All redacted information exempt under andror except as otherwise noted Approved for Public Release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON DC MEMORANDUM OPINION AND ORDER This matter is before the Foreign Intelligence Surveillance Court or Court on the Government s Ex Parte Submission of Reauthorization Certi cations and Related Procedures Ex Parte Submission of Amended Certi cations and Request for an Order Approving Such Certi cations and Amended Certi cations which was led on July 28 2014 July 28 2014 Submission For the reasons explained below the government s request for approval is granted subject to certain reporting requirements The Court s approval of the certi cations amended certi cations and accompanying targeting procedures and minimization procedures is set out in separate orders that are being entered contemporaneously herewith All redacted information exempt under andt'or except as otherwise noted Approved for Public Release I BACKGROUND The July 28 2014 Submission includes Icerti cations that have been executed by the Attorney General and the Director of National Intelligence pursuant to Section - 702 of the Foreign Intelligence Surveillance Act which is codi ed at 50 U S C 1881a _certi cations collectively referred to as the 2014 Certi cations is accompanied by the supporting af davits of the Acting Director of the National Security Agency the Director of the Federal Bureau of Investigatibn and the Director of the Central Intelligence Agency two sets of targeting procedures for use by the NSA and FBI respectivelyf and four sets of minimization procedures for use by the NSA FBI CIA and the National Counterterrorism Center respectively 2 The July 28 Submission also includes an explanatory memorandum prepared by the Department of Justice July 28 2014 Memorandum 1 The targeting procedures for _2014 Certi cations are identical The targeting procedures for the NSA Targeting Procedures appear as Exhibit A to- 2014 Certi cations The tar eting procedures for-the FBI Targeting Procedures appear as Exhibit 3 mi 2014 Certi cations 2 The minimization procedures for - 2014 Certi cations are identical The minimization procedures for the NSA Minimization Procedures appear as Exhibit to 2014 Certi cations The minimization procedures for the FBI Minimization Procedures appear as Exhibit to - 2014 Certi cations The minimization procedures for the CIA Minimization Procedures appear as Exhibit to- 2014 Certi cations The minimization procedures for the NCTC Minimization Procedures appear as Exhibit to _2014 Certi cations Page 2 All redacted information exempt under andlor except as otherwise noted Approved for Public Release FISC review of targeting and minimization procedures under Section 702 is not con ned to the procedures as written rather the Court also examines how the procedures have been and will be implemented SQ gg Memorandum Opinion entered on April 7 2009 at 22-24 April 7 2009 Opinion Memorandum Opinion entered on Aug 30 2013 at 6-11 August 30 2013 Opinion Accordingly for purposes of its review of the Jul r 28 2014 Submission the Court has examined quarterly compliance reports submitted by the government3 since the most recent FISC review of Section 702 certi cations and procedures was completed on December 13 2013 4 as well as individual notices of non compliance relating to implementation of Section 702 Based on its review of these submissions the Court through its staff orally conveyed a number of compliance-related questions to the government to which the government has reSponded in writing 5 On August 4 2014 the Court conducted a hearing which addressed certain revisions to the targeting and minimization procedures included in the July 28 2014 Submission as well as certain compliance matters _2014 Certi cations involves the targeting of non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence 3 Quarterly Reports to the FISC Concerning Compliance Matters Under Section 702 of PISA submitted on June 20 2014 March 21 2014 and Dec 20 2013 4 se_ Memorandwn Opinion entered on Dec 13 2013 December 13 2013 Opinion 5 July 28 2014 Memorandum at 18-22 Letter om Kevin J O Connor Chief Oversight Section Of ce of Intelligence National Security Division US Department of Justice led on July 30 2014 July 30 2014 Letter Page 3 All redacted information exempt under andlor except as otherwise noted Approved for Public Release - 2014 Certi cations generally proposes to continue acquisitions of foreign intelligence information that are now being conducted under certi cations that were made in 2013 the 2013 Certi cations July 28 2014 Memorandmn at 2 The 2013 Certi cations ere approved by the FISC on December 13 2013 See December 13 2013' Opinion 5 The 2013 6 More speci cally the 2013 Certi cations were rst submitted on July 31 2013 The FISC approved the 2013 Certi cations and accompanying minimization and targeting procedures on August 30 2013 See August 30 2013 Opinion At that time however the Court was unable to make the statutory ndings required to approve the accompanying amendments to minimization procedures governing information acquired under prior Section 702 certi cations gee i at 4 11 2 On November 15 2013 the government led amendments to all Section 702 Page 4 All redacted information exempt under andfor except as otherwise noted Approved for Public Release Certi cations in turn generally renewed authorizations to acquire foreign intelligence information under a series of certi cations made by the AG and DNI pursuant to Section 702 that date back to 2008 1' In its July 28 2014 Submission the government also seeks approval of amendments to the certi cations in all of the Prior 702 Dockets such that the NSA CIA and FBI henceforward will apply the same minimization procedures to information previously obtained under prior certi cations as they will to information to be obtained under the 2014 Certi cations e3 My 28 Memorandum at II REVIEW OF CERTIFICATIONS OF THEIR PREDECESSOR CERTIFICATIONS AS AMENDED BY THE JULY 23 2014 SUBMISSION The Court must review ancerti cation 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 mix mien of con rms tam certi cations that had been issued to that date including the 2013 Certi cations Sec December 13 2013 Opinion at 1-2 These amendments which provided for use of revised minimization procedures were approved by the FISCets to'ge er Wit are collectively referred to as the Prior'702 Dockets 3 The July 28 2014 Submission does not propose any changes to the minimization procedures applied by the NCTC July 28 2014 Memorandum at 3 11 3 Page 5 All redacted information exempt under andl'or except as otherwise noted Approved for Public Release the certi cations have been made under oath by the AG and the DNI as required by 50 U S C 188 see 2 the certi cations contain each of the attestations re uired 50 U S C 1881atg 2 A are 3 as required by 50 U 1881a g 2 B -erti cations is accompanied by the applicable targeting procedures and minimization procedures certi cations is supported by the affidavits of national security