MONTGOMERY et al v. COMEY et al

Filing 1

COMPLAINT against All Defendants with Jury Demand ( Filing fee $ 400 receipt number 0090-4977937) filed by Dennis Montgomery, Larry Klayman. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Civil Cover Sheet, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons, # 14 Summons, # 15 Summons, # 16 Summons)(Klayman, Larry)

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APR 6 2011
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UNITED STATES

LeeAnnFlynn Hall, Clerk of Court
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FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

MEMORANDUM OPINION AND ORDER

These matters are before the Foreign Intelligence Surveillance Court ("FISC" or "Couii")
on the "Government's Ex Parte Submission of Reauthorization Certifications and Related
Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order
Approving Such Certifications and Amended Ce1iifications," which was filed on September 26,
2016 ("September 26, 2016 Submission"), and the "Government's Ex Parte Submission of
Amendments to DNVAG 702(g) Certifications and Ex Parte Submission of Amended Targeting
and Minimization Procedures," which was filed on March 30, 2017 ("March 30, 2017
Submission"). (Collectively, the September 26, 2016 and March 30, 2017 Submissions will be

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refeITed to herein as the "2016 Certification Submissions.")

For the reasons explained below, the

government's request for approval of the certifications and procedures accompanying the
September 26, 2016 Submission, as amended by the March 30, 2017 Submission, is granted,
subject to certain reporting requirements. The Court's approval of the amended certifications
and accompanying targeting and minimization procedures is set out in separate orders, which are
being entered conteniporaneously herewith.
I.

BACKGROUND

A.

The Initial 2016 Certifications

The September 26, 2016 Submission included

11111
certifications

that were executed by

the Attorney General ("AG") and the Director of National Intelligence ("DNI") pursuant to

ach of the

1111
certifications

submitted in September

(collectively refe1Tedto as "the Initial 2016 Certifications") was accompanied by the supporting
affidavits of the Director of the National Security Agency ("NSA"), the Director of the Federal
Bureau of Investigation ("FBI"), the Director of the Central Intelligence Agency ("CIA"), and the
Director of the National Counterte1Torism Center ("NCTC"); two sets of targeting procedures, for
use by the NSA and FBI respectively; 1 and four sets of minimization procedures, for use by the

1

The targeting procedures for each of the Initial 2016 Certifications are identical. The
(continued ...)

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NSA, FBI, CIA, and NCTC respectively. 2 The September 26, 2016 Submission also included an
explanatory memorandum prepared by the Department of Justice ("DOJ") ("September 26, 2016
Memorandum").
The Court was required to complete its review of the Initial 2016 Certifications within 30
days of their submission, i.e., by October 26, 2016. See 50 U.S.C. § 188la(i)(l)(B).

The Court

may extend this period, however, "as necessary for good cause in a manner consistent with
national security." See 50 U.S.C. § l 88 la(j)(2). The Court has issued two such extensions in
these matters.

1
( ...

continued)
targeting procedures for the NSA ("NSA Targeting Procedures") appear as Exhibit A to each of
the 2016 Certifications and the March 30, 2017 Submission includes identical amendments to
those procedures for each of the certifications. (Unless otherwise specified, references to those
targeting procedures shall refer to the procedures as amended, as discussed below, in the March
30, 2017 Submission.) The targeting procedures for the FBI ("FBI Targeting Procedures")
appear as Exhibit C to each of the 2016 Certifications and are not amended by the March 30,
2017 Submission.
2

The minimization procedures for each of the Initial 2016 Certifications are identical.
The minimization procedures for the NSA (''NSA Minimization Procedures") appear as Exhibit
B to each of the 2016 Certifications and the March 30, 2017 Submission includes identical
.amendments to those procedures for each of the certifications. (Unless othe1wise specified,
references to those minimization procedures shall refer to the procedures as amended, as
discussed below, in the March 30, 2017 Submission.) ,The minimization procedures for the FBI
("FBI Minimization Procedures") appear as Exhibit D to each of the 2016 Certifications. The
minimization procedures for the CIA ("CIA Minimization Procedures") appear as Exhibit E to
each of the 2016 Certifications. The minimization procedures for the NCTC ("NCTC
Minimization Procedures") appear as Exhibit G to each of the 2016 Certifications. The
minimization procedures for the FBI, CIA, and NCTC are not amended by the March 30, 2017
Submission.

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On October 24, 2016, the government orally apprised the Court of significant noncompliance with the NSA's minimization procedures involving queries of data acquired under
Section 702 using U.S. person identifiers. The full scope of non-compliant querying practices
had not been previously disclosed to the Court. Two days later, on the day the Court otherwise
would have had to complete its review of the certifications and procedures, the government made
a w1itten submission regarding those compliance problems, see October 26, 2016, Preliminary
and Supplemental Notice of Compliance Incidents Regarding the Querying of Section 702Acquired Data ("October 26, 2016 Notice"), and the Cou1t held a hearing to address them. The
government reported that it was working to ascertain the cause(s) of those compliance problems
and develop a remedial plan to address them. Without further inf01mation about the compliance
problems and the government's remedial efforts, the Court was not in a position to assess
whether the minimization procedures accompanying the Initial 2016 Ce1tifications, as they would
be implemented, would comply with statut01y standards and were consistent with the
requirements of the Fourth Amendment. See 50 U.S.C. § 1881a(i)(3)(A)-(B).

Accordingly, the

Court found good cause to extend the time limit for its review of the Initial 2016 Certifications
through January 31, 2017, and, based on the government's representations, found that such
extension was consistent with national security. 3 See Docket No
Order entered on Oct. 26, 2016 ("October 26, 2016 Order").

3

By operation of the statute, the predecessors to each of the Initial 2016 Certifications
and the procedures accompanying them remained in effect during the extended periods for the
Court's consideration of the 2016 Certifications. See 50 U.S.C. § 1881a(i)(3)(A)-(B).

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On January 3, 2017, the government made a further submission describing its efforts to
ascertain the scope and causes of those compliance problems and discussing potential solutions
to them. See January 3, 2017, Supplemental Notice of Compliance Incidents Regarding the
Querying of Section 702-Acquired Data ("January 3, 2017 Notice"). The Court was not satisfied
that the government had sufficiently ascertained the scope of the compliance problems or
developed and implemented adequate solutions for them and communicated a number of
questions and concerns to the government. The government submitted another update on
January 27, 2017, in which it informed the Court that, due to the complexity of the issues
involved, NSA would not be in a position to provide thorough respons ·es to the Court's questions
and concerns by January 31, 2017. See January 27, 2017, Letter In re: DNI/AG 702(g)
Certifications

and their Predecessor Certifications ("January 27,

2017 Letter"). The government submitted that a further extension, through May 26, 2017, was
necessary for it to address those issues and that such extension would be consistent with national

order approving the extension. See Docket Nos.
Order entered on Jan. 27, 2017 ("January 27, 2017 Order").
B.

The 2017 Amendments

On March 30, 2017, the Attorney General and Director of National Intelligence, acting
pursuant to 50 U.S.C. § 1881a(i)(l)(C), executed Amendments to each ofthellllinitial

2016

Certifications. See Amendment to

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(collectively, the "2017 Amendments").

4

As discussed below, those

amendments substantially change how NSA will conduct certain aspects of Section 702
collection, and largely resolve the compliance problems mentioned above. The March 30, 2017
Submission included the 2017 Amendments, a revised supporting affidavit by the Director of
NSA, and revised targeting and minimization procedures for NSA, which replace Exhibits A and
B, respectively, to each of the Initial 2016 Certifications. That submission also included an
explanatory memorandum prepared by DOJ ("March 30, 2017 Memorandum").
C.

Subject Matter of the Certifications

Each of the 2016 Certifications involves "the targeting of non-United States persons
reasonably believed to be located outside the United States to acquire foreign intelligence

4

Unless otherwise stated, subsequent references to the "2016 Certifications" are to the
Initial 2016 Certifications and accompanying procedures, as later amended by the 2017
Amendments and the accompanying revised procedures.

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Each of the 2016 Certifications generally proposes to continue acquisitions of foreign
intelligence information that are now being conducted under the corresponding certification
made in 2015 ("the 2015 Certifications"). See September 26, 2016 Memorandum at 2. The
2015 Cetiifications, which are similarly differentiated by subject matter and
were approved by the FISC on November 6, 2015. 5 The 2015 Certifications, in
turn, generally renewed authorizations to acquire foreign intelligence information under a series
of certifications made by the AG and DNI pursuant to Section 702 that dates back to 2008. 6 The
government also seeks approval of amendments to the certifications in the Prior 702 Dockets,
such that the NSA, CIA, FBI and NCTC henceforward will apply the same minimization

5

See Docket Nos
Memorandum Opinion
and Order entered on Nov. 6, 2015 ("November 6, 2015 Opinion"). The Court issued an order
on November 9, 2015, approving amendments to prior Section 702 certifications and authorizing
the use of revised minimization procedures in connection with those certifications.

These dockets, together with Docket Numbers
are collectively referred to as "the Prior 702 Dockets."

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procedures to information obtained under prior certifications as they will to information to be

This practice, long approved by the FISC, has the advantage of
applying a single set of updated procedures to Section 702-acquired information rather than
requiring personnel to follow different rules for information acquired on different dates.
D.

Review of Compliance Issues

The Court's review of targeting and minimization procedures under Section 702 is not
confined to the procedures as written; rather, the Court also examines how the procedures have
been and will be implemented. See, M,., Docket No.-,

Memorandum Opinion

entered on Apr. 7, 2009, at 22-24 ("April 7, 2009 Opinion"); Docket Nos.
Memorandum Opinion entered on Aug. 30, 2013, at 6-11 ("August 30,
2013 Opinion"). Accordingly, for purposes of its review of the 2016 Ce1iifications, the Court
has examined quarterly compliance reports submitted by the government since the most recent
FISC review of Section 702 certifications and procedures was completed on November 6, 2015, 7
as well as individual notices of non-compliance relating to implementation of Section 702. The
Court held a hearing on October 4, 2016, to address certain issues raised by the September 26,

7

See Quarterly Reports to the FISC Concerning Compliance Matters Under Section 702
of PISA, submitted on December 18, 2015, March 18, 2016, June 17, 2016, September 16, 2016,
December 16, 2016 and March 17, 2017. These reports are cited herein in the fonn "[Date J
Compliance Report."

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2016 Submission, as well as ce1tain compliance issues regarding the government's collection and
handling of infonnation under prior certifications ("October 4, 2016 Hearing").

8

The Court held

a further hearing on October 26, 2016, to address matters raised in the October 26, 2016 Notice
("October 26, 2016 Hearing"). 9
II.

REVIEW OF CERTIFICATIONS
AND OF
THEIR PREDECESSOR CERTIFICATIONS AS AMENDED BY THE
SEPTEMBER 26, 2016 AND MARCH 30, 2017 SUBMISSIONS

The Court must review a certification submitted pursuant to Section 702 "to determine
whether [it] contains all the required elements." 50 U.S.C. § 1881a(i)(2)(A) . The Court's
examination of Certifications

as amended by the 2017

· Amendments, confirms that:
(1) the certifications have been made under oath by the AG and the DNI, as
required by 50 U.S.C. § 188la(g)(l)(A), see

(2) the certifications contain each of the attestations required by 50 U.S .C.
§ 1881a(g)(2)(A), see

(3) as required by 50 U.S .C. § 188la(g)(2)(B), each of the certifications is
accompanied by the applicable targeting procedures and minimization procedures;

8

See generally Transcript of Proceedings Held Before the Honorable Rosemary M.
Collyer on October 4, 2016 ("October 4, 2016 Transcript").
9

See generally Transcript of Proceedings Held Before the Honorable Rosemary M.
Collyer on October 26, 2016 ("October 26, 2016 Transcript").

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(4) each of the certifications is supported by the affidavits of appropriate national
security officials, as described in 50 U.S.C. § I 881 a(g)(2)(C); 10 and
(5) each of the certifications includes an effective date for the authorization in
compliance with 50 U.S.C. § 1881a(g)(2)(D)- specifically, the certifications
become effective on April 28, 2017, or on the date upon which this Court issues
an order concerning the certifications under Section 1881a(i)(3), whichever is

The Court therefore finds that
contain all the required statutory elements. See 50 U.S.C. § 188la(i)(2)(A).
Similarly, the Court has reviewed the certifications in the Prior 702 Dockets, as amended
by the 2016 Certifications, and finds that they also contain all the elements required by the
statute. Id. 12

10

See Affidavits of Admiral Michael S. Rogers, United States Navy, Director, NSA;
Affidavits of James B. Corney, Director, FBI; Affidavits of John 0. Brennan, Director, CIA; and
Affidavits of Nicholas Rasmussen, Director, NCTC, which are appended to each of
Certifications
Admiral Rogers filed amended affidavits in
connection with the March 30, 2017 Submission.
11

The statement described in 50 U.S.C. § 1881a(g)(2)(E) is not required in this case
because there has been no "exigent circumstances" determination under Section l 88la(c)(2).
12

The effective dates for the amendments to the certifications in the Prior 702 Dockets
are the same as the effective dates for the 2016 Certifications. Se

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III.

REVIEW OF THE TARGETING AND MINIMIZATION PROCEDURES

The Court is also required, pursuant to 50 U.S.C. § 1881a(i)(2)(B) and (C), to review the
targeting and minimization procedures to determine whether they are consistent with the
requirements of 50 U.S.C. § 1881a(d)(l) and (e)(l). Pursuant to 50 U.S.C. § 1881a(i)(3)(A), the
Court further assesses whether the targeting and minimization procedures are consistent with the
requirements of the Fourth Amendment.
A.

Statutory Standards for Targeting Procedures

Section 188la(d)(l) requires targeting procedures that are "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." In addition to these statutory
requirements, the government uses the targeting procedures as a means of complying with
Section 1881 a(b)(3 ), which provides that acquisitions "may not intentionally target a United
States person reasonably believed to be located outside the United States." The FISC considers
steps taken pursuant to these procedures to avoid targeting United States persons as relevant to
its assessment of whether the procedures are consistent with the requirements of the Fourth
Amendment. .See Docket No. 702(i)-08-01, Memorandum Opinion entered on Sept. 4, 2008, at
14 ("September 4, 2008 Opinion").
Under the procedures adopted by the government, NSA is the lead agency in making
targeting decisions under Section 702. Pursuant to its targeting procedures, NSA may target for

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acquisition a particular "selector," which is typically a facility such as a telephone number or email address. The FBI Targeting Procedures come into play in cases where
that has been tasked under the NSA Targeting
Procedures . See FBI Targeting Procedures § 1.1. "Thus, the FBI Targeting Procedures apply in
addition to the NSA Targeting Procedures, whenever

acquired."

September 4, 2008 Opinion at 20 (emphasis in original). Proposed changes to the existing NSA
and FBI targeting procedures are discussed below.
B.

