All withheld information exempt under b 1 and b 3 unless otherwise noted Approved for public release US Department of Justice gulf ll National Security Ireeseensaweesmwesenn m Hm 2 Washington D C 20530 May 2 201 1 The Honorable John D Bates United States Foreign Intelligence Surveillance Court 333 Constitution Avenue NW Washington DC 20001 Re Clari cation of National Security Agency's Upstream Collection Pursuant to Section 702 of FISA Dear Judge Bates On April 21 2011 the National Security Agency N SA provided the National Security Division N SD and the Of ce of the Director of National Intelligence ODNI information clarifying the mamier in which NSA acquires certain communications through its upstream collection platfonns pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978 as amended PISA AlthOugh NSA NSD and ODNI are still reviewing this matter and assessing its import we are providing preliminary notice at this time pursuant to Rule 13 a of the Rules of Procedure for the Foreign Intelligence Surveillance Court effective November 1 2010 in order provide the Court with this additional clarifying information We have worked closely in these efforts with NSA of cials who have assisted in drafting and reviewing this notice to the Court As previously deserib ed to the Court in conducting upstream collection using electronic communication accounts addresses identi ers hereinafter selectors pursuant to Section 702 NSA acquires Internet conununications that are to or from a tasked selector or which contain a reference to a tasked selector The term Internet communications as described by-the Director of NSA in af davits su ortin 702 certi cations is intended to include electronic communications the 702 g Certi cation Director NSA led 2010 116 Reason Sify on May 2 2036 OI Tracking No 104876 NYT DOJ 16 CIV 7020_000050 All withheld information exempt under b 1 and b 3 unless otherwise noted Approved for public release W3 In past representations to the Court the Government used as an exam 1e of stream collection the acquisition of that contained a selector that NSA had tasked under Section 702 such that NSA acquired the bile it was bein transmitted to or from a user of the non-tasked account Based on recent discussions among NSD and ODNI regarding one Speci ed category of Internet communications ac uired throu 11 stream collection electronic communications ' and in View of the complexity of this issue and the prior representations to the Court the Government believes that further description of the scope of NSA's upstream collection is warranted One of electronic communications nay also include De Jendin 01 the data 2 2 NYT DOJ 16 CIV 7020_000051 All withheld information exempt under b 1 and b 3 unless otherwise noted Approved for public release WW includin e-rnail messa es that are not to from or about a Section 702-tar As this example demonstrates an individual Internet communication can contain a single piece of information or it could contain multi le ieces of information Additionally as described in the targeting procedures in those cases where NSA seeks to acquire about the target that are not to or from the target NSA will employ either an Internet Protocol lter to ensure that the erson from whom it seeks to obtain foreign intelligence information is located overseas or See 702 g Certi cation Exhibit A at 2 It is through these measures that NSA prevents the intentional acquisition of Internet communications that contain a reference to a targeted selector where the sender and all intended recipients are known at the time of acquisition to be located in the United States es In re Certification- 0 Op at- 19 USFISC Sept 4 2008 NSA NSD and ODNI are continuing to examine what affect if any the type of Internet communications collection discussed in this letter has on the ef cacy of these measures NYT DOJ 16 CIV 7020_000052 All withheld information exempt under 13 1 and b 3 unless otherwise noted Approved for public release NSA NSD and ODNI are continuing to review and assess this matter and will provide additional information to the Court as appropriate We appreciate the Court s consideration of this matter and welcome additional opportunities to present further information to the Court Of ce of Intelligence NSD U S Department of Justice NYT DOJ 16 CIV 7020_000053                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu