisition of such transactions pursuant to Section 702. The Court also noted its willingness to entertain any additional filings that the government might choose to make in an effort to address those concerns. On July 14, 2011, the government filed a motion seeking additional sixty--day extensions of the periods in which the Court must complete its review of DNIJAG 702'(g) Certifications and the amendments to the certifications in the Prior 702 Dockets. Motion for Orders Extending Time Limits Pursuant to 50 U.S.C. 1881a(i)(2) ("July Motion" .5 In its July Motion, the government indicated that it was in the process of compiling additional information regarding the nature and scope ol'NSA's upstream collection, and that it was "examining whether enhancements to NSA's systems or processes could he made to further ensure that information acquired through upstream collection is handled in accordance with the requirements of the Act." I_d. at Because additional time would be needed to supplement the record, however, the government represented that a 60-day extension would be necessary. Ii at 8, 11. The government argtled that granting the request for an additional extension of time would be consistent with national security, because, by operation of statute, the 6 As discussed above, by operation of the Court's order of May 9, 2011, pursuant to S0 U.S.C. the Court was required to complete its review of, and issue orders under 50 1831a(i)(3) concerning, DNIIAG 702(g) Certification and the amendments to the certifications in the Prior 702 Dockets, by July 22, 2011. 1d_. at 6. $3 Page 8 governmenfis acquisition of foreign intelligence information under Certitications --could continue pending completion of the Ccurt's review. at 9~10. On July 14, 2011, the Court entered orders granting the goverrnnentfs motion. Based upon the representations in the motion, the Court found that there was good cause to extend the time limit for its review of the certifications to September 20, 2011,' and that the extensions were consistent with national security. July 14, 2011 Orders at 4. F. The August 16 and August 30 Submissions On August 16, 2011, the government filed a Supplement to the June 1 and June 28 Submissions ("August 16 Submission"). In the August 16 Submission, the govermnent described the results of "a manual review by of a statistically representative sample of the nature and scope of the Internet comniunications acquired through NSA's -. . . Section 702 upstream collection during a six~month period." Notice of Filing of Aug. 16 Submission at 2. Following a meeting between the Court staff and representatives of the Department of Justice on August 22, 2011, the government submitted a further filing on August 30, 2011 ("August 3 0 Submission"). G. The Hearing and the Government's an tlfritten Submission Following review of the August 30 Submission, the Court held a hearing on September 7, 2011, to ask additional questions of NSA and the Department of Justice regarding the goVernment's statistical analysis and the implications of that analysis. The government made its Page 9 final written submissions on September 9, 2011, and September 13, 2011 ("September 9 Submission" and "September 13 Submission,'' respectively). H. The Final Extension of Time I On September 14, 201 1, the Court ente1'ed orders further extending the deadline for its completion of the review of the certifications and amendments filed as part of the April Submissions. The Court explained that "[g]iven the complexity of the issues presented in these matters coupled with the Court's need to fully analyze the supplemental information provided by the govermrnent in recent filings, the last of which was submitted to the Court on September 13, 2011, the Court will not be able to complete its review of, and issue orders . . . concerning [the certifications and atnendments] by September 20, 2011." A The Court further explained. that although it had originally intended to extend the deadline by only one week, the government had advised the Court that "for technical reasons, such a brief extension would compromise. the governtnenfs ability to ensure a seamless transition from one Certification to the next." Accordingly, the Court extended the deadline to October 10, 2011- Page 10 ?6 11. REVIEW OF CERTIFICATIONS -- The Court must review a certification submitted pursuant to Section 702 of FISA "to determine Whether [it] contains all the required elements." 50 U.S.C. The Cou:rt's examination of Certifications confirms that: (I) the certifications have been made under oath by the Attorney General and the DNI, as required by 50 U.S.C. i881a(g)(1)(A), see Certification -- (2) the certifications contain each of the attestations required by 50 U.S.C. 1881a(s)(2)(A), see rtifioati0n . 5 (3) as required by 50 U.S.C. each of the certifications is accompanied by the applicable targeting procedures' and 1nini1nization p1'oced11res;3 (4) each of the certifioatio11s is supported by the affidavits of appropriate national security officials, as described in 50 U.S.C. and (5) each of the ce1'tificationSincl'L1des an effective date for the authorization in compliance 7 f?_e_e April 2011 Submissions, NSA Targeting Procedures and FBI Targeting Procedures (attached to Certifications 3 Sir; April 2011 Submissions, NSA Minimization Procedures, FBI Minimization I'rs,d iimzicn Prceures (attached to Certifications 9 April 2011 Submissions, Affidavits of John C. Inglis, Acting Director, NSA (attached to Certifications Affidavit of Gen. Keith B. Alexander, US. Army, Director, NSA (attached to Certification Affidavits of Robert S. Mueller, Director, FBI (attached to Certifications Page 11 with so U.s.c. 1881a(gii2)(D). se certification 10 The Court therefore finds that Certification :contain all the required elements. 50 U.S.C. REVIEW OF THE AMENDMENTS TO THE CERTIFICATIONS IN THE PRIOR DOCKETS. Under the judicial 'review procedures that apply to amendments by virtue of Section 1881a(i)(l)(C), the Court must review each of the amended eeltiflcations "to determine wlrether the certification contains all the required elements." 50 US .C. The Court has previously detemtined that the certifications in each of the Prior 702 Dockets, as originally submitted to the Court and previously amended, contained all the 1'equi1'ed elements. Like the prior certifications and atnendments, the amendments now before the Court were executed under oath by the Attorney General and the DNI, as required by 50 U.S.C. 1881a(g)(1)(A), and submitted to the Court within the time allowed under 50 U.S.C. 1881a(i)(l)(C). SE 1? The statement described in 50 U.S.C. 1881a(g)(2)(E) is not required in this case because there has been no "exigent ei1'oumstanoes'i determination under Section 1881a(o)(2). Pursuant to Section 188la(g)(2)(A)(il), the latest amendments include the attestations of the Attorney General and the DNI that the accompanying NSA and CIA minimization procedures meet the statutory definition of minimization p1'ocedu1'es, are consistent with the requireinents of the Fourth Amendment, and will be submitted to the Court for approval. Certification: . The latest ainendments also include effective dates that comply with 50 U.S.C. 188la(g)(2)(D) and l881a(i)(1). Certification All other aspects of the certifications in the Prior 702 Dockets -- including the further attestations made therein in accordance with 188 the NSA targeting procedures and FBI :rn1'ni1nization procedures submitted therewith in accordance with and the affidavits executed in support thereof in accordance with 1 881a(g) (2) (C) are unaltered by the latest amendnients. In light of the foregoing, the Court finds that the certifications in the Prior 702 Dockets, as amended, each contain all the required elements. 50 U.S.C. 1881a(i)(2)(A). '2 The arnendments to the certifications in the Prior 702 Dockets were approved by the Attorney General on April 11, 2011, and by the DNI on April 13, 2011. Ce1tificati01'1- '3 Of course, targeting under the certifications filed in the Prior 702 Dockets will no longer be permitted following the Court's issuance of an order on Certifications Page 13 l0R IV. REVIEW OF THE TARGETIN AND MINIMIZATION PROCEDURES The Court is required to review the targeting and rninimization procedures to deterrnine whether they are consistent with the requirements of 50 U.S.C. 1881a(d)(1) and fig 50 U.S.C. 1881a(i)(2)(B) and see also 50 U.S.C. 188la(i)(l)(C) (providing that amended procedures. must be reviewed under the same standard). Section 1881a(d](1) provides that the targeting procedures must he "reasonably designed" to "ensure that any acquisition authorized under [the certification] is limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." Section 1881a(ej(1) requires that the procedures "meet the of minimization procedures under [50 U.S.C. 18Dl(h) or 1821(4) . . . Most notably, that definition requires "specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular [surveillance or physical search], to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." 50 118.0. 180l(h) 1821(4). Finally, the Court must determine wliether the targeting and niininiization procedures are consistent with the of the Fourth Amendnient. 50 U.S.C. 1881a(i)(3)(A). Page 14 A. The Effect of the Governrnenfs Disclosures Regarding NSA's Acquisition of Internet Transactions on the Court's Review of the Targeting and Minimization Procedures The Court's review of the targeting and minimization procedures submitted with the April 2011 Submissions is complicated by the goVernment's recent revelation that NSA's acquisition of Internet communications through its upstream collection under Section 702 is accomplished by acquiring Internet "transactions," which may contain a single, discrete or multiple discrete communications, including communications that are neither to, from, nor about targeted facilities. June 1 Submission at 1-2. That revelation fundamentally alters the Court's understanding of the scope of the collection conducted pursuant to Section 702 and requires careful reexamination of many of the assessments and presumptions underlying its prior approvals. In the first Section 702 docket, the government disclosed that its Section 702 collection would include both telephone and Internet communications. According to the government, the acquisition of telephonic coinmunications would be limited to "to/item" cormnunications communications to or from a tasked facility. The government explained, however, that the Internet communications acquired would include both to/from and "about" communications cominunications containing a reference to the name of the tasked account. flee Based upon the governrnent's descriptions of the proposed collection, the Court understood that the acquisition of Internet communications under Section 702 would be limited to discrete "to/from" communications hetween or among individual account users and to "about" Page 15 $6 comrnunications falling Withi1- specific categories that had been first described to the Court in prior proceedings. The Court's analysis and ultimate approval of the targeting and minimization procedures in Docket No. and in the othe1- Prior 702 Dockets, depended upon the government's representations regarding the scope of the collection. In conducting its review and granting those approvals, the Court did not take into account NSA's acquisition of Internet transactions, which now materially and fund anientally alters the statutory and constitutional analysis." 