officials as described in 50 U S C and 5 certi cations includes an effective date for the authorization in compliance with 50 U S C 1881a g 2 D speci cally the certi cations become effective on August 28 2014 or on the date upon which this Court issues an order concerning the certi cation under 1881a i 3 whichever IS later _s__ele The Court nds the -contain all the required statutory elements see 50 use 1881a i 2 A Similarly the Court has reviewed the certi cations in the Prior 702 Dockets as amended by the 2014 Certi cations and nds that they also contain all the elements required by the statute I_d 11 9 Se eAf davits of Richard H Ledgett Jr Acting Director NSA Tab 1 to Ledgett Af davits Af davits of James B Comey Comey Director FBI Tab 2 to Af davits and Af davits of John O Brennan Director CIA Tab 3 _ Brennan Af davits 1 The statement described in 50 U S C 1881a g 2 E is not required in this case because there has been no exigent circumstances determination under Section 1881a c 2 1 The effective dates for the amendments to the certi cations in the Prior 702 Dockets Page 6 All redacted information exempt under andlor except as othenNise noted Approved for Public Release 1H 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 Pursuant to 50 U S C 1881a i 3 A the Court rrther determines whether the targeting and minimization procedures are consistent with the requirements of the Fourth Amendment Section 1881a d 1 requires targeting procedures that are reasonably designed 'to ensure that any acquisition authorized under the certi cation 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 18813 b 3 which provides that acquisitions may not intentionally target a United States person reasonably believed to be located outside the United States NSA Targeting Procedures at 1 3-4 7 FBI Targeting Procedures at 1 4 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 Memorandum Opinion entered on Sept 4 2008 at 14 September 4 2008 Opinion continued are the same as the effective dates for the 2014 Certi cations Page 7 All redacted information exempt under andior except as otherwise noted Approved for Public Release Section 1881a e 1 requires minimization procedures that meet the de nition of minimization procedures under 50 U S C 180101 or The applicable statutory de nition is fully set out at pages 15 16 below A As Written the NSA and FBI Targeting Procedures Comply With Statutory Reguirements and Are Reasonably Designed to Prevent the Targeting of United States Under the proCeduresadopted by the government NSA is the lead agency in making targeting decisions under Section 702 Pursuant to its targeting procedures NSA may target for acquisition a particular selector Le a facility such as a telephone number or email address The FBI Targeting Procedures come into play in cases Where the government _hat has been tasked under the NSA Targeting Procedures FBI Targeting Procedures at 1 Thus the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures whenever are acquired September 4 2008 Opinion at 20 emphasis in original In comparison to the targeting precedures previously approved by the FISC and now being implemented the July 28 2014 Submission presents two substantive revisions to the NSA Targeting Procedures and one substantive revision to the FBI Targeting Procedures 1 De ning the Target of Acguisition The rst revision to the NSA Targeting Procedures concerns who will be regarded as a target of acquisition or a user of a tasked facility for purposes of those procedures As a general rule and without exception under the NSA targeting procedures now in effect any user of a tasked facility is regarded as a person targeted for acquisition This approach has sometimes Page 8 All redacted information exempt under andfor except as otherwise noted Approved for Public Release resulted in becoming obligated to detask a selector when it learns that swam 2014Memorandum at 4-s- The relevant revision would permit continued acquisition for such a facility It provides that NSA Targeting Procedures at 1 In support of this revision the government contends that in the narrow circumstances described in this provision ee July 28 2014 Memorandum at 5-6 For purposes of electronic surveillance conducted under 50 U S C 1804-1805 the target of the surveillance is the individual or entity about whom or from whom information is sought In re Sealed Case 310 F 3d 717 740 PISA Ct Rev 2002 quoting HR Rep 95-4283 at 73 1978 As the FISC has previously observed t here is no reason to think that a different meaning should apply under Section 702 September 4 2008 Memorandum Opinion at 18 n 16 It is evident that the Section 702 collection on a particular facility does not seek information om or about Page 9 All redacted information exempt under andlor except as othemise noted Approved for Public Release TOP This amended provision might be read literally to apply where But those circumstances fall outside the accepted rationale for this amendment The provision should be understood to apply only where Finally implementation of this provision is not exPeeted to slow the required analysis of whether tasked facilities have come to be used by a United States person or someone located in the United States ee NSA Targeting Procedures at 6 7 That post tasking analysis relies a c 3 Page 10 All redacted information exempt under andlor except as othemise noted Approved for Public Reiease _wuws 2014 Memorandum at 7 d 0% D ha All redacted information exempt under andi'or except as otherwise noted Approved for Public Release Li NSA remains reSponsible for routinely conducting separate -reviews for indieia that a user of a targeted facility is in the United States 3 Because the Only change effected by this revision is to assi_ to the agency that is most fully engaged in the review of the same communications for foreign intelligence purposes the Court concludes that this revision does not present problems in nding the NSA Targeting Procedures satisfy the requirements of Section 1881a d l and are reasonably designed to prevent the targeting of United States persons 3 S_ee NSA Targeting Procedures at 6-7 July 28 2014 Memorandum at 7 see also egg 0 mum at 7 overnment had represented tha and reviewed by expenenee A a Court had expressly relied upon these assurances in concluding that targeting procedures are reasonably designed to ensure that targeting is limited to non-US persons reasonably believed to be located outside the United States and consistent with the Fourth Amendment Page 12 All redacted infomation exempt under andlor except as otherwise noted Approved for Public Release I 5 4 Page 13 All redacted information exempt under andlor except as otherwise noted Approved for Public Release 4- 9 91M 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 -F BI Targeting Procedures as written are reasonably designed as required by Section 1881a d 1 1 to ensure that any acquisition authorized under the 2014 Certi cations 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 State5 persons from being targeted for acquisition a nding that is relevant to the Court s analysis of Whether those procedures are consistent with the requirements of the Fourth Amendment See pages 3 8-40 below B As Written the FBI NSA and CIA Minimization Procedures Complv With Statutoq Requirements The FBI NSA and CIA all have access to unreviewed information obtained under Section 702 Each agency is governed by its own set of minimization procedures in its handling of Section 702 information Under Section 1881a i 2 C the Court must determine Whether the agencies respective minimization procedures included as part of the July 28 2014 Submission meet the statutory de nition of minimization procedures set forth at 50 U S C Page 14 All redacted information exempt under andfor except as otherwise noted Approved for Public Release 1801 h or 1821 4 as appropriate Sections 1801 h and 1821 4 de ne minimizatidn procedures in pertinent part as - 1 speci c procedures which shall be adopted by the Attorney General that are reasonably designed in light of the purpose and technique of the particular surveillance or physical search to minimize the acquisition and retention and prohibit the dissemination of nonpublicly available information concerning United States persons consistent with the need of the United States to obtain produce and disseminate foreign intelligence information 15 2 procedures that require that nonpublicly available information which is not foreign intelligence information as de ned in 50 USC shall not be disseminated in a manner that identi es 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 5 Section 1801 e de nes foreign intelligence information as 1 information 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 international proliferation of 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 fereign 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 a airs of the United States Page 15 All redacted information exempt under bx-1 andfor except as otherwise noted Approved for Public Release 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 In comparison to the FBI minimization procedures now in effect the FBI Minimization Procedures before the Court include three substantive revisions The CIA and NSA Minimization Procedures now before the Court include one substantive revision which pertains to 1 Provision of Infermation bv the FBI to the National Center for Mission and Exploited Children The FBI Minimization Procedures include new provisions respecting the transmittal of information to the National Center for Missing and Exploited Children NCMEC See uly 28 2014 Memorandum at 10-13 FBI Minimization Procedures at 28 30-31 Speci cally the FBI may disseminate for law enforcement purposes PISA-acquired information 17 that reasonably appears to be evidence of a crime related to child exploitation material including child pornography to the FBI Minimization Procedures at 28 The FBI may also disclose for the purpose of obtaining technical or linguistic assistance FISA-aoquired 6 The de nitions of minimization procedures set forth in these provisions are substantively identical although Section 1821 refers to the purposes of the particular physical search emphasis added For ease of reference subsequent citations refer only to the de nition set forth at Section 180101 7 For purposes of these procedures I FISA-acquired information refers to communications and information acquired under Section 702 gs FBI Minimization Procedures at Page 16 All redacted information exempt under andior except as otherwise noted Approved for Public Release information that reasonably appears to be evidence of a crime related to child exploitation material including child pornography to NCMEC for turther processing and analysis Ll at 30 Such disclosures to obtain technical or linguistic assistance are subject to several restrictions for example the NCMEC may not make use of the information except to provide such assistance shail restrict such information to personnel involved in providing such assistance and may not retain such information permanently Li at 30-31 These restrictions are similar to those now in effect when the FBI discl ses unreviewed Section 702 information to other federal agencies for the purpose of obtaining technical or linguistic assistance ee FBI minimization procedures submitted on Nov 15 2013 as Exhibit to the amended 2013 Certi cations at 29-30 2013 FBI Minimization Procedures The as stated Congress established NCMEC in 1984 as a non-governmental organization and it is funded through grants administered by the Department of Justice One'of its purposes is to assist law enforcement in identifying Victims of child pornography and other sexual crimes Indeed Congress has mandated Department of'Justice coordination with NCMEC on these and related issues Furthermore this Court has approved modi cations to minimization procedures in individual cases to permit the Government to disseminate information to NCMEC Because of its unique role as a non-governmental organization with a law enforcement function and because it will be receiving what reasonably Page 17 All redacted information exempt under andlor except as otherwise noted Approved for Public Release appears to be evidence of speci c types of crimes for law enforcement purposes the proposed amendments comply with FISA under Section 1801 h 3 The Court adopts the same reasoning and nds that the NCMEC-related amendments to the FBI Minimization Procedures under Section 702 comport with the applicable statutory de nition of minimization procedures 18 2 Provision of Information to Mitigate Serious Harm The FBI minimization procedures now in effect permit the FBI to disseminate information that reasonably appears to be foreign intelligence information is necessary to understand foreign intelligence information or assess its importance or is evidence of a crime and that it reasonably believes may assist in the mitigation or prevention of computer intrusions or attacks to private entities or individuals that have been or are at risk of being victimized by such intrusions or attacks or to private entities or individuals capable of providing assistance in mitigating or preventing such intrusions or attacks Wherever reasonably practicable such dissemination should not include United States person identifying information unless the FBI reasonably believes it is necessary to enable the recipient to assist in the mitigation or prevention of computer intrusions or attacks 2013 FBI Minimization Procedures at 32 emphasis added 19 '19 The FISC rst approved a version of this provision under Section 702 on September 20 2012 in connection with a prior Section 702 certi cation See Memorandum opinion entered on Sept 20 2012 at 22 September 20 2012 Opinion At that time the FISC noted that the provision at issue contlnu Page 18 All redacted information exempt under andtor except as otherwise noted Approved for Public Release The government anticipates situations that would require dissemination of Section 702 information to someone in the private sector in order to mitigate other forms