Statutory Standards for Minimization Procedures

Section 188la(e)(l), in turn, requires minimization procedures that "meet the definition
of minimization procedures under [50 U.S .C. §] 1801(h) or 1821(4)]." Sections 1801(h) and
1821 (4) define "minimization procedures " in pertinent part as :

(1) specific procedures, which shall be adopted by the Attorne y
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;[ 13]

13

Section 1801(e) defines "foreign intelligence information" as

(1) infonnation that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against (A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage, international terrorism, or the internation al proliferation of
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(2) procedures that require that nonpublicly available infonnation,
which is not foreign intelligence information, as defined in [50
U.S.C. § 1801(e)(l)], shall not be disseminated in a manner that
identifies any United States person, without such person's consent,
unless such person's identity is necessary to understand foreign
intelligence information or assess its importance; [and]
(3) notwithstanding paragraphs (1) and (2), procedures that allow
for the retention and dissemination of information that is evidence
of a crime which has been, is being, or is about to be committed
and that is to be retained or disseminated for law enforcement
purposes[.]
50 U.S.C. § 1801(h); see also id.§ 1821(4). 14 Each agency having access to "raw," or
unminimized,

15

information obtained under Section 702 is governed by its own set of

1

3(. continued)
..
weapons of mass destruction by a foreign power or an agent of a foreign
power; or
(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or a foreign territory that relates to, and if
concerning a United States person is necessary to (A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.
14

The definitions of"minimization procedures" set forth in these provisions are
substantively identical ( although Section 1821 (4)(A) refers to "the purposes ... of the particular
physical search"). For ease of reference, subsequent citations refer only to the definition set forth
at Section 180l(h).
15

This opinion uses the terms "raw" and "unminimized" interchangeably. The proposed
NCTC Minimization Procedures define "raw" information as "section 702-acquired information
that (i) is in the same or substantially the same format as when NSA or FBI acquired it, or (ii) has
been processed only as necessary to render it into a form in which it can be evaluated to
(continued ...)
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minimization procedures in its handling of Section 702 infmmation. Under Section
1881a(i)(2)(C), the Court must dcte1mine whether the agencies' respective minimization
procedures meet the statutory definition of minimization procedures set fotih at 50 U.S.C. §§
1801(h) or 1821(4), as appropriate.
The most significant changes to the procedures proposed by the government in
connection with the 2016 Certifications relate to: (i) the changes in the scope ofNSA collection
under Section 702, as reflected in the March 30, 2017 Amendments; and (ii) the government's
proposal in the September 26, 2016 Submission to allow NCTC access to unminimized
information acquired by NSA and FBI
relating to international terroris
Because those changes cut across several sets of procedures, each is discussed individually in a
separate section. This opinion then examines several other changes to various sets of procedu res
proposed by the government in the September 26, 2016 Submission. The opinion then will
assess whether, taken as a whole and including the proposed changes, the proposed targeting and
minimization procedures satisfy applicable statutory and Fourth Amendment requirements .
C. -

Significant Changes to NSA Targeting and Minimization Procedures in the March
30, 2017 Submission

The October 26, 2016 Notice disclosed that an NSA Inspector General (IG) review and
report and NSA Office of Compliance for Operations (OCO) verificat ion activities indicated that ;

1

5( continued)
...

dete1mine whether it reasonably appears to be foreign intelligence infonnation or to be necessary
to understand foreign intelligence information or assess its importance ." NCTC Minimization
Procedures § A.3.d.
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with greater frequency than previously disclosed to the Court, NSA analysts had used U.S.person identifiers to query the results oflnternet "upstream" collection, even though NSA's
Section 702 minimization procedures prohibited such queries. To understand why such queries
were prohibited, and why this disclosure gave the Court substantial concern, some historical
background is necessary.
1.

Upstream Collection and the Acquisition of MCTs

"Upstream" collection of Internet communications refers to NSA's interception of such
communications as they transit the facilities of an Internet backbone carrier
-as

distinguished from acquiring communications from systems operated by Internet

service providers

•

16

Upstream Internet collection

constitutes a small percentage ofNSA's overall collection of Internet communications under
Section 702, see,~,

October 3, 2011 Memorandum Opinion at 23 n.21 (noting that, at that

time, upstream Internet collection constituted only 9% ofNSA's Internet collection), but it has
represented more than its share of the challenges in implementing Section 702.
In 2011, the government disclosed that, as part of its upstream collection of Internet
transactions, NSA acquired certain "Multiple Communication Transactions" or "MCTs."

17

16

See In re DNI/ AG 702(g) Certifications
emorandum Opinion, October 3, 2011 ("October
3, 2011 Memorandum Opinion"), at 5 n.3. For purposes of the discussion that follows,
familiarity with that opinion is presumed. As discussed below, NSA does not share raw
upstream collection (Internet or telephony) with any other agency.
17

NSA's procedures define an Internet transaction as consisting of either a discrete
communication (e.g., an individual e-mail) or multiple discrete communications obtained within
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MCTs might talce the fonn of

containing

multiple e-mail messages

-·

See March 30, 2017 Memorandum at 8 n.8. The te1m "active user" refers to the

user of a communication service to or from whom the MCT is in transit when it is acquired (e.g.,
the user of an e-mail account
Eventually, as discussed below, a complicated set of minimization rules was adopted for
handling different types of MCTs, based on whether the active user was the target 18 and, if not,
the nationality and location (to the extent known) of the active user.
Moreover, NSA upstream collection acquired Internet communications that were to, from
or about (i.e., containing a reference to) a selector tasked for acquisition under Section 702. As a
result, upstream collection could acquire an entire MCT for which the active user was a nontarget and that mostly pertained to non-targets, merely because a single discrete communication
within the MCT was to, from or contained a reference to a tasked selector. Such acquisitions
could take place even if the non-target active user was a U.S. person in the United States and the
MCT contained a large number of domestic communications

19

that did not pertain to the foreign

17
( ••• continued)

an MCT. See NSA Targeting Procedures § I, at 2 n.1; NSA Minimization Procedures § 2(g).
18

With a narrow exception fo
all users of a selector tasked for acquisition under Section 702 are
considered targets. See March 30, 2017 Memorandum at 6 n. 7.
19

In this opinion, "domestic communications" are communications in which the sender
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intelligence target who used the tasked selector. Because of those types of acquisitions
particularly, upstream Internet collection was "more likely than other forms of Section 702
collection to contain information of or concerning United States persons with no foreign
intelligence value." November 6, 2015 Opinion at 25 n.21.
It should be noted, however, that not all MCTs in which the active user is a non-target are
equally problematic; for example, some MCTs within that description may involve an active user
who is a non-U.S. person outside the United States, and for that reason are less likely to contain a
large volume of information about U.S. persons or domestic communications.

2.

The 2011 Finding of Deficiency and Measures to Remedy the Deficiency

In its October 3, 2011 _Memorandum Opinion, the Court found the NSA's minimization
procedures, proffered in connection with Section 702 certifications then under consideration,
statutorily and constitutionally deficient with respect to their protection of U.S. person
information within certain types ofMCTs.

See October 3, 2011 Memorandum Opinion at 49-80.

In response to the Court's deficiency finding, the government submitted amended minimization
procedures that placed significant new restrictions on NSA's retention, use, and dissemination of
MCTs. Those procedures included a sequestration regime for more problematic categories of
MCTs. 20 A shorter retention period was also put into place, whereby an MCT of any type could
not be retained longer than two years after the expiration of the certification pursuant to which it

19
( ...

continued)
and all intended recipients are in the United States.
20

This sequestration regime is discussed in Section IV below in connection with an
instance ofNSA's not complying with that regime.

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was acquired, unless applicable retention criteria were met. And, of greatest relevance to the
present discussion, those procedures categorically prohibited NSA analysts :from using known
U.S.-person identifiers to query the results of upstream Internet collection. In substantial reliance
on these and other changes, the Court approved the modified procedures for acquiring and
handling MCTs. See In re DNI/ AG 702(g) Certifications
Memorandum Opinion, November 30,
2011 ("November 30, 2011 Memorandum Opinion").
The Court also observed that one category of MCTs presented far fewer statutory and
constitutional difficulties than the others:
[I)fthe target is the active user, then it is reasonable to presume that all of the
discrete communications within an MCT will be to or from the target. Although
United States persons and persons in the United States may be party to any of
those communications, NSA' s acquisition of such communications is of less
concern than the communications described in the [other] categories [of MCTs]
because the communicants were in direct communication with a tasked facility,
and the acquisition presumptively serves the foreign intelligence purpose of the
collection.
October 3, 2011 Memorandum Opinion at 38. See also id. at 58 n.54 ("The government has also
suggested that NSA may have limited capability, at the time of acquisition, to identify some
. MCTs as to which the "active user" is a tasked selector. To the extent that NSA is able to do so,
such acquisitions would be consistent with FISA and the Fourth Amendment because all
discrete communications within this class of MCTs would consist of communications to or :from
a tasked selector.") (internal citation omitted, emphasis added); id. at 80 (finding that the

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proposed NSA procedures, although deficient as applied to other forms of MCTs, were
consistent with the statute and the Fourth Amendment as applied to "MCTs as to which the
'active user' is known to be a tasked selector"). That point is significant to the current matters:
as discussed below, the 2016 Certifications only authorize acquisition ofMCTs when the active
user is the target of acquisition.

3.

The October 26, 2016 Notice and Hearing

Since 2011, NSA's minimization procedures have prohibited use ofU.S.-person
identifiers to query the results of upstream Internet collection under Section 702. The October
26, 2016 Notice informed the Court that NSA analysts had been conducting such queries in
violation of that prohibition, with much greater :frequency than had previously been disclosed to
the Court. The Notice described the results of an NSA IG Report which analyzed queries using a
set of known U.S.-person identifiers (those associated with targets under Sections 704 and 705(b)
of the Act, 50 U.S.C. §§ 1881c and 1881d(b)), during the first three months of 2015, in a subset
of particular NSA systems that contain the results of Internet upstream collection. That relatively
nmrnw inquiry found that.

analysts had made.

separate queries using.

U.S.-person

identifiers that improperly ran against upstream Internet data. The government reported that the
NSA IG and OCO were conducting other reviews covering different time periods, with
preliminary results suggesting that the problem was widespread during all periods under review.
At the October 26, 2016 hearing, the Court ascribed the government's failure to disclose
those IG and OCO reviews at the October 4, 2016 hearing to an institutional "lack of candor" on
NSA's part and emphasized that "this is a very serious Fourth Amendment issue." October 26,

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2016 Transcript at 5-6. The Court found that, in light of the recent revelations, it did not have
sufficient infonnation to assess whether the proposed minimization procedures accompanying
the Initial 2016 Certifications would comply with statutmy and Fourth Amendment requirements,
as implemented. Based on the government's representation that an extension of time through
January 31, 2017, would provide the government sufficient opportunity to assess and report on
the scope of the problem and an appropriate remedial plan, and was consistent with the national
security, the Court extended the time period for its consideration of the 2016 Ce1tifications to
that date.
4.

The January 3, 2017 Supplemental Notice and January 27, 2017 Letter

In anticipation of the January 31 deadline, the government updated the Court on these
querying issues in the January 3, 2017 Notice. That Notice indicated that the IG's follow-on
study (covering the first quarter of2016) was still ongoing. A separate OCO review, limited in
many of the same ways as the IG studies, and covering the periods of April through December
2015 and April through July of 2016, found that some.
•

improper queries were conducted by

analysts during those periods. 21 The January 3, 2017 Notice stated that "human error was the

primary factor" in these incidents, but also suggested that system design issues contributed. For

21

NSA further reported that OCO reviewed queries involving a number of identifiers for
known U.S. persons who were not targets under Sections 704 or 705(b) of the Act, and which
were associated with "certain terrorism-related events that had occurred in the United States."
January 3, 2017 Notice at 6. NSA OCO foun
such queries,.ofwhich
improperly ran
against Section 702 upstream Internet data.
of the improper queries were run in a
system called
which NSA analysts use to
of a current or prospective target of NSA collection, including
under Section 702. Id. at 6- 7.

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example, some systems that are used to query multiple datasets simultaneously required analysts
to "opt-out" of querying Section 702 upstream Internet data rather.than requiring an affirmative
"opt-in," which, in the Court's view, would have been more conducive to compliance. See
January 3, 2017 Notice at 5-6. It also appeared that NSA had not yet fully assessed the scope of
the problem: the IG and OCO reviews "did not include systems through which queries are
conducted of upstream data but that do not interface with NSA's query audit system." Id. at 3
n.6. Although NSD and ODNI undertook to work with NSA to identify other tools and systems
in which NSA analysts were able to query upstream data, id., and the government proposed
training and technical measures, it was clear to the Court that the issue was not yet fully scoped
out.
On January 27, 2017, the government provided further information on the technical and
training measures NSA was taking and proposed to take to address this issue. NSA was
implementing its technical measures only on systems with respect to the system thought to be
used most frequently to query Section 702 data. The government still had not ascertained the full
range of systems that might have been used to conduct improper U.S.-person queries. See,~.
January 27, 2017 Letter at 5 ("NSA is progressing with its efforts to identify other tools or
systems that analysts are using to query upstream data."). The government also reported that the
NSA IG study for the first quarter of 2016 had found.

improper queries, a substantial

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improvement over the first quarter of 2015 .22 But NSA was still working to determine the scope
of its U.S,-person query problem and to identify all relevant storage systems and querying tools.
The January 27, 2017 Letter concluded that, "[b]ased on the complexity of the issues,
NSA will not be in a position to provide thorough responses [to the Court's questions] on or
before January 31, 2017." January 27, 2017 Letter. The government represented that a further
extension of the Court's time to consider the 2016 Certifications through May 26, 2017, would
be consistent with the national security and would allow the government time to investigate and
remedy the problem.
The Court granted an extension only through April 28, 2017. 23 January 27, 2017 Order at
6. In doing so, the Court noted its concern about the extent of non-compliance with "important
safeguards for interests protected by the Fourth Amendment." Id. at 5. The Court also observed
that, while recent remedial measures appeared promising, they were being implemented only on
certain systems, while other systems remained to be assessed. Id. at 5-6.
On March 17, 2017, the government reported that NSA was still attempting to identify all
systems that store upstream data and all tools used to query such data, though that effort was
nearly complete. March 17, 2017 Compliance Report at 100. NSA had also redoubled training
on querying requirements and made technical upgrades to certain commonly-used querying tools

22

In addition to the findings of the IG and OCO reviews, the government identifies
improper queries in the course ofregular oversight efforts. The government reports those
incidents to the Court through individual notices and quarterly reports.
23

By operation of Section 188la(i)(l)(B), the government's submission on March 30,
2017, of amendments to the 2016 Certifications and revised procedures started a new 30-day
period for Court review, which ends on April 29, 2017.

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that were designed to reduce the likelihood of non-compliant queries. Id. at I 00-101.
Meanwhile, the government continued to report further compliance issues regarding the handling
and querying of upstream Internet collection24 and to investigate potential root causes of noncompliant querying practices. April 7, 2017 Preliminary Notice (Queries) at 4 n.4.
5.

The 2017 Amendments

As embodied in the March 30, 2017 Submission, the government has chosen a new
course:

; sequestering and then

destroying raw upstream Internet data previously collected; and substantially narrowing the scope
of upstream collection

Most significantly, the government will eliminate

"abouts" collection altogether, which will have the effect of eliminating acquisition of the more
problematic types ofMCTs. These changes should substantially reduce the acquisition of nonpertinent information concerning U.S. persons pursuant to Section 702.
As of March 17, 2017, NSAhad
Revisions to the NSA Minimization Procedures now state that all Internet
transactions acquired on or before that date and existing in NSA's institutionally managed

24

See April 7, 2017, Preliminary Notice of Compliance Incidents Regarding the Labeling
and Querying of Section 702-Acquired Data ("April 7, 2017 Preliminary Notice (Mislabeling)")
(nearlyllll communications acquired through upstream Internet collection were "incorrectly
labeled" as acquired from Internet service providers and, as a result, likely subject to prohibited
queries using U.S.-person identifiers); April 7, 2017, Preliminary Notice of Potential Compliance
Incidents Regarding Improper Queries ("April 7, 2017 Preliminary Notice (Queries)")
(identifying another.
potential violations of prohibition on using U.S.-person identifiers to
query Internet upstream collection).

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~
repositories 25 will be sequestered pending destruction such that "NSA personnel will not be able
to access the[m] for analytical purposes." March 30, 2017 Memorandum at 4; see NSA
Minimization Procedures §3(b)(4)a.
NSA will destroy such sequestered Internet transactions as soon as practicable through an
accelerated age-off process. See NSA Minimization Procedures §3(b)( 4 )a. The government
represents that the age-off may take up to one year to complete and verify (with quarterly reports
to the Court), and that:
Pending destruction, sequestered transactions (a) will not be subject to separate
age-off or purge processes that otherwise would apply to them, see March 30,
2017 Memorandum at 15-16 & nn. 16-17; and (b) will be available only to NSA
technical and compliance personnel for the limited purposes of ensuring the
integrity of the systems used to store them and the controls that limit other
employees' access to them, see id. at 14 n.13; NSA Minimization Procedures
§3(b)(4)a.
•

Copies of sequestered transactions will remain in backup and archive systems, not
available for use by intelligence analysts, until they age off of those systems in the
ordinary course. See March 30, 2017 Memorandum at 14 n.13;
Sequestered transactions may be retained for litigation purposes as contemplated
by Section 3(c)(3) of the NSA Minimization Procedures, subject to prompt
notification to the Court. See id. at 16-17 & n.18.