14 The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program. In March, 2009, the Court concluded that its authorization of NSA's built acquisition of telephone call detail records from -- in the so~called "big business records" matter "ha[d] been premised on -a flawed depiction of how the NSA uses [the acquired] metadata," .and that "[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government~devised and Courtmiandated oversight regime." Docket Contrary to the government's repeated assurances, NSA had been routinely running queries of the metadata using "querying terms that did not meet the required standard for querying. The Court concluded that this requirernent had been "so frequently and systemically violated that it can fairly be said that this critical element of the overall . . .regi1:r1e11as11eVe1'ctiond effectively." 191, The submissions make clear not only that NSA has been acquiring Internet transactions since before the Court's approval of the first Section 702 certification in 2008," but also that NSA seeks to continue the collection of Internet transactions. Because NSA's acquisition of Internet transactions presents dilfloult questions, the Court will conduct its review in two stages. Consistent with the approach it has followed in past reviews of SectioI1'702 certifications and amendments, the Court will first consider the targeting and minimization procedures as applied to the acquisition of communications other than Internet transactions -- to the discrete between or among the users of telephone and Internet coinmunioations facilities that are to or from a facility tasked for collection." The Court will '5 The goVer1nnent's revelations regarding the scope of NSA's upstream collection implicate 50 U.S.C1. I809(a), which makes it a crime (1) to "engage[] in electronic suweiilaiice under color of law except as authorized" by statute or (2) to "disclose[] or use[] information obtained under color of law by electronic surveillance, knowing or havingreason to know that the information was obtained through electronic surveillance not authorized" by statute(concluding that Section 1809(a)(2) precluded the Court flom approving the government's proposed use of, among other things, certain data acquired by NSA without statutory authority through its "upstream collection"). The Court will address Section l809(a) and related issues in a separate order. As noted, the Court previously authorized the acquisition of. categories of "about" communications. The Court now' understands that all "about" communications are acquired by means of NSA's acquisition of Internet transactions through its upstream collection. ?_ee June 1 Submission at l-2, see also Sept. 7, 2011 Hearing Tr. at 76. Accordingly, the Court considers the (continued. . .) 5 Page l7 ?9 then assess the effect of the recent disclosures regarding NSA's collection of Internet transactions on its ability to make the findings necessary to approve the certifications and the NSA targeting and minimization procedures. '7 B. The Unmodified Procedures The government represents that the NSA targeting procedures and the FBI rninimization procedures filed with the April 2011 Submissions are identical to the corresponding procedures that were submitted to the Court in Docket Nos. The Court has reviewed each of these sets of procedures and confirmed that is the case. In fact, the NSA targeting procedures and FBI rniniinization procedures now before the Court are copies -categories of "about" communications to be a subset of the Internet transactions that NSA acquires. The Court's discussion of the rnanner in which the government proposes to apply its targeting and minimization procedures to Internet transactions generally also applies to the- categories of "abou communications. gee i;_f_ra, pages 4149not receive unminirnized communications that have been acquired through NSA's upstream collection of Internet communications. Sept. 7, 2011 Hearing Tr. at 61-62. Accordingly, the discussion of Internet transactions that appears below does not affect the Court's conclusions that the FBI targeting procedures, the CIA minirnization procedures, and the FBI rninirnization procedures meet the statutory and constitutional requirements. '3 fig Ex Parte Submission of Reauthorization Certification and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications for 702(g) Certifications Governntenfs Ex Parte Subinission of Reanthorization Certification and Related Procedures, Ex Patte Submission of Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications for 702(g) Certifications Government' Ex Parts Submission of Reauthorization Certification and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications for 702(g) Certifications l0B Page 18 of the procedures that were initially filed on July 29, 2009, in Docket No. -19 The Court found in those prior doclcets that the targeting and minirnization procedures were consistent with the requirements of 50 U.S.C. and with the Fourth Amendment. See Docket No. 5 -- The Court is prepared to renew its past findings that the NSA targeting procedures (as applied to forms of toffroin communications that have previously been described to the Court) and the FBI minimization procedures are consistent with the requirements of 50 U.S.C. 188 and with the Fourth A1'ne11dment.2? C. The Amended Procedures As noted above, the FBI targeting procedures and the NSA and CIA rninirnization procedures submitted with the April 2011 Submissions differ in a number of respects from the corresponding procedures that were submitted by the government and approved by the Court in connection with Certifications For the reasons that follow, the Court finds that, as applied to the previously authorized collection of discrete communications to or from a tasked facility, the amended. FBI targeting procedures and the amended NSA and CIA '9 Copies ofthose same procedures were also submitted in Docket Nos. -- 2? The Court notes that the FBIn1inin1ization procedures are not "set forth in a clear -and self-contai11ed manner, without resort to as required by FISC Rule 12, which became effective on November I, 2010. The Court expects that future submissions by the government will oornport with this requirement. Page 19 4P9 minimization procedures are consistent with the requirements of 50 U.S.C. and with the Fourth Amendment. 1. The Amended FBI Targeting Procedures The govermitent has made three changes to the FBI targeting procedures, all of which i involve Section 1.4. That provision requires the FB-I, The new language proposed by the government would allow the FBI to The government has advised the Court that this ehangewas prompted by the Nevertheless, the current procedures 1'equi1'e the FBI to The ehange is intended to eliminate the requi1'ement0f- The second change, refleeted in of Section L4, would allow the FBI, under certain circumstances: Page 20 (W1). (W3) The above-described changes to the FBI targeting procedures pose no obstacle to a - finding by the Court that the BI targeting pro oednres are "reasonably designed" to "ensure that any acquisition authorized . . . is limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to . which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." so U.S.C. 188Ia(d)(1). Page 21 -- Furthermore, as the Court has previously noted, before the FBI targeting procedures are applied, NSA will have followed its own targeting procedures in determining that the user of the facility to be tasked for collection is a non--United States person reasonably believed to be located outside the United States. gig Docket No. The fl_ The Court has previously found that-- proposed for use in connection with Certifications are reasonably designed to ensure that the users of tasked selectors are non>>United States persons reasonably believed to be located outside the United States and also consistent with the Fourth fies Docket No . It therefore follows that _the amended FBI targeting procedures, which provide additional assurance that the users of tasked accounts are non~United States persons located outside the United States, also pass muster. 2. The Amended NSA Minimization Procedures The most significant change to the NSA rninimization procedures regards the rules for querying the data that NSA acquires pursuant to Section 702. The procedures previously" approved by the Court effectively impose a wholesale bar on queries using United States~Person identifiers. The government has broadened Section to allow NSA to query the vast majority of its Section 702 collection using United States~Person identifiers, subject to approval Page 22 pursuant to internal NSA procedures and oversight by the Department of Justice." Like all other NSA queries of the Section 702 collection, queries using United Statesqaerson identifiers would be limited to those reasonably likely to yield foreign intelligence information. NSA Minirnization Procedures The Departnient of Justice and the Office of the DNI would he required to conduct oversight regarding use of United States-person identifiers in such queries. SE i_cL This relaxation of the querying rules does not alter the Court's prior conclusion that NSA minimization procedures meet the statutory definition of miriimization procedures. an analogous provision allowing queries of umninimized FISA--acquired information using identifiers - including United States person identifiers - when such queries are designed to yield foreign intelligence information. gee: In grantingapplications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the meet the definitions of minimization procedures at 50' 118.0. 1801031) and 1821(4). It follows that the 2' The government is still in the process of developing its internal procedures and will not permit NSA to begin using United States~person identifiers as selection terms until those procedures are completed. June 28 Submission at 4 11.3. In addition, the government has clarified that United Statcs--person identifiers will no_t be used to query the fruits of NSA's upstream collection. Aug. 30 Submission at 11. NSA's upstream collection acquires approximately 9% of the total Internet acquired by NSA under Section 702. Aug. 16 Subrnission at 2. Page 23 (W1). (W3) . querying provision found at Section of the amended NSA minimization procedures should not be problematic in a collection that is focused on non~Un1'ted States persons located outside the United States and that, in the aggregate, is less likely to result in the acquisition of nonpublic information 1'ega1'ding -non-consenting United States persons. A second change to the NSA minimization procedures is the addition of language specifying that the five~yeat' retention period for communications that are not subject to earlier destruction runs from the expiration date of the certification authorizing the collection. S_e__e NSA Minimization Procedures, and The NSA minimization pro oedures that were previously approved by the Court included a retention period of five years, but those procedures do not specify when the fivenyear period begins to run. The change proposed here hannonizes the procedures with the corresponding provision of the - minimization procedures for Section 702 that has already been approved by the Court. S_ee- Minimization Procedures at 3 (113). The two remaining changes to the NSA minimization procedures are intended to clarify the scope of the existing procedures. The government has added language to Section 1 to make explicit that the procedures apply not only to NSA employees, but also to any other persons engaged in Section 702--reiated activities that are conducted under the direction, authority or control of the Director of NSA. NSA Minimization Procedures at 1. According to the government, this new language is intended to clarify that Central Security Service personnel conducting signals intelligence operations authorized by Section 702 are bound by the procedures, even when they are deployed with a military unit and subject to the milita1'y chain of 4PGPSE - a Page 24 (W3) command. The second clarifying amendment is a change to the definition of "identification of a United States person" in Section 2. The new language eliminates a potential ambiguity that might have resulted in the inappropriate treatment of the name, unique title, or address of a United States person as nonnidentifying information in certain ciicunistances. 15; at 2. These amendments, which resolve any arguable ambiguity in favor of broader application of the protections found in the procedures, raise no concerns. 3. The Amended CIA Minimization Procedures The CIA minimization pro cedures include a new querying provision -- The new language would allow the CIA to conduct queries of Section '702--acquired information using United States-person identifiers. All CIA queries of the Section 702 collection would be subject to review by the Department of Justice ancnhe once oehenm i the addition one new CIA querying provision does not preclude the Court from concluding that the amended CIA minimization procedures satisfy the statutory definition of minimization procedures and comply with the Fourth Amendment." The amended CIA minimization procedures include 22 The Court understands that NSA does not share its upstrearll collection in . . unminimized form with the CIA. Page 25 raises no concerns in the context ofthe CIA minimization procedures. The govemment also has added Page 26 -- It likewise raie ee no Fourth Ainendment problem. -- Finally, a new provision The Court likewise sees no problem with the addition to the CIA minimization procedures. Internet Transactions Based on the government's prior representatioim, the Court has previously analyzed NSA's targeting and rninimization procedures only in the context of NSA acquiring discrete oommuni-cations. Now, however, in light of the goveininenfs revelations as to the manner in which NSA acquires Internet communications, it is clear that NSA acquires "Internet Page 27 I --T transactions,' *3 including transactions that contain a single discrete communication ("Single Transactions" or and transactions that contain multiple discrete communications Transactions" or Aug. 16 Submission at 1. The Court has repeatedly noted that the govermnenfs targeting and minimization procedures must be considered in light of the cornmunications actually acquired. fiee Docket No. ("Substantial implementation problems can, notwithstanding the government's intent, speak to whether the applicable targeting procedures are 'reasonably designed' to acquire only the communications of non-U.S. persons outside the United see also D001> 4,170, or 7,740--8,340 every year. The government has acknowledged as much in its submissiolts. June 28 Submission at 5. Based on its manual review, NSA assessed that 2668 of the 5,081 reviewed . . . 3 Page 39 contain a single non-target communication of or concerning a United States person, or that is to or from a person in the United States, NSA would be acquiring in excess of 10,000 additional discrete communications each year that are of or concerning United States persons, or that are to or from a person in the United States. The fourth category is the most problematic, because without the identity of the active 11861' -- ii, Whether the user is the target or a non~ta1'get - or the active use1"s location, it is difiicult to determine what presumptions to make about these MCTS. NSA acquires approximately 97,000-140,000 such MCTS each year." In the context of Wholly domestic communications, the government urges the Court to apply a series of presumptions that lead to the conclusion that this category would not contain any wholly domestic communications. Aug. 30 Submission at 4--8. The Court questions the validity of those presumptions, as applied to Wholly domestic communications, but certainly is not inclined to apply them to assessing the likelihood that MCTS might contain communications of or concerning United States persons, or communications to or from persons in the United States. The active users for some of these (approximately 52%) had a non-target active user who was reasonably believed to be located outside the United States. Aug. 16 Submission at 4-5. Fifty--two percent of the 1.29 to 1.39 million MCTS that NSA assessed were acquired through its upstream collection every six months would work out to 670,800 -- 722,800 MCTS, or approximately 1.3-1.4 million MCTS per year that have a non-target active user believed to be located outside the United States. 42 NSA determined that 224 MCTS of the 5,081 MCTS acquired during a six-1nont'h period From this, NSA concluded that it acquired between 48,609 and 70,168 such MCTs every six months through its upstream collection (or approximately such MCTs each year). Ll. at 9 11.27. 4QPS Page 40 MCTS may be located in the United States, and, even if the active user is located overseas, the MCTS may contain non-target communications of or concerning United States persons or that are to or from persons in the United States. Accordingly, this "unknown" category likely adds substantially to the number ofnon-target communications of or concerning United States persons or that are to or from persons in the United States being acquired by NSA each year. In sum, then, NSA's upstream collection is a small, but unique part of the government's overall collection under Section 702 of the FAA. NSA acquires Valuable information through its upstream collection, but not without substantial intrusions on Fourth Amendment-protected interests. Indeed, the record before this Court establishes that NSA's acquisition of Internet transactions likely results in NBA acquiring annually tens of thousands of wholly domestic communications, and tens of thousands of non-target communications of persons who have little or no relationship to the target but who are protected under the Fourth Amendment. Both acquisitions raise questions as to whether NSA's targeting and minirnization procedures comport with FISA and the Fourth Amendment. 2. flSA's Targeting "Procedures The Court will first consider whether NSA's acquisition of Internet transactions through its upstream collection, as described above, means that NSA's targeting procedures, as irnplemented, are not "reasonably designed" to: 1) "ensure that any acquisition authorized under [the certifications] is limited to targeting persons reasonably believed to be located outside the United States"; and S2.) "prevent the intentional acquisition of any coinnrunicatioit as to which the sender and all intended recipients are known at the time of the acquisition to be located in the 49?% A Page 41 l0B? United States." 50 U.S.C. l88la(d)(l); id, The Court concludes that the manner in which NSA is currently implementing the targeting procedures does not prevent the Court from making the necessary findings, and hence NSA's targeting procedures do not offend FISA. a. Targeting Persons Reasonably Believed to be Located Outside the United States 'I'o the extent NSA is acquiring Internet transactions that contain a single discrete communication that is to, from, or about a tasked selector, the Court's previous analysis remains valid. As e:~:plai11ed in g1'eate1' detail in the Court's September 4, 2008 Mentorandum Opinion, in this setting the person being targeted is the user of the tasked selector, and NSA's p1'e~'ta1'getiI1g - and post--tergeting procedures ensure that NSA will only acquire such transactions so long as there is a reasonable belief that the target is located outside the United States. Docket No. - But NSA's acquisition of complicates the Court's analysis somewhat. With regard to "about" communications, the Court previously found that the user of the tasked facility was the "target" of the acquisition, because the government's purpose in acquiring such communications is to obtain information about that user. ic_L at 18. Moreover, the comniiunication is not acquired because the government has any interest in the parties to the communication, other than their potential relationship to the user of the tasked facility, and the parties to an "abou cotnniunication do not become targets unless and until they are separately vetted uncler the targeting procedures. at l8~l9. In the case of "about" MCTs -- ii, MCTs that are acquired because a targeted selector is referenced somewhere in the transaction NSA acquires not only the discrete Page 42 49RSE that references the tasked selector, but also in many cases the contents or' other discrete communications that do not reference the tasked selector and to which no target is a party. S_e_e May 2 Letter at 2-8 By acquiring such MCTS, NSA likely acquires tens of thousands of additional communications ofnon~targets each year, many of whom have no relationship whatsoever with the user of the tasked selector. While the Court has concerns about NSA's acquisition of these non-target communications, the Court accepts the representation that the "sole reason [a non-target's is selected for acquisition is that it contains the presence of a tasked selector used by a person who has been subjected to NSA's targeting procedures." June 1 Submission at 4. Moreover, at the time of acquisition, upstream collection devices often lack the capability to determine whether a transaction contains a single communication or multiple communications, or to identify the parties to any particular communication within a transaction. i_d. Therefore, the Court has no reason to believe that NSA, by acquiring Internet transactions containing multiple communications, is targeting anyone other than the user of the tasked selector. gag United States V. Chemical Found.. Inc.. 272 U.S. 1, 14~15 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties"). Acquisition of Wholly Domestic Communications NSA's acquisition of Internet transactions complicates the analysis required by Section 188 I since the record shows that the government knowingly acquires tens of thousands of Wholly domestic communications each year. At first blush, it might seem obvious Page 43 that targeting procedures that permit _such acquisitions could not be "reasonably designed . . . to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." 