(b)(1), (b)(?>)

 

UNITED STATES
FOREIGN INTELLIGBNCE SURVEILLANCE COURT

WASHH\IGTON, D.C.

MEMORAND`UW.[ OPINION

These matters are before the Foreign Intelligcnce Surveillance Court ("P'ISC" or "Cc)m't") v
on: (1) the "Govermnent’s Ex Pafce Submission of Reauthorfzation Certification and Relatecl
Procedures, Ex Parte Submission of mnended Certifications, and Request for an O:vder

Approving Such Ce11if'1ca”ci011 and Amended Certifications" for DNI/AG 702(g) Certifications

 

)

 

revised NSA and CIA minimization procedures that have been submitted for use in connection

with C@rtifi¢ati<>ns  
:~

B, The Mav 2 "Clariiication" Letter

On Mey 2, 2011, the government filed with the Court a letter pursuant to FISC Rule lB(a)
titled "Clariiication of Nz\tional Security Agency’s Upstreem Collection Pursuant to Section 702
ofFISA” ("May 2 Letter"). The Mey 2 Letter disclosed to die Court for the first time that NSA’s
"upstreani co]lection"a of Internet communications includes the acquisition of entire
"transaction[s1" 
:" Aocording to the May 2 Letter, such transactions may contain date that is wholly
unrelated to the tasl)

 

C. The Government’s First l\/lotion for Extensions of Tirne

On May 5, 2011, the government filed a motion seeking to extend tmtil July 22, 201 l , the
30-day periods in which the Couit must otherwise complete its review of Certitioations -
_, and the ainendments to the certifications in the Prior 702 Dockets. ge 
l\/.[otion for an Order Extending 'l`ime Lirnit Pursuant to 50 U.S.C. § 1881a(]`)(2) at 1 ("May l
Motion"). The period for FISC review o;t` Ce1titication 
  was then set to expire on l\/lay 20, 2011, and the period for 

review of the other pending certifications and amendments was set to expire on May 22, 2011.
l_d_. at 6.5

The government iioted in the May l\/Iotion that its efforts to address the issues raised in
the May 2 Letter were still ongoing and that it intended to " supplement the record . . . in a
manner that will aid the Court in its review" of the certifications and amendments and in inaldng
the determinations reouired under Section 702. i_d¢ at 7. According to the May Motion, however,
the government would "not be in a position to supplement the record until sher the statutory time
limits for such review ltave expired." id The government further asserted that granting the

requested extension of time would be consistent with national security, because, by operation of

5 50 U.S.C. § IBBla(i)(I)(B) requires the Court to complete its review of the certification
and accompanying targeting and rniniinizatiori procedures and issue an order under subsection
1881 a(i)(?z) not later than 30 days after the date on which the certification and procedures are
submitted Pursuant to subsection 188 la(i)(l)(C), the same time li1nit applies to review of an
amended certification or amended procedures. However, 50 U.S.C. § 1881£1(1)(2) permits the
Conrt, by order for reasons stated, to extend “as necessary for good cause in a manner consistent
with national security," the time liniit for the Court to complete its review and issue an order
under Section 1881 a(i)(S).

 

Page 6

(b)(l), (b)(3)

 

statute, the governnient’s acquisition of foreign intelligence information under Certifications
j could continue pending completion of the Court’s review. &=,_e _i_cL
at 9~10, l
On Msy 9, 2011, the Court entered orders granting the goveinment’s May Motion. Based

upon the representations in the motion, the Court found that there was good cause to extend the
time limit for its review of the certifications to .Tuly 22, 20l l, and that the extensions were
consistent with national security. May 9, 2011 Orders at 4.

D. The Me,y 9 Bri_'efing Order

Because it appeared to the Court that the acquisitions described in the May 2 Letter

exceeded the scope ot` collection previously disclosed by the goveinxnent and approved by the

Court, and rnight, in part, fall outside the scope of Section 702, the Court issued'a Brieting Order
on May 9, 2011 ("Briefiiig Order"), in which it directed the government to answer a number of
questions in writing. Briefing Order at 3-5. On June 1, 2011, the United States filed the
"Goveroment’s Response to the Coiii't’s Briefing Order of Mey 9, 2011" (“Jtine 1 Siibmission").
Aftei' reviewing the .lune 1 Sul)missioii, the Court, through its staff, directed the government to
answer a irunibei‘ of follow-up questions On June 28, 201 1, the government submitted its
written responses to the Court’s follow~up questions in the "Govelnment’s Rcsponse to the
Court’s Fcllow-Up Questions of june 17, 2011’° ("June 28 Subniission").

E. The Governrnent’s Second Moticn for Extensions of 'l`ixne

The Court met with senior officials of the Departtnent of justice on July 8, 2011, to

Page 7

)

 
government’s acquisition of foreign intelligence iin':`ormation under Certifications _
_could continue pending completion of the Court’s review ida at 9~10.

On July 14, 2011, the Court entered orders granting the government’s rnotion. Based
upon the representations in the motion, the Couit found that there was good cause to extend the
time limit for its review of the certifications to Septernber 20, 2011,4 and that the extensions were
consistent with national security. Iuly l4, 2011 Orders at 4.

F. The August 16 and August 30 Subnu'ssions

On August 16, 2011, the government filed a supplement to the June 1 and lone 28
Stihinissioiis ("August 16 Submission"). in the August 16 Suhmission, the government
described the results of “a manual review by [NSA] of a statistically representative sample of the
nature and scope of the Internet comniunicatioiis acquired through NSA’S ~. . . Seotion 702
upstream collection during a six~month period.” Notlce of filing of Aug. 16 Submission nat 2.
Following a meeting between the Court staff and representatives of the Department of Iustice on
August 22, 2011, the government submitted a further filing on August 30, 2011 ("August 3 0
Subinission").

G. The Hearing and the Governrnent’s final Written Subrriission

Followiiig review of the August 30 Submission, the Court held a hearing on Septeniher 7,
2011, to ask additional questions of NSA and the Department of .lustice regarding the

government’s statistical analysis and the implications of that analysis The governinent made its

Page 9

(b)(l), (b)(3)

 

tinal written submissions 011 Septembei' 9, 2011, and September 13, 2011 ("September' 9
Submission" and "September 13 Submission," respectively).

H. The Final Eg_ttension of Tilne l

On September 14, 2011, the Court entered orders further extending the deadline for its
completion of the review of the certifications and amendments filed as part of the April
Subinissions. The Court explained that "[g]iven the complexity of the issues presented in these
matters coupled with the Court’s need to fully analyze the supplemental information provided by
the government in recent fllings, the last of which was submitted to the Court on Septetnher 13,

2011, the Court will not be able to complete its review of, and issue orders . . . concerning [the

certifications and arnendrnelits] by September 20, 2011."  

 

  The Court iiu'ther explained that although it had originally

intended to extend the deadline by only one weel<, the government had advised the Court that

"for technical reasons, such a brief extension would compromise the govermnent’s ability to

ensure a seamless transition from one Certifioation to the next."  

 

  Aocordingly, the Court extended the deadline to October 10,
2911-  

Page 10

(b)(l), (b)(?>)

 

]]. REVIEW OF CERTIFICATIONS :

The Court must review a certification submitted pursuant to Section 702 of` FISA "to

determine whether [it] contains all the required elements." 50 U.S.C. § 188 1 a(i)(.’).)(A). The

Court’s examination of Certificatioiis  confirms that:

(1) the certifications have been made under oath by the Attorney General and the DNI, as l
required by 50 U.S.C. § 1881a(g)(1)(A), see Certif`ication l

(2) the certifications contain each of` the attestations required by 5 0 U.S.C.

§ ISYHH(s)(Z)CA), see Certifu>afi<>r1 
:' »

5

(3) as required by 50 U.S.C. § 1881a(g)(2)(]3), each of the certifications is accompanied
by the applicable targeting procedures7 and minilnization prooedru'es;"

(4) each of the certifications is supported by the affidavits of appropriate national security
officials, as described in 50 U.S.C. § 188 la(g)(f£)((§);° and

(5) each of the certifications includes an effective date for the authorization in compliance

y 7 _S§§ April 2011 Subxnissions, NSA Targeting Procedures and FBI Targeting Procedures
(atw<>h@d f<> C@rfifi¢afi<>ns  )-

3 S_e§ Apr_il 2011 Subinissions, NSA Miiiiniizatioii Procedures, FBI l\/Iinimization
Procedures, and CIA Minimization Procedtlres (attached to Certifications _

9 §e_e_ April 2011 Submissions, Af`fidavits oi` John C, lnglis, Acting Director, NSA

(attached to Certifioations  ; Affidavit of` Gen. Keith B. Alexander,

U.S. Arrriy, Direotor, NSA (attached to Certification_); Af’fidavits of Robert S.
Mueller, III, Director, FBI (attached to Ceitifications  ;
_

Page ll

(b)(l), (b)(?>)

-'FGP-SB 
win 50 U.S.C. § rsslacgiiz)), se ceraaca»vion 
10

The Coutt therefore finds that Certificatio1 

_contaiu all the required elements 50 U.S.C. § 188 la(i)(Z)(A).

IIL REVIEW OF TH]E AMENDMENTS TO THE CERTIFICATIONS IN THE PRIOR
DOCKETS.

Urtder the judicial review procedures that apply to ainendments by virtue ol` Section
1881a(i)(1)(C), the Court must review each of` the amended certifications "to determine whether
'the certification contains all the required elements.” 50 U.S.C. § 1881a(i)(2)(A). The Court has
previously determined that the certifications in each of the Prior 702 Doclcets, as originally
submitted to the Court and previously arnended, contained all the required eiements.“ Like the
prior certifications and arnendments, the amendments now before the Court were executed under
oath by the Attorney General and the DNI, as required by 50 U.S.C. § 1881a(g)(l)(A), and

submitted to the Court within the time allowed under 50 U.S.C. § 1881a(i)(1)(C). §§

‘° The statement described in 50 U.S.C. § 188 la(g) (B)(E) is not required in this case
because there has been no "exigent circumstances" determination under Section 1881;1(0)(2).

§§  
U`q
(D
l_\
[\>

(b)(l), (b)(3)

 

C~“>rfifi<=ati<> ” Pursvavt
to Secticn ISBIa(g)(.'Z)(A)(ii), the latest amendments include the attestations of the Attorney
General and the DNI that the accompanying NSA and CIA minimization procedures meet the
statutory definition of miriinrization procedures, are consistent with the requirements of the
Fourth Aineridmeiit, and will be submitted to the Court for approval Certiticatioi§

 - The latest @1111@11¢1111@1113 also

include effective dates that comply with 50 U.S.C. § IBBIa(g)(Z)(D) and § l88la(i)(l).
Certitication   All other aspects
of the certifications in the Prior 702 Dockets - including the fun'ther attestations made therein in
accordance with § 188 1a(g)(2)(A), the NSA targeting procedures and FBI nn'niznizatioir
procedures submitted therewith in accordance with § 1881a(g)(2)(B),'3 and the affidavits
executed in support thereof in accordance with § 1881a(g)(2)(C) ~ are unaltered by the latest
amendments

ln light of the foregoing, the Conrt finds that the certifications in the Prior 702 Doclcets,

l as amended, each contain all the required elernents. 50 U.S.C. § 1881a(i)(2)(A).

‘2 The arnendments to the certifications in the Prior 702 Dockets were approved by the
Attorney General on April 11, 201 1, and by the DNI on April 13, 201 1. § Ceititication-

13 Of course, targeting under the certifications Hled in the Prior 702 Doekets will no
longer be per.mitted following the Court’s issuance of an order on Certitioatioiis_

 
, Page 13

 

IV. REVIZEW OF THE TARGETING AND IvllNll\/IIZATION PRO CEDURES
The Court is required to review the targeting and rniriiinization procedures to determine
whether they are consistent with the requirements of 50 U.S.C. § 188 la(d)(l) and (e)(l). §§

50 U.s.c. § rsaia(i)(z)(s) aaa (c); sea ana 50 U.s.c. § iseia(i)(i)(c) (pr@viaing that amended

procedures must be reviewed under the saine standard). Section 188 l a(d)(l) provides that the
targeting procedures niust be "reasoiiably designed" to "ensure that any acquisition authorized
under [the certification] is liniited to targeting persons reasonably believed to be located outside
the United States" and to "prevent the intentional acquisition of any communication as to which
the sender and all intended recipients are known at the 'time of the acquisition to be located in the
United States." Section l88l_a(e)(l) requires that the rnini!nizatioii procedures "meet the
definition of rnirn‘mization procedures under [50 U,S.C. §§] l80l(h) or 1821(4) . . . ." Most
rtotably, that definition requires "specific procedures, which shall be adopted by the Attorney
General, that are reasonably designed in light of the purpose and technique of the particular _
[surveillance or physical search], to niinirnize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning unconsenting United States
persons consistent with the need of the United States to obtain, produce, and disseminate foreign
intelligence information." 50 U.S.C. §§ l801(h) & 1821(4). Finally, the Court must determine
whether the targeting and nnininiization procedures are consistent with the requirements of the

Fouith Amendmelrt. 50 U.S.C. § l88la(i)(3)(A).

Page 14

(b)(l), (b)(?>)

 
A. The Eft`ect of the Government’s Disclosures Regarding NSA’s Acgttisition of
hiternet Traxlsactions on the Court’s Review of the Targeting and Min:iniization

Procedures
The Court’s review ot` the targeting and minimization procedures submitted with the
April 2011 Submissions is complicated by the governrnent’s recent revelation that NSA’S
acquisition oflnternet communications through its upstream collection under Sectioii 702 is
accomplished by acquiring Internet "transactions,” which may contain a single, discrete
commun.ication, or multiple discrete connnunications, including communications that are neither
to, from, nor about targeted facilities. June 1 Subrnission at l~2. 'i`hat revelation fundamentally
alters the Court’s understanding of the scope of the collection conducted pursuant to Section 702
and requires careful reexamination of many of the assessments and presumptions underlying its
prior approvals.
ln the first Sectiori 702 doclcet, _, the government clisclosed that

its Section 702 collection would include both telephone and Internet communications.
According to the government the acquisition of telephonic connnunications would be linnited to
"to/i`rorn” communications - i._ce_., communications to or from a taslced .t.`acility. The government
explained, however, that the Ixiternet communications acquired would include both to/from
conunmiicatioiis and "about" coinmunications »» i._er, cominuriications containing a reference to
the name of the taslced acoount. §ee ,
Based upon the government’s descriptions of the proposed collection, the Court understood that
the acquisition oflnternet conununications under Section 702 would be liinited to discrete
"to/from" communications between or arnong individual account users and to "abou °’

 
Page 15

(b)(l), (b)(?>)

 
communications falling withii- specific categories that had been first described to the Court

in print prcce€=diass»  
  The C<>ul“f’s analysis and ultimate

approval of the targeting and minimization procedures in Docl)

 

minimization procedures are consistent with the requirements of 50 U.S.C. § ISSIa(d)-(e) and
with the Fourth Arnendment.
l. The Amended FBI Targeting ]?rocedures

The government has rnade three changes to the FBI targeting procedures, all of which

involve Section I.4. That provision requires the FBI, 

The new language proposed by the government would allow the FBI to -

_ The government has advised the Court that this change was prompted

by the fact that  

?

§
4
§
T°
@
>--
(D
01
§§

the current procedures require the FBI to  The change is intended to

elilninate the r@qui1'@m@r1tf>f -

The second change, reflected in stlbparagraph (a) of Section I.4, would allow the FBI,

under errata circumstances t<> 

ll

Page 20

(b)(i), (b)(3)

, ,
||||l|||||t

The above-described changes to the FBI targeting procedures po se no obstacle to a

~ finding by the Coui't that the FBI targeting procedures are "reasonably clesigned” to "ensure that

any acquisition authorized . . . is limited to targeting persons reasonably believed to be located

outside the United States" a.nd to "prevent the intentional acquisition of any communication as to .

which the sender and all intended recipients are known at the time of the acquisition to be located

in the united States.” 50 U.S.C. § issia(u)(i). _

in

Page 21

(b)(l), (b)(3)

Furthermore, as the Court has previously noted, before the FBI targeting procedures are
applied, NSA will have followed its own targeting procedures in determining that the user of the
facility to be tasked for collection is a iion-United States person reasonably believed to be located
outside the United States. gee Docket No.  Tlie

 
  L The Court has previously found that_
- proposed for use in connection with Ceitiiications   arc

reasonably designed to ensure that the ttsers of tasked selectors are non~Uiiited States persons

reasonably believed to be located outside the United States and also consistent with the Fouith b

Amolldlooof- §o.o Dookof No  
 - If thorofol'o follows that .fho

amended FBI targeting procedures which provide additional assurance that the users of tasked
accounts are non~United States persons located outside the United States, also pass muster.
2. The Arnended NSA l\/Iiiiimization Procedures_

The most significant change to the NSA lniniinization procedures regards the rules for
queiyiiig the data that NSA acquires pursuant to Section 702. The procedures previously
approved by the Court effectively impose a wholesale bar on queries using United States~Person
identifiers. The government has broadened Sectioii 3(b)(5) to allow NSA to query the vast
inajority of its Section 702 collection using United States~Person identifiers, subject to approval

_”E6ILSE 
Page 22

(b)(l), (b)(3)

 

pursuant to internal NSA procedures and oversight by the Departrnent of .lustice.z' Lilce all other
NSA queries of the Section 7 02 collection, queries using United States-person identitiers would
be limited to those reasonably likely to yield foreign intelligence information NSA
Miiiimization Procedures § 3(b)(5). The Departntent of Justice and the Office of the Dl\ll would
be required to conduct oversight regarding NSA’s use of United States~person identiiiers in such
queries. § §

This relaxation of the querying rules does not alter the Court’s prior conclusion that NSA

minimization procedures meet the statutory definition of minimization procedures -

 oor1folo on ooolosoos provision allowing

queries of umninirnized FISA-acqttired information rising identifiers ~ including United States~
person idcntifiers ~ when such queries are designed to yield foreign intelligence int`ormation.
§_e§: In granting:applications for electronic surveillance or
physical search since 2008, including applications targeting United States persons and persons in
the United States, the Court has found that the - meet the definitions of rninirnization

procedures at 50| U.S.C. §§ 180 l(h) and 1821(4). lt follows that the substantially»similar

21 The government is still in the process of developing its internal procedures and will
not permit NSA analysts to begin using United States-pcrson identitiers as selection terms until
those procedures are completed. .lune 28 Submission at 4 n.B. In addition, the government has
clarified that United States-persoii identitiers will nm be tised to query the fruits ofNSA’s
upstream col1ection. Aug. 30 Submission at ll. NSA’s upstream collection acquires
approximately 9% of the total lnternet connnunicatioiis acquired by NSA under Section 702.
Aug. 16 Sttbrnission at 2.

 
s Page 23

(b)(l), (b)(3) .

 

querying provision found at Secticn B(b)($) of the amended NSA minimization procedures
should not be problematic in a collection that is focused on non~United States persons located
outside the United States and that, in the aggregate, is less likely to result in the acquisition of
nonpublic information regarding non-consenting United States persons

A second change to t11e NSA minirnization procedures is the addition of language
specifying that the iive~year retention period for communications that are not subject to earlier
destruction runs from the expiration date of the certification authorizing the collection. _S_e_e NSA
Minirnization Procedures, §§ B(b)(l), 3(0), 5(3)(1)), and 6(a)(l)(b). The NSA minimization
procedures that were previously approved by the Court included a retention period of five years,
but those procedures do not specify when the tive~year‘ period begins to run. Tiie change
proposed here harmonizes the procedures with the corresponding provision of the -
minimization procedures for Sccti on 702 that has already been approved by the Cotirt. S_ec_:-
Mininiization Procedures at 3 (1] j).

The two remaining changes to the NSA nn'nirrrization procedures are intended to clarify
the scope of the existing procedures The government has added language to Section 1 to make
explicit that the procedures apply not only to NSA employees, but also to any other persons
engaged in Section 702-related activities that are conducted under the direction, authority or
control of t.`ne Directcr of NSA. NSA Minimization Procedures at 1. According to the
government, this new language is intended to clarify that Ceritral Security Service personnel
conducting signals intelligence operations authorized by Section 702 are bound by the
procedures, even when they are deployed with a military unit and subject to the military chain of

 
~ 9 Page 24

(b)(l), (b)(?>)

 

command The second clarifying ainendinent is a change to the definition of "identiiication of a

United States person" in Section 2. Tl1e new language eliminates a potential ambiguity that

might have resulted in the inappropriate treatment of the name, unique title, or address of a _

United States person as non~ideritii`ying information in certain circuxnstances. l_cL at 2. These

amendments, which resolve any arguable ambiguity in favor of broader application of the 
protections found in the procedures, raise no concerns 1

3. The Amerrded CIA Miriimization Procedures
The CIA ininiinization procedures include a new querying provision - 

  The hew language would allow the CIA to

conduct queries of Secticn '702~acquired information using United States-person identiiiers. All

ClA queries of the Section 702 collection would be subject to review by the Departinent of

rise ada once <»fiv@r>wii  
 , the addition cea

new CIA querying provision does not preclude the Court nom concluding that the amended CI_A
minimization procedures satisfy the statutory definition of rninimization procedures and comply

with the Fourth Arnendment.”
The amended CIA rninimization procedures include  

22 The Court understands that NSA does not share its rtpstreatn collection in

t_ assistants form was as era 1

 
Page 25

(b)(W)» (b)(3)

raises 110 concerns in the context of the CIA minimization procedures.

 

 W
The govwwn€nf als<> has added  

   

(b)(l), (b)(3)

 
_ It lilcewise raises no Fourtill Amelrdrnelat problem. _

Finally, a new provision  

*~i
é"§
O
O
§
’_2
§ _
§.
m
01
ca
CD
G
m
»*-‘>
O
"CS
>-z
O
U"
114
§
’;$
§
§
EI'
CD
$\3
Q-=
91
S`.
O
5

n to the CIA minirnization procedures.

D. The Effeet of the Government’s !)iselosures Regarding § SA’s. Acg_irisition of
Internet Trarxsaetions
Based on the governrneirt’s prior representations, the Court has previously analyzed
NSA’s targeting and minimization procedures only in the context of NSA acquiring discrete

communieations. Now, however, in light of the government’s revelations as to the manner in

which NSA acquires Internet oommunioations, it is clear that NSA acquires "Internet

Page 27

(b)(l), (b)(3)

 

transactions,"” including transactions that contain a single discrete communication ("Single _
Connnunication Trarisactioiis" or "SCTs" , and transactions that contain rnultiple discrete
communications ("Multi~[€f]omrnuriication Transactions" or "MCTS"), ;@ Aug. 16 Submission
at 1.

The Court has repeatedly noted that the government’s targeting and minimization
procedures must be considered in light of the communications actually acquired _S§e_) Doclcet No.
  ("Substantial implementation problems can,
notwithstanding the goverrnnent’s intent, speak to whether the applicable targeting procedures
are ‘reasonably designed’ to acquire only the communications of non-U.S. persons outside the

United Stat@S-"), see also DO<>I<@SNO-  

Until now, the Court had a singular understanding of the nature of NSA’s acquisitions tinder

Section 7 02. Accordingly, analysis of the implementation of the procedures focused on whether
NSA’s procedures were applied effectively in that context and whether the procedures adequately
addressed over-collections that occurred. But, for the first tinie, the government has rrow advised
the Court that the volurne and nature of the infonnation it lias been collecting is fundamentally
different from Wltat the Court had been led to believe. Therefore, the Court rnust, as a matter of
first impression, consider whether, in view of NSA’S acquisition of Internet transactions, the

targeting and rnininiization procedures satisfy the statutory standards and comport with the

23 The government describes an lnternet "transactiorr” as "a coinpleinerit of ‘packets’
traversing the Internet that together may he understood by a device on the lnternet aud, where
applicable, rendered in an intelligible form to the user of that device." June l Submission at 1.

 
Page 28

(b)(l), (b)(?>)

 
Fcurtli Amendntient.

For the reasons set forth below, the Couit finds that NSA’s targeting procedures, as the
government proposes to implement them in connection with l\/lCTs, are consistent with the
requirements of 50 U.S.C. §l88la(d)(l). However, the Court is unable to find that NSA’S
minimization procedures, as the government proposes to apply them in cointection with MCTs,
are "reasonab]y 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
nonpul)llcly 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. §§ lSOI(h)(l) &1821(4)(1&). The Court is also tlnable to find that
NSA’s targeting and mininiizatiori procedures, as the govennnent proposes to implement them in
connection with MCTs, are consistent with thc Fourth Ameiidrnent.

l. The Scone of NSA’s Unstream Collection

NSA acquires more than two hundred fifty million Interriet communications each year
pursuant to Section 702, but the vast majority of these coinmunicatioiis are obtained i`l‘om
lnternet service providers and. are not at issue here.z" Sept. 9 Subniission at l ; Aug. 16

Submission at Appendix A. lndeed, NSA’s upstream collection constitutes only approximately

24 ln addition to its upstream collcction, NSA acquires discrete Internet coinmuriications
from Internet service providers such as
- Aug. 16 submission at 2; Aug. 30 submission at 11; see ana sept 7, 2011 nearing "n.
at 75~77. NSA refers to this non~upstream collection as its "PRISM collection." Aug. 30
Submission at ll. The Court understands that NSA does not acquire "Internet transactions"
through its PRlSl\/l collection. ,§e§ Aug. 16 Submission at l.

 
, Page 29

(b)(l), (b)(3)

-'FOP-SE 
9% of the total lnternet communications being acquired by NSA under Scction 7 02. Sept. 9

Submission at l; Aug. 16 Suhmission at 2.

Although small in relative tenns, NSA’s upstream collection is significant for three

reasons First, NSA’s upstream collection is "uniquely capable of acquiring certain types of
targeted communications containing valuable foreign intelligence infcrination."” Doclcet No.
 -
Second, the Coult now understands that, in order to collect those targeted Internet
coxmuunicaticns, NSA’S upstream collection devices acquire ]nternet transactions, and NSA
acquires millions of such transactions each year.'*"“ Third, the government has acknowledged that,
c111e to the technological challenges associated with acquiring Intemet transactions, NSA is
tinable to exclude certain Internet transactions from its tipstream collection _S_e_e June 1
Submission at 3~12.

In its June 1 Siibmission, the government explained that NSA’s upsttealn collection

devices have technological limitations that significantly affect the scope of oollection. -

 

26 NSA acquired more than 13 .25 million Internet transactions through its upstream
collection between january l, 2011, and June 30, 201 1. Y Aug. 16 Sttbmission at 2; ce also
Sept. 9 Submissioii at 1-2.

 
5 Page 30

(b)(l), (b)(3)

 
 . wm at 7. Morecver, atthe tone cf

acquisition, NSA’s upstream internat collection devices are generally incapable of distinguishing
between transactions containing only a single discrete conmiunication to, from, or about a taslced
selector end transactions containing multiple discrete connnunications, not all of which inay be
to, from, or about a taskcd selector.” ii at 2.

As a practical rnatter, this means that NSA’s upstream collection devices acquire any

Internet transaction transiting the device if the transaction contains a targeted selector anywhere

 
:€1-""_'

The practical implications of NSA’s acquisition of intcrnet transactions through its

within it, and:

_S_e_ei_cl._até.

upstream collection for the Cottrt’s statutory and Fourtli Amendment analyses are difficult to
assess. The sheer volume of transactions acquired by NSA through its upstream collection is
such that any meaningful review of the entire body of the transactions is not feasible As a result,
the Court cannot know for certain the exact number of wholly domestic communications

acquired through this collection, nor can it know the number of non-target communications

 

Page 31

(b)(l), (b)(3)

 

acquired or the extent to which those communications are to or from United States persons or
persons in the United States. Instead, NSA and the Cou:rt can only look at samples of the data
and then draw whatever reasonable conclusions they can from those samples Even if the Court
accepts the validity of conclusions derived from statistical analyses, there are significant hurdles
in assessing NSA’S upstream collection lnternet service providers are constantly changing their
protocols and the services they provide, and often give users the ability to customize how they
use a particular service.” Igi_. at 24-25. As a result, it is impossible to define with any specificity
the universe of transactions that will be acquired by NSA’S upstream collection at- any point in
the future.

Recognizing that nnther revelations concerning what NSA has actually acquired through
its 702 collection, together with the constant evolution of the lnternet, may alter the Court’s _
analysis at some point in the future, the Court must, liever'tlieless, consider whether NSA’s
targeting and rninirnization procedures are consistent with FISA and the Fourth Amenclrnent
based on the record now before lt. In view of the revelations about how NSA is actually
conducting its upstream collection, two fundamental underpinnings of the Court’s prior

assessments no longer hold true.

 

Page 32

(b)(l), (b)(3)

 

First, the Court previously understood that NSA’s technical xneasures” would prevent the
acquisition of any communication as to which the sender and all intended recipients were located

in the United States ("wholly domestic comrnunication") except for "theoretically possible" cases

  The Court now unclerstands, however, that NSA has acquired, is

acquiring, and, if the certifications and procedures now before the Court are approved, will
continue to acquire, tens of thousands of wholly domestic communications. NSA’s manual
review cfa statistically representative sainple drawn froln its iipstream coilection’° reveals that
NSA acquires approximately 2,000-10,000 MCTs each year that contain Lle,as_t one wholly

domestic cornmunication.“ ___ee Aug. 16 Submission at 9. in addition to these MCTs, NSA

 

30 in an effort to address the Cour|;’s concerns, NS.A conducted a manual review of a
random sample consisting of 50,440 Irtternet transactions taken from the more than 13.25 niilliott
internat transactions acquired through NSA’s upstream collection during a six month period. ge
generally Aug. 16 Submission (describing NSA’s manual review and the conclusions NSA drew d
therefi‘om). The statistical conclusions reflected in this Mernorandum Opinion are drawn from
NSA’s analysis of that random sainple.

31 Of the approximately 13.25 million internat transactions acquired by NSA through its
upstream collection during the six-month pcriod, between 996 and 4,965 are MCTs that contain a
wholly doxnestic communication not to, from, or about a tasl-:ed selector. Aug. 16 Stibnn'ssion at
9. y

 
rage 33

(b)(l), (b)(?>)

 

likely acquires tens of thousands more wholly domestic communications every year,’” given that
NSA’s upstream collection devices will acquire'a wholly domestic "about” SCT if it is routed

internationally.” Moreovcr, the actual number of wholly doinestic communications acquired

32 NSA’s manual review focused on examining the MCTs acquired through NSA’s
upstream collection in order to assess whether any contained wholly domestic communications

` Sept. 7, 2011 Hearing Tr. at 13~14. As a result, once NSA determined that a transaction

contained a single, discrete communication no inrthei' analysis of that transaction was done. §§
Aug. 16 Subrnission at 3. After the Court expressed concern that this category of transactions
might also contain wholly domestic connnunications, NSA conducted a further review. S_e;e
Scpt. 9 Subinission at 4. NSA ultimately did not provide the Court with an estimate of the
n\unbcr ofwholly domestic "about" SCTs that inay be acquired through its upstream collection
Instead, NSA lies concluded that "the probability of encountering wholly domestic
communications in transactions that feature only a single, discrete communication should be
smaller - and certainly no greater ~ than potentially encountering wholly domestic
communications within MCTs.” Sept. 13 Submission at 2.

The Court understands this to 1nean that the percentage of wholly domestic
communications within the universe of SCTs acquired through NSA’s upstream collection
should not exceed the percentage of MCT s containing a wholly domestic conimunication that
NSA found when it examined all of the MCTs within its statistical sainple. Since NSA found 10
MCTs with wholly domestic communications within the 5,081 l\/ICTs reviewed, the relevant
percentage is .197% (10/5,081), Aug. 16 Subrnission at 5. l

NSA’s manual review found that approximately 90% of the 50,440 transactions in the
sainple were SCTs. LL at 3. Ninety percent of the approximately 13.25 million total Internet
transactions acquired by NSA through its upstream collection during the six-month period, works
out to be approximately 11,925,000 transactions ’l`hose 11,925,000 transactions would
constitute the universe cf SCTs acquired during the six~month period, and .197% of that universe
would be approximately 23,000 wholly domestic SCTs. ’l`hus, NSA may be acquiring as many
as 46,000 wholly domestic "about" SCTs each year, in addition to the 2,000-10,000 MCTs
referenced ab ove.

33 lnternet communications are "nearly always transmitted from a sender to a recipient
through inultiple legs before reaching their final destination." June 1 Subrnission at 6. For

exa;mple, an e-inail message sent from the user of_ to the riser cf _
will at the very least travel nom the user’s

own computer, to , to , and then to the computer of the-

user. lcL Because the comniunication’s route is made up of multiple legs, the transaction used to

transmit the communication across any particular leg of the route need only identify the ]§P
(continued...)

 
Page 34

(b)(l), (b)(3)

 

may be still higher in view of NSA’s inability conclusively to determine whether a significant
portion of the MC'l`s within its sample contained wholly domestic corrnnunications.a‘*
Second, the Court previously understood that NSA’s tipstream collection would only

acquire the communication of a United States person or a person in the United States if: l) that

33(...continued)
addresses at either end of that leg in order to properly route the communication. I_d. at 7. As a
result, for each leg of the routc, the transaction header will only contain the lP addresses at either

end of that particular leg. lcL

  

3" During its manual revi_ew, NSA was unable to determine whether 224 of the 5 ,081

I\/lCTs reviewed contained any wholly domestic communications, because the transactions
lacked sufficient information for NSA to determine the location or identity of the "active user"
(;i£, the individual using the electronic communications account/address/identifier to interact
with his/her lnternet service provider). Aug. 16 Submission at 7 . NSA then conducted an
intensive review of all available information for each of these MCTs, including examining the
contents of each discrete communication contained within it, but was still unable to determine
conclusively whether any of these MCTs contained wholly domestic connnunicatioiis. Sept. 9
Submission at 3. NSA asserts that "it is reasonable to presume that [the] 224 MCTs do not
contain wholly domestic connnunicatioiis," but concedes that, due to the limitations of the
technical means used to prevent the acquisition of wholly domestic communications, NSA may
acquire wholly domestic communications. §e_e Aug. 30 Submissioii at 7-8. The Court is
prepared to accept that the number of wholly domestic communications acquired in this category
of MCTs is relatively small, for the reasons stated in the govcrnrneiit’s Augtist 30 Submission.
Howcver, when considering NSA’s upstream collection as a whole, and the limitations of NSA’s
technical means, the Court is not prepared to presume that the iiumher cf wholly domestic
communications contained within this category of connnunications will be zero. Accordingly,
the Couit concludes that this category of connnunicatioiis acquired through NSA’s upstream
collection may drive the total number of wholly domestic coinmuiilcations-acquired slightly
higher.

 
, Page 3 5

(b)(l), (b)(3)

 

person was in direct contact with a targeted selector; 2) the communication referenced the

targeted selector, and the communication fell into one of- specific categories oi` "abou "’

communications; or 3) despite the operation of the targeting procedures, United States persons or

persons inside the United States were rnistakenly targeted. § Docket No. _ \
 . But the Court now ttnderstaxids that, in addition to these 
connnunications, NSA’s ttpstreazn collection also acquires: a) the connnuiiicatioris oi`United l
States persons and persons in the United States that are not to, frorn, or about a taslced selector

and that are acquired solely because the communication is contained within an MCT that

sornevvlrere references a tasl<;ed selector- 

g and b) any hiternet transaction that references a targeted selector, regardless of

whether the transaction falls within one of the- previously identified categories of "about

cornmunications,” see Ju.ne 1 Sttbmission at 24-27.  

 

On the current record, it is difficult to assess how many MCTS acquired by NSA actually
contain a comrnunicatioil oi`or concerning a United States person,” or a communication to or
front a person in the United States. This is because NSA’s manual review of its upstream

collection focused primarily on wholly doxnestic communications ~ _i;e., if one party to the

35 NSA’S rninimization procedures define "[c]ommtmications oi" a United States person"
to include "all cornmunications to which a United States person is a party." NSA Minirnization
Procedures § 2(0). "Cornmtniieations concerning a United States person" include "all
communications in which a United States person is discussed or mentioned, except where such
coinrnunicatioiis reveal only publicly~available information about the person. Li. § 2(b).