•

Certain records derived from upstream Internet communications (many of which
have been evaluated and found to meet retention standards) will be retained by
NSA, even though the underlying raw Internet transactions from which they are

25

The March 30, 2017 Submission does not define what an "institutionally managed
repository'' is. If the government intends not to apply the above-described sequester-and-destroy
process to any information acquired on or before March 17, 2017, by Internet upstream collection
because the information is not contained in an "institutionally managed repository," it shall
describe the relevant circumstances in a written submission to be made no later than June 2,
2017; however, the government need not submit such a description for circumstances referenced
in this Opinion and Order as ones in which NSA may retain such information.
TOD

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i

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derived might be subject to destruction. These records include serialized
intelligence reports and evaluated and minimized traffic disseminations;
completed transcripts and transcriptions of Internet transactions;
26
; information used to support Section 702
taskings and PISA applications to this Court; and
,m See
March 30, 2017 Memorandum at 20-24.
Finally, upstream collection of Internet transactions
-

for communications to or from a targeted person, but "abouts" communications may

no longer be acquired. The NSA Targeting Procedures are amended to state that "[a]cquisitions
conducted under these procedures will be limited to communications to or fi·om persons targeted
in accordance with these procedures," NSA Targeting Procedures § I, at 2 (emphasis added), and
NSA's Minimization Procedures now state that Internet transactions acquired after March 17,
2017, "that are not to or from a person targeted in accordance with NSA's section 702 targeting
procedures are unauthorized acquisitions and therefore will be destroyed upon recognition."
NSA Minimization Procedures§ 3(b)(4)b. 28 Because they are regarded as unauthorized, the
government will repo1i any acquisition of such communications to the Court as an incident of
non-compliance. See March 30, 2017 Memorandum at 17-18.

23.
28

The targeting procedures still require NSA either to use Internet Protocol (IP) filtering
of upstream Internet collection to "limit such acquisitions to Internet transactions that originate
and/or terminate outside the United States" o
Id.

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Conforming changes are made throughout the NSA Minimization Procedures to remove
references to "abouts" collection. Section 3(b)(4) of those procedures , in particular, is
significantlyrevised and streamlined to reflect the narrower scope of authorized collection. For
example, detailed procedures previously appearing in Section 3(b )(4) requiring sequestration and
special handling of MCTs in especially problematic categories (e.g., those in which the "active
user" is a nori-target who is in the United States or whose location is unknown) are removed.
Because NSA is no longer authorized to acquire those forms ofMCTs, if it somehow acquires
one, NSA must now destroy it upon recognition. 29
NSA may continue to acquire MCTs under the amended procedures, but only when it can
ensure that the target is a party to the entire MCT or, in other words, when the target is the active

29

Internet transactions properly acquired through NSA upstream collection after March
17, 2017, wi11continue to remain subject to a two-year retention limit, "unless the NSA
specifically determines that at least one discrete communication within the Internet transaction
meets the retention standards" in the NSA Minimization Procedures. See NSA Minimization
Procedures§ 3(c)(2). This reflects no change from the current procedures.

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30
•

See March 30, 2017

Memorandum at 10.

It will still be possible, however, for NSA to acquire an MCT that contains a domestic
communication. For example,

IfNSA
determines that the sender and all intended recipients of a discrete communication within an
MCT were located in the United States at the time of that discrete communication, then the entire
MCT must be promptly destroyed, see NSA Minimization Procedures§ 5, unless the Director
makes the required waiver determination for each and every domestic communication contained
in the MCT. March 30, 2017 Memorandum at 9 n.9. 31

US-Person Queries. In light of the elimination of"abouts" communications from
Section 702 upstream collection, the govemment proposes a change to Section 3(b)( 5) of the
NSA Minimization Procedures that would remove the prohibition on NSA analysts conducting

30

This enumeration is without prejudice to NSA's ability to acquire other types of
communications if it can limit acquisition to communications to or from a target as required by
the new procedures.
31

The NSA Minimization Procedures generally take an "all-or-nothing" approach to
retention or destruction ofMCTs. Thus, an MCT in which any discrete communication is not to
or from a target is also subject to destruction in its entirety. See NSA Minimization Procedures§
3(b)(4)b; March 30, 2017 Memorandum at 13 n.12 ("[I]f for some reason NSA acquires an
Internet transaction in which any discrete communication contained therein is not to or from a
section 702 target, NSA must destroy such transactions upon recognition.").

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queries oflntemet upstream data using identifiers of known U.S. persons. Under this proposal,
NSA analysts could query upstream data using known U.S. person identifiers, subject to the same
requirements that apply to their queries of other Section 702-acquired data. Specifically, any
query involving a U.S.-person identifier is subject to NSA internal approval requirements and
"require( s] a statement of facts establishing that the use of any such identifier as a selection te1m
is reasonably likely to return foreign intelligence information." NSA is required to maintain
records of all such determinations and those records are subject to review by NSD and ODNI.
See NSA Minimization Procedures§ 3(b)(5). 32
The Court agrees that the removal of"abouts" communications eliminates the types of
communications presenting the Court the greatest level of constitutional and statutory concern.
As discussed above, the October 3, 2011 Memorandum Opinion (finding the then-proposed NSA
Minimization Procedures deficient in their handling of some types of MCTs) noted that MCTs in
which the target was the active user, and therefore a party to all of the discrete communications
within the MCT, did not present the same statutory and constitutional concerns as other MCTs.
The Court is therefore satisfied that queries using U.S.-person identifiers may now be permitted
to run against information obtained by the above-described, more limited form of upstream
Internet collection, subject to the same restrictions as apply to querying other forms of Section

32

The Court understands that DOJ and ODNI review all U.S.-person identifiers approved
for use in querying contents of Section 702-acquired communications as well as the written
documentation of the foreign intelligence justifications for each such query during bi-monthly
compliance reviews. See November 6, 2015 Opinion at 25 n.22.

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702-acquired data. 33 See generally October 3, 2011 Memorandum Opinion at 22-24 (finding that
addition of a provision allowing NSA to query non-upstream Internet transactions using U.S.
person identifiers was consistent with the statute and the Fourth Amendment); November 6, 2015
Opinion at 24-26 (after inviting views of amicus curiae on this issue , finding that the CIA and
NSA minimization procedures permitting such queries comported with the statute and the Fourth
Amendment) .
The Court concludes that, taken as a whole, these changes strengthen the basis for finding
that the NSA Targeting Procedures meet the requirements of Section 1881 a(d)(l) and that the
NSA Minimization Procedures meet the definition of such procedures in Section 1801(h). The
elimination of "abouts" collection and, consequently, the more problematic forms ofMCTs,
focuses Section 702 acquisitions more sharply on communications to or from Section 702
targets, who are reasonably believed to be non-U.S. persons outside the United States and
expected to receive or communicate foreign intelligence information. That sharper focus should
have the effect that U.S. person information acquired under Section 702 will come more

33

Of course, NSA still needs to take all reasonable and necessary steps to investigate and
close out the compliance incidents described in the October 26, 2016 Notice and subsequent
submissions relating to the improper use of U.S.-person identifiers to query terms in NSA
upstream data. The Court is approving on a going-forward basis, subject to the above-mentioned
requirements, use ofU.S.-person identifiers to query the results of a narrower form of Internet
upstream collection. That approval, and the reasoning that supports it, by no means suggest that
the Court approves or excuses violations that occurred under the prior procedures.
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1
TOP SECRET//SL/0RCON/NOFOP'""1

predominantly from non-domestic communications that are relevant to the foreign intelligence
needs on which the pertinent targeting decisions were based. 34
D.

NCTC Raw Take Sharing
1.

The September 26, 2016 Submission proposes for the first time to allow NCTC access to
unminimized information acquired by NSA and FBI pursuant to
Previously, NCTC only had access to minimized Section 702-acquired
information residing in FBI' s general indices and relating to certain categories of investigations
concerning international terrorism.

NCTC has not, and will not under the government's

proposal, engage in PISA collection of its own. It does, however, have significant experience
with handling PISA-acquired information, including unminimized information obtained pursuant
to Titles I and III and Sections 704 and 705(b) of the Act, pursuant to AG- and FISC-approved
minimization procedures.
Beginning in 2008, NCTC was authorized to receive ce1tain PISA-derived information
from terrorism cases that FBI had uploaded into its Automated Case Support ("ACS") system.
FISA information residing in ACS has been minimized by FBI and appears in investigative

34

When the Court approved the prior, broader form of upstream collection in 2011, it did
so partly in reliance on the government's assertion that, due to
some communications of foreign
intelligence interest could only be acquired by such means. See October 3, 2011 Memorandum
Opinion at 31 & n. 27, 43, 57-58. This Opinion and Order does not question the propriety of
acquiring "abouts" communications and MCTs as approved by the Court since 2011, subject to
the rigorous safeguards imposed on such acquisitions. The concerns raised in the current matters
stem from NSA's failure to adhere fully to those safeguards.

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reports and other work product. The FISC in 2008 found that NCTC's access to such
information in ACS was "consistent with the need of the United States to obtain, produce, and
disseminate foreign intelligence information" under 50 U.S.C. § 180l(h)(l).

lal,

Docket No .•

Memorandum Opinion and Order entered on Oct. 8, 2008, at 3-6. Later, in 2012, NCTC

was granted access to raw information from tenorism cases obtained under Titles I and III and
Sections 704 and 705(b) of the Act, subject to expanded minimization procedures. See Docket
Nos.

, Memorandum Opinion and Order entered on May 18, 2012

("May 18, 2012 Opinion").
NCTC also has experience handling information obtained under Section 702 of the Act.
Since 2012, NCTC has had access to minimized information obtained under Section 702 through
its access to certain case categories in FBl's general indices (including ACS and another system
known as Sentinel). See Docket Nos.
Memorandum Opinion entered on Sept. 20, 2012, at 22-25 ("September 20, 2012 Opinion").

In each instance in which the FISC has authorized expanded sharing of PISA-acquired
-information with NCTC, the FISC has recognized NCTC's role as the government's primary
organization for analyzing and integrating all intelligence pertaining to international terrorism
and counterterrorism. For example, in approving NCTC's access to minimized Section 702acquired information in FBI general indices in 2012, the FISC observed that NCTC was
statutorily charged with ensuring that intelligence agencies receive all-source intelltgence support
and that executive and legislative branch officials have access to international terrorism-related
intelligence information and analysis to meet their constitutional responsibilities. See id. at 23

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(citing then-applicable statutory provisions); see also Affidavits of Nicholas Rasmussen,
Director, NCTC, appended at Tab 5 to each of the 2016 Certifications, at 1. The government
further avers in support of the current proposal that: (1) NCTC is statutorily charged with
providing "strategic operational plans for the civilian and military counterterrorism intelligence
and operations across agency boundaries, both inside and outside the United States;" and (2) the
NCTC Director "is assigned 'primaty responsibility within the United States Government for
conducting net assessments of terrorist threats."' September 26, 2016 Memorandum at 12-13
(citing 50 U.S.C. § 3056(f)(l)(B) and (G)).
The Court is satisfied that NCTC's receipt of information acquired under
is consistent with its mission. As for the NCTC's need to have access to
this information in raw form, the government asserts that NCTC's ability to obtain Section 702acquired information more quickly and in a form closer to its original, and to examine that
information in NCTC systems, using its own analytical tools in the context of potentially related
information available in NCTC systems, will enhance NCTC's ability to produce
counterterrorism foreign intelligence information. See September 26, 2016 Memorandum at 1314. The government provides an example in which NCTC was able to use its access to raw
PISA-acquired information from collection under other provisions of PISA to provide a timely
and unique assessment that was shared with other elements of the Intelligence Community in
support of their intelligence collection and analysis functions. See id. at 15. One would hope that
this is one of many such examples.

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In any event, as noted above, the government's proffered rationale for sharing raw
information with NCTC was accepted by the FISC in the context of information obtained under
other provisions of the Act, and the Court is persuaded that it applies with equal force in the
context of collection under Section 702. Among other things, the volume of collection under
Section 702 militates in favor of bringing all available analytical resources to bear on the careful
analysis and exploitation of foreign intelligence information from such collection. The Court
also credits the assertion that time can be of the essence in many rapidly-unfolding
· counterterrorism investigations. The Court is persuaded that timely access to raw Section 702acquired information will enhance NCTC's ability to perform its distinct mission, to support the
activities of other elements of the Intelligence Community, and to provide valuable input to
senior decisiomnakers in the Executive Branch and Congress.
Moreover, the information acquired unde
though voluminous - is the result of targeting persons reasonably believed to be non-United
States persons located outside the United States. For that reason, it is unlikely to contain as high
a proportion of information conceming United States persons as information acquired by FISA
electronic surveillance and physical search, which often involve targets who are United States
persons and typically are directed at persons in the United States.
To be sure, information concerning unconsenting United States persons has been and will
continue to be acquired under Section 702 and
particularly. The minimization procedures must carefully regulate the government's use and
dissemination of such U.S. person information in order to satisfy the definition of "minimization

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procedures" at Section 1801(h). The procedures NCTC will be required to follow with respect to
its handling of such information are examined in detail below.
The Court also finds that the scope of the proposed sharing with NCTC is appropriate.
Consistent with NCTC's mission, the proposed sharing of unminimized Section 702-acquired
information is limited to

The government notes that

the sharing will not include telephony data or the results of upstream Internet collection; in other
words, it will be limited to Internet communications obtained with the assistance of the direct
providers of the communication services involved. See September 26, 2016 Memorandum at 1011. NCTC will receive raw informatio
and subject totll~ ~i:ime
limitations as CIA (no upstream Internet collection and no telephony).

The government undertakes to notify the Court before altering these arrangements and
providing raw telephony or upstream Internet data to NCTC, FBI or CIA. See id. at 11 n.7;
accord March 30, 2017 Memorandum at 9-10 n.10. With regard to upstream Internet collection,
the Court has determined that mere notification to the FISC would be insufficient, especially as
NSA is in the process of transitioning to a narrower form of collection and segregating and
destroying the results of the prior, broader collection. Accordingly, the Court is ordering that raw
information obtained by NSA's upstream Internet collection under Section 702 shall not be
provided to FBI, CIA or NCTC unless it is done pursuant to revised minimization procedures
that are adopted by the AG and DNI and submitted to the FISC for review in conformance with
Section 702.

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With that limitation, the Couti finds that NCTC's receipt of raw information acquired ·
subject to appropriate minimization procedures

under

as described below, will "minimize the ... 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 U.S.C. § 180l(h)(l).

35

The NCTC has followed AG- and FISC-approved

minimization procedures in connection with its prior receipt of PISA-acquired information,
including Section.702-acquired inf01mation, with relatively few documented instances of
noncompliance. See generally Docket Nos.
Memorandum Opinion and Order entered on Aug. 26, 2014 Opinion ("August 26, 2014
Opinion") at 37 (noting that "no significant compliance issues have arisen under [NCTC's
Section 702 minimization) procedures").

a.

Changes to FBI and NSA Procedures Relating to Raw Infonnation
Sharing with NCTC

As noted above, the extension of raw information sharing to NCTC requires changes to
several sets of procedures. 36 First, FBI's targeting procedures , and FBI and NSA's minimization
procedures, are each amended to reflect the fact that those agencies may now provide to NCTC

35

With regard to§ 1801(h)(2)'s limitation on the dissemination of United States person
identities, the Court adopts the analysis set out at pages 7-8 of the May 18, 2012 Opinion.
36

Some technical, conforming edits to the certifications and procedures occasioned by
the extension of raw information sharing to NCTC are not discussed herein because they raise no
issues material to the Court's review. Certain other changes to the proposed certifications and
procedures are not discussed for the same reason .
Page 35

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unminimized communications obtained under
FBI Targeting Procedures§ I.6; NSA Minimization Procedures§ 6(c)(3); FBI Minimization
Procedures§ V.E. NCTC is required to identify to NSA those individual Section 702 selectors
for which it wishes to receive unminimized information, and is required to apply its own
approved minimization procedures to such inf01mation. See NSA Minimization Procedures §
6(c)(3); FBI Minimization Procedures§ V.E.
b.