50 U.S.C. 1881a(d)(1)(B). However, a closer examination of the language of the statute leads the Court to a ciifi'e1'ent conclusion. The government focuses primarily on the "intentional acquisition" language in Section 188 Specifically, the government argues that NSA is not "intentionally" acquiring wholly domestic cornmunications because the government does not intend to acquire transactions containing communicati-ons that are wholly domestic and has iinplernented technical means to prevent the acquisition of such transactions. See June 28 Submission at 12. This argument fails for several reasons. NSA targets a person under Section 702 certifications by acquiring coinmunications to, from, or about a selector used by that person. Therefore, to the extent NSA's upstream collection devices acquire an Internet transaction containing a single, discrete that is to, from, or about a tasked selector, it can hardly be said that NSA's acquisition is "unintentional." In fact, the government has argued, and the Court has accepted, that the goverrnnent intentionally acquires communications to and from a target, even when NSA reasonably albeit mistakenly -- believes that the target is located outside the United States. flee Docket No. With respect to MCTS, the sole reason NSA acquires such transactions is the presence of a tasked selector within the transaction. Because it is technologically infeasible for NSA's Page 44 upstream collection devices to acquire only the discrete to, from, or about a tasked selector that may be contained within an MCT, however, the governlnentargues that the only way to obtain the foreign intelligence infonrlation found within the discrete communication is to acquire the entire transaction in which it is contained. June 1 Submission at 21. As a result, the government intentionally acquires all discrete communications within an MCT, including those that are not to, from or about a tasked selector. June 28 Submission at 12, 14; see also Sept. 7, 2011 Hearing Tr. at 33--34. The fact that NSA's technical measures cannot prevent NSA from acquiring transactions containing wholly domestic communications under certain circumstances does not render NSA's acquisition of these transactions "unintentional." The goverrunent repeatedly characterizes such acquisitions as a "failure" ofNSA's "technical means." June 28 Submission at 12; see also Sept. 7, 2011 Hearing Tr. at 35 ~36 . However, there is nothing in the record to suggest that NSA's technical means are malfunctioning or otherwise failing to operate as designed. Indeed, the government readily concedes that NSA will acquire a wholly domestic "about" communication if the transaction containing the communication is routed through an international Internet link being monitored by NSA or is routed through a foreign server. June 1 Submission at 29. And in the case of MCTs containing wholly domestic communications that are not to, from, or about a tasked selector, NSA has no way to determine, at the time of acquisition, that a particular communication within an MST is wholly domestic. gee igl_._ Furthermore, now that NSA's rnanuai review of a sample of its upstream collection has co11iir1nedtl1atNSA likely acquires tens of thousands of wholly domestic communications each year, there is no question that the Page 45 government is knowingly acquiring Internet transactions that contain wholly domestic through its upstream collection." The government argues that an NSA analyst's post-acquisition discovery that a particular Internet transaction contains a wholly domestic should retroactively render NSA's acquisition of that transaction "uninteiitiozoal." June 28 Submission at 12. That argument is unavailing. SA's collection devices are set to acquire transactions that contain a reference to the targeted selector. When the collection device acquires such a transaction, it is functioning precisely as -it is intended, even when the transaction includes a wholly domestic communication. The language of the statute makes clear that it is the government's intention at the acquisition that matters, and the government conceded as much at the hearing in this matter. Sept. 7, 2011 Hearing Tr. at 37~38. Accordingly, the Court finds that NSA intentionally acquires Internet transactions that reference a tasked selector through its upstream collection with the knowledge that there are tens of thousands of wholly domestic communications contained within these transactions. But this is not the end of the analysis. To return to the language of the statute, NSA's targeting I procedures must be reasonably designed to prevent the intentional acquisition of "any as to which the sender and all intended recipients are ,k_nown at the time of 43 It is generally settled that a person intends to produce a consequence either when he acts with a purpose of producing that consequence or when he acts knowing that the consequence is substantially certain to occur. Restatement (Third) of Torts 1 (2010); see also United States Dver, 589 F.3d 520, 528 (1 st Cir. 2009) (in criminal law, "'ir1tent' ordinarily requires only that the defendant reasonably knew the proscribed result would occur" fit, denied, 130 S. Ct. 2422 (2010). 4 Page 46 (W1): (W3) acguisition to be located in the United States." 50 U.S.C. l881a(d)(1)(B) (emphasis added). The underscored language requires an acquisition-by-acquisition inquiry. hue, the Court must consider whether, at the time NSA intentionally acquires a transaction through its upstrearn collection, NSA will know that the sender and all intended recipients of any particular cornzmunication within that transaction are located in the United States. Presently, it is not technically possible for NSA to configure its upstream collection devices the practical effect of this technological limitation is that NSA cannot know at the time it acquires an Internet transaction Whether the sender and all intended recipients of any particular discrete communication contained within the transaction are located inside the United States. 4" flag; ?l1]Ifi,n01l6 33. Page 47 Given that NSA's upstream collection devices lack the capacity to detect wholly domestic communications at the time an Internet transaction is acquired, the Court is inexorably led to the conclusion that the targeting procedures are_"reasonahly designed" to prevent the intentional acquisition of any as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States. This is true despite the fact that NSA knows with certainty that the upstream collection, viewed as a whole, results in the acquisition of wholly domestic communications. By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of Section and with regard to'that collection. NSxi's knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the Court. But the meaning of the relevant statutoiy provision is clear and application to the facts before the Court does not lead to an irnpossibie or absurd result. The Cou1t's review does not end with the targeting procedures, however. The Court must Page 48 also consider whether NSA's minimization procedures are consistent with ?1881a(e)(1) and whether NSA's targeting and minimization procedures are consistent with the requirements of the Fourth Amendlnent. 3. NSA's Minimization Procedures, As Applied to MCTs in the Manner Proposed by the Government. Do Not Meet FISA's Deiinition of "Minimization Procedures" The Court next considers whether NSA's minimization procedures, as the government proposes to apply them to Internet transactions, meet the statutory requirements. As noted above, 50 US .C. 1881a(e)(1) requires that the minimization procedures "meet the definition of minimization procedures under [i50 U.S.C- 1801(h) or 1821(4) . . That definition requires "specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light cfthe purpose and technique of the particular [surveillance or physical search], to srninimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." 50 1801(h)(1) 182l(4)(A). For the reasons stated beloW,t11e Court concludes that NSA's minimization procedures, as applied to MCTS in the manner proposed by the government, do not meet the statutory definition in all respects. o. The Minimization Framework NSA's minimization procedures do not expressly contemplate the acquisition of MCTs, and the language of the procedures does not lend itself to straightforward application to MCTs. Most notably, various provisions of the NSA minimization procedures employ the term BRN-M - Page 49 - "communication" as a11 operative term. As explained below, for instance, the rules governing retention, handling, and dissemination vary depending Whether or not a communication is deemed to constitute a "domestic communication" instead of a "foreign oornmunication," NSA Minimization Procedures 5, 6, 7; a co1nmunication"oi" or "concerning" a US. person, sic a "coinmunication to, from, or about a target," LL or a "communication. . . reasonably believed to contain foreign intelligence information or evidence of a crime," i_(L But MCTS can be fairly described as communications that contain several smaller communications. Applying the terms of the NSA minimization procedures to MCTS rather than discrete communications can produce very different results. In a recent submission, the government explained how NSA proposes to apply its ininirnization procedures to MCTs. gee Aug. 30 Submission at 8-11." Before discussing the measures proposed by the government for handling MCTS, it is helpfui to begin with a brief overview of the NSA minimization procedures themselves. The procedures require that all acquisitions "will be conducted in a manner designed, to the greatest extent feasible, to minimize the acquisition of information not relevant to the authorized purpose of the collection." NSA "5 Although NSA has been collecting since before the Court's approval of the first Section 702 certification in 2008, June 1 Submission at 2, it has not, to date, applied the measures proposed here to the fruits of its upstream collection. Indeed, until NSA's manual review of a siiomonth sample of its upstream collection revealed the acquisition of wholly domestic communications, the government asserted that NSA had never found a wholly domestic cormnunication in its upstream collection. See E, Page 50 Minimization Procedures Following acquisition, t]1e procedures require that, :1 communication is reviewed, NSA ana1yst(s) will determine whether it is a domestic or foreign communication to, from, or about a target and is reasonably believed to contain foreign intelligence information or evidence of a crime." "Foreign communication means a communication that has at least one cornrnunicant outside of the United States." "All other communications, including comrnunications in which the sender and-all intended recipients are reasonably believed to be located in the United States at the time of acquisition, are domestic In addition, domestic communications include "[a]ny comrnunications acquired through the targeting of a person who at the time of targeting was reasonably believed to be located outside the United States but is in fact located inside the United States at the time such cornmunications were acquired, and any communications acquired by targeting a person who at the ti1ne of the targeting was believed to be a non~United States person but was in fact a United States person. . . Id, A domestic communication must be destroyed upon recognition unless the Director (or Acting Director) of NBA specifically determiries, in writing, that" the communication contains foreign intelligence "5 Of course, NSA's separate targeting procedures, discussed above, also govern the manner in which communications are acquired. Page 51 information or evidence of a crime, or that it falls into another narrow exception permitting retention. 5.47 Upon determining that a communication is a "foreign communication," NSA must decide whether the communication is "of" or "concerning" a United States person. 6. "Communications of a United States person include all communications to which a United States person is a party." "Communications concerning a United States person include all communications in which a United States person is discussed or mentioned, except where such communications reveal only pub1io1y--available inforxnation about the person." id, A foreign communication that is of or concerning a United States person and that is determined to contain neither foreign inteiligence information nor evidence of a crime must be destroyed "at the earliest practicable point in the processing cycle," and "may be retained no longer than five years from the expiration date of the cettification in any event," LL 4" Once such a determination is made by the Director, the domestic communications at issue are effectively treated as "foreign communications" for purposes of the rules regarding retention and dissemination. Although Section by its terms applies only to "inadvertently acquired communications of or concerning a United States person," the government has informed the Court that this provision is intended to apply, and in practice is applied, to foreign communications of or concerning United States persons that contain neither foreign intelligence information nor evidence of a crime, Docket No. 7 Sept. 2, 2008 Notice of Clarification and Correction at 3-5. Moreover, Section 3(c) of the procedures separately provides that foreign oonununications that do not qualify for retention and that "are known to contain communications of or concerning United States persons will be destroyed upon recognition," and, like unreviewed communications, "may be retained no longer than five years from the {conti11ued. . .) Page 52 A foreign communication that is of or concerning a United States person may be retained indefinitely if the "dissemination of such communications with reference to such United States persons would be permitted" under the dissemination provisions that are discussed below, or it contains evidence of a crime. If the retention of a foreign communication of or concerning a United States person is "necessary for the rnaintenance of technical databases," it may be retained for five years to allow for technical exploitation, or for longer than five years if more time is required for or the NSA Signals Intelligence Director "determines in writing that retention for a longer period is required to respond to authorized foreign intelligence or counterintelligence requirements." As a general rule, report based on communications of or concerning a United States person may be disseminated" only "if the identity of the United States person is deleted and a generic term or symbol is substituted so that the information cannot reasonably be connected with an identifiable United States person." id; A report including the identityof the United States person may be provided to a "recipient requiring the identity of such person for the performance of official duties," but only if at least one of eight requirements is also met for instance, if "the identity of the United States person is necessary to understand foreign intelligence information or assess its imp ortanoe," or if "information indicates the United States expiration date of the certification authorizing the collection in any event." Page 53 person may be . . . an agent of a foreign power" or that he is "engaging in international terrorism activities." id" 15. Proposed Minimization Measaresfor MCTS The government proposes that NSA's minimization procedures be applied to MCTs in the following manner. After acquisition, upstream acquisitions, including MCTs,Will reside in NSA repositories until they are accessed (egg, in response to a query) by an NSA analyst perforrning his or her day-to~day work. NSA proposes adding a "cautionary banner" to the tools its use to view the content of communications acquired through upstream collection under Section 702. flee Aug. 30 Submission at 9. The banner, which will be "broadly displayed on [such] tools," will "direct to consult guidance on how to identify MCTS and how to handle them." I_d. at 9 n.6.5? will be trained to identify MCTs and to recognize Wholly domestic communications contained within MCTs. Le at 8-9. When an analyst identifies an upstream acquisition as an MCT, the analyst will decide whether or not he or she "seek[s] to use a discrete communication within [the] 49 The procedures also permit NSA to provide umninirnized co1nInu1'licationsto- . FBI (subject to their own rninirnization procedures), and to foreign governments for the limited purpose of obtaining "technical and linguistic assistance." NSA Minimization Procedures Neither of these provisions has been used to share" upstream acquisitions. Sept. 2011 Hearing Tr. at 61-62. 5? The banner will not be displayed for communications that "can be first through technical means where the active user is NSA's tasked selector or that contain only a single, discrete cornmunication based on particular stable and protocols." Aug. 30 Submission at 9 n6. gee ifi, note 27, and note 54. Page 54 -Tor-ss presumably by reviewing some or all of the MCT's contents. Li. at 8.5' . seeking to use a discrete communication contained in an MCT (for example, in a FISA application, intelligence report, or Section 702 targeting) will assess whether the discrete communication is -to, from, or about a tasked selector." 191, The following frarnework will then be applied: _v If the discrete communication that the analyst seeks to use is to, fiorn, or about a tasked selector, "any person information in that communication will be handled in accordance with the NSA minirnization procedures." Presumably, this means that the discrete communication will be treated as a "foreign communication" that is "ct" or "concerning" a United States person, as described above. The MCT containing that communication remains available to in NSA's repositories without any marking to indicate that it has been identified as an MOT or as a transaction containing United States person information. - If the discrete conununication sought to be used is not to, from, or about a tasked selector, and also not to or from an identifiable United States person, "that communication (including any US. person information therein) will be handled in accordance with the NSA minimization procedures." at 8~9.52 Presumably, this means that the discrete communication will be treated as a "foreign communication" or, if it contains information concerning a United States person, as a "foreign co1nmunication" "concerning a United States person," as described above. The MCT itselfremains available to in SA's repositories without any to indicate that it has been identified as an MCT or that it contains one or more communications that are not to, from, or about a targeted selector. 5' A transaction that is identified as an SGT rather than an MCT must be handled in accordance with the standard minimization procedures that are discussed above. 52 The Court understands that absent contrary information, NBA treats the user of an account who appears to be located in the United States as "an identifiable U.S. person." Aug. 30 Submission at 9 11.7 ("To help determine whether a discrete communication not to, from, or about a tasked selector is to or from a U.S. person, NSA would perform the same sort of technical analysis it would perfoiin before tasking an electronic communications accountfaddress/identitier in accordance with its section 702 targeting Page 55 --T - A discrete communication that is not to, from, or about a tasked selector but that is to or from an identifiable United States person "cannot be used for any purpose other than to protect against an immediate threat to human life force protection or hostage situationsj." at 9. Presumably, this is a reference to Section 1 of the minimization procedures, which allows NSA to deviate from the procedures in such narrow circurnstances, subject to the requirement that prompt notice be given to the Office of the Director of National intelligence, the Department of Justice, and the Court that the deviation has occurred. Regardless of whether or not the discrete communication is used for this limited purpose, the MCT itself remains in NSA's databases without any marking to indicate that it is an MOT, or that it contains at least one communication that is to or from an identifiable United States person. flee Sept. 7, 2011 Hearing Tr. at 61. - If the discrete comniunication sought to be used by the analyst (or another discrete corrununication within the MCT) is recognized as being wholly domestic, the entire MCT will be purged from NSA's systems. fie Aug. 30 Submission at 3. c. Statutory Analysis if Acquisition The Court first considers how NSA's proposed handling bears on whether NSA's ininirnization procedures are "reasonably designed in light of the purpose and technique of the particular surveillance, to rninimize the a_c:c1uisition . . of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." 50 U.S.C. l801(h)(l) (empliasis added). Insofar as NSA likely acquires approximately 2,000- 10,000 MCTs each year that contain at least one wholly domestic communication that is neither to, from, nor about a targeted selector," and tens of thousands of communications of or 53 As noted above, NSA's upstream collection also likely results in the acquisition oftens Page 56 (W) to f6P concerning United States persons with no direct connection to any target, the Court has serious concerns. The acquisition of such non-target communications, which are highly unlikely to have foreign intelligence value, obviously does not by itself serve the gcvernmenfs need to "obtain, produce, and disseminate foreign intelligence information." 50 U.S.C. 1801(h)(l). The government submits, however, that the portions of MCTS that contain references to targeted selectors are likely to contain foreign intelligence information, and that it is not feasible for NSA to limit its collection only to the relevant portion or portions of each MCT the particular discrete communications that are to, from, or about a targeted selector. The Court continued) of thousands of wholly domestic SCTs that contain reerence to targetd selec supra, page 33-4 note 33 (dicussitg the limits Although the collection of Wholly domestic "abou SCTs is troubling, they do not raise the same minimization-related concerns as discrete, wholly domestic communications that are neither to, from, nor about targeted selectors, or as discrete comrtiunications of or concerning United States persons with no direct connection to any target, either of which may be contained within IviCTs. The Court has effectively concluded that certain communications containing a reference to a targeted selector are reasonably likely to contain foreign intelligence information, including communications between non--target accounts that contain the name of the targeted facility in the body of the message. 5; Docket No. 07-449, May 31, 2007 Primary Order at 12 (finding probable cause to believe that certain "about" communications were "themselves being sent and/or received by one of the targeted foreign powers"). Insofar as the discrete, wholly domestic "about" communications at issue here are communications between non--target accounts that contain the name of the targeted facility, the same conclusion applies to them. Accordingly, in the language of FISA's definition of minimization procedures, the acquisition of wholly domestic communications about targeted selectors will generally be "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." flee 50 U.S.C. 180l(h)(l). Court; understands that in the event NSA identifies a discrete, wholly domestic "about" communication in its databases, the communication will be destroyed upon recognition. sag NSA Minimization Procedures 5. Page 57 (bin) i accepts the gove1nment's assertion that the collection of MCTS yields valuable foreign intelligence information that by its nature cannot be acquired except through upstream collection. Sept. 7, 2011 I-Iearing Tr. at 69-70, 74. For purposes of this discussion, the Court further accepts the governinenfis assertion that it is not feasible for NSA to avoid the collection of MCTs as part of its upstream collection or to limit its collection only to the specific portion or portions of each transaction that contains the targeted selector. _S_e;q ii at 48-50; June 1 Submission at 27." The Court therefore concludes that noininiizaticn procedures are, given the current state of NSA's technical capability, reasonably designed to minimize the acquisition of nonpublioly available infonnation concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence info1*mation. ay event, it is ineumnt on NS 0 continue Worlcin to enhance its capability to limit acquisitions only to targeted communications. Page 58 it'. Retention The principal problem with the proposed handling of MCT relates to what will occur, and what will _1_1_o_t occur, following acquisition. As noted above, the NSA rninirnization procedures generally require that, a is reviewed, NSA analyst(s) will determine whether it is a domestic or foreign communication to, flom, or about a target and is reasonably believed to contain foreign intelligence information or evidence of a crime," NSA Minimization Procedures so that it can be afforded the appropriate treatment under the procedures. The measures proposed by the government for MCTS, however, largely dispense with the requirement of prompt disposition upon initial review by an analyst. Rather than attempting to identify and segregate information "not relevant to the authorized purpose ofthe acquisition" or to destroy such informatiolt following acquisition, NSA's proposed handling of MCTS tends to maximize the retention of such information, including information of or concerning United States persons with no direct connection to any target. ?e_e id, The proposed Ineasures focus almost exclusively on the discrete communications within MCTS that decide, after review, that they wish to use. See Aug'. 30 Submission at 3-10. An analyst is not obligated to do anything with other portions of the MCT, including any wholly domestic discrete coimnuliications that are not immediately recognized as such, and communications of or concerning United States persons that have no direct connection to the targeted selector. S26. ids; Sept. 7, 2011 Hearing Tr. at 61. If, after reviewing the contents of an Page 59 --T entire MCT, the analyst decides that he or she does not wish to use any discrete communication contained therein, the analyst is not obligated to do anything unless it is immediately apparent to him or her that the MCT contains a' wholly domestic communication (in which case the entire MCT is deletcc1).55 _S'_ee Aug. 30 Submission at 8~10. Except in the case-of those recognised as containing at least one wholly domestic communication, MCTs that have been reviewed by remain available to other in NSA's repositories Without any marking to identify them as MCTS. Sept. 7, 2011 Hearing Tr. at 61. Nor will MCTs be marked to identify them as containing discrete - communications to or from United States persons but not to or fl'0m a targeted selector, or to indicate that they contain United States person information. flee Aug. 30 Submission at 8-10; Sept. 7, 2011 Hearing Tr. at 61. All MCTs except those identified as containing one or more wholly domestic communications will he retained for a minimum of live years. The net effect is that thousands of wholly domestic ccnununications (those that are never reviewed and those that are not recognized by as being wholly domestic), and thousands of other discrete 55 The governrnent's submissions make clear that, in many cases, it will be difficult for analysis to determine whether a discrete communication contained within an is a Wholly a domestic communication. NSA's recent manual review of a six-month representative sample of its upstream collection demonstrates how challenging it can be for NBA to recognize wholly domestic communications, even when the agency's full attention and effort are directed at the task. See generally Aug. 16 and Aug. 30 Submissions. It is doubtful that whose attention and effort are focused on identifying and analyzing foreign intelligence information will be any more successful in identifying wholly domestic communications. Indeed, each year the government notifies the Court of numerous compliance incidents involving good--faith mistakes and omissions by NSA personnel who work with the Section 702 collection. Page 60 communications that are not to or from a targeted selector but that are to, from, or concerning a United States person, will be retained by NSA for at least five years, despite the fact that they have no direct connection to a targeted selector and, therefore, are unlikely to contain foreign intelligence information. It appears that NSA could do substantially more to minimize the retention of information concerning United States persons that is unrelated to the foreign intelligence purpose of its upstream collection. The government has not, for instance, demonstrated why it would not be feasible to limit access to upstream acquisitions to a smaller group of who could develop expertise in identifying and scrutinizing MCTs for wholly domestic communications and other discrete cornmunicaticns of or concerning United States persons. Alternatively, it is unclear why an analyst Working within the frarnework proposed by the government should not be required, after identifying an MCT, to apply Section of the NSA rniniinization procedures to each discrete communication Within the transaction. As noted above, Section states that a cornrnunication is reviewed, NSA ana1yst(s) will determine vvlrether it is a domestic or foreign communication to, from, or about a target and is reasonably believed to contain foreign intelligence information or evidence of a crime." NSA Minimization Procedures If the contains information "of" or "concerning" a United States person within the meaning of Sections and of the NSA minimization procedures, it is unclear why the analyst should not be required to mark it to identify it as such. At a ininirnuin, it seems that the entire MCT could be marked as an MOT. Such markings would Page 61 alert other NSA personnel who might encounter the to take care in reviewing it, thus reducing the risk of error that seems to be inherent in the measures proposed by the government, which are applied by each analyst, acting alone and Without the benefit of his or her colleagues' prior efforts." Another potentially helpful step might be to adopt a shorter retention period for MCTS and unreviewed upstream communications so that such information "ages off" and is deleted fi'om NSA's repositories in less than five years. This discussion is not intended to provide a clieclclist of changes that, made, would necessarily bring NSA's minimization procedures into compliance with the statute. Indeed, it may be that some 01' these measures are impracticable, and it may be that there are other plausible (perhaps even better) steps that could be taken that are not mentioned here. But by not fully exploring such options, the government has failed to demonstrate that it has struck a reasonable balance between its foreign intelligence needs and the requirement that information concerning United States persons be protected. Under the circumstances, the Court is unable to find that, as applied to MCTs in the manner proposed by the government, NSA's minimization procedures are "reasonably designed in light of the purpose and technique of the particular surveillance to minimize the . . . retention . . . of nonpublicly available information concerning unconsenting 55 The government recentiy acknowledged that "it's pretty clear that it would be better" if NSA used such markings but that "[t]he feasibility of doing that [had not yet been] assessed." Sept. 7, 2011 I-Iearing Tr. at 56. Page 62 United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign inteliigence _S_ee 50 U.S.C. 1801 4&3 Dissemination The Court next turns to dissemination. At the outset, it must be noted that FISA imposes a stricter standard for dissemination than for acquisition or retention. While the statute requires procedures that are reasonably designed to "n:1inirnize" the acquisition and retention of information concerning United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign information, the procedures must be reasonably designed to the dissernination of information concerning United States persons consistent with that need. 50 U.S.C. 1801 (emphasis added). 5" NSA's1nini1nization procedures contain two provisions that state, in part, that "[t]he communications that ay be reained incude eeconi conmications acuired beause Iiitatios i A . . The governrnent further represented that it "ha[d] not seen" such a circumstance in collection under the Protect America Act which was the predecessor to Section 702. at 29, 30. And although NSA apparently was acquiring Internet transactions under the PAA, the government made no mention of such acquisitions in connection with these provisions of the minimization procedures (or otherwise). gee id, at 27-31. Accordingly, the Court does not read this language as purporting to justify the procedures proposed by the government for MCTS. In any event, such a reading would, for the reasons stated, be inconsistent with the statutory requirements for ininitnization. Page 63 As the Court understands it, no United States--person~identifying information contained in any MOT will be disseminated except in accordance with the general requirements ofNSA"s minimization procedures for "foreign communications" "of or concerning United States persons" that are discussed above. Specifically, report based on communications of or concerning a United States person may be disseminated" only "if the identity of the United States person is deleted and a generic term or symbol is substituted so that the information cannot reasonably be connected with an identifiable United States person." NSA Minimization Procedures 603), A report including the identity of the United States person may be provided to a "recipient requiring the identity of such person for the performance of official duties," but only if at least one of eight requirements is also met -- for instance, if "the identity of the United States person is necessary to understand foreign intelligence information or assess its importance." Q53 This limitation on the dissemination of United States--person~identifying information is helpful. But the pertinent portion of FISA's definition of minimization procedures applies not merely to information that identifies United States persons, but more broadly to the dissemination of "information concerning unconsenting United States persons." 50 l801(h)(l) (emphasis added)?" The government has proposed several additional restrictions that 53 Although Section 6(b) uses the term "report," the Court understands it to apply to the dissemination of United States--person--identifying information in any form. 5" Another provision of the definition of minirnization procedures bars the dissemination of information (other than certain forms of foreign intelligence information) "in a manner that (continued. . .) Page 64 ,l0L will have the effect of limiting the dissemination of "nonpublicly available information concerning United States persons consistent with the need of the United States to disseminate foreign intelligence inforrnation." I_d. First, as noted above, the government will destroy MCTs that are recognized by as containing one or more discrete wholly domestic communications. Second, the has asserted that NSA will not use any discrete cominunication within an MOT that is determined to be to or from a United States person but notito, florn, or about a targeted selector, except when necessary to protect against an immediate threat to human life. Aug. 30 Submission at 9. The Court understands this to mean, among other things, that no information from such a coniniunication will be disseminated in any form unless NSA determines it is necessary to serve this specific purpose. Third, the government has represented that whenever it is unable to confirm that at least one party to a discrete communication contained in an MCT is located outside the United States, it will not use any information contained in the discrete communication. See Sept. 7, 2011 Hearing Tr. at 52. The Court understands this limitation to mean that no information from such a discrete corninunication will be disseminated by NSA in any form. Communications as to which a United States person or a person inside the United States identities any United States person," except when the person's identity is necessary to understand foreign intelligence information or to assess its importance. _S_e_e 50 U.S.C. 1801(h)(2), 1821 Congress's use of the distinct modifying terms "concerning" and "identifying" in two adjacent and closely-related provisions was presumably intended to have meaning. Sag, Russello v. United States. 464 US. 16, 23 (1983). Page 65 is a party are more likely than other communications to contain information concerning United States persons. And when such a communication is neither to, from, nor about a targeted facility, it is highly unlikely that the "need of the United States to disseminate foreign intelligence information" would be served by the disseinination of United States--person information contained therein. Hence, taken together, these measures will tend to prohibit the dissemination of information concerning unconsenting United States persons when there is no foreign- intelligence need to do so." Of course, the risk remains that information concerning United States persons will not be recognized by NSA despite the goodsfaith application of the measures it proposes. But the Court cannot say that the risk is so great that it undermines the reasonableness of the measures proposed by NSA with respect to the dissemination of information concerning United States persons." Accordingly, the Court concludes that NSA's 6" Another measure that, on balance, is likely to mitigate somewhat the risk that information concerning United States persons will be disseminated in the absence of a foreign- intelligenoe need is the recently.proposed prohibition on running queries of the Section 702 upstream collection using United States-person identifiers. See Aug. 30 Submission at 10-11. To be sure, any query, including a queiy based on non-United States-person information, could yield United States--person information. Nevertheless, it stands to reason that queries based on information concerning United States persons are at least somewhat more likely than other queries to yield United States--pers on information. Insofar as information concerning United States persons is not made available to it cannot be disseminated. Of course, this querying restriction does not address the retention problem that is discussed above. 5' In reaching this conclusion regarding the risk that concerning United States persons might be mistakenly disseininated, the Court is rnindful that by taking additional steps to minimize the retention of such information, NSA would also be reducing the likelihood that it might be disseminated when the government has no foreign intelligence need to do so. Page 66 ii(ib)(1i). minimization procedures are reasonably designed to "prohibit the dissemination[] of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to . . . disseminate foreign intelligence information." _S__eg 50 U.S.C. 4. Targeting and Minimization Procedures Do Nokm Applied to Upstream Collection that Includes MCTS. Satisfv the Requirements of the Fourth Amendment The final question for the Court is whether the targeting and minimization procedures are, as applied to upstream collection that includes MCTS, consistent with the Fourth Amendment. gap 50 U.S.C. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizu1'es, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirrnation, and particularly describing the place to be searched, and the persons or things to be seized. The Court has assumed in the prior Section 702 Dockets that at least in some circumstances, account holders have a reasonable expectation of privacy in electronic communications, and hence that the acquisition of such communications can result in a "search" . or "seizure" within the meaning of the Fourth Amendment. e, Docket No. . The government accepts the proposition that the acquisition of 52 The Court further concludes that the NSA minimization procedures, as the government proposes to apply them to MCTS, satisfy the requirements of 50 U.S.C. and ?e_e ?g1n'_a, note 59 (discussing 50 U.S.C. 1801(l1)(2) 85 182l(4)(B)). The requirements of so U.S.C. and 1s21(4)(n) areirlapplicable here. Page 67 am. TUF electronic communications can result in a "search" or "seizure" under the Fourth Amendment. _See Sept. 7, 2011 Hearing Tr. at 66. Indeed, the government has acknowledged in prior Section 702 matters that the acquisition of communications from facilities used by United States persons located outside the United States "must he in conformity with the Fourth Amendment." Docket N0s - The same is true of the acquisition of eonununic-aticns from facilities used by United States persons and others Within the United States. gig gnited States V. Verclugofirguideg, 494 US. 259, 271 (1990) (recognizing that "aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country"). on The The Court has previously concluded that the acquisition of foreign intelligence information pursuant to Section 702 falls within the "foreign intelligence exception" to the warrant requirement of the Fourth Amendment. See Docket No. The government's recent revelations regarding NSA's acquisition of MCTS do not alter that conclusion. To be sure, the Court now understands that, as a result of the transactional nature of the upstream collection, NSA acquires a substantially larger nurnber of - communications of or concerning United States persons and persons inside the United States than previously understood. Nevertheless, the collection as a whole is still directed at- coitducted for the purpose of national security a Page 68 ptupose going "Well beyond any garderuvaricty law enforcement objective." gee id, (quoting 1n re Directives, Docket No. 08-01, Opinion at 16 (FISA Ct. Rev. Aug. 22, 2008) (hereinafter "In re Further, it remains true that the collection is undertaken in circumstances in which there is a "high degree of probability that requiring a. warrant would hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake." 1d_, at 36 (quoting In re Directives at 18), Accordingly, the government's revelation that NSA acquires MCTS as part of its Section 702 upstream coilection does not disturb the Court's prior conclusion that the government is not required to obtain a warrant before conducting acquisitions under NSA's targeting and minimization procedures. b. Reascnablsness The question therefore becomes whether, taking into account NSA's acquisition and proposed handling of MCTS, the agency's targeting and minimization procedures are reasonable under the Fourth Aniendnicnt. As the Foreign Intelligence Surveillance Court of Review ("Court of Review") has explained, a court assessing reasonableness in this context must consider "the nature of the government intrusion and how the government intrusion is implemented. The more important the gover.runent's interest, the greater the intrusion that may be constitutionally 63 A redacted, declassified version of the opinion in 111 re Directives is published at 551 F.3d 1004. The citations herein are to the unredacted, classified version of the opinion. Page 69 -- tolerated." In re Directives at 19-20 (citations omitted), quoted in Docket No-- The court must therefore balance the interests at stake. If the protections that are in place for individual privacy interests are sufficient in light of the government interest at stake, the constitutional scales will tilt in favor of upholding the government's actions. If, however, those protections are insufficient to alleviate the risks of government error and abuse, the scales will tip toward a finding of unocnstitutionality. LL, at 20 (citations omitted), Quoted in Docket No In conducting this balancing, the Court must consider the "totality of the circurnstances." at 19. Given the alhenconipassing nature of Fourth Arnendntent reasonableness review, the targeting and rninirnization procedures are most appropriately considered collectively. Docket No. (following the same approach) .54 The Court has previously recognized that the government's national security interest in conducting acquisitions pursuant to Section 702 "'is of the liighest order ofrnagnitudef" Docket - (quoting In re Directives at 20). The Court has further accepted the governrnenfs representations that NSA's 'upst1'eam collection is "uniquely capable of acquiring certain types of targeted communications containing valuable foreign intelligence Docket No. (quoting Reasonableness review under the Fourth Amendment is broader than the statutory assessment previously addressed, which is necessarily limited by the terms of the pertinent provisions of FISA. Page '70 government filing). There is no reason to believe that the collection of MCTS results in the acquisition of less foreign intelligence information than the Court previously understood. Nevertheless, it must be noted that NSA's upstream collection makes up only a very small fraction of the agency's total collection pursuant to Section 702. As explained above, the collection of telephone communications under Section 702 is not implicated at all by the government's recent disclosures regarding NS A's acquisition of MCTS. Nor do those disclosures affect NSA's collection of Internet communications directly from Internet service providers - which accounts for approximately 91% oi' the Internet communications acquired by NSA each year under Section 702. See Aug. 16 Submission at Appendix A. And the government recently advised that NSA now has the capability, at the time of acquisition, to identify approximately 40% of its upstream collection as constituting discrete communications (non-MCTs) that are to, from, or about a targeted selector. See id, at 1 n2. Accordingly, only approximately 5.4% (40% of cfl'-JSA's aggregate collection of Internet communications (and an even smaller portion of the total collection) under Section 702 is at issue here. The national security interest at stake must be assessed bearing these numbers in mind. The government's recent disclosures regarding the acquisition of MCTS most directly affect the privacy side of the Fourth Amendment balance. The Court's prior approvals of the targeting and minimization procedures rested on its conclusion that the procedures "reasonably confine acquisitions to targets who are persons outside the United States," who thus Page 7] i i (5)6 )1 libido?) "are not protected by the Fourth Ainendment." Doc1cetNo i The Court's approvals also rested upon the understanding that acquisitions under the procedures "will intrude on interests protected by the Fourth Aniendinent only to the extent that (1) despite the operation of the targeting procedures, U.S. persons, or persons actually-in the United States, are mistakenly targeted; or (2) 11.8. persons, or persons located in the United States, are parties to conununications to or horn tasked selectors (or, in certain circumstances, that contain a reference to a tasked selector)" Ld, at 3 8. But NSA's acquisition of MCTS substantially broadens the circurnstances in which Fourth Amendment-protected interests are intruded upon by NSA's Section 702 collection. Until now, the Court has not considered these acquisitions in its Fourth Amendment analysis. Both in terms of its size and its nature, the intrusion resulting from NSA's acquisition of MCTS is substantial. The Court now understands that each year, NSA's upstream collection likely results in the acquisition of roughly two to ten thousand discrete wholly domestic cornrnunications that are neither to, from, nor about a targeted selector, as well as tens of thousands of other communications that are to or from a United States person or a person in the United States but that are neither to, from, nor about a targeted selector." In arguing that NSA's 55 As discussed earlier, NSA also likely acquires tens of thousands of discrete, wholly domestic communications that are "about" a targeted facility. Because these are reasonably likely to contain foreign intelligence information and thus, generally speaking, serve the government's foreign intelligence needs, they do not present the same Fourth Amendment concerns as the 11on-target discussed here. S;ee su note 53. Page 72 targeting and I11l11lI'I1lZEllLlOl'1 procedures satisfy the Fourth Amendment notwithstanding the acquisition of MCTS, the government stresses that the number of protected communications acquired is relatively small in comparison to the total numb er of Internet communications obtained by NSA through its upstream collection. That is true enough, given the enormous volume of lnternet transactions acqtiired by NSA through its upstream collection (approximately 26.5 million annually). But the number is small only in that relative sense. The Court recognizes that the ratio of Fourth communications to the total numb er of communications must be considered in the Fourth Amendment balancing. But in conducting a review under the Constitution that requires consideration of the totality of the circumstances, see In re Directives at 19, the Court must also take into account the absolute number of non~target, protected eornnziunications that are acquired. In absolute terms, tens of thousands of non--target, protected communications annually is a yggyilarge number. The nature of the intrusion at issue is also an important 'conside1*ati011 in the Fourth Amendment balancing. _S_tfi, Board of Educ. V. Earls. 536 (LS. 822, 832 (2002); Vernonia Sch. Dist. 471 v. Acton. 515 US. 646, 659 (1995). At issue here are the personal; communications ofU.S. persons and persons in the United States. A perscn's "papers" are among the four items that are specifically listed in the Fourth Amendment as subject to protection against unreasonable search and seizure. Whether they are transmitted by letter, -Page '73 telephone or e~n1ail, a person's private communications are akin to personal papers. Indeed, the Supreme Court has held that the parties to telephone communications and the senders and recipients of written communications generally have a reasonable expectation of privacy in the contents of those commnnicatiolis. See 389 US. at 352; United States v. United States Dist. Ct. (Keith), 407 US. 297, 313 (1972); United States V. Jacobson. 466 U.S. 109, 114 (1984). The intrusion resulting from the interception of the contents of electronic communications is, generally spealcing, no less substantial." The government stresses that the non~target communications of concern here (discrete wholly domestic communications and other discrete communications to or fisom a United States person or a person in the United States that are neither to, from, nor about a targeted selector) are acquired incidentally rather than purposefully. ?e_e June 28 Submission at 13-14. Insofar as NSA acquires entire because it lacks the technical means to limit collection only to the discrete portion or portions of each MCT that contain a reference to the targeted selector, the Court is satisfied that is the case. But as the government correctly recognizes, the acquisition of non-target information is not necessarily reasonable under the Fourth simply 6' Of course, not every interception by the government of a personal communication results in a "search" or "seizure" within the meaning of the Fourth Amendment. Whether a particular intrusion constitutes a search or seizure depends on the specific facts and circumstances involved. Page 74 because its collection is incidental to the purpose of the search or surveillance. at 14. There surely are circumstances in which incidental intrusions can he so substantial as to render a search or seizure unreasonable. To use an extreme example, if the only way for the govermnent to obtain communications to or ii-otn a particular targeted - requirecl also acquiring all comrnunications to or from every other 3 such collection would certainly raise very serious Fourth Amendrnent concerns. Here, the quantity and nature of the information that is "incidentally" collected distinguishes this matter fiom the prior instances in which this Court and the Court of Review have considered incidental acquisitions. As explained above, the quantity of incidentally-- acquired, non--target, protected communications being acquired by NSA throughlits upstream collection is, in absolute terms, Very large, and the resulting intrusion is, in each instance, likewise very substantial. And with regard to the nature of the acquisition, the acknowledged in a prior Section 702 docket that the term "incidental interception" is "most commonly understood to refer to an intercepted communication between a target using a facility subject to surveillance and a tltirclparty using a facility not subject to surveillance." Docket Nos. A . This is the sort of acquisition that the Court of Review was addressing in In re Directives when it stated that "incidental collections occurring as a result of constitutionally perrnissihle acquisitions do not Page 75 render those acquisitions unlawful." In re Directives at 30. But here, by contrast, the incidental acquisitions of concern are not direct communications between a non~target third party and the user of the targeted facility. Nor are they the communications of non-targets that refer directly to a targeted selector. Iiather, the communications of concern here are acquired simply because they appear somewhere in the same transaction as a separate communication that is to, from, or about the targeted facility." The distinction is significant and impacts the Fourth Amendment balancing. A discrete as to which the user of the targeted facility is a party or in which the targeted 5" The Court of Review plainly limited its holding regarding incidental collection to the facts before it. _S_e_e In re Directives at 30 ("On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment. (empliasis added). The dispute in In re Directives involved the acquisition by NSA of discrete communications from an Internet Service Provider, not upstream collection of Internet transactions. Accordingly, the Court of Review had no occasion to consider NSA's acquisition of MCTS (or even "about" communications, for that matter). Furthermore, the Court of Review noted that "[t'jhe government as sures us that it does not maintain a database of incidentally collected information from non--targeted United States persons, and there is no evidence to the contrary." Ic_l_. Here, however, the government proposes measures that will allow NSA to retain non-target United States person information in its databases for at least five years. The Title cases cited by the government (see June 28 Submission at 14-1 5) are likewise distinguishable. Abraham v. Countv of Greenville, 237 F.3d 386, 391 (4th Cir. 2001), did not involve incidental overhears at all. The others involved allegedly non--pertinent communications to or from the facilities for which wiretap authorization had been granted, rather than communications to or from non-targeted facilities. see Scott v. United States. 436 U.S. 128, 130~3l (1973), United States v. l\/lcKinnon. 721 F.2d 19, 23 (1 st Cir. 1983), and United States v. Doolittle, 507 F.2d 1368, 1371, affd en banc, 513 F.2d 500 (5th Cir. 1975). Page 76 . facility is mentioned is much more likely to contain foreign intelligence information than is a separate communication that is acquired simply because it happens to be within the same transaction as a communication involving a targeted facility. Hence, the national security need for acquiring, retaining, and disseminating the former category of communications is greater than the justification for acquiring, retaining, and disseminating the latter form of comztnunication. The Court of Review and this Court have recognized that the procedures governing retention, use, and dissemination bear on the reasonableness under the Fourth Amendment of a program for collecting foreign intelligence information. figg In re Directives at 29--30; Docket No. As explained in the discussion ofNSA's miriimization procedures above, the measures proposed by NSA for handling MCTS tend to maximize, rather than minimize, the retention of non-target information, including information of or concerning United States persons. Instead of requiring the prompt review and proper disposition ofnon~target information (to the extent it is feasible to do so), proposed measures focus almost exclusively on those portions of an MCT that an analyst decides, after review, that he or she wishes to use. An analyst is not required to determine Whether other portions of the MCT constitute discrete communications to or from a United States person or a person in the United States,ior contain information concerning a United States person or person inside the United States, or, having made such a determination, to do anything about it. Only i i Page 77 those MCTS that are immediately recognized as containing a wholly domestic discrete coirnnunication are purged, while other MCTs remain in NSA's repositories for five or more years, without being marked as IviCTs. Nor, if an MOT contains a discrete communicatioii of, or other information concerning, a United States person or person in the United States, is the marked as such. Accordingly, each analyst who retrieves an MOT and wishes to use a portion thereof' is left to apply the proposed minimization measures alone, firom beginning to end, and without the benefit of his colleagues' prior review and analysis. Given the limited review of that is required, and the difficulty of the task of identifying protected information within an MCT, the government's proposed measures seem to enhance, rather than reduce, the risk of error, oveiretention, and dissemination of non--target information, including information protected by the Fourth Amendment. In sum, NSA's collection results in the acquisition of a very large number of Fourth Amendment-protected communications that have no direct connection to any targeted facility and thus do not serve the national security needs underlying the Section 702 collection as a whole. Rather than attempting to identify and segregate the non-target, Fourth-<