of serious harm such as a plot to destroy a building or monument See July 28 2014 Memorandum at 16 The FBI Minimization Procedures now before the Court would permit the FBI to make certain disseminations to the private sector that are unrelated to computer intrusion or attack Speci cally the FBI could disseminate information that reasonably appears to be foreign intelligence information is necessary to understand foreign intelligence information or assess its importance or is evidence of a crime to a private individual or entity in situations where the FBI determines that said private individual or entity is capable of providing assistance in mitigating serious economic harm or serious physical harm to life or property Wherever reasonably practicable such disseminatidn should not include United States person identifying information unless the FBI reasonably believes it is necessary to enable the recipient to assist in the mitigation or prevention of the harm The FBI will report to the DOJ National Security Division all disseminations made pursuant to this paragraph within ten business days of such dissemination FBI Minimization Procedures at 33 Although the procedures currently authorize the FBI to act in apparent departure from their requirements in order to protect against an immediate threat to human life under circumstances where it is not feasible to obtain timely modi cation of the procedures see i_d at 3 this new provision enables the FBI to disseminate information to private parties in less extreme cases The FISC approved the current version of this provision under Section 702 on August 30 2013 _S_e_e August 30 2013 Opinion at 17-19 Page 19 All redacted information exempt under andfor except as otherwise noted Approved for Public Release The de nition of minimization procedures at Section 180101 does not speak speci cally to the circumstances warranting dissemination to private sector individuals or entities That de nition does however provide that such procedures should be reasonably designed to prohibit dissemination of United States person infonnation consistent with the need of the United States to disseminate foreign intelligence information Section 1801000 Foreign intelligence information in turn is de ned in substantial part by reference to several types of harm threatened by foreign powers and their agents sabotage and acts of international terrorism against which foreign intelligence information may be used to protect SE Section 1801 e 1 quoted in note 15 above In combination these de nitions suggest that foreign intelligence information may be disseminated to responsible parties including those in the private sector who are ina position to mitigate serious harm and that such disseminations may include United States person information when necessary to mitigate that harm Moreover legislative history expressly contemplates that information may be disseminated to the private sector in appropriate cases 1 Accordingly the Court concludes that this provision is consistent with the statute s minimization requirements 2 Similarly disseminations of evidence of a crime to private individuals and entities so that they can mitigate serious harm would serve a law enforcement purpose and for that reason fall under Section 1801 11 3 21 Federal agents may learn of a terrorist plot to kidnap a business executive Certainly in such cases they should be permitted to disclose such information to the executive and his company in order to provide for the executive s security HR Rep 95-1283 at 88 1978 Page 20 All redacted information exempt under andior except as othenNise noted Approved for Public Release 3 Preservation of Information for Litigation Purposes by the FBI As a general rule Section 702 information retained by the FBI that has not been identi ed as information that reasonably appears to be foreign intelligence to be necessary to understand foreign intelligence information or assess its importance or to be evidence of a crime is subject to a retentionfdestruction schedule gs FBI Minimization Procedures at 20- 21 22 The FBI Minimization Procedures now before the Court would permit the FBI to retain information otherwise subject to destruction under this schedule if the FBI and NSD determine that such information is reasonably believed to be necessary for or potentially discoverable in administrative civil or criminal litigation Such determinatibn shall be made in writing and shall identify the speci c information to be retained and the particular litigation for which it is retained 1d at 21 -22 Information retained under this provision may only be accessed for litigation-related purposes by personnel working on the particular litigation in question Li The - FBI shall destroy the information as required by the generally applicable destruction schedule once the litigation need to preserve the information has passed The government 22 In brief information that the FBI retains on an electronic and data storage system but has not reviewed generally must be destroyed after from the expiration date of the certi cation authorizing the collection FBI Minimization Procedures at 20 Information retained on such systems that has been reviewed but not identi ed as information that reasonably appears to be foreign intelligence to be necessary to understand foreign intelligence information or assess its irn ortance or to be evidence of a crime is generally subject to special access controls after i from such expiration date and shall be destroyed after from such date 191 at 20-21 Information retained by the FBI in any other form shall be destroyed in accordance with the Attorney General Guidelines and relevant National Archives and Records Administration procedures regarding the retention of information in FBI hivestigations except that an original copy that cannot be accessed through an electronic and data storage system may be retained inde nitely subject to special access controls after ve years 151 at 21 Page 21 All redacted information exempt under andlor except as otherwise noted Approved for Pubiic Release undertakes to report to the FISC on an annual basis regarding implementation of this provision _S_e_e July 28 2014 Memorandum at 15 cc cc Government proposes along with the reporting requirements that would be required strike an appropriate balance between the competing concerns of not retaining data longer than necessary and having the Government comply with its litigation obligations ch regarding Section 702 information is set out below at page 42 b 23 For example under other provisions of the NSA Minimization Procedures the NSA may not retain telephony and certain forms of Internet communications for longer than ve years from the capitation date of the certi cation authorizing the collection unless the NSA determines that speci ed retention criteria are met NSA MinimizationProcedures at 7 For Internet transactions acquired through upstream collection techniques that retention period is two years om such expiration date Id Page 22 All redacted information exempt under