Changes to NCTC Minimization Procedures Relating to Raw
Information Sharing with NCTC

The NCTC Minimization Procedures have been enhanced significantly to account for its
receiving raw information under Section 702. But they are not crafted out of whole cloth. They
are modeled on the previously-approved minimization procedures that apply to NCTC's receipt
of information under Titles I and III and Sections 704 and 705(b) of the Act. 37 Modifications are
proposed to address issues that are unique to Section 702 collection and in some instances to
hannonize the proposed NCTC procedures with those used by the FBI, NSA, and CIA in their
handling of Section 702-acquired information. Several key elements of the NCTC Minimization
Procedures are discussed below, focusing on instances in which they depart from the previously
approved NCTC Title I Procedures. 38

37

For ease ofreference, this opinion refers to these procedures (the ''National
Countertenorism Center Standard Minimization Procedures for Information Acquired by the
Federal Bureau of Investigation Pursuant to Title I, Title III, or Section 704 or 705(b) of the
Foreign Intelligence Surveillance Act") as the "NCTC Title I Procedures."
38

The government does not propose targeting procedures for NCTC, so NCTC will not
be authorized to engage in any Section 702 collection.

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The NCTC Minimization Procedures do not have a provision restricting NCTC's
processing, retention, and dissemination of third-party information.

In NCTC's Title I

Procedures, third-party information is defined to include "communications of individuals who
are not the targets of the collection," and to exclude "any information contained in a
communication to which the target is a party." NCTC Title I Procedures § A.3.h. Third-party
information thus defined is subject to stricter retention, processing, and dissemination limitations
under NCTC's Title I Procedures than information directly involving the target. See id. § C.4.
In 2012, the FBI removed similar third-party information provisions from its Section 702
minimization procedures. In approving that change, the Court explained that in the context of
Section 702 collection such rules
have no practical effect because the term "target" is defined as "the user(s) of a
targeted selector." In light of that definition ... there are no "third party''
communications [in Section 702 collection] for the FBI to minimize. Because the
deletion of the provisions regarding third party communications does not alter the
manner in which the FBI acquires, retains, or disseminates Section 702
information, this change is not problematic under Section 1801 (h).
September 20, 2012 Opinion at 17-18 (internal citations omitted). For the same reason, the
omission of provisions present in NCTC's Title I Procedures governing the NCTC's retention;
processing, and dissemination of third-party information from its Section 702 minimization
procedures presents no impediment to their approval.
Exclusion and Departure Provisions. The NCTC Minimization Procedures contain
certain exclusions and departure provisions that are consistent with the NCTC Title I Procedures
with two notable exceptions:

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(1)

An exclusion is added for the performance oflawful oversight functions ofNSD,

ODNI, relevant Inspectors General, and NCTC itself, which is consistent with
parallel provisions in other agencies' procedures. See NCTC Minimization
Procedures § A.6.e; NSA Minimization Procedures § 1; FBI Minimization
Procedures§ LG; CIA Minimization Procedures§ 6(f); and
(2)

A separate exclusion addresses compliance with congressional and judicial
mandates. NCTC Minimization Procedures§ A.6.d.

The latter provision was amended across all the agencies' minimization procedures in the

j
-1

September 26, 2016 Submission and is the subject of separate discussion below.
U.S. Person Presumptions. In general, the procedures provide a rebuttable presumption
that persons known to be in the United States are United States persons, and those known or
reasonably believed to be outside the United States are non-United States persons. Id. § A.4.a
and b. The NCTC Minimization Procedures diverge slightly from their Title I counterpart with
respect to individuals whose locations are not known.

NCTC Title I Procedures § A.4.a. That approach makes
sense in those procedures, which apply to information predominantly obtained by electronic
surveillance and physical search - directed at persons in the United
States.

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'

I,

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A.4.c,

NCTC Minimization Procedures
§A.4.e.
the Court assesses that Section 702 collection is more analogous to
than it is to other forms of collection that are regulated by the NCTC Title I Procedures and that
the application of the

is appropriate in this context. Section 702 collection

focuses exclusively on electronic data and communications collected with the assistance of
electronic communication service providers, and its targets are reasonably believed to be nonU.S. persons located overseas. The presumption of non-U.S. person status for a communicant
whose loc.ation is not known is also consistent with the presumptions allowed under the FBI and
NSA's current and proposed Section 702 minimization procedures. See NSA Minimization
Procedures§ 2(k)(2); FBI Minimization Procedures§ I.D. The Court finds the same framework
reasonable as applied to NCTC's handling of Section 702 information and consistent with the
requirements of Section 180l(h). See September 20, 2012 Opinion at 15-16 (approving parallel
change to FBI Section 702 Minimization Procedures). 39
Retention. The NCTC Minimization Procedures impose a retention schedule and
framework that are consistent with those followed by FBI for Section 702-acquired information

39

The NCTC Minimization Procedures also include provisions regarding unincorporated
associations and aliens who have been admitted for lawful permanent residence (NCTC
Minimization Procedures§ A.4.c and d) that track current provisions in the NSA Minimization
Procedures(§ 2(k)(3) and (4)). The Court sees no issue with these provisions.
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and, with a few immaterial exceptions not warranting separate discussion, with corresponding
provisions of the NCTC Title I Procedures. In brief, information that the NCTC retains on an
electronic and data storage system, but has not reviewed, generally must be destroyed after five
years from the expiration date of the certification authorizing the collection. NCTC
Minimization Procedures § B.2.a. Info1mation retained on such systems that has been reviewed,
but not identified as information that reasonably appears to be foreign intelligence information,
to be necessary to understand foreign intelligence information or assess its importance, or to be
evidence of a crime is generally subject to special access controls after ten years from such
expiration date, and shall be destroyed after fifteen years from such date. Id. § B.2.b. 40
In one respect, the proposed NCTC Minimization Procedures are more restrictive than the
NCTC Title I Procedures: Unlike the NCTC Title I Procedures, the NCTC Minimization
Procedures expressly provide that the prescribed time limits for retention apply to metadata
repositories. NCTC Minimization Procedures§ C.3; see October 4, 2016 Transcript at 7. They
further require appropriate training and access controls for NCTC employees granted access to
Section 702-acquired information. NCTC Minimization Procedures§§ B.1, F.1, F.2 and F.3.
They also require that such information be maintained in secure systems that enable NCTC to
mark or otherwise identify communications that meet the standards for retention. Id. Consistent
with the procedures followed by other agencies, the NCTC Minimization Procedures require

40

Generally speaking, information identified as meeting one of those criteria is not
subject to the above-described temporal limitations on retention. Id. § B.3. See, however, the
discussion on page 46 below regarding limitations on retention and use of evidence of a crime
that is not foreign intelligence information.

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destruction of infonnation obtained under a reasonable, but mistaken, belief that the target was
appropriate for Section 702 collection, subject to limited waiver provisions. Id.§ B.4. Finally,
they include provisions for retention of information reasonably believed to be necessary for, or
potentially discoverable in, administrative, civil or criminal litigation. Id. § B.5. Analogous
provisions already appear in NSA's and CIA's Minimization Procedures. See NSA
Minimization Procedures§ 3(c)(4); CIA Minimization Procedures§ 11.
Processing. The NCTC Minimization Procedures set standards for queries of data
obtained under Section 702, including requiring written justifications for queries using U.S.
person identifiers that are subject to subsequent review and oversight by NSD and ODNI. NCTC
Minimization Procedures § C.1; see also id. § C.3 (metadata queries "must be rei:isonably likely
to return foreign intelligence information"). They apply heightened handling requirements to
sensitive infonnation and privileged communications. The provisions for sensitive infonnation
are essentially identical to those found in the NCTC Title I Procedures. Compare NCTC
Minimization Procedures§ C.4 with NCTC Title I Procedures§ C.5.
The proposed procedures for NCTC's handling of privileged communications obtained
under Section 702 closely track those found in NSA's and CIA's Section 702 minimization
procedures. Compare NCTC Minimization Procedures§ C.5 with NSA Minimization
Procedures§ 4; CIA Minimization Procedures§ 7. The NCTC Minimization Procedures require,
among other things, the destruction of attorney-client communications that are affirmatively
determined not to contain foreign intelligence information or evidence of a crime. See NCTC
Minimization Procedures § C.5.a. If an attorney-client communication appears to contain foreign

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intelligence information or evidence of a crime,

Sec id. § C.5.b, c, and c. Communications containing privileged information

will be segregated when such information pertains to a criminal charge in the United States,.

See id. § C.5.c, d, e, and f.

-

See id. § C.5.i.

-

See id.§ C.5.g and h.
The Court closely examined substantial revisions to the NSA and CIA procedures as they
relate to privileged communications in 2015, and found that they "serve to enhance the protection
of privileged information" and "present no concern under Section 180l(h)." See November 6,
2015 Opinion at 18. The Court now finds the same to be true with respect to the NCTC
Minimization Procedures.
Dissemination. The dissemination provisions of the NCTC Minimization Procedures(§
D) provide for disseminations in a manner consistent with CIA's and NSA's handling of Section
702-acquired information. They also track in all material respects the NCTC Title I Procedures,
which have been found to satisfy Section 1801 (h).

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Handling of Information in FBI General Indices. The NCTC Minimization Procedures,
like the NCTC Title I Procedures, include a separate section that addresses NCTC's handling of
minimized Section 702 info1mation made available to it through FBI's general indices. This
provision of the NCTC Minimization Procedures tracks the corresponding provision of the
NCTC Title I Procedures. Compare NCTC Minimization Procedures § E with NCTC Title I
Procedures § E. The government points out that the description of individuals who are expected
to be allowed access to information in such systems ("NCTC personnel") is meant to be broader
than the defined term "NCTC employees" that is used in all other instances throughout the
proposed NCTC Minimization Procedures. The government explains that the broader term
"NCTC personnel" is meant to encompass (in addition to the NCTC employees, detailees, and
contractors who would qualify as "NCTC employees" as defined in the proposed procedures, see
NCTC Minimization Procedures § A.3.b) NCTC assignees from other agencies. The
government explains that, consistent with the current NCTC Section 702 minimization
procedures, such assignees will continue to have access to minimized information in FBI general
indices but will not be allowed to access raw Section 702-acquired information. September 26,
2016 Memorandum at 15 n.9. The Court assesses that is a sensible distinction.
Two Additional Issues. Two particular provisions in the agencies' proposed
minimization procedures relating to NCTC represent departures from current practice under
Section 702 and merit separate discussion. Those provisions pertain to NCTC's retention of
evidence of a crime and receipt of information from FBI and NSA for collection avoidance
purposes.

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1
TOP SECRET//SI//ORCON/1\0FOP'-J_"l\J

NCTC 's Retention of Evidence of Crime. The predecessor procedures that regulated

NCTC's retention, use, and dissemination of minimized Section 702 information obtained
through FBI's general indices acknowledged that some of the information made available to
NCTC might constitute evidence of a crime, but not foreign intelligence information or
information necessary to understand such information or assess its importance. As a law
enforcement agency, FBI would have a reason to maintain such information in its general
indices, where NCTC employees might encounter it. NCTC, as a non-law-enforcement agency,
was precluded under its previous Section 702 minimization procedures from retaining (in its own
systems), using or disseminating such infonnation. By contrast, under the new NCTC
Minimization Procedures (and only with respect to information it receives in raw form), 41 NCTC
may retain and disseminate evidence of a crime for law enforcement purposes. See NCTC
Minimization Procedures§§ A.7, D.2. This proposed approach is consistent with Sections A.7
and D.2 of the NCTC Title I Procedures.
The government asserts that, under the proposed NCTC Minimization Procedures,
NCTC might review raw information that has not been, and may never be, reviewed by any other
agency. As such, the government posits, NCTC must disseminate evidence of a crime to meet its
"crime reporting obligations" under Executive Order 12333 and other applicable law. See

41

As noted above, the new NCTC Minimization Procedures incorporate (in Section E)
the rules currently governing NCTC's retention, use, and dissemination of minimized
information that it obtains through FBI's general indices. NCTC continues to be prohibited from
retaining, using or disseminating information it obtains from those indices that constitutes
evidence of a crime, but not foreign intelligence information, with anyone, including law
enforcement, for reasons explained below. See NCTC Minimization Procedures§ E.2

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1
TOP SECPJ:T//SL/0RCON/J\JOFOP-u.'J\f

September 26, 2016 Memorandum at 16-17. Under NCTC' s minimization procedures as now in
effect, NCTC only has access to information from FBI indices that has already been reviewed
and minimized by FBI, so it is presumed that FBI would have taken all necessary steps with
respect to actionable law enforcement information. Under that construct, NCTC could, as
required by its procedures, simply disregard and delete that information from its holdings (unless
---------~--------

-----

--·

-

----··

-

----------

---

there was a foreign intelligence reason for NCTC to retain it). The government asserts that the
same would not be true with respect to raw information passed to NCTC. See id.

It is less readily apparent, however, why NCTC would need to retain evidence of a crime
after it has been passed to a law enforcement agency. The government asserts that NCTC needs
to preserve original copies of the relevant information in order to be able to respond to potential
follow-on requests for information or assistance from law enforcement. See October 4, 2016
Transcript at 4-6.42 In other words, NCTC would have no reason to retain the information for its
own purposes, but it would have a need for retention that derives from the needs of the law
enforcement agency to which NCTC passed the information. The government further posits that
NCTC may be the only agency that retains a copy of the relevant information and thus may be the
only entity able to respond to follow-up requests from law enforcement. See October 4, 2016
Transcript at 5.

42

The government correctly points out that in its opinion approving the NCTC's Title I
Procedures, which contain identical provisions with respect to crime reporting and evidence of a
crime, the Court found that those provisions met the statutory definition of minimization
procedures in Section 1801(h)(3), which prescribes procedures that "allow for the retention and
dissemination of information that is evidence of a crime which has been, is being, or is about to
be committed and that is to be retained or disseminated for law enforcement purposes." See
September 26, 2016 Memorandum at 16 n.10.

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The Court credits the government's explanation ofNCTC's

derivative need to retain such

information for law enforcement purposes. It bears emphasis, however, that NCTC may retain
and disseminate evidence of a crime that is not foreign intelligence information or necessary to
understand foreign intelligence information or assess its importance and otherwise would be
subject to destruction under the generally applicable age-off schedule,~

NCTC Minimization

Procedures§ B.2, only in furtherance of those law enforcement purposes. See id.§ D.2. The
Court understands and expects that NCTC will only retain such information - including after it
has been disseminated in compliance with crime reporting obligations, ~ id. § A.7 - for so long
as is reasonably necessary to respond to law enforcement requests of the kind posited by the
government. In the interim, NCTC shall make no independent use of such information. The
Court directs the government to take steps to ensure that NCTC abides by these limitations and
that any failures to do so are appropriately identified and reported to the FISC.

Collection Avoidance. The FBI and NSA would also be allowed, under proposed
amendments to their respective procedures, to share with NCTC for "collection avoidance"
purposes information about domestic communications obtained under Section 702 that indicate
that a targeted person is in the United States or otherwise should no longer be targeted under
Section 702. See NSA Minimization Procedures § 5; FBI Minimization Procedures § ID.A.
These provisions now allow sharing of such information among FBI, NSA, and CIA. At first it
was not clear to the Court why this provision should be extended to include NCTC, given that
NCTC engages in no independent collection under Section 702, or, so far as the Court is aware,
under any other authorities.

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Indeed, it seemed counterintuitive
to the Court that an agency not engaged in collection would need to receive information,
otherwise subject to destruction, for "collection avoidance purposes."
The government's response is that NCTC, upon receipt of such information, might be in a
position to "connect the dots" and identify other individuals who might not be viable targets for
···---

·-··--

- ------

Section 702 collection (or perhaps other facilities that might be used by the same individual and
should not be targeted). See September 26, 2016 Memorandum at 17-18. Such information
would also put NCTC on notice that the selector, or related selectors, might not be viable for
nomination to be targeted for collection by other agencies. Id. The government adds that FBI
and NSA typically only share the minimum information necessary for collection avoidance
purposes, such as technical information from the relevant communication or a mere notification
that the communication triggered a flag regarding the propriety of targeting someone. Id.
Because the government offers a plausible explanation of the need for sharing such
information with NCTC, the Court is prepared to approve the provisions in question, with the
understanding that NCTC may not use or disclose this information except as needed for
collection avoidance purposes. 43
Subject to the above-described understandings, the Court finds that the proposed
minimization procedures for NCTC's handling of raw information acquired under.