 
5 Page 36

 

communication was determined to be outside the United States, the communication was not

further analyzed. Aug. 16 Submission at l»~2. Nevertheless, NSA’s manual review did consider

the location and id entity of the active user for each MCT acquired, and this information - when

considered to gather with certain presumptions ~ shows that NSA is likely acquiring tens of t
thousands of discrete communications of non-target United States persons and persons in the l
United States, by virtue of the fact that their coimnttn;icatioris are included in MCTs selected for

acquisition by NSA’S upstream collection devicesf"

To illustrate, based upon NSA’s analysis of the location and identity of the active user for
the MCTs it reviewed, MCTs can be divided into four categories: l

l. MCTs as to which the active user is the user of the tasked facility (i_._<;, the target of the
acquisition) and is reasonably believed to be located outside the United States;”

2. MC'I`S as to which the active user is a non~target who is believed to be located inside
the United States;

3. _MCTs as to which the active user is a non-target who is believed to be located outside
the United States; and

35 Altliough there is some overlap between this category of communications and the tens
of thousands of wholly dornestio communications discussed above, the overlap is limited to
l\/ICTs containing wholly domestic communications To the extent that the wholly domestic
communications acquired are SCTs, they are excluded from the MCTs referenced here.
Sirnilarly, to the extent communications of non~target United States persons and persons in the
United States that are contained within the tens of thousands of l\/lCTs referenced here are not
wholly domestic, they would not be included in the wholly domestic communications referenced
above.

37 Although it is possible for an active user target to be located in the United States,
NSA’s targeting procedures require NSA to terminate collection if it determines that a target has
entered the United States. NSA Targeting Procedtu'es at 7~8. Accordingly, the Court excludes
this potential category from its analysis

 
’ Page 3 7

 

4. MCTs as to which the active user’s identity or location cannot be determined.
Aug. 16 Subinission at 4-8.

With regard to the first category, if the target is the active user, then it is reasonable to
presume that all of the discrete communications within an l\/IC'I` will be to or horn the target
Altlrough United States persons and persons in the United States rnay be party to any of those _
communications, NSA’s acquisition of such communications is of less concern than the
corrununications described in the following categories because the cornrnunicants were in direct
communication with a tasked t`acility, and the acquisition presumptively serves the foreign
intelligence purpose of the collection. NSA acquires roughly 300~400 thousand such MCTs per
year.ss

For the second category, since the active user is a non~target who is located inside the
United States, there is no reason to believe that all of the discrete communications contained
within the MCTs will be to, i"rom, or about the targeted selector (althougli there would need to be
at least one such communication in order for NSA’s upstream devices to acquire the transaction).
Ftlrtlier, because the active user is in the United States, the Couxt presumes that the majority of
that person’s communications will be with other persons in the United States, inany of whom
will be United States persons. NSA acquires approximately 7,000~8,000 such MCTs per year,

each of which likely contains one or more non-target discrete coinmunications to or from other

38 NSA acquired between 168,853 and 206,922 MCTs as to which the active user was the
target over the six-rnonth period covered by the sample Aug. 16 Submissioii at 9.

 
Page 38

 

persons in the United States.”

The third category is similar to the second in that the active user is a non~target.
Therefore, there is no reason to believe that all of the communications within the MCTs will be
to, from, or about the targeted selector (althougli there would ireed to be at least one such
cornmunication in order for NSA’s upstream devices to acquire the transaction). However,
because the active user is believed to be located outside the United States, the Court presumes
that most of that persons’s communications will be with other persons who are outside the
United States, most of whom will be non~United States persons. That said, the Court notes that
some of these MCTs are likely to contain non~target connnunicatiorrs of or concerning United
States persons, or that are to or nom a person in the United States.‘l° The Court lies no way of
knowing precisely how many such cornnrnnicatiozis are acquired Nevertheless, it appears that

NSA acquires at least l.3 million stroh l\/ICTs each year,‘" so even if only 1% of these l\/iCTs

39 In its manual review, NSA identified ten MC'I`s as to which the active user was in the
United States and that contained at least one wholly domestic comrnunication. §g_e Aug. 16
Submission at 5-'7. NSA also identified seven additional MCTs as to which the active user was
in the United States. Li. at 5 . Althotrglr NSA determined that at least one party to each of the
communications within the seven MCTs was reasonably believed to be located outside the
United States, NSA did not indicate whether any of the communicants were United States
persons or persons in the United States. I_cL The Couit sees no reason to treat these two
categories of MC’l`s differently because the active users for both were in the United States.
Seventecn MCTs constitutes .3% of the MCTs reviewed (5,081), and .3% of the 129-139
million MCTs NSA acquires every six months (_s_ee E, at 8) is 3,870» 4,170, or 7,740~8,340 every
year.

"° The government has acknowledged as much in its submissions §§ june 28
Submission at 5.

‘" Based on its manual review, NSA assessed that 26 68 ofthe 5,081 MCTs reviewed
. ' (continued...)

 
~ - z

Page 39

(b)(l)» (b)(~°>)

 

contain a single non-target communication of or concerning a United States person, or that is to
or from a person in the United States, NSA would be acquiring in excess of 10,000 additional
discrete conmzurucatiolis each year that are of or concerning limited States persons, or that are to
or froxn a person in the United States.

The fourth category is the most problematic, because without the identity of the active
user ~ ,i_.g, whether the user is the target or a non-target ~ or the active user’s location, it is
difficult to determine what presumptions to make about these MCTs. NSA acquires
approximately 97,000-140,000 such MCTs each year.‘” In the context of wholly dornestic
cornrnunications, the government rtrges the Court to apply a series of presumptions that lead to
the conclusion that this category would not contain any wholly domestic communications. Aug.
30 Submissiozi at 4~8. The Court questions the validity of those presumptions, as applied to
wholly domestic cotnm\mications, but certainly is not inclined to apply them to assessing the
likelihood that MCTs might contain communications of or concerning United States persons, or

communications to or from persons in the United States. The active users for some oi` these

‘"(...continued)

(approxirnately 52%) had a non-target active user who was reasonably believed to be located
outside the United States. Aug. 16 Subn)ission at 4-5. Fifty-two percent of the 129 to 139
million MCTs that NSA assessed were acquired through its upstream collection every six months
would work out to 67 0,800 ~ 7 22,800 MCTs, or approximately 1.3-1.4 lnillion MCTs per year
that have a iron-target active user believed to be located outside the United States.

42 NSA determined that 224 MCTs of the 5,081 MCTS acquired during a six-month

  
   
 

period
From this, NSA concluded that it acquired between 48,609

and 70,168 such MCTs every six months through its upstream collection (or approximately
97,000-140,000 such MCTs each year). Ll. at 9 n.27.

 
, Page 40

 

MC'l`s may be located in the United States, and, even if the active user is located overseas, the
MC'l's may contain non-target communications of or concerning United States persons or that are
to or from persons in the United States. Accordingly, this “unlcnown" category likely adds
substantially to the number of non-target communications of or concerning United States persons
or that are to or from persons in the United States being acquired by NSA each year.

In sum, then, NSA’s upstream collection is a small, but unique part of the government’s
overall collection under Section 702 of the FAA. NSA acquires valuable information through its
upstream collection, but not without substantial hitrusions on Fourth Amendment-protected
interests Indeed, the record before this Court establishes that NSA’s acquisition oflnternet
transactions likely results in NSA acquiring annually tens of thousands of wholly clomestic
corr)muirications, and tens of thousands of non-target communications of persons who have little
or no relationship to the target but who are protected tinder the Fourth Amendment. Both
acquisitions raise questions as to whether NSA’s targeting and minimization procedures comport
with FISA and the Fourth Amerrdmerit.

2. §SA’s 'I`argetirig Procedures

The Court will first consider whether NSA’s acquisition of Internet transactions through
its upstream collection, as described above, means that NSA’s targeting procedures, as
implemen.ted, are not "reasonably designed" to: l) "ensttre that any acquisition authorized under
[the eertiiications] is limited to targeting persons reasonably believed to be located outside the
United States"; and 2) "prevent the intentional acquisition of any connnutricatiori as to which the
sender and all intended recipients are known at the time of the acquisition to be located in the

 
` g » Page 41

(b)(i), (b)(3)

 
United States." 50 U.S.C. § ifif_§ia(d)(l); i_c_L § (i)(Z)(B)'. The Court concludes that the manner in

which NSA is currently implementing the targeting procedures does not prevent the Court from
making the necessary findings, and hence NSA’S targeting procedures do not offend FISA.

a. Tar'getz'ng Farsons Reasonabb) Believed to be Locatea’
Ouzis‘z'de the United Staz‘es

'l`o the extent NSA is acquiring Internet transactions that contain a single discrete
communication that is to, i;`rom, or about a tasked selector, the Court’s previous analysis remains
valid. As explained in greater detail in the Couit’s Septeinbel‘ 4, 2008 i\/Iernoranduin Opinion, in

this setting the person being targeted is the user of the tasked selector, and NSA’s pre-targeting

' and post-targeting procedures ensure that NSA will only acquire such transactions so long as

there is a reasonable belief that the target is located outside the United States. Dccket No.
 -

But NSA’s acquisition of MCTs complicates the Court’s analysis somewhat. With regard
to "about" communications, the Court previously found that the user oi` the tasked facility was
the "target" of the acquisition, because the government’s purpose in acquiring such
communications is to obtain information about that user. we i_cL at 18. Moreover, the
communication is not acquired because the government has any interest in the parties to the
communication, other than their potential relationship to the user of the tasl<;ed facility, and the
parties to an "about" conmiuriication do not become targets unless and until they are separately
vetted under the targeting procedures § i_d. at ]8~19.

In the case of "about” MCTs - L, MCTs that are acquired because a targeted selector is

referenced somewhere in the transaction ~ NSA acquires not only the discrete connnmiication

 
Page 42

(b)(i), (b)(?>)

 

that references the tasked seiector, but also in many cases the contents of other discrete
communications that do not reference the taslce'd selector and to which no target is a party. §_e_g
l\/iay 2 Letter at 2~3   By acquiring such MCTS, NSA likely
acquires tens of thousands of additional communications ofnon~ta:rgets each year, many of
whom have no relationship whatsoever with the user of the taslced Selectcr. While the Court has
con.ceins about NSA’s acquisition of these iion~target communications, the Court accepts the

governmcnt’s representation that the "sole reason [a non-target’s MCT] is selected for

acquisition is that it contains the presence o.t` a tasked selector used by a person who has been
subjected to NSA’s targeting procedures." June l Suhmission at 4. Moreover, at the time of 
acquisition, NSA’s upstream collection devices often lack the capability to determine whether a f
transaction contains a single comrnlxnication or multiple communications, or to identify the
parties to any particular communication within a transaction § i_d. Therefore, the Court has
no reason to believe that NSA, by acquiring Internet transactions containing multiple
cornmutiications, is targeting anyone other than the user of the taslced seleotor. §e_e United States
 , 272 U.S. l, 14~15 (1926) (‘°Tlie presumption of regularity supports the
official acts of public ofticers, and, in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official duties."). §
b. Acquz'siz‘z'on of Wholly Dome.rtic Commz¢nicaz‘z'ons =
NSA’s acquisition of Iriternet transactions complicates the analysis required by Secticn
188 1 a(d)(l)(B), since the record shows that the government knowingly acquires tens of 
thousands of wholly doinestic communications each year. At first blush, it might seem obvious §

 
, Page 43

(b)(l), (b)(?>)

 

that targeting procedures that permit such acquisitions could not be "reasonably designed . . . to
prevent the intentional acquisition of any communication as to which the sender and all intended
recipients are known at the time of the acquisition to be located in the United States." 50 U.S.C.
§ 1881a(d)(l)(B). However, a closer examination of the language of the statute leads the Court
to a different conclusion

The government focuses primarily on the "intelitional acquisition" language in Section
1881£1(<:`{)(1)(]3). Specitically, the government argues that NSA is not "intentionally" acquiring
wholly domestic communications because the government does not intend to acquire transactions
containing communications that are wholly domestic and has implemented technical means to
prevent the acquisition of such transactions §_eg June 28 Subrriission at 12. This argument fails
for several reasons.

NSA targets a person under Section 702 certifications by acquiring communications to,
from, or about a selector used by that person. Therei`ore, to the extent NSA’S upstream collection
devices acquire an lnternet transaction containing a single, discrete connnunication that is to,
irom, or about a tasl589 F.3d 520
, 528 (lst Cir. 2009) (in criminal law, "‘intent’ ordinarily
requires only that the defendant reasonably knew the proscribed result would occur” , @“_L
denied, 
130 S. Ct. 2422
 (2010).

 

 

l Page 46

(b)(l), (b)(3)

 
acquisition to be located in the United States." 50 U.S.C. § ISSla(d)(I)(B) (ernphasis added).

The underscored language requires an acquisition-by-acquisition inquiry. Thus, the Court must
consider whether, at the time NSA intentionally acquires a transaction through its upstream
collection, NSA will know that the sender and all intended recipients of any particular
communication within that transaction are located in the United States.

Preseirtly, it is not technically possible i`or NSA to coniigure its upstream collection

devices

  the practical

effect of this technological limitation is that NSA cannot know at the time it acquires an lnternet
transaction whether the sender and ali intended recipients of any particular discrete

communication contained within the transaction are located inside the United States.

"'* S_ee supg, note 33.

 
, Page 47

(b)(l), (b)(3)

'!ll|||l

Given that NSA’s upstream collection devices lack the capacity to detect wholly domestic
communications at the time an Internet transaction is acquired, the Court is inexorably led to the
conclusion that the targeting procedures are_"reasonably designed" to prevent the intentional
acquisition of any communication as to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United States. This is true despite the fact that
NSA knows with certainty that the upstream collection, viewed as a whole, results in the
acquisition of wholly domestic communications

By expanding its Section 702 acquisitions to include the acquisition of Interxiet
transactions through its upstream collection, NSA has, as a practical matter, circumvented the
spirit of Section 188la(b)(4) and (d)(l) with regard to'that collection. NSA’s knowing
acquisition of tens of thousands of wholly domestic communications through its ttpstreain
collection is a cause of concern for the Cottrt. Bttt the meaning of the relevant statutory provision
is clear and application to the facts before the Court does not lead to an impossible or absurd

result The Couit’s review does not end with the targeting procedures, however. The Court must

 
, Page 48

 
also consider whether NSA’s rm'nimization procedures are consistent with §1881a(e)(l) and
whether NSA’s targeting and ininiinization procedures are consistent with the requireineiits of
the Fourth Amendlnent.
3. NSA’s Miniinization Procedures, As Applied to MCTs in the Manner
Proposed by the Govermnent, Do Not Meet FlSA’s Detinition___of
“Miiiiniization Procedures"

The Court next considers whether NSA’s miniinization procedures, as the government
proposes to apply them to lnternet transactions, meet the statutory requirements As noted above,
50 U.S .C. § l881a(e)(l) requires that the minimization procedures "meet the definition of
minimization procedures under [dO U.S.C. §§] 1801(h) or 1821(4) . . . ." 'I`hat definition requires
"speciiic 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 iionptiblicly

available information concerning uncousenting United States persons consistent with the need of

the United States t_o obtain, prodtice, and disseminate foreign intelligence information." 50

~U.S.C. §§ l801(h)(l) & 182l(4)(A). For the reasons stated below, the Court concludes that

NSA’s rninirnization procedures, as applied to MCTs in the manner proposed by the government,
do not meet the statutory definition in all respects
cz. The Minimz'zaz.‘z'on Framework

NSA’s minimization procedures dc not expressly conteniplate the acquisition of MCTs,
and the language of the procedures does not lend itself to straightforward application to MCTs.
Most notably, various provisions of the NSA rriiniinizatioii procedures employ the term

 9Ri*l-~
~ Page 49

 

"communication" as an operative term. As explained below, for instance, the rules governing
retention, handling, and dissemination vary depending whether or not a communication is
deemed to constitute a "domestic communication" instead of a "foreign cormnunication," w_e
NSA Minimizatioii Procedures §§ Z(e), 5, 6, 7; a coinmunication "of’ or "concerning" a U.S.
person, s_ee i_d_. §§ Z(b)-(c), ?>(b)(l )-(2), 3(0); a "connnunioation to, froin, or about a target," §§
§ S(b)(¢l); or a "cominunication. . . reasonably believed to contain foreign intelligence
information or evidence cfa crime," id_. But l\/ICTS can be fairly described as coinmuriicatioiis
that contain several sinaller communications Applying the terms of the NSA tninimization
procedures to MCTs rather than discrete communications can produce very different results
ln a recent submission, the government explained how NSA proposes to apply its

ininiiniaatioii procedures to MCTs. §_ee Aug. 30 Submission at 8-1 l.""‘ Before discussing the
measures proposed by the government for handling MCTs, it is helpful to begin with a brief
overview of the NSA minimization procedures themselves The procedures require that all
acquisitions "will be conducted in a manner designed, to the greatest extent feasible, to minimize

the acquisition of information not relevant to the authorized purpose of the collection." NSA

45 Although NSA has been collecting MCTs since before the Court’s approval of the first
Section 7 02 certihcation in 2008, g june l Siibinissioii at 2, it has not, to date, applied the
measures proposed hereto the units of its upstream collection. Indeed, until NSA’s manual
review of a six~month sample of its upstream collection revealed the acquisition of wholly
domestic communications, the government asserted that NSA had never found a wholly domestic
cornmunication in its upstream collection. lies i_d,

 
Page 50

 

Minimization Prooedutes § 3(@1)."° Following acquisition, tl1e procedures require that, "[a]s a
communication is reviewed, NSA analyst(s) will determine whether it is a domestic or foreign
communication to, ‘d'om, or about a target and is reasonably believed to contain foreign
intelligence information or evidence of a crime." id § 3(1))(4). "Foi‘eigii communication tneans
a conununication that has at least one cominunicant outside of the United States." LL § Z(e).
"All other communications, including communications in which the sender and all intended
recipients are reasonably believed to be located in the United States at the time of acquisiticn, are
domestic connntinications." ld_. In addition, domestic communications include "[a]iiy
ooinmtinications acquired through the targeting of a person who at the time of targeting was
reasonably believed to be located outside the United States but is in fact located inside the United
States at the time such cominunicatioiis were acquired, and any coinmuilications acquired by
targeting a person who at the time of the targeting was believed to be a non-United States person
but was in fact a United States person . . . ." §§ § S(d)(Z). A domestic communication must be
“protnptly destroyed ttpon recognition unless the Director (or Actiiig Director) of NSA

specifically determines, in writing, that” the coinmunication contains foreign intelligence

‘“‘ Of course, NSA’s separate targeting prooedures, discussed above, also govern the
manner in which communications are acquircd.