andlor except as otherwise noted Approved for Public Release 0'1 satis ed that ns approach - strikes a proper balance between the protection of United States person information on the one hand and _Nomeless two points regarding these provisiOns merit further discussion mathepl-ovisionsdompermit All redacted information exempt under andlor except as otherwise noted Approved for Public Retease In the interests of ef ciency and consistency the Court encourages the government to consider fulther revision of these procedures to address such situations with generally applicable rules rather than on a piecemeal basis The seed point meme The July 28 2014 Submission contains similar but broader language Page 24 All redacted information exempt under andior except as otherwise noted Approved for Public Release _Tne me In a note in determining and enforcing compliance with these procedures 50 U S C 1803 FISC Rule 13 b Section 702 explicitly provides a mechanism for the AG and DNI to modify minimization procedures subject to FISC approval Whenever circumstances warrant 24 In View Of these considerations and because the government has provided no support for its suggestion that equivalent relief can or should be obtained - the Court expects the government to bring to the FISC issues arising Because - the point does not arise under the language of th it does not preclude the Court from nding that those minimization procedures are consistent with the de nition at Section 1801 11 2 Section 702 permits the AG and the DN1 to amend previously adopted minimization procedures as necessary at any time subject to FISC review See 1881a i 1 C Page 25 All redacted information exempt under andlor except as otherwise noted Approved for Public Release 5 Conclusion For the reasons stated above and in the Court s opinions in the Prior 702 Dockets the Couit concludes that the NSA FBI and CIA Minimization Procedures as written comport with the de nition of minimization procedures at Section 1801 h C The Compliance and Implementation Issues Reported bv the Government Do Not Preclude a Finding That the NSA and FBI Targeting Procedures and the NSA FBI and CIA Minimization Procedures Comnlv With Statutorv Requirements As noted above at page 3 the FISC examines the govermnent s implementation of and compliance with the targeting and minimization procedures as part of assessing whether those procedures comply with the applicable statutory and Fourth Amendment requirements In conducting this assessment the Court is mindful that the controlling norms are ones of reasonableness not perfection 25 This distinction is particularly important in the context of a large and complex endeavor such as the government s implementation of Section 702 While in absolute terms the scope of acquisitions under Section 702 is substantial the acquisitions are not conducted in a bulk or indiscriminate manner Rather they are effected through discrete targeting decisions for individual facilities 5 Each targeting decision requires 25 gs Section 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 Section l801 h 1 requiring minimization procedures that are reasonably designed to minimize acquisition and retention and to prohibit dissemination of information concerning United States persons consistent with foreign intelligence needs United States v Knights 534 US 112 1 18 2001 The touchstone of the Fourth Amendment is reasonableness 5 no I 26 For example the NSA reports that on average approximately -ndividual Page 26 All redacted infon'nation exempt under andior except as otherwise noted Approved for Public Release application of the pre tasking provisions of the applicable targeting procedures Sp NSA Targeting Procedures at 1-6 FBI Targeting Procedures at 1-3 For each facility while it is subject to tasking there are post-tasking requirements designed to ascertain for example Whether the targeted user of the facility has entered the United States See NSA Targeting Procedures at 6 7 And pursuant to the minimization procedures there are detailed rules concerning the retention use and dissemination of information obtained pursuant to Section 702 Size NSA Minimization Procedures at 3-15 FBI Minimization Procedures at 5-33 CIA Minimization Procedures at 1-9 Given the number of decisions and volume of information involved it should not be surprising that occasionally errors are made Moreover the government unavoidably relies on a July 23 2014 Memorandum at 18-20 August 3'0 2013 Opinion at 7 9 April 7 2009 Opinion at 17-22 Because of factors such as changes in communications technology or inadvertent error these processes do not always mction as intended 26 - Were tasked for acquisition at any given time between March 1 and May 31 2014 Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA submitted on June 20 2014 at 1 footnote omitted June 20 2014 Compliance Report Facilities tasked for acquisition include telephone numbers e mail account Additionally between March 1 and Mai 31i 2014 the reports that it received and processed approximately requests 11 at 1 Page 27 All redacted information exempt under andlor except as otherwise noted Approved for Public Release It is apparent to the Court that the implementing agencies as well as the O ice of the Director of National Intelligence ODNI and NSD devote substantial resources to their compliance and oversight responsibilities under Section 702 As a general rule instances of non- compliance are identi ed and appropriate'remedial actions are taken to include purging information that was impmperly obtained or otherwise subject to destruction requirements under applicable procedures 37 Accordingly the Court s overall assessment of the implementation of and compliance with the targeting and minimization procedures permits a nding that the these procedures as implemented satisfy the applicable statutory requirements Nonetheless the Court believes it is useful to discuss the following aspects of implementation I and in some respects to direct the government to provide additional information I Timelv Resolution of the NSA The NSA is required to discontinue acquiSition for a facility if it determines that the user of the facility is in the United States NSA Minimization Procedures at 7 9 see also 50 U S C l881a b 1 the government may not intentionally target any person known at the time of acquisition to be located in the United States The NSA routinely checks each electronic communications facility that is subject to tasking for acquisitio for indications that a tasked facility may have been accessed from inside the United States NSA Targeting Procedures at 6-7 July 28 2014 Membrandum at 18 27 A notable exception involved protracted delays in detasking facilities used by - there was reason to believe was a United States person See June 20 2014 Compliance Report at 14-15 The probed the reasons for such delay at a hearing on June 26 2014 Page 28 All redacted information exempt under andtor except as otherwise noted Approved for Public Release The Court through its staff inquired why in some cases it