43

NSA's procedures, for example, require that a domestic communication retained for
collection avoidance purposes be placed on the NSA's "Master Purge List" ("MPL"), which
prevents further analytical use or dissemination of the communication for any other reason. See
NSA Minimization Procedures§ 5.
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and the modifications to the other agencies' procedures
relating to NCTC's receipt of such information, are reasonable. The NCTC Minimization
Procedures address retention, use, and dissemination of Section 702-acquired information in
ways that are consistent with logical analogues. Indeed, the FISC has approved all the major
elements of those procedures in the context of other FISA minimization procedures, and the
-------···--···-·--·

Court finds that, taken as a whole and as applied to raw information acquired under.
the NCTC Minimization Procedures conform to 50 U.S.C.
§ 180l(h).

E.

Other Changes to Targeting and Minimization Procedures in the September 26,
2016 Submission

1.

Changes to FBI Minimization Procedures Permitting the Retention of
Section 702-Acguired Information Subject to Preservation Obligations
Arising from Litigation

In 2014, the FISC approved provisions permitting FBI, NSA, and CIA to retain Section
702-acquired information subject to specific preservation obligations arising in litigation
concerning the lawfulness of Section 702. See August 26, 2014 Opinion at 21-25. Under those
provisions, information otherwise subject to destruction under the agencies' respective
minimization procedures would nonetheless be retained to satisfy litigation preservation
obligations. Access to information retained under those provisions is tightly restricted. See id. at
21, 23.
The NSA and CIA minimization procedures accompanying the 2015 Certifications
included revisions to these "litigation hold" provisions. Among other things, those procedures
included new provisions whereby NSA and CIA may retain for litigation purposes Section 702TOP SECRET//SI//ORCON/NOFORN

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acquired information otherwise subject to destruction requirements that are not set forth in the
minimization procedures, provided that access to such information is strictly controlled as
prescribed in the procedures. 44 The government must promptly notify the Court and seek its
approval whenever this provision is invoked. See NSA Minimization Procedures § 3(c)(4)b;
CIA Minimization Procedures § 11.b.
..

-- ---------

·-----------

------

- --~------------------------~

The litigation hold provisions also require NSA and CIA to provide DOJ with a summary
of all litigation matters requiring preservation of Section 702-acquired information, a description
of the Section 702-acquired information being retained, and, if possible based on the information
available to the agencies, the status of each litigation matter. See NSA Minimization Procedures
§ 3(c)(4)a and b; CIA Minimization Procedures§ 1l.a and b. 45 The FISC, in considering the
2015 Certifications, appointed amicus curiae to help it evaluate these litigation hold provisions.
The FISC agreed with the amicus's assessment that the revised liti~ation hold provisions
"comport with the requirements of Section 1801 (h) and strike a reasonable and appropriate

44

As stated in the November 6, 2015 Opinion, the Court understands this provision to
apply to destruction requirements arising under a FISC order, a FISC rule, or other FISCapproved procedures - e.g., the requirement that NSA destroy any communication acquired
through the intentional targeting of a person reasonably believed to be a United States person or
to be located in the United States, see NSA Targeting Procedures§ N.
45

The FISC has ordered the government to submit a report at the end of each year
identifying matters in which FBI, NSA or CIA is retaining Section 702-acquired information that
would otherwise be subject to destruction in order to satisfy a litigation preservation obligation.
See August 26, 2014 Opinion at 42. The Court has reviewed the litigation hold reports filed by
the government in December 2015 and December 2016. The Court is reaffirming that reporting
obligation and _extendingit to NCTC.

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balance between the retention limitations reflected in FISA and the government's need to comply
with its litigation-related obligations." November 6, 2015 Opinion at 16.
The proposed NCTC Minimization Procedures, like NSA's and CIA's, include litigation
hold provisions that address departures from destruction requirements arising under NCTC's
minimization procedures and from other sources. See NCTC Minimization Procedures§ B.5.
---

The government proposes now to expand the FBI Minimization Procedures to address the latter
situation and to bring FBI' s litigation hold provisions more closely into line with those of the
other agencies.

In 2015, with the concurrence of a
FISC-appointed amicus curiae, the FISC found these procedures appropriate as applied to NSA
and CIA. November 6, 2015 Opinion at 16. The Court sees no basis for a contrary conclusion
now with regard to the NCTC and FBI.
The Court emphasizes, however, the need promptly to notify and seek leave of the Court
to retain information pursuant to such provisions.

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re2-3. The Court will not look favorably on similarly lengthy delays in deciding whether to
comply with an otherwise applicable destruction requirement or seek FISC approval to retain
information in anticipation of bringing criminal charges.
2.

Clarification of Age-off Requirements for Encrypted Information Under
the FBI Minimization Procedures

In its 2015 Submission, the government added a new provision to the FBI Minimization
Procedures permitting the FBI to retain Section 702-acquired information that is encrypted or
believed to contain secret meaning for any period of time during which such material is subject
to, or of use in, cryptanalysis or otherwise deciphering secret meaning . Access to such
information is restricted to FBI personnel engaged in cryptanalysis or deciphering secret
meaning. See FBI Minimization Procedures § Ill.G.5. Nonpublicly available information
concerning unconsenting United States persons retained under the provision cannot be used for
any other purpose unless such use is permitted under a different provision of the minimization
procedures. See id. Once information retained under this provision is decrypted or its secret
meaning is ascertained, the generally-applicable retention rules apply. The government stated
that it would calculate the age-off date for such information from the later of the date of
decryption or the date of expiration of the certification pursuant to which the information was
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acquired. See Docket Nos.

July 15, 2015,

Memorandum Regarding Government's Ex Parte Submission of Reauthorization Certifications
and Related Procedures, Ex Parte Submission of Amended Certifications, and Request For an
Order Approving Such Certifications and Amended Certifications at 18. But the procedures
themselves were silent on this point.
When it approved the 2015 Certifications, the FISC encouraged the government to make
this calculation methodology explicit in future versions of the procedures. November 6, 2015
0 inion at 20 n.19. The overnment has done so. The FBI Minimization Procedures now

3.

Revisions to Minimization Provisions Permitting Compliance with
Judicial or Legislative Mandates

The NSA and CIA minimization procedures approved in the November 6, 2015 Opinion
each state that "[n]othing in these procedures shall prohibit the retention, processing, or
dissemination of information reasonably necessary to comply with specific constitutional,
judicial, or legislative mandates." See November 6, 2015 Opinion at 21 (citing relevant
provisions of procedures). The FISC took issue with the facial breadth of these provisions,

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observing that "[a] provision that would allow the NSA and CIA to deviate from any of the[]
restrictions [in their respective minimization procedures] based upon unspecified 'mandates'
could undermine the Court's ability to find that the procedures satisfy" statutory requirements.
Id. at 22. The FISC addressed this issue in three ways. First, in order to avoid finding a
deficiency in the procedures, it applied an interpretive gloss that the government had previously
articulated with regard to similar language in another set of minimization procedures, to the
effect that such provisions would be invoked sparingly and applied only to directives specifically
calling for the information at issue, and not to Executive Branch orders or directives. Id. at 22 .
The FISC emphasized that it "must construe the phrase 'specific constitutional, judicial , or
legislative mandates' to include only those mandates containing language that clearly and
specifically requires action in contravention of an otherwise-applicable provision of the
requirement of the minimization procedures." Id. at 23. Second, to ensure that these provisions
were actually applied in a manner consistent with the FISC's understanding, the government was
directed to report any action in reliance on this provision to the FISC promptly and in writing,
along with a written justification for each such action. Id. at 23-24. 46 Finally, the government
was encouraged to consider replacing these broadly-worded provisions with language more
narrowly tailored to the above-described intent. Id. at 24 n.20.
The government proffered revisions to these provisions in the September 26, 2016
Submission. The provisions, as revised and incorporated in all of the agencies ' minimization

46

This reporting requirement is carried forward by this Opinion and Order. The Court
understands that this provision has not yet been invoked.

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procedures , now require that the departure be "necessary to comply with a specific congressio nal
mandate or order of a court within the United States." NSA Minimization Procedures § 1; FBI
Minimization Procedures§ LG; CIA Minimization Procedures§ 6.g; NCTC Minimizat ion
Procedures§ A.6.d. The Court finds the revised language acceptable , but again wishes to
emphasize that it expects this provision to be interpreted narrowly.
As described in the September 26, 2016 Memorandum at 6-7, the government has
received requests from members of Congress , including 14 members of the House Judiciary
Committee, for estimates of the number of communications of U.S . persons that have been
acquired under Section 702. Responding to such requests would require NSA , and possibly other
agencies, to structure queries designed to elicit information concerning U.S. persons with no
foreign intelligence purpose, facially in violation of applicable minimization procedures. Such
requests, which have not taken the form of a subpoena or other legal process , would not
constitute legal mandates for purposes of the departure provision discussed above. Instead , the
government submits that, in order to respond to such requests, it may take actions that
contravene otherwise applicable minimization requirements pursuant to provisions of the
minimization procedures that allow for performance oflawful oversight functions . For example,
the NSA Minimization Procedures state that nothing in them shall restrict "NSA's performance
oflawful oversight functions of its personnel or systems, or lawful oversight functions" ofNSD,
ODNI, or relevant Inspectors General. NSA Minimization Procedures § 1; see also FBI
Minimization Procedures§ LG (same); CIA Minimization Procedures § 6.f (same); NCTC
Minimization Procedures§ A.6.e (same). The government also undertook to notify the Court

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"promptly" if it "uses this provision to respond to such congressional oversight inquiries ."
September 26, 2016 Memorandum at 7.47
Although these provisions could more clearly address responses to requests from
congressional overseers, the Court believes they can be fairly read to authorize actions necessary
to respond to the requests described by the government. The Court directs the government to
-

-

-

--

--·

-- --

--

- -

-·

--

---

-----------

provide prompt written notification of any instance when an agency acts in contravention of
otherwise applicable minimization requirements in order to respond to an oversight request from
any outside entity other than those currently specified in its procedures. The Court expects the
government to make such a submission regarding its response to the above-referenced
congressional requests promptly upon completion of that response.

4.

Amendment of FBI Targeting Procedures with Respect to -

47

The government has since orally notified the Court that, in order to respond to these
requests and in reliance on this provision of its minimization procedures, NSA has made some
otherwise-noncompliant queries of data acquired under Section 702 by means other than
upstream Internet collection.

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Page 55

The Court does not view this change, which deals with
agencies authorized to receive
unminimized Section 702-acquired information, as problematic, provided that information is
shared only with entities authorized to receive it (in the case ofNCTC , information obtained
pursuant to

. The legality of raw information sharing

fundamentally rests on the foreign intelligence need to provide the information to the receiving
agency and that agency' s implementation of PISA-compliant minimization procedures.
Accordingly, the Court concludes that this change does not preclude it from finding that the FBI
Targeting Procedures meet the requirements of Section 1881 a(d)(l ).

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F.

Conclusions
1.

The NSA and FBI Targeting Procedures Comply With Statutmy
Requirements and Are Reasonably Designed to Prevent the Targeting of
United States Persons

To summarize, the proposed changes to NSA's targeting procedures now make clear that
acquisitions thereunder will be limited to communications to or from persons targeted for
-----

-----

--

--

-

--

-----

-

-

-------

-

----

--

--------

acquisition under Section 702. FBI's revised targeting procedures allow it to-

The Court has no difficult y
finding that these changes, individually and taken together, do not detract from its earlier
holdings with regard to the sufficiency and legality of the FBI and NSA targeting procedures .
For the reasons stated above and in the Court ' s opinions in the Prior 702 Dockets , the
Court concludes that the NSA Targeting Procedures and the FBI Targeting Procedures , as
written , are reasonably designed, as required by Section 188la(d)(l):

(1) to ensure that any

acquisition authorized under the 2016 Certific ations is limited to targeting persons reasonably
believed to be located outside the United States, and (2) 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 . Moreover , for the reasons stated above and in
the Court's opinions in the Prior 702 Dockets, the Court concludes that the NSA and FBI
Targeting Procedures, as written, are reasonably designed to prevent United States persons from

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being targeted for acquisition - a finding that is relevant to the Court's analysis, which is set out
below, of whether the procedures are consistent with the requirements of the Fourth Amendment.
2.

The FBI, NSA, CIA, and NCTC Minimization Procedures Comply With
Statutory Requirements

For the reasons stated above and in the Court's opinions in the Prior 702 Dockets, the
----Court sumlarly concludes1nartheNSA,FB1-;-ct:A:, and NCTCM1mmizatton Procedures satis·~--.-the definition of minimization procedur~s at Section 180l(h). In the November 6, 2015 Opinion,
the FISC found that the minimization procedures accompanying the 2015 Certifications met
statutory and constitutional standards. The FISC recommended two changes to the procedures in
future submissions. In both instances, the government has acted on those suggestions, proposing
changes to narrow the "legal mandate" exception to each agency's minimization procedures and
define more precisely the time limits placed on FBI' s retention of information believed to be
encrypted or contain secret meaning. Both changes further cabin the relevant agencies'
discretion and enhance the protection of nonpublicly available information concerning
unconsenting United States persons. 48
Other changes to minimization procedures pertain to FBI' s retention of information for
"litigation hold" purposes and enable sharing
with NCTC. (As noted above, NCTC's revised procedures incorporate

48

As discussed above, the NSA Minimization Procedures have been revised to eliminate
acquisition of "abouts" communications and the most problematic forms ofMCTs. As a result
of that change, the Court no longer views the prohibition on U.S.-person queries in NSA
upstream collection to be necessary to comport with the statute or, as discussed below, the Fourth
Amendment.
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elements from various other procedures, with appropriate adaptations to fit the context of Section
702.) The Court concludes that none of the proposed changes to the agencies' minimization
procedures, individually or collectively, precludes the Court from finding that such procedures
comport with Section 1801(h).
Accordingly, the Court finds that the agencies' proposed minimization procedures meet
the requirements of 50 U.S.C. § 1801(h). That finding is made in reliance on (1) the abovestated limitations on (a) the types of information that will, and will not, be shared in raw form
with the FBI, CIA, and NCTC, and (b) NCTC's retention, use or disclosure of evidence of a
crime and information received from other agencies for collection avoidance purposes; and (2)
the expectation that the government will faithfully comply with the reporting requirements set
forth below, in the procedures themselves, and in Rule 13 of the FISC Rules of Procedure.
G.

The Targeting and Minimization Procedures Are Consistent with the Fourth
Amendment

The Court must also assess whether the targeting and minimization procedures are
consistent with the requirements of the Fourth Amendment. See 50 U.S.C . § 188la(i)(3)(A).
The Fourth Amendment states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV.

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Reasonableness is '"the ultimate touchstone of the Fourth Amendment.

rn

In re Certified

Question of Law, Docket No. 16-01, Opinion at 31 (PISA Ct. Rev. Apr. 14, 2016) (per curiam)
("In re Certified Question") 49 (quoting Riley v. California, 134 S. Ct. 2473, 2482 (2014)). 50 In

assessing the reasonableness of a governmental intrusion under the Fourth Amendment, a court
must "balance the interests at stake" under the "totality of the circumstances." In re Directives at
20. Specifically, a court must "balance ... the degree of the government's intrusion on
individual privacy" against "the degree to which that intrusion furthers the government's
legitimate interest." In re Certified Question at 31. "The more important the government's
interest, the greater the intrusion that may be constitutionally tolerated." In re Directives at 1920.

If the protections that are in place for individual privacy interests are sufficient in
light of the governmental interest at stake, the constitutional scales will tilt in

49

A declassified version of this opinion is available at:
www.dni.gov/files/icotr/FISCR%Opinion%20l 6-0l. pdf.
50

Although "[t]he warrant requirement is generally a tolerable proxy for 'reasonableness'
when the government is seeking to unearth evidence of criminal wrongdoing, ... it fails properly
to balance the interests at stake" when "the government is instead seeking to preserve the
nation's security from foreign threats." In re Certified Question at 3. Accordingly, a warrant is
not required to conduct surveillance "to obtain foreign intelligence for national secut;ity purposes
... directed against foreign powers or agents of foreign powers reasonably believed to be located
outside the United States." In re Directives Pursuant to Section 105B ofFISA, Docket No. 0801, Opinion at 18-19 (FISA Ct. Rev. Aug. 22, 2008) ("In re Directives"). (A declassified
version ofln re Directives is available at 551 F.3d 1004 (FISA Ct. Rev. 2008)). The FISC has
repeatedly reached the same conclusion regarding Section 702 acquisitions. See, ~. November
6, 2015 Opinion at 36-37; September 4, 2008 Opinion at 34-36; accord United States v.
Hasbajrami, 2016 WL 1029500 at *7-*9 (E.D.N.Y. March 8, 2016); United States v. Mohamud,
2014 WL 2866749 at *15-*18 (D. Or. June 24, 2014).