, Page 51

 
information or evidence of a crime, or that it falls into another narrow exception perinitting
retention § i_. § 5.4"

Upon determining that a communication is a "foreign communication," NSA must decide
whether the communication is "of” or "concerning" a United States person § § 6.
"Communications of a United States person include all communications to which a United States
person is a party." _Igl_. § 2(0). "Ccmmuriications concerning a United States person include all
coinrnunications in which a United States person is discussed or mentioned, except where such
communications reveal only publicly-available intervention about the person." § § .’Z(b).

A foreign corninunication that is of or concerning a United States person and that is
determined to contain neither foreign intelligence information nor evidence of a crime must be

destroyed "at the earliest practicable point in the processing cycle,°’ and "may be retained no

longer than five years from the expiration date of the certification in any event," l_c_i_. § ?>(b)(`l).““

'" Once such a determination is made by the Direetor, the domestic communications at
issue are effectively treated as "foreign communications” for purposes of the rules regarding
retention and dissemination

48 Although Section ’;i(b)(l) by its terms applies only to "inadveitently acquired
communications of or concerning a United States person,” the government has informed the
Court that this provision is intended to apply, and in practice is applied, to al_l foreign
communications of or concerning United States persons that contain neither foreign intelligence
information nor evidence of a crime, Doclcet No. 702(i)~08-0l, Sept. 2, 2008 Notice of
Clariiication and Coirection at 3-5. l\/Ioreover, Section S(c) of the procedures separately provides
that foreign connnurricatioris that do not qualify for retention and that "are loiown to contain
communications of or concerning United States persons will be destroyed upon recognition,”
and, like unreviewed communications, "inay be retained no longer than five years from the

(contirrtled...)

 
Page 52

 

A foreign communication that is of or concerning a United States person may be retained
inclefrnitely if the "disseniination of such communications with reference to such United States
persons would be permitted" under the dissemination provisions that are discussed below, or  it
contains evidence of a crinie. i_d_. § 6(a)(2)-(3). if the retention of a foreign communication of or
concerning a United States person is "necessary for the niaiiitenaiice of technical databases," it
may be retained for five years to allow for technical exploitation, or for longer than five years if
more tirne is required for decryptiorr or the NSA Signals Iritelligeiice Direotor "deterrnirres in
writing that retention for a longer period is required to respond to authorized foreign intelligence
or oounterintelligence requirements.” I_d. § 6(2.)(1).
As a general iule, "[a] report based on communications of or concerning a United States

person may be disseminated" only "if the identity of the United States person is deleted and a
generic term or symbol is substituted so that the information cannot reasonably be connected
with an identifiable United States person." Ld_. § 6(b). A report including the identity_of the
United States person may be provided to a "recipierit requiring the identity of such person for the
performance of official duties," but only if at least one of eight requirements is also met - for
instance, if "the identity of the United States person is necessary to understand foreign

intelligence information or assess its importanoe," or if "ini`orrnation indicates the United States

"“(.. .continued)
expiration date of the certification authorizing the collection in any event."

Page 53

(b)(l), (b)(3)

 
person may be . . . an agent of a foreign power” or that he is "engaging in international terrorism
activities.” ,I_."*S'
b. Proposecl Mininzization Measures for MCTs
The government proposes that NSA’s minimization procedures be applied to MCTs in

the following manner. After acquisition, upstream acquisitions, including MCTs, will reside in
NSA repositcries until they are accessed (§g¢, in response to a qucry) by an NSA analyst
performing his or her day~to~day work. NSA proposes adding a "cautioiiary banner" to the tools
its analysts use to view the content of coimrninications acquired through upstream collection
under Section 702. §_ee Ang. 30 Submission at 9. The banner, which will be “broadly displayed
on [such] tools,” will "direct analysts to consult guidance on how to identify MCTs and how to
handle them.” I_d. at 9 & 11.6.5° Analysts will be trained to identify MC'l`s and to recognize
wholly domestic communications contained within MCTs. § ;d_. at 8-9.

When an analyst identifies an upstream acquisition as an MCT, the analyst will decide

' whether or not he or she "seek[s] to use a discrete communication within [the] MC'I`,’°

49 The procedures also permit NSA to provide unniiniinized communications to-
- FBI (subj ect to their own minimization procedures), and to foreign governments for the
limited ptnpose of obtaining "teohnical and linguistic assistanco." NSA Mininnization
Procedttres §§_6(0), S(b). Neither~ ofthese provisions has been used to share upstream
acquisitions. Sept. 7, 2011 Hearing Tr. at 61~62. _

50 The banner will not be displayed for communications that "can be first identified
through technical means where the active user is NSA’s tasl)

 
United States persons consistent with the need of the United States to obtain, produce, and

disseminate foreign intelligence ini`orinatioit.”§" _S_eg 50 U.S.C. §§ 1801(11)(1) & 1821(4)(/&).
iz'z`. Dis.s'eminaz‘ion
The Court next turns to dissemination At the outset, it must be noted that FISA imposes

a stricter standard for disseinination than for acquisition or retention While the statute requires
procedures that are reasonably designed to "rnininiize” the acquisition and retention of
information concerning United States persons consistent with the need of the United States to
obtain, produce, and disseminate foreign intelligence infornnation, the procedures must he
reasonably designed to "pi_'o_i@” the dissemination of information concerning United Statcs

persons consistent with that need. § 50 U.S.C. § i80i(h)(1) (emphasis added).

57 NSA’s iiiiniinization procedures contain two provisions that state, in part, that "[t]ire
communications that may be reained y NSA] incude eec'oni ooiunictions actiircd
beause f limitatios g

   
      

_ g _ . The government ftlrther' represented that it "ha[d] not seen" such a
circumstance in collection under the Protect America Act ("PAA""), which was the predecessor to
Section 702. Lci& at 29, 30. And although NSA apparently was acquiring internat transactions
under the PAA, the government niade no mention of such acquisitions in connection with these
provisions of the ininiinization procedures (or otherwise). §ee i;i, at 27-31. Accordingiy, the
Court does not read this language as purporting to justify the procedures proposed by the
government for MCTs, In any event, such a reading Wouid, for the reasons stated, be
inconsistent with the statutory requirements for niinimization.

Page 63

 

As the Court tniderstands it, no United States-person~identifyiiig information contained in
any MCT will be disseminated except in accordance with the general requirements of NSA’s
minimization procedures for "foreign oommunications" "of or concerning United States persons"
that are discussed above. Specitically, "[a] report based on coinmunications of or concerning a
United States person may be disseminated" only "if the identity of the United States person is
deleted and a generic term or symbol is substituted so that the information cannot reasonably be
connected with an identifiable United States person." NSA Mir)imization Procedures § 6(b). A
report including the identity of the United States person may be provided to a "recipient requiring
the identity of such person for the performance of official duties," but only if at least one of eight
requirements is also met - for instance, if "the identity of the United States person is necessary to
understand foreign intelligence information or assess its importance.” L”

This limitation on the dissemination of United States~persoii~identifying information is
helpful But the pertinent portion of FISA’s definition of minimization procedures applies not
merely to information that identifies United States persons, but more broadly to the
dissemination of "information concerning unconsenting United States persons." 50 U.S.Ci §

l801(h)(l) (emphasis added).§° The government has proposed several additional restrictions that

53 Although Section 6(b) uses the term "repoit," the Court understands it to apply to the
dissemination of United States-person-identifyiiig information in any form.

59 Another provision of the definition of ininimization procedures bars the dissemination
of information (other than certain forms of foreign intelligence information) “in a manner that
(continued. . .)

Page 64

 

will have the effect of limiting the dissemination of "nonpublicly available information
concerning unconsenting United States persons consistent with the need of the United States to
disseminate foreign intelligence inforrnation."’ ii First, as noted above, the government will
destroy MCTs that are recognized by analysts as containing one or more discrete wholly
domestic coinmunicatiozis. Second, the government has asserted that NSA will not use any
discrete communication within an MCT that is determined to be to or from a United States
person but iiot'to, froni, or about a targeted selector, except when iiecessary to protect against an
immediate threat to human life. _S_e_c_z Aug. 30 Submission at 9. The Court understands this to
inean, ainong other things, that no information from such a cornmuliicatiori will be disseminated
in any form unless NSA determines it is necessary to serve this specific purpose. Third, the
government has represented that whenever it is unable to confirm that at least one party to a
discrete communication contained in an MCT is located outside the United States, it will not use
any information contained in the discrete cornmunication, S__e_e_ Sept. 7 , 2011 Hearing Tr. at 52.
The Court understands this limitation to mean that no information from such a discrete
communication will be disseminated by NSA in any form.

Coininunicatioiis as to which a United States person or a person inside the United States

59(,,.continued)

identities any United States person," except when the person’s identity is necessary to understand
foreign intelligence information or to assess its importance. _S_e_e_ 50 U.S.C. §§ 1801(11)(2),
l82l(4)(b). Coiigress’s use of the distinct rnodit`ying terins "coircerning" and "identifying" in
two adjacent and closely-related provisions was presumably intended to have meaning §_eg, _e_.g._,
Russello v. United States, 
464 U.S. 16
, 23 (1933).

 
Page 65

 

is a party are more likely than other communications to contain information concerning United
States persons. And when such a communication is neither to, from, nor about a targeted facility,
it is highly unlikely that the "need of the United States to disseminate foreign intelligence
inforlnation" would be served by the dissemination of United States-person information
contained therein. Hence, taken together, these measures will tend to prohibit the dissemination
of information concerning unconsent:iiig United States persons when there is no foreign-
intelligence need to do so.°° Of oourse, the risk remains that irii"orrnation concerning United
States persons will not be recognized by NSA despite the good~faitli application cf the measures
it proposes But the Court cannot say that the risk is so great that it underinines the
reasonableness of the measures proposed by NSA with respect to the dissemination of

information concerning United States persons,“ Accordingiy, the Court concludes that NSA’s

6° Another rneasure that, on balance, is likely to mitigate somewhat the risk that
information concerning United States persons will be disseminated in the absence of a foreign-
inteliigerlce need is the recently-proposed prohibition on running queries of the Section 702
upstream collection using United States-person identiiiers. See Aug. 30 Subniission at 10-11.
To be sure, any queiy, including a query based on non-United States-person information, could
yield United States~person information Neverthe_less, it stands to reason that queries based on
information concerning United States persons are at least somewhat more likely than other
queries to yield United States-person information, insofar as information concerning United
States persons is not made available to anaiysts, it cannot be disseminated Of course, this
queryilig restriction does not address the retention problem that is discussed above.

'" in reaching this conclusion regarding the risk that information concerning United
States persons might be mistakenly clisseminated, the Court is inindful that by talcing additional
steps to minimize the retention of such information, NSA would also be reducing the likelihood
that it niight be disseminated when the government has no foreign intelligence need to do so.

 
1 Page 66

“(b)(l), `('bi)`(3)

 
lninimization procedures are reasonably designed to "prohibit the dissemlnation[] of nonpublicly
available information concerning unconsenting United States persons consistent with the need of
the United States to . . . disseminate foreign intelligence infonnation." _S_ee SO.U.S.C.
§ l80l(h)(1)."’2
4. NSA’S Targeting and Minimization Procedures Do Not, as

Applied to Ut)stream Collection that includes MCTs. Satisfv the
l§eguirements of the Fourth Amendment

The final question for the Court is whether the targeting and mininrization procedures are,
as applied to upstream collection that includes MCTs, consistent with the Fourth Arnendrnent.
gee 50 U.S.C. § lBBIa(i)(S)(A)-(B). The Fourth Amendlnent provides:

The right of the people to be secure in their persons, liouses, papers, and

efi`ects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath cr aflirmation,

and particularly describing the place to be searched, and the persons or things to

be seized.

The Court has assumed in the prior Section 702 Dockets that at least in some

cirouinstarices, account holders have a reasonable expectation of privacy in electronic

cornmunications, and hence that the acquisition of such communications can result in a "search”

_ or "seizure" within the meaning of the Fourth Amendment. §i¢.@> @g”" ]hocket No. j

 . The government accepts the proposition that the acquisition of

52 The Court further concludes that the NSA minirnization procedures, as the government
proposes to apply them to MCTs, satisfy the requirements of 50 U.S.C. §§ 1801(11)(2)»(3) and
1821(4)(}3)-(€). @ s_u;g, note 59 (discussing 50 U.S.C. §§ 1801(11)(2) & 1821(4)(13)). The
requirements of 50 U.S.C, §§ 180l(h)(4) and 1821(4)(])) are'inapplicable here.

 
Page 67

494 U.S. 259
, 271 (1990)
(recognizing that "aliens receive constitutional protections when they have come within the
territory of the United States and developed substantial connections with this country").
a. The Warrant Reqz¢z'rement
The Court has previously concluded that the acquisition of foreign intelligence

information pursuant to Section 702 falls within the “foreign intelligence exception" to the
warrant requirement of the Fourth Amendment, §§Q Docket No. §
:. The governrnent’s recent revelations regarding NSA’s acquisition of l\/lC'l` s
do not alter that conclusion To be sure, the Court now tinderstarids that, as a result of the
transactional nature of the upstr'earn collection, NSA acquires a substantially larger number of
communications of or concerning United States persons and persons inside the United States

than previously understood. Nevertheless, the collection as a whole is still directed at-

  conducted for the purpose of national security ~ a

Page 68

 

purpose going "‘Well beyond any garden~variety law enforcement objective."’ ,§e,_e id_. (quoting
ln re Directives, Docket No. OS-Ol, Opinion at 16 (FISA Ct. Rev, Aug, 22, 2008) (hereillafter
"In re Directives")).°$ Further, it remains true that the collection is undertaken in circumstances
in which there is a "‘high degree of probability that requiring a warrant would liinder the
government’ s ability to collect tirne~sensitive information and, thus, would impede the vital
national security interests that are at stake."’ _I_cl_, at 36 (quoting In re Directives at 18).
Accordingly, the government’s revelation that NSA acquires MCTs as part of its Section 702
tlpstream collection does not disturb the Court’s prior conclusion that the government is not
required to obtain a warrant before conducting acquisitions under NSA’s targeting and
minimization procedures
b. Reasonablene.s‘s

The question therefore becomes Whether, taking into account NSA’S acquisition and
proposed lrandling of MCTs, the agency’s targeting and minimization procedures are reasonable
under the Fottith Americlxiient. As the Foreign Inteiligence Suiveillaiice Court of Review ("Court
of Review") has explain.ed, a court assessing reasonableness in this context must consider "the
nature of the government intrusion and how the government intrusion is implemented. The inore

important the govermnent’s interest, the greater the intrusion that may be constitutionally

63 A redacted, cie-classified version of the opinion in 111 re Directives is published at 551
F.fid 1004. The citations herein are to the mtredacted, classified version of the opinion

Page 69

 
tolerated." In re Directives at 19~20 (citations orriitted), quoted in Docket No_

:. The court must therefore

balance the interests at stake If the protections that are in place for individual
privacy interests are sufficient in light of the government interest at stalce, the
constitutional scales will tilt in favor of upholding the governrnent’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.

Ll. at 20 (citatioris ornitted), quoted in Doci"ly“l’ l  l l

l(t>} l536 U.S. 822
, 832 (2002); Vernonia
sen met 471 v. Aetee, 515 U.s, 646, 659 (1995). ne issue here are the perseeei:
communications ofU.S. persons and persons in the United States. A pereon’s “papers” are
among the four items that are specifically listed in the Fourth Arnendment as subject to

protection against unreasonable search and seizure. whether they are transmitted by letter,

'Page 73

telephone or e~rna.il, a person’s private coinmunications are akin to personal papers. lndeed, the
Supreme Court has held that the parties to telephone coinmunications and the sanders and
recipients of written communications generally have a reasonable expectation of privacy in the
contents of those communications §§;q K_z_tt;, 389 U,S. at 352; United States y. United §tates
Dist. Ct. (Keith), 
407 U.S. 297
, 313 (1972)‘, United States y, Jacobsen, 466 U.S, 109, 114 (1984).
The intrusion resulting nom the ir'lterception of the contents of electronic communications is,
generally speal436 U.S.

128
, 130~31 (1978), United States v. McKiniioii, 721 F.Zd 19, 23 (l st Cir. 1983), and United
States v. Doolittle, 507 F.Zd 1368, 1371, aff’d en banc, 518 F.Zd 500 (Sth Cir. 19'75).

Page 76

130 S. Ct. 2619
, 2632
(2010) (citatioiis and internal quotation lnai‘ks omitted). The foregoing discussion should not be
understood to suggest otherwise Rather, the Court holds only that the ineans actually chosen by
the government to accomplish its Section 702 tlpstreain collection are, with respect to MCTs,
excessively intrusive in light of the purpose of the collection as a whole.

Page 79

(b)(i'l}"("t$‘)“(§`)”%“”`w"””

l l i(i>i)`(l )§l(|5l)l(3)

2, As applied to telephone cominuilicatioiis and discrete Ititeinet communications that
are to or from a facility tasked for collection, to iioii~l\/ICT "about" communications falling
within thl categories previously described by the goveinment,"° and to MCTs as to which the
"active user” is known to be a tasked selector, the targeting and ininiinizatioit procedures adopted
in accordance with 50 U.S.C. § 1881a(d)-(e) are consistent vvith the requirements of those
subsections and with the Fourth Arnendment to the Constitution of the United States;

3, NSA’s targeting procedures as the government proposes to implement them in
connection with the acquisition of MCTs, meet the requirements of 50 U.S.C. § 188121(1:1);

4. NSA’s ininimization procedures, as the government proposes to apply them to MCTs
as to which the "active