may tak- from the receipt of such an indication for the NSA to determine that the user of the tasked facility is in the United States and discontinue collection egg use 20 2014 Compliance Report at 31 In response the government has advised that the NSA employ-o conduct these checks and to prioritize the results for research by NSA July 28 2014 Memorandum at 18-19 These a large percentage of false positives Although the number uctuates NSA reports that for 2014 more than 90% of the - generated were false positives not indicative of access of the facility by a user inside the United States 1 at 19 11 6 The NSA further prioritizes within the subset of - that are deemed to indicate potential access from within the United States that are assessed to be of a user inside the United States result in immediate detasking 1d at 20 All redacted information exempt under andlor except as otherwise noted Approved for Public Release Diligent and prompt reSponse to credible indications that a tasked facility has been accessed om the United States goes to the heart of the requirement of 50 U S C that targeting procedures be reasonably designed to ensure that acquisitions target persons reasonably believed to be outside the United States Nonetheless given the high rate of false positives associated with these -and the potentially complex nature of the analysis required to resolve them the Court believes that the current practices in responding to - are consistent with a nding that the NSA Targeting Procedures comply with that statutory requirement 2 11der the FBI Targeting Procedures The FBI Targeting Procedures state Page 30 All redacted information exempt under andlor except as otherwise noted Approved for Public Release Page 31 All redacted information exempt under andfor except as otherwise noted Approved for Public Release The Court has questions about Whether_ comply with this requirement in every context The Court assesses however that these outstanding questions about compliance with the FBI Targeting Procedures do not preclude a nding that the government s targeting procedures satisfy the requirements of Section 1881a d 1 Recently reported instances of non-compliance with the FBI Targeting Procedures do not appear to have resulted in the acquisition of _from an account used by a United States Page 32 All redacted information exempt under andfor except as otherwise noted Approved for Public Release person or someone located in the United States See egg June 20 2014 Compliance Report at 54 56-57 Quarterly Report to the F180 Concerning Compliance Matters Under Section 702 of FISA submitted on March 22 2014 at 67-69 Moreover as noted above page 8 the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures for accounts from which are sought so that every account subject to the FBI Targeting Procedures will already have been approved pursuant to the NSA Targeting Procedures The - Court is however directing the government to report further on the questions raised by the August 6 2014 Letter es page 42 below 3 Purge Issues Various types of data are generally required to be purged for example infonnation obtained from a tasked facility during a time when it is later assessed that a user of that facility was in the United States or a United States person 30 Purge processes for the CIA NSA and FBI all permit data otherwise subject to purge requirements to be retained on backup systems with access limited to-technical personnel June 20 2014'Compliance Report at 3-5 purge processes also do not reach as distinct from the repositories of information used for intelligence analysis certain systems that a at Implementation of these purge requirements relies substantially on -rocesses as well as- Experience has shown that purge processes are not always perfectly 30 See gg NSA Minimization Procedures at 3-10 FBI Minimization Procedures at CIA Minimization Procedures at 8 Page 33 All redacted information exempt under andior except as otherwise noted Approved for Public Release effective in identifying and destroying data in all repositories subj ect to those processes The NSA reports substantial improvement in the ef cacy of its purges 31 but dif culties on certain systems or for certain types of data are still encountered 2 Given the volume of information acquired under Section 702 and the complexities of routing processing storing and analyzing that information the Court nds that the reported limitations on purge processes and the government s efforts to overcome these limitations are consistent with nding that the targeting and minimization procedures presented in the July 28 2014 Submission comply with the applicable statutory requirements The Court encourages and expects the government to continue to work toward improving the ef cacy of its purge processes both as applied to systems or records currently within their compass and as potentially extended to other systems or records 3 The NSA has performed annual studies that examined samples 0 to see if they had actually been removed from systems subject to its purge processes The 2011 study found objects that had not been purged the 2012 study found objects that had not been purged the 2013 study founr' objects that had not been purged and the 2014 study found objects that had not been purged June 20 2014 Compliance Report at 50-51 - 32 gs Letter from Kevin J O Connor Chief Oversight Section Of ce of Intelligence NSD filed on July 25 2014 at 2 5 July 25 2014 Letter describing July 30 2014 Letter at 7-8 describing incomplete NSA purges of metadata for Page 34 All redacted information exempt under andior except as otherwise noted Approved for Public Release 11W 4 The Nouvcomcliance With AttornveClient Minimization Procedures de nition of minimization procedures at Section 180101 does not by its terms afford any special protection to colmnunications subject to the attorney-client privilege 33 Nevertheless the minimization procedures under review have speci c rules for handling attorney client communications e_e NSA Minimization Procedures at 9 FBI Minimization Procedures at 12- 16 25 27 CIA Minimization Procedures at 5 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 know to be charged with a federal crime Unless otherwise authorized by the NSD 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 FBI Minimization Procedures at 12- Since February 2014 the has received written notice of-eparate instances in which the responsible FBI case agent knew that a person targeted under Section 702 faced federal criminal charges but did not establish the required review team See July 30 2014 Letter at 5-6 Although the government attributes those lapses to individual failures or confusion and not a 33 FISA does provide that otherwise privileged communication obtained in accordance with or in violation of the provisions of shall lose its privileged character 50 U S C 1806 a Page 3 5 All redacted information exempt under andior except as otherwise noted Approved for Public Release systematic issue at 7 the government at the August 4 2014 hearing provided