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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 unconstitutionality.
Id. at 20.
"Collecting foreign intelligence with an eye toward safeguarding the nation's security
serves . . . a particularly intense interest" that is "different from the government's interest in the
workaday enforcement of the criminal law." In re Certified Question at 29 (internal quotation
marks omitted); see also id. at 31 (noting "the paramount interest in investigating possible threats
to national security''). For that reason, "the government's investigative interest in cases arising
under FISA is at the highest level and weighs heavily in the constitutional balancing process."
Id. at 32.
On the other side of the balance is the degree of intrusion on individual privacy interests
protected by the Fourth Amendment. The degree of intrusion here is limited by restrictions on
how the government targets acquisitions under Section 702 and how it handles information postacquisition. For reasons explained above, the Court has found that the targeting procedures now
before it are reasonably designed to limit acquisitions to targeted persons reasonably believed to
be non-United States persons located outside the United States, whose privacy interests are not
protected by the Fourth Amendment. See,~.

November 6, 2015 Opinion at 38; September 4,

2008 Opinion at 37 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990)) .
That is not to say, however, that targeting non-United States persons located outside the United
States for acquisition under Section 702 never implicates interests protected by the Fourth
Amendment. Under the revised procedures, the government may acquire communications to

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which United States persons and persons within the United States are parties when such persons
communicate with a Section 702 target. 51 Therefore it is necessary to consider how information
from those communications will be handled .
Steps taken by the government to restrict the use or disclosure of information after it has
been acquired can reduce the intrusiveness of the acquisition for purposes of assessing its
reasonableness under the Fourth Amendment. See In re Certified Question at 35. In the Prior
702 Dockets, the FISC found that "earlier versions of the various agencies' targeting and
minimization procedures adequately protected the substantial Fourth Amendment interests that
are implicated by the acquisition of communications of such United States persons." November
6, 2015 Opinion at 38-39 (citing August 26, 2014 Opinion at 38-40; August 30, 2013 Opinion at
24-25). Specifically, "'the combined effect of these procedures"' was '"to substantially reduce
the 1isk that non-target information concerning United States persons or persons inside the
United States will be used or disseminated' and to ensure that 'non-target information that is
subject to protection under PISA or the Fourth Amendment is not retained any longer than is
reasonably necessary."' November 6, 2015 Opinion at 39 (quoting August 26, 2014 Opinion at
40).
The November 6, 2015 Opinion included a careful analysis of the rules for querying
Section 702 information using United States person identifiers under the minimization
procedures for the NSA, the CIA, and especially the FBI. See November 6, 2015 Opinion at 24-

51 NSA's

elimination of "abouts" collection should reduce the number of communications
acquired under Section 702 to which a U.S. person or a person in the United States is a party .

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36, 39-45. After receiving briefing and oral argument from an amicus curiae appointed under 50
U.S .C. § 1803(i)(2)(B), the FISC concluded that, although its review did not involve treating
each query as a separate action subject to a test for Fourth Amendment reasonableness, the
querying rules were relevant to its assessment of whether the procedures as a whole were
reasonable under the Fourth Amendment. November 6, 2015 Opinion at 40-41. The FISC
further determined that the querying rules did not preclude a finding that the procedures were
consistent with the requirements of the Fourth Amendment. Id. at 44-45.
In the procedures now before the Court, the relevant provisions of the CIA and FBI
minimization procedures remain unchanged, see CIA Minimization Procedures at§ 4; FBI
Minimization Procedures at§§ III.D, IV.D, and the NCTC procedures generally track the
pertinent requirements of the CIA Minimization Procedures. See NCTC Minimization
Procedures at§ C.3.52
With regard to the querying rules in the CIA and NCTC procedures, the Court adopts the
analysis of the November 6, 2015 Opinion.
As discussed above, NSA's procedures now limit all acquisitions -including upstream
Internet acquisitions - to communications to or from an authorized Section 702 target. That
limitation places upstream Internet collection in a posture similar to other forms of Section 702
collection for the purpose of assessing reasonableness under the Fourth Amendment. The
revised procedures subject NSA's use of U.S. person identifiers to query the results of its newly-

52

Unlike the CIA procedures, the NCTC procedures require that queries of Section 702
metadata, as well as contents, be reasonably designed to return foreign intelligence information.
NCTC Minimization Procedures at§ C.3.

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limited upstream Internet collection to the same limitations and requirements that apply to its use
of such identifiers to query information acquired by other forms of Section 702 collection. See
NSA Minimization Procedures§ 3(b)(5). For that reason, the analysis in the November 6, 2015
Opinion remains valid regarding why NSA's procedures comport with Fourth Amendment
standards ofreasonableness with regard to such U.S. person queries, even as applied to queries of
upstream Internet collection.
As discussed in the November 6, 2015 Opinion, the FBI's minimization procedures
contemplate queries conducted to elicit foreign intelligence infonnation and queries conducted to
elicit evidence of crimes. With respect to the latter type of query, the FISC's approval of the FBI
minimization procedures in 2015 was bolstered by the government's assessment that "FBI
queries designed to elicit evidence of crimes unrelated to foreign intelligence rarely, if ever,
produce responsive results" from Section 702 information. See November 6, 2015 Opinion at
44. To confirm the continued accuracy of that assessment, the FISC ordered the government to
report on "each instance after December 4, 2015, in which FBI personnel receive and review
Section 702-acquired information that the FBI identifies as concerning a United States person in
response to a query that is not designed to find and extract foreign intelligence information." Id.
at 78.
The government has reported one set of queries as responsive to this requirement. On
an FBI analyst reviewing Section 702 information found an email message in
which a person in the United States gave detailed descriptions of violent, abusive actscommitted ~hildren.

Notice regarding FBI queries of Section 702-

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acquired information designed to return evidence of a crime unrelated to foreign intelligence
Notice"), at 2. In an effort to identify additional evidence of abuse, the FBI
ran queries of Section 702 information using the names of the suspected abuser, the apparent
victims, and other terms derived from that e-mail message. Those queries only retrieved the
previously reviewed e-mail message from which the query terms were derived. Id. Pursuant to
.....

·····---···---

Section I.F of its minimization procedures, the FBI disseminated information about the child
abuse to a local child protective services agency,

The undersigned judge finds persuasive the November 6, 2015 Opinion's analysis of the
FBI's querying rules. The single reported instance of queries that returned U.S. person
information unrelated to foreign intelligence information does not detract from that analysis,
especially since those queries did not result in any further intrusion on privacy: they merely
retrieved information already known to the analyst who ran the queries. 53
For the reasons stated above, neither the NCTC's receipt of unminimized information
acquired regarding counterterrorism targets, subject to its applying the NCTC Minimization
Procedures, nor the other above-described modifications to the targeting and minimization
procedures, causes the Court to deviate from prior assessments that the targeting and
minimization procedures are consistent with the requirements of the Fourth Amendment.

53

The Court notes, however, that the FBI did not identify those queries as responsive to
the Court's reporting requirement until NSD asked whether any such queries had been made in
the course of gathering information about the Section I.F dissemination.
Notice
at 2. The Court is carrying forward this reporting requirement and expects the governrnent to
take further steps to ensure compliance with it.
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-

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IV.

THE COMPLIANCE AND IMPLEMENTATION ISSUES REPORTED BY THE
GOVERNMENT DO NOT WARRANT A FINDING THAT, AS
IMPLEMENTED, THE TARGETING AND MINIMIZATION PROCEDURES
ARE DEFICIENT.

The FISC has consistently understood its review of targeting and minimization
procedures under Section 702 to include examining how the procedures have been and will be
implemented. See,~,

November 6, 2015 Opm10n at 7; August 3o;-20lJ·opinion at 6-11,19-

22; April 7, 2009 Opinion at 22-25. As the Foreign Intelligence Surveillance Court of Review
has noted, FISC "supervision of the execution of pen register orders further reduces the risk that
such measures will be employed under circumstances, or in a manner, that unreasonably intrudes
on individuals' privacy interests." In re Certified Question at 36-37. The same conclusion
applies to FISC examination of how the government implements the Section 702 procedures.
For purposes of this examination, "the controlling norms are ones ofreasonableness, not
perfection," November 6, 2015 Opinion at 45, under both Section 70254 and the Fourth
Amendment. 55 The Court evaluates the reasonableness of "the program as a whole," not of
individual actions in isolation. November 6, 2015 Opinion at 40-41. The assessment of

54

See 50 U.S.C. § 1881a(d)(l) (requiring targeting procedures that are "reasonably
designed to" limit targeting to "persons reasonably believed to be located outside the United
States" and to "prevent the intentional acquisition" of communications to which all parties are
known to be in the United States); § 1881a(e)(l) (requiring minimization procedures as defined
in§§ l 801(h)(l) or 1821(4), i.e., procedures "reasonably designed" to minimize acquisition and
retention, and to prohibit dissemination, of information concerning United States persons,
consistent with foreign intelligence needs).
55

See,~, United States v. Knights, 534 U.S. 112, 118 (2001) ("The touchstone of the
Fourth Amendment is reasonableness .... "); In re Directives at 34 (surveillances found to be
reasonable under the Fourth Amendment where "the risks of error and abuse are within
acceptable limits and effective minimization procedures are in place").

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reasonableness takes due account of the fact that implementing Section 702 is "a large and
complex endeavor .. . effected through thousands of discrete targeting decisions for individual
selectors," 56 each of which implicates selector-specific pre-tasking and post-tasking
requirements, November 6, 2015 Opinion at 45-46, and that for all information acquired under
Section 702, minimization procedures impose "detailed rules concerning . . . retention, use, and
-·-

-- -·-·--- ---- -- - -----

--

- - ----

--

----

--

dissemination .... " Id. at 46. As the FISC has previously observed:
Given the number of decisions and volume of information involved, it should not
be surprising that occasionally errors are made. Moreover, the government
necessarily relies on-processes
in performing post-tasking checks, see,
~' August 30, 2013 Opinion at 7-9, and in acquiring, routing, storing, and when
appropriate purging Section 702 information . See, ~, April 7, 2009 Opinion at
17-22. Because of factors such as changes in communications technology or
inadvertent error, these processes do not always function as intended.

Overall, the Court concludes that the targeting and minimization procedures satisfy
applicable statutory requirements and are reasonable under the Fourth Amendment, despite the
reported instances of non-compliance in prior implementation. The Court bases this conclusion
in large measure on the extensive oversight conducted within the implementing agencies and by
the DOJ and ODNI. Due to those efforts, it appears that compliance issues are generally

56

For example, NSA "reports that, on average, approximatelyfacilities were
under task at any given time between December 1, 2016 and February 28, 2017." March 17,
2016 Compliance Report at 1 (footnote omitted) . Facilities tasked for acquisition include
Id. at I n.1. "Additionally, between December 1, 2016 and February 28, 2017, the [FBI] reports
that it received and processed approximately
Id. at I.

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--

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identified and remedied in a timely and appropriate fashion. 57 Nonetheless, the Court believes it
beneficial to discuss certain ongoing or recent compliance issues and, in some cases, direct the
government to provide additional information.
A.

Resolution of Issues Addressed in the November 6, 2015 Opinion

The November 6, 2015 Opinion discussed several significant compliance problems that
were then pending. See November 6, 2015 Opinion at 47-77. With the exception of noncompliance with minimization procedures related to attorney-client privileged communications,
which are discussed separately, those compliance issues have been resolved as described below.
1.

-

Failure of Access Controls in FBI's

while the 2015 Certifications were pending, the government filed a

Notice") indicating that a failure of access controls in an FBI database

notice('

containing raw Section 702-acquired information resulted in-FBI
improperly receiving access to such information. --otice

employees
at 1. Specifically,

57

Too often, however, the government fails to meet its obligation to provide prompt
notification to the FISC when non-compliance is discovered. See FISC Rule of Procedure l 3(b ).
For example, it is unpersuasive to attribute - even "in part" - an eleven-month delay in
submitting a preliminary notice to ''NSA's efforts to develop remedial steps," see April 7, 2017
Preliminary Notice (Mislabeling) at 1 n.1, 2, when the purpose of a preliminary notice is to
advise the Court while investigation or remediation is still ongoing. See also, M, February 28,
2017 Notice of a Compliance Incident Regarding Incomplete Purges of Information Obtained
Pursuant to Multiple FISA Authorities ("February 28, 2017 Notice") at 1-2, n.3 (five-month
delay attributed "to administrative issues surrounding the reorganization ofNSA offices and
personnel"). The Court intends to monitor closely the timeliness of the government's reporting
of non-compliance regarding Section 702 implementation.

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such access. Id. at 1, n.1. This resulted in violations of Sections III.A. and III.B of the FBI' s
minimization procedures. 58 The government provided testimony on this issue at a hearing on
filed a Supplemental Notice on
indicating that
PISA-acquired products were "exported"
authorized to access these products.

On
~otice").

sers who were not
Notice at 2.

the government filed what was styled as a Final Notice on this issue
That notice indicated that the FBI
ad not disseminated the PISA-acquired products;

and all.

users had deleted from their systems the raw PISA-acquired information they had

exported.

58

As then in effect and as now proposed, Section III.A of the FBI Minimization
Procedures requires the FBI to "retain all PISA-acquired information under appropriately secure
conditions that limit access to such information only to authorized users in accordance with [the
FBI Minimization Procedures] and other applicable FBI procedures ." FBI Minimization
Procedures § III.A. Section III.B of the FBI Minimization Procedures further requires the FBI to
grant access to raw Section 702-acquired information in a manner that is "consistent with the
FBI's foreign intelligence information-gathering and information-sharing responsibilities , ...
[p]ermitting access ... only by individuals who require access in order to perform their job
duties[.]" Id. § III.B. It also requires users with access to PISA-acquired information to receive
training on minimi zation requirements. Id. § III.B.4.

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In the Court's assessment, the government has
appropriately remedied this incident.

2.

NSA Failures to Complete Required Purges

On July 13, 2015, the Government filed a notice regarding NSA's purge processes for
PISA-acquired information in its mission management systems ("July 13, 2015 Notice"). That
notice indicated that the NSA had not been removing records associated with Section 702 data
database. July 13, 2015 Notice at 3.

subject to purge from its

On October 5, 2015, the government filed a Supplemental Notice regarding NSA's purge
processes for PISA-acquired information ("October 5, 2015 Notice"). That notice indicated that
NSA had now removed from

all Section 702-acquired records that were

marked as subject to purge. October 5, 2015 Notice at 2. On October 28, 2015, however, the
government filed another Supplemental Notice regarding NSA's purge processes ("October 28,
had

2015 Notice") in which it reported that a technical malfunction in
rendered the aforementioned purges incomplete. October 28, 2015 Notice at 2.

On January 14, 2016, the government filed a Supplemental Notice ("January 14, 2016
Notice") indicating that as of October 30, 2015,

was properly configured to

remove records subject to purge and corresponding to identifiers on the MPL. January 14, 2016

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Notice at 2. At that time NSA had completed purging records that had been added to the MPL
between 2011 and 2015. Id. On September 22, 2016, the government filed another
Supplemental Notice ("September 22, 2016 Notice on
February 2016, the NSA had removed from

confirming that as of
all historical Section 702-

acquired records subject to purge. 59 September 22, 2016 Notice on

at 2.

The July 13, 2015 Notice also reported "a compliance incident regarding PISA-acquired
information subject to purge or age off that [was] being retained in two ofNSA's compliance
mission management systems,

and -

in a manner that is "potentially

inconsistent with NSA's PISA-related minimization procedures ." July 13, 2015 Notice at 2, 5.
Subsequent communications between the government and FISC staff revealed that
and-

may also have been retaining data, the use or disclosure of which could violate

50 U.S.C. § 1809(a)(2). The November 6, 2015 Opinion directed the government to provide
additional information about NSA' s retention of certain categories of information in
and -

November 6, 2015 Opinion at 78.

On December 18, 2015, the government filed a detailed description of its plan and
timeline for remedying improper retention in

and -

See Prior 702

Dockets, Verified Response to the Court's Order Dated November 6, 2015, filed on Dec . 18,

59

The government also disclosed in the January 14, 2016 Notice that
was not configured to age off all PISA-acquired information pursuant to relevant minimization
~ry
14, 2016 Notice at 2. As of August 3, 2016, the NSA had removed from
~ all Section 702-acquired information identified as due for destruction under
the retention periods set by the NSA Minimization Procedures, and prospectively, the NSA will
remove Section 702-acquired information from
in compliance with those
retention periods. September 22, 2016 Notice on
at 2.
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2015. On September 22, 2016, the government provided a written update on the NSA's efforts
to remove from

and -

information that was subject to purge or age-off

under the NSA Minimization Procedures ("September 22, 2016 Notice on
As of February 17, 2016, NSA had removed from
-

and
and

all Section 702-acquired information subject to age-off under the five- and two-year

retention periods set by the NSA Minimization Procedures . September 22, 2016 Notice on
and -at
and -

2. As of September 9, 2016 , the NSA had deleted from
all historical Section 702-acquired data potentially subject to §

1809(a)(2), and it had developed a plan to deal prospectively with information potentially subject
to § 1809( a)(2) . Id. at 3. Finally, as of September 9, 2016, the NSA had removed from
and -

other categories of information that the November 6, 2015

Opinion had identified as not permissible for retention in

and-(e.g.

,

attorney-client communications that do not contain foreign intelligence information or evidence
of a crime). Id. at 3-4.

B.

Issues Arising Under the NSA Targeting Procedures

NSA's targeting proceduresrequire that analysts, before tasking a selector for acquisition,
make a reasonable assessment that the user of the selector is a non -U.S . person located outside
the United States. See NSA Targeting Procedures § 1. Post-tasking, analysts are required to take
reasonable steps to confirm that the selector continues to be used by a non-U.S. person located
outside the United States. See NSA Targeting Procedures § 2. Those requirements directly bear
on statutory limitations on Section 702 acquisitions. See 50 U.S.C. § 1881a(c)(l)(A), (d)(l)(A)

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(targeting procedures must be reasonably designed to ensure that acquisitions are limited to
targeting persons reasonably believed to be outside the United States); § 188 la(b)(3), (4)
(government may not intentionally target a United States person reasonably believed to be
outside the United States or intentionally acquire any communication as to which the sender and
all intended recipients are known at time of acquisition to be in the United States).
Compliance and implementation issues have arisen regarding these pre-tasking
assessments and post-tasking reviews. While those issues merit discussion, the Court does not
believe they are sufficiently serious or pervasive to warrant finding that the targeting procedures
do not meet the above-described statutory requirements or are inconsistent with the Fourth
Amendment.
1.

Scope of Pre-Tasking Review of-

One of the measures taken by NSA analysts to fulfill pre-tasking obligations is to check
for information that may be probative of
For example,

-·

According to a notice filed by the government on August 24, 2016, NSA analysts often

relied on the above-referenced

I

as part of those pre-

tasking checks. August 24, 2016 Update Regarding the Scope of Section 702 Pre-Tasking
Review of-at

2 ("August 24, 2016 Update"). The data returned

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was

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1
TOP SECP.J:T//SL
/0RCON/NOFOP"'-L~

limited, as -

only

Id. In certain circumstances, the results from

could

have provided an incomplete and misleading impression of

. The government acknowledges
that the sufficiency of running a

-lal

as the sole basis for a pre-tasking assessment

"depends upon the information known about the target from other sources and the nature of the
information returned by the --

Id. Subsequent investigation revealedllll

instances of improper taskings. See August 24, 2016 Update at 2, n.2. NSA placed on its MPL
information obtained as a result of these taskings. Id. at 2. 60
NSA has developed a new tool for analysts to use for pre-tasking checks-

August 24,
2016 Update at 4. "In addition to

NSA 's new tool is also

that will greatly enhance
analysts' pre-tasking reviews ." Id.

° For discussio'n of the government's processes for purging Section 702 information, see

6

March 17, 2017 Compliance Report at 2-5.
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While the described functionality of the new tool improves on some of the limitations of
-it

should not be seen as a panacea. In the Court's view, the fundamental cause of

these improper taskings was not the limitations of-

or other-

tools, but rather

the failure of analysts in these particular cases to pursue reasonable lines of inquiry regarding.
See, ~.

August 24, 2016 Update at 3 -

. It remains the obligation of
analysts to exercise due diligence in the particular circumstances of each pre-tasking review,
rather than to presume that using a given -tool

or protocol will suffice. The government

acknowledges that sometimes, after deploying the new tool, "additional research will be
necessary to satisfy the totality of the circumstances test [for pre-tasking reviews] contained in
the NSA Targeting Procedures," id. at 5, and addresses in its training efforts how NSA analysts
should understand and comply with this requirement. See October 4, 2016 Transcript at 19-20.
2.

Frequency of Post-Tasking Review of Contents

While the government did not report the following information as involving noncompliance with the NSA's targeting procedures, the Court believes it bears significantly on how
those procedures are implemented and therefore merits discussion.
The NSA's targeting procedures do not require analysts to review the contents of
communications acquired from tasking a particular selector at fixed intervals. Instead, they
provide that such content review "will be conducted according to analytic and intelligence

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requirements and priorities." See, M,., NSA Targeting Procedures§ II at 6.61 As previously
described to the FISC, however, NSA follows a policy whereby such content review is performed
no later than-----~

days after the first acquisition and at intervals of no more than.

days thereafter. See September 13, 2016, Update Regarding Post-Targeting Content

Reviews ("September 13, 2016 Update") at 2; Docket No.
----~

, Memorandum Opinion at 9-10 (FISA Ct. Oct. 24, 2014).
NSA and FBI analysts with access to Section 702 data are trained on this policy, while
CIA analysts receive training that "is consistent with" the policy and are instructed "to review
content as it is acquired." September 13, 2016 Update at 3.62 According to a supplemental letter
filed on March 13, 2017 ("March 13, 2017 Supp. Letter"), the government monitors compliance
with the policy with regard to Section 702 data in an NSA repository called-but
otherwise does not comprehensively monitor or verify whether analysts in fact conduct content
reviews in conformance with that policy. March 13, 2017 Supp. Letter at 2.63 For that reason,

61

This content review is in addition to other post-tasking steps to ascertain whether a
tasked facility is being used inside the United States, such as

See NSA Targeting Procedures § 2 at 7 n. 2-3.
63

NSA routes most forms of Internet communications acquired under Section 702 to a
repository called
March 13, 2017 Supp. Letter at 2. For review of communications
in-NSA
has
that monitors whether content checks are
performed, sends prompts to analysts to conductand
I
reviews, and sends overdue
notices. Id. at 1-2. NSA does not have such an alert system for other repositories containing
(continued ...)
11

11

I

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deviations from the policy may not be detected unless and until the circumstances are examined
for other purposes. See September 13, 2016 Update at 3.
To address this concern, the government undertakes "to notify the Court ... when, in
connection with compliance incidents, the government also learns that content was not reviewed
in accordance with the applicable policy." Id. at 4. The government further undertakes to advise
---------·---~

the FISC "of the total number of instances in which the government's investigation into a
potential [non-compliance] incident revealed that content review was not timely conducted in
accordance with [this policy]," even if the government determines that, strictly speaking, there
was no violation of the targeting procedures themselves. See id. That figure will be included in
each of the government's quarterly compliance reports. Id.
On March 13, 2017, the government reported the results of an examination of the
performance

ofllllllll
and-

content reviews for data in

during January-

March 2016. March 13, 2017 Supp. Letter at 2. That examination revealed a compliance rate of
approximately 79% for -reviews

and 99% for

I

eviews. Id. NSA plans to issue an

advisory to personnel reminding them of the policy. Id. at 3.
The Court intends to scrutinize the information submitted regarding future deviations
from this policy. It also encourages the government to explore further measures, through

63
( ...

continued)
Section 702 information, though it has plans to develop systems for additional repositories by the
end of 2017. Id. at 2-3. FBI and CIA do not have comparable systems. October 4, 2016
Transcript at 21, 24.

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-

processes or otherwise, to prompt analysts to conduct content reviews in accordance

with 1his policy, and to monitor or verify adherence to it.
C.

Issues Arising Under the NSA Minimization Procedures

In addition to fue improper use ofU.S.-person identifiers to query the results of upstream
Internet data discussed above, noteworthy compliance issues have arisen with regard to NSA' s
upstream collection of Internet communications and querying of Section 702-acquired data.
1.

NSA Upstream Collection of Internet Communications

Under the pre-2017 Amendments version offue NSA Minimization Procedures, NSA is
required to "take reasonable steps post-acquisition to identify and segregate through technical
means" those MCTs that are particularly likely to involve communicants in the United States;
specifically, those for which "the active user of the transaction (i.e., the electronic
communications account/address/identifier used to send or receive the Internet transaction to or
from a service provider) is reasonably believed to be located in the United States; or the location
of the active user is unknown." NSA Minimization Procedures § 3(b)( 4)a. (prior to the 2017
Amendments). Those procedures permit only certain NSA analysts "who have been trained to
review such transactions for the purpose of identifying 1hose that contain discrete
communications as to which the sender and all intended recipients are reasonably believed to be
located in the United States" to access MCTs that have been segregated in 1he manner described
above. § 3(b)(4)a.2. Information in a segregated MCT "may not be moved or copied from 1he
segregated repository or otherwise used for foreign intelligence purposes unless it has been
determined that the transaction does not contain any discrete communication as to which the

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sender and all intended recipients are reasonably believed to be located in the United States." §
3(b )(4)a.2.(a). 64
Starting in April 2015, a

error affected NSA's upstream collection

Ill

See September 30, 2016 Supplemental Notice of Compliance Incident Regarding Collection
Pursuant to Section 702 ("September 30, 2016 Supp. Notice") at 1. The error was discovered on
----

-

-~----------------

-------------------

-----~------

January 26, 2016, and corrected on a going-forward basis the next day. Id.
This

error led to two types of compliance problems. First, it resulted in the

unauthorized acquisition of Internet "communications from facilities that only partially matched
authorized Section 702 [selectors] (e.g.,
Id. at 1-2. It appears that the government has taken appropriate steps to identify and

-"

purge the improperly acquired information. Id. at 2-3. NSA has positively identified.

"data

objects" as having been subject to this over-collection. Id. In addition, based on the nature of the
error and the technical characteristics of information likely to have been
improperly collected due to the error, NSA has identified in excess of-

"data objects" that

may have been over-collected. Id. at 3. Because it was not technically feasible for NSA to
identify within that set any and all objects that actually had been over-collected, NSA has put
--plus

objects, as well as the.

objects positively identified as having been over-collected,

on its MPL. Id.; see also March 17, 2017 Quarterly Report at 114-15.

64

In practice, however, no analysts received the requisite training in order to work with
the segregated MCTs. October 4, 2016 Transcript at 41-43 .

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Second, the -

error resulted in failures in the technical processes whereby

NSA identified MCTs that are subject to the segregation regime described above. Specifically,
some MCTs may have been wrongly identified and labeled as ones in which the active user was
the target, which would have resulted in those MCTs not being segregated. September 30, 2016
Supp. Notice at 3-4. To the extent wrongly-identified MCTs were actually ones for which the
---···------~---~----

active user is reasonably believed to have been located in the United States or for whom the
active user's location was unknown, they should have been segregated and subject to the abovedescribed heightened access controls. Any large-scale failure to identify and segregate MCTs
subject to those heightened access controls would have threatened to undermine one of the
safeguards on which the FISC relied in 2011 when it approved the procedures adopted by the
government in response to the FISC's prior finding of deficiency. See November 30, 2011
Opinion at 11-15.
The Court did not find entirely satisfactory the government's explanations of the scope
of those segregation errors and the adequacy of its response to them and addressed some of its
concerns at the October 4, 2016 Hearing. See,~,

October 4, 2016 Transcript at 35-38. 65

Questions about the adequacy of steps previously taken to respond to the errors, however, are no
longer material to the Court's review of the NSA Minimization Procedures. Under the revised

65

The government later reported it had inadvertently misstated the percentage ofNSA's
overall upstream Internet collection during the relevant period that could have been affected by
this
error (the government first reported the percentage as roughly 1.3%, when it
was roughly 3.7%). April 11, 2017 Notice of Material Misstatement and Supplemental Notice of
Compliance Incidents Regarding Collection Pursuant to Section 702 at 2.

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NSA Minimization Procedures, the results of upstream Internet collection during the relevant
timeframe must be segregated and destroyed.
2.

Improper Querying-

Communications

U.S. person identifiers may be used to query Section 702 data only if they are first
"approved in accordance with [internal] NSA procedures, which must require a statement of facts

·-

------·-

establishing that the use of any such identifier as a selection term is reasonably likely to return
foreign intelligence information ." NSA Minimization Procedures§ 3(b)(5). 66 In performing
such queries, NSA analysts sometimes use a tool called "-data repositories, including one called-

can be used to query

September 30, 2016 Final Notice of

Compliance Incidents Regarding Improper Queries ("September 30, 2016 Final Notice") at 1.

-

communications acquired pursuant to Section 702 , as well as other

FISA authorities. Id.
In May and June 2016, NSA reported to oversight personnel in the ODNI and DOJ that,
since approximately 2012, use of-

to query communications in-had

resulted in

inadvertent violations of the above-described querying rules for Section 702 information. Id.
The violations resulted from analysts not recognizing the need to avoid querying datasets for
which querying requirements were not satisfied or not understanding how to formulate queries to exclude such datasets. Id. at 1-2.

66

As previously noted, NSA may not use U.S.-person identifiers to query the results of
upstream Internet collection until the 2017 Amendments take effect, but will be able to run such
queries of the narrower form of upstream Internet collection contemplated under the 2017
Amendments, subject to the approval process described above.
1
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NSA examined all queries using identifiers for "U.S. persons targeted pursuant to
Sections 704 and 705(b) ofFISA using the-tool

in-

... from November 1,

2015 to May 1, 2016." Id. at 2-3 (footnote omitted). Based on that examination, "NSA estimates
that approximately eighty-five percent of those queries, representinglll
approximately.

queries conducted by

targeted offices, were not compliant with the applicable minimization
------

-------

procedures." Id. at 3. Many of these non-compliant queries involved use of the same identifiers
over different date ranges. Id. Even so, a non-compliance rate of 85% raises substantial
questions about the propriety of using of-to

query FISA data. While the government

reports that it is unable to provide a reliable estimate of the number of non-compliant queries
since 2012, id., there is no apparent reason to believe the November 2015-April 2016 period
coincided with an unusually high error rate.
The government reports that NSA "is unable to identify any reporting or other
disseminations that may have been based on information returned by [these] non-compliant
queries" because "NSA's disseminations are sourced to specific objects," not to the queries that
may have presented those objects to the analyst. Id. at 6. Moreover,_

query results are

generally retained for just
The NSA has taken steps to educate analysts on the proper use of-

it has provided

67

Information retrieved by an improper query might nonetheless satisfy the requirements
for dissemination; indeed, absent a second violation of the minimization procedures, separate
from the improper query, one would expect any disseminated information to have satisfied those
requirements.
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an explanation of how different types of queries operate; it issued a separate "Compliance
Advisory," which further addressed querying practices usingand it revised a ''banner" presented to users of-

to all NSA target offices;

to emphasize that U.S. person identifiers

should never be used for a type of query (called a "selector query'') that runs "against all data
[that] an analyst is authorized to access." Id. at 1, 6.

-----

At the October 4, 2016 Hearing, the government represented that, based on ongoing
oversight efforts, those measures appear to have been effective in improving how analysts use
-to

query Section 702 data. October 4, 2016 Transcript at 47-49. On April 3, 2017, the

government reported to the Court that it had reaffirmed that assessment, based on discussions
with NSA analysts and the absence of additional non-compliant queries usingl

111

I

I April 3,

2017, Supplemental Notice of Compliance Incidents Regarding Improper Queries, at 3. In view
of these remedial steps, the Court believes that, notwithstanding the above-described noncompliance, the NSA Minimization Procedures meet the statutory definition of"minimization
procedures" and are consistent with the requirements of the Fourth Amendment.
D.

Issues Arising Under the FBI Minimization Procedures

The following violations of the FBI's minimization procedures merit discussion.
1.

Improper Disclosures of Raw Information

On March 9, 2016, DOJ oversight personnel conducting a minimization review at the
FBI's

learned that the FBI had disclosed raw FISA information, including but not

limited to Section 702-acquired information, to a
Compliance Report at 92.

1111part of the
is

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Page 83

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and "is largely staffed by private contractors"

certainal

contractors had access to raw FISA

information on FBI storage systems

Id. The apparent purpose for the

FBI's granting such access was to receive analytical assistance from ..

Nonetheless,

thelacontractors had access to raw

PISA information that went well beyond what was necessary to respond to the FBI's requests;

•

The FBI discontinued the above-described access to raw PISA information as of April 18,

2016 . The contractors in question received training on the FBI minimization procedures, stored
the raw information only on FBI systems, and did not disseminate it further . Id. at 93.
Nonetheless, the above-described practices violated the governing minimization procedures.
Section III.A of the FBI's minimization procedures (as then in effect and as now proposed)
provides : "The FBI must retain all PISA-acquired information under appropriately secure
conditions that limit access to such information only to authorized users in accordance with these
and other applicable FBI procedures . These retention procedures apply to PISA-acquired
information retained in any form." The FBI may disseminate Section 702-acquired information
only in accordance with Section V of those procedures. FBI Minimization Procedures § Ill.C.1.
Under Section V.D of those procedures, personnel working for another federal agency
such as-

may receive raw information acquired under Section 702 in order to

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~

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provide technical or linguistic assistance to the FBI, but only if certain restrictions are followed.
See id. § V.D. Those restrictions were not in place with regard to thellllcontractors:

their

access was not limited to raw information for which the FBI sought assistance and access
continued even after they had completed work in response to an FBI request. See
Compliance Report at 93. At the October 4, 2016 Hearing, the government represented that it

---··--··----------------

-

--------------

-

--·

-

-

------

was investigating whether there have been similar cases in which the FBI improperly afforded
non-FBI personnel access to raw PISA-acquired information on FBI systems. October 4, 2016
Transcript at 64.

In a separate violation of its minimization procedures, the FBI delivered raw Section 702acquired information to a-contractor

called-

Compliance Report at 131. The information in question pertain s to -

accounts tasked under Section 702. Id.

-

as a federal agency, could receive raw Section 702-acquired information in

order to provide technical assistance to the FBI, subject to the requirements of Section V.D of the
FBI Minimization Procedures. See FBI Minimization Procedures§ V.D ("FBI is authorized to

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disclose PISA-acquired information to assisting federal agencies for further processing and
analysis," subject to specified restrictions) (emphasis added). -however,
agency and the -

is not a federal

personnel who worked with the information were "not directly supervised

by or otherwise under the direction and control of

Compliance

Report at 132. For these reasons, the government concluded that the FBI had given the
information to the private entity-

explained why giving -

not to an assisting federal agency. See id. 68

personnel access to the raw information during installation of the

tool would not involve a separate violation of the FBI Minimization Procedures. Accordingly,
the Court is ordering the government to provide additional information regarding this second
grant of access to raw Section 702 information.
These violations, when placed in the context of Section 702 acquisitions in their entirety,
do not preclude a finding that the FBI Minimization Procedures meet the statutory definition of
"minimization procedures" and are consistent with the requirements of the Fourth Amendment.

contractors worked in a federal facility under the
superv1s1on o
Compliance
Report at 93. It appears that the government views the above-described disclosures of
information to thelllllcontractors as disclosures to a federal agency, rather than to a private
entity or private individuals. In any event, the government acknowledges that those disclosures
were improper for other reasons, so the Court need not reach this question.

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The improper access previously afforded the lllllltontractors has been discontinued, while the
information disclosed t~

pertains to just.

tasked selectors.

The Court is nonetheless concerned about the FBI's apparent disregard of minimization
rules and whether the FBI may be engaging in similar disclosures of raw Section 702 information
that have not been reported. 69 Accordingly, the Court is directing the government to provide
·-·-

·-

·-

- ·

-

-·

-----

-

--

-

-

--------

-

-

-

----

--

----

additional as described below .
2.

Potential Over-Retention of Section 702 Information

Last year, in the context of approving the standard minimization procedures employed by
the FBI for electronic surveillance and physical search conducted under Titles I and III ofFISA, a
judge of the FISC observed:
FBI personnel who develop storage systems for PISA-acquired information and
decide under what circumstances PISA-acquired information is placed on those
systems are bound by applicable minimization procedures and FISC orders, no
less so than an agent conducting a FISC-authorized physical search or an analyst
preparing a report for dissemination.
Docket No. regarding

Opinion and Order at 45 (FISA Ct. May 17, 2016). Recent disclosures
systems maintained by the FBI suggest that raw FISA

69

The improper access granted to theal contractors was apparently in place
-and
seems to have been the result of deliberate decisionmaking.
Compliance Report at 92-93 ~access
to FBI systems was the subject of an interagency
Despite the existence of an interagency
memorandum of understanding entered into-.
memorandum of understanding (presumably prepared or reviewed by FBI lawyers), no notice of
this practice was given to the FISC until 2016. Of course, such a memorandum of understanding
could not override the restrictions of Section 702 minimization procedures .
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-

-

TOP SECRET//81//0RCON/NOFORN
information, including Section 702 information, may be retained on those systems in violation of
applicable minimization requirements.

The government has-not identified the provisions of the FBI Minimization Procedures it
believes are implicated by the above-described retention practices. Based on the information

TOP SECRETh'SI//ORCON/NOFORN
provided, however, those practices appear inconsistent with the provisions governing retention
on electronic and data storage systems, see FBI Minimization Procedures § III.G.1, on ad hoc
systems, id. § N.A-B, and in connection with litigation, id. § III.G.4. Nearly four months ago,
the government undertook to address this indefinite retention of information on the abovedescribed systems in a subsequent filing, see December 29, 2016 Report at 10-11, but has not
done so. Accordingly, the Court is directing the government to provide pertinent information, as
described below.
3.

Review Teams for Attorney-Client Communications

The Section 702 minimization procedures
have specific rules for handling attorney-client communications. Because the FBI
has law enforcement responsibilities and often works closely with prosecutors in
criminal cases, its procedures have detailed requirements for cases in which a
target is known to be charged with a federal crime. Unless otherwise authorized
by the [National Security Division ofDOJ], the FBI must establish a separate
review team whose members have no role in the prosecution of the charged
criminal matter to conduct the initial review of such a target's communications.
When that review team identifies a privileged communication concerning the
charged criminal matter, the original record or portion thereof containing that
privileged communication is sequestered with the FISC and other copies are
destroyed (save only any electronic version retained as an archival backup, access
to which is restricted).
November 6, 2015 Opinion at 47-48 (citations and internal quotation marks omitted).
Failures of the FBI to comply with this "review team" requirement for particular targets
have been a focus of the FISC's concern since 2014. See id. at 48-52; August 26, 2014 Opinion
at 35-36. The government generally ascribed those failures to misunderstanding or confusion on
the part of individuals-for

example, when an agent is generally aware of the review team

requirement but mistakenly believes that it does not apply when the charging instrument is under

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seal. November 6, 2015 Opinion at 50. The government advised that it was emphasizing the
review team requirement in ongoing training and oversight efforts, and that such emphasis had
resulted in the identification and correction of additional cases in which review teams had not
been properly established. Id. at 51 .

•

targets who have been subject to criminal charges -

years in establishing review teams. Incident Regardin ...

there was a delay of over two
Preliminary Notice of Compliance

Section 702-Tasked Facilities('

Preliminary

Notice") at 2-3. The primary cause of this delay was that the responsible case agent was unaware
of the review team requirement. That agent took the appropriate steps after reviewing an
advisory that reminded FBI personnel about the requirement in-

Id. at 3.71 The

government also reported a delay of approximately one month during
before establishing a review team after a target was charged in a sealed complaint. The delay
appears to have been the result oflack of coordination among FBI field offices. According to the
government , the review teams have completed examination of communications acquired prior to

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theircreationfor both incidentsand did not discover any privileged communications.
-

Ill

ComplianceReportat 77, 105.

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Page 91

A separate source of under-inclusiveness is when personnel do not identify and segregate

FBI examination of the erroneously-excluded
communications is ongoing and, so far, has not identified any attorney-client privileged
communications concerning a charged matter.
A different ~roblem

Compliance Report at 119.

affecte~-

accounts during November

28-30, 2016. That problem has been solved prospectively. Although some communications for

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those tasked accounts were accessed before being segregated for the review team, none of them
contained privileged information. Id. at 83 n.58.

In order to address some of the sources of such under-inclusiveness, the FBI bas
implemented a new-

process for-

addition, the FBI and NSA have taken steps to address the
difficulties encountered with regard to

Id. at 4.

It seems clear that the review team requirement should continue to be a point of emphasis
in the government ' s training and oversight efforts. The measures taken to improve processes for
identifying and routing information subject to the review team requirement appear well -suited to
address the described under-inclusiveness problems . In view of those efforts , and the fact that
lapses to date appear to have resulted in few, if any, privileged communications concerning
charged matters being reviewed by investigators other than review team members, errors in
implementing the review team requ irements do not preclude a finding that the FBI Minimization
Procedures meet the statutory definition of "minimization procedures" and are consistent with
the requirements of the Fourth Amendment.

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E.

Issues Arising Under the CIA Minimization Procedures

In the course of investigating a separate compliance incident that occurred in December
2016, 72 the CIA discovered several problems with its purge practices. First, the software script
used to identify communications subject to purge requirements within a storage system ..
~ad not been identifying all communications subject to purge that had been acquired by
December 28, 2016, Preliminary Notice
of Compliance Incidents and Material Misstatements Regarding Collection Pursuant to Title I
and Title III and Section 702 of PISA, at 4. As of March 29, 2017, CIA was in the process of
remedying the incomplete purges. Supplemental Notice Regarding Incomplete Purges of
Collection Acquired Pursuant to Section 702 of FISA, filed on March 29, 2017 ("March 29, 2017
Supp. Notice") at 2.
Further investigation of the December 2016 incident revealed similar problems with
scripts used to purge metadata from I

I CIA repositories

March 29, 2017 Supp. Notice at 2-3. The government reports CIA has corrected those script
problems and completed the required purges, except for certain information relating_
facilities, for which remedial efforts are ongoing. Id. at 3 & n.4.

72

That incident appears to have been remedied,~
merit discussion in this Opinion.

id. at 3, and in and of itself does not

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In late March 2017, also in the course of investigating the December 2016 incident, CIA
discovered another form of purging error affecting

March 24 , 201 7,

Notice of Compliance Incident Regarding Incomplete Age Off of Data Acquired Pursuant to
Section 702 ofFISA at 2. The government is examining the scope of that error. Id.
The government has not advised the Court for how long these various purge-related
problems persisted before CIA discovered them in the course of investigating the separate
incident. It appears that, having recognized the problems, CIA is taking reasonable steps to
address them. Nonetheless, the Court encourages the government to take proactive measures to
verify that the automated processes upon which it relies to implement minimization requirements
are functioning as intended.
V.

CONCLUSION

For the foregoing reasons, the Court finds that: (1) the 2016 Certifications, as amended by
the 2017 Amendments, as well as the certifications in the Prior 702 Dockets as amended by those
documents, contain all the required statutory elements; (2) the targeting and minimization
procedures to be implemented regarding acquisitions conducted pursuant to the 2016
Certifications, as amended by the 2017 Amendments, comply with 50 U.S.C. § 1881 a(d)-(e) and
are consistent with the requirements of the Fourth Amendment; and (3) the minimization
procedures to be implemented regarding information acquired under prior Section 702
certifications comply with 50 U.S.C. §1881a(d)-(e) and are consistent with the requirements of
the Fourth Amendment. Orders approving the amended certifications and use of the
accompanying procedures are being entered contemporaneously herewith.

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For the reasons discussed above, it is HEREBY ORDERED as follows:
1. Raw information obtained byNSA's upstream Internet collection under Section 702
shall not be provided to FBI, CIA or NCTC unless it is done pursuant to revised minimization
procedures that are adopted by the AG and DNI and submitted to the FISC for review in
confo1mance with Section 702.
2. The government shall take steps to ensure that NCTC retains raw Section 702acquired information that is determined to be evidence of a crime but not foreign intelligence
information beyond the generally applicable age-off period specified in Section B.2 of the NCTC
Minimization Procedures only as long as reasonably necessary to serve a law enforcement
purpose and that NCTC does not use or disclose such information other than for a law
enforcement purpose. The government shall report in writing on such steps when it seeks to
renew or amend
3. On or before December 31 of each calendar year, the government shall submit a
written report to the FISC: (a) describing all administrative, civil or criminal litigation matters
necessitating preservation by FBI, NSA, CIA or NCTC of Section 702-acquired information that
would otherwise be subject to destruction, including the docket number and court or agency in
which such litigation matter is pending; (b) describing the Section 702-acquired information
preserved for each such litigation matter; and ( c) describing the status of each such litigation
matter.
4. The government shall promptly submit a written report describing each instance in
which FBI, NSA, CIA or NCTC invokes the provision of its minimization procedures stating that

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nothing in those procedures shall prohibit the "retention, processing, analysis or dissemination of
information necessary to comply with a specific congressional mandate or order of a court within
the United States[.]" See NSA Minimization Procedures § 1; CIA Minimization Procedures
§ 6.g; FBI Minimization Procedures§ LG; NCTC Minimization Procedures§

A6.d.

Each such

report shall describe the circumstances of the deviation from the procedures and identify the
··- - -· ·

--

----

- ----

- --

- - - - --

- - - --

- - --

- - ---

specific mandate on which the deviation was based.
5. The government shall promptly submit a written report describing any instance in
which an agency departs from any provision in its minimization procedures in reliance in whole
or in part on the provision therein for lawful oversight when responding to an oversight request
by an entity other than the oversight entities expressly referenced in the agency's procedures.
See NSA Minimization Procedures § 1; CIA Minimization Procedures § 6.f; FBI Minimization
Procedures§ I.G; NCTC Minimization Procedures§ A.6.e. Each such report shall describe the
circumstances of the deviation from the procedures and identify the specific oversight activity on
which the deviation was based.
6. No later than June 16, 2017, the government shall submit a written report:
(a) describing the extent to which raw FISA information, including Section 702
information, is retained:

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(b) assessing whether such retention complies with applicable minimization
requirements; and
(c) to the extent that noncompliance is found, describing the steps the government is
taking or plans to take to discontinue the above-described forms of retention or bring
them into compliance with applicable minimization requirements.
7. No later than June 16, 2017, the government shall submit one or more written reports
that provide the following:
(a) the results of the government's investigation of whether there have been additional
cases in which the FBI improperly afforded non-FBI personnel access to raw FISAacquired information on FBI systems; and

(b) a description of the installation of the
personnel on an FBI system, including:

8. At 90-day intervals, the government shall submit written updates on NSA's
implementation of the above-described sequester-and-destroy process to information acquired on
or before March 17, 2017, by upstream Internet collection under Section 702.
9. If the government intends not to apply the above-described sequester-and-destroy
process to information acquired on or before March 17, 2017, by upstream Internet collection

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under Section 702 because the information is not contained in an "institutionally managed
repository," it shall describe the relevant circumstances in a written submission to be made no
later than June 2, 2017; however, the government need not submit such a description for
circumstances referenced in this Opinion and Order as ones in which NSA could retain such
information.
10. The government shall promptly submit in writing a report concerning each instance
in which FBI personnel receive and review Section 702-acquired information that the FBI
identifies as concerning a United States person in response to a query that is not designed to find
and extract foreign intelligence information. The report should include a detailed description of
the information at issue and the manner in which it has been or will be used for analytical,
investigative or evidentiary purposes. It shall also identify the query terms used to elicit the
information and provide the FBI's basis for concluding that the query was consistent with
applicable minimization procedures.
ENTERED this~

-·

day of April, 2017, in Docket Nos.

Judge, United tates Foreign
Intelligence Surveillance Court

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, Cllid Doputy Clerk,
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