partial information about-more recent cases where the FBI failed to establish the required review team The record does not indicate what percentage of Section 702 targets have been charged - with federal crimes however given that these targets are reasonably believed to be non-United States persons located outside the United States one would expect the percentage to be fairly small For that reason the Court regards recent cases as a potentially signi cant rate ofnon compliance Nonetheless because circumstances triggering the obligation to establish a review team presumably arise infrequently in the context of Section 702 acquisitions the Court does not believe that these instances of non-compliance prevent a nding that the minimization procedures under review comply with the requirements of Section 1801 h The Court intends to monitor compliance with this provision of the FBI Minimization Procedures closely and to that end is directing that the government fully report on the- additional instances of non- compliance noted above pages 42-43 below 5 Anticipated Delav in the Implementation of Destruction Requirements As a general rule under the cm Minimization ProCedures un minimized communications that may contain United States person information that does not otherwise qualify for retention - may be retained for no longer than ve years from the expiration date of the certi cation authorizing the collection CIA Minimization Procedures at 2 On August 18 2014 -the government orally advised the Court through its staff that the rst two sets of subject to this provision are due to be destroyed on September 4 and Page 36 All redacted information exempt under andfor except as otherwise noted Approved for Public Release September 18 2014 respectively and that the CIA did not expect to have completed their destruction by those dates The government principally attributes this delay to the amount of time it took to nalize guidance from the DOJ to the CIA regarding It is expected that the destruction of these communications will have been completed within th irty days after the applicable due date The Court does not see a basis for finding that retention for an additional month would render these minimization procedures non-compliant with the requirements of Section 1801 h The government is being directed however to report to the Court on the implementation of this destruction requirement D The NCTC Minimization Procedures Comply With Statutory Requirements The NCTC does not have access to raw Section 702 information but it does have access to minimized Section 702 information on certain FBI data systems June 20 2014 Compliance Report at 1-2 n 4 The NCTC Minimization Procedures now before the Court are identical to those approved in the August 3 0 2013 Opinion see July 28 2014 Memorandum at 2 n 1 as well as those approved in the September 20 2012 Opinion August 30 2013 Opinion at 23 For the same reasons that these procedures were approved in 2012 see September 20 2012 Memorandum Opinion at 22-25 and because no signi cant compliance issues have arisen under these procedures the Court again nds that the procedures satisfy the requirements of Section 1801 h Page 37 All redacted information exempt under andtor except as otherwise noted Approved for Public Release E The Targeting and Minimization Procedures Are Consistent with the Fourth Amendment Finally the Court must determine whether the targeting and minimization procedures included in the July 28 2014 Submission are consistent with the requirements of the Fourth Amendment 50 U S C 1881a i 3 A The Fourth Amendment does not require the govermnent to obtain a warrant to conduct surveillance to obtain foreign intelligence for national security purposes that is 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 of PISA Docket No 08-01 Opinion at 18 19 FISA Ct Rev Aug 22 2008 In re This exception to the Fourth Amendment s warrant requirement applies even when a United States person is the target of such a surveillance id at 25-26 discussing internal Executive Branch criteria for targeting United States persons The FISC has previously concluded that the acquisition of foreign intelligence information pursuant to Section 702 falls Within this foreign intelligence exception to the warrant requirement of the Fourth Amendment See September 4 2008 Opinion at 34-36 accord United States v Mohamud 2014 WL 2866749 at 15 18 D Or June 24 20-14 It follows that the targeting and minimization procedures are consistent with the requirements of the Fourth Amendment if those procedures as implemented are reasonable In assessing the reasonableness of a governmental action under the Fourth Amendment a covrt 34 A declassi ed version of the opinion in In re Directives is available at 551 F 3d 1004 FISA Ct Rev 2008 Page 38 All redacted information exempt under andfor except as otherwise noted Approved for Public Release must balance the interests at stake under the totality of the circumstances presented 1% Directives at 19-20 If the protections that are in place for individual privacy interests are suf cient in light of the governmental interest at stake the constitutional scales will tilt in favor of upholding the actions If however these protections are insuf cient to alleviate the risks of government error and abuse the scales will tip toward a nding of unconstitutionality at 20 The government s national security interest in conducting acquisitions pursuant to Section 702 is of the highest order of magnitude September 4 2008 Opinion at 3 7 quoting In re Directives at 20 With regard to the individual privacy interests involved the Court has concluded as discussed above that the targeting procedures now before it are reasonably designed to target non United States persons who are located outside the United States Such persons fall outside the ambit of Fourth Amendment protection September 4 2008 Opinion at 37 citing United States v Verdugo-Urquidez 494 US 259 274 75 1990 That is not the end of the matter however because the government acquires under Section 702 communications to which United States persons and persons within the United States are parties Such acquisitions can occur when those non-targeted persons are parties to a communication that is to or from or that contains a reference to a tasked selector September 4 2008 Opinion at 15 20 Such communications may also be acquired when they constitute part of a larger Internet transaction that also contains one or more communications that are to or from or that contain a reference to a tasked selector In the latter case the entire Page 39 All redacted information exempt under andtor except as otherwise noted Approved for Public Release transaction may be unavoidably acquired by the upstream collection S_ee_ Memorandum Opinion entered on Oct 3 2011 at 5 30-31 October 3 2011 In the Prior 702 Dockets the FISC has 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 See 9g August 30 2013 Opinion at 24-25 September 20 2012 Opinion at 43-44 In the assessment the combined effect of these procedures has been to substantially reduce the risk 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 FISA or the Fourth Amendment is not retained any longer than is reasonably necessary See August 30 2013 Opinion at 24-25 internal quotations omitted Neither the amendments before the Court nor the compliance concerns discussed above undermine that conclusion The Court has balanced the completing interests at stake and found that the targeting and minimization procedures put forward in the July 28 2014 Submission are consistent with the requirements of the Fourth Amendment 3'5 FISA minimization protects the privacy interests of United States persons in communications in which they are discussed regardless of whether they were parties to such communications Section 1801 11 1 protecting nonpublicly available information concerning unconsenting United States persons emphasis added In contrast non-targets generally do not have a Fourth Amendment-protected interest in communications in which they are discussed unless they are also parties to the communication See Alderman v United States 394 US 165 174-76 1969 Page 40 All redacted information exempt under andlor except as otherwise noted Approved for Public Release IV CONCLUSION For the foregoing reasons the Court nds that 1 the 2014 Certi cations as well as the certi cations in the Prior 702 Deckets as amended by the 2014 Certi cations contain all the required statutory elements 2 the targeting and minimization procedures to be implemented regarding acquisitions conducted pursuant to the 2014 Certi cations comply with 50 U S C and are consistent iwith the requirements of the Fourth Amendment and 3 the minimization procedures to be implemented regarding information acquired under prior Section 702 certi cations comply with 50 U S C and are consistent with the requirements of the Fourth Amendment Orders approving the certi cations amended certi cations and use of the accompanying procedures are being entered contemporaneously herewith For the reasons discussed above it is HEREBY ORDERED as follows 1 On or before December 31 of each calendar year the government shall submit in writing a report to the Court containing the following information the number of Section 702-acquired products disseminated or disclosed to the and the number of disseminations or disclosures by the NCMEC to other law enforcement entities of Section 702- acquired information Additionally prior to implementing changes to policies or practices concerning 0 the release of Section 702-acquired information from the NCMEC to Interpol s International Child Sexual Exploitation database or approval to use Section 702-acquired information disseminated to the NCMEC in any proceeding the government shall make a written submission to the Court describing such changes and explaining why iinpiementing them would be consistent with applicable minimization procedures and statutory minimization requirements Page 41 All redacted information exempt under andior except as otherwise noted Approved for Public Release 2 On or before December 31 of each calendar year the government shall submit in writing a report to the Court containing the following information all administrative civil or criminal litigation matters necessitating preservation of Section 702 information that would otherwise be subject to destruction requirements under applicable minimization procedures the docket numbers and court information for those administrative civil or criminal litigation matters a description of the Section 702-acquired information preserved for each such litigation matter and a description of the status of each such litigation matter 3 On or before September 30 2014 the government shall submit in writing a report describing in detail the 4 On or before September 30 2014 the government shall submit in writing a report describing in detail the recent instances of non-compliance With the attorney-client minimization requirements of the FBI Minimization Procedures-that have not been reported in writing to the FISC as referenced on pages 35 36 above This report shall also provide an assessment of the adequacy of the govemment s training guidance and oversight efforts with Page 42 All redacted information exempt under andfor except as otherwise noted Approved for Public Release regard to those requirements to include a statement of any planned modi cations or enhancements 5 0n or-before October 24 2014 the government shall submit in writing a report about the status of the efforts to comply with the destruction deadlines of September 4 and September 18 2014 as discussed on pages 36-3 7 The government shall submit subsequent reports on that subject at intervals thereafter until it is reported that the destruction of information subject to such requirements has been completed ENTERED mm- mm omugust 2014 fZ eu THOMAS F HOGAN Judge United States Forei Intelligence Surveillance Court 5 I eputy document IS a true and correct copy of the on inal Page 43 All redacted information exempt under andror except as othewvise noted Approved for Public Release SEGREJIL UNITED STATES FOREIGN INTELLIGENCE COURT WASHINGTON DC ORDER For the reasons stated in the Memorandum Opinion and Order issued contemporaneously herewith and in reliance upon the entire record in n s matter the Court nds pursuant to 50 U S C 1881a i 3 A that the certi cations referenced above as amended in the above- I captioned docket numbers contain all the required statutory elements and that the revised All redacted information exempt under andlor except as otherwise noted Approved for Public Release minimization procedures adepted for use in connection with those amended certi cations are consistent with the requirements of Section 1881a e and with the Fourth Amendment Accordingly it is hereby ORDERED pursuant to Section 1881a i 3 A that the amended certi cations and the use of such procedures are approved 7 4 ENTERED this day of August 2014 in THOMAS F HOGAN Judge United States Forei Intelligence Surveillance Court FDep pu Cler FISC document IS a true and correct copy of the ori inal Page 2 All redacted information exemptunder andlor except as otherwise noted Approved for Public Release SEGREIP- UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASI-DNGTON D C ORDER For the reasons stated in the Memorandum Opinion and Order issued contemporaneously herewith and in reliance upon the entire record in this matter the Court nds pursuant to 50 U S C 1881a i 3 A that the certi cations referenced above contain all the required statutory elements and thatthe targeting procedures and minimization procedures approved for use in connection with those certi cations are consistent with the requirements of 50 U S C 1881a d and with the Fourth Amendment Accordingly it is hereby ORDERED pursuant to so U S C 1881a i 3 A that the certi cations and the use of such procedures are approved amen mis t day ofAugust 2014 i F JeFDeputy Judge United States For FISC certify that this Intelligence Surveillance Court document' 18 a true and correct copy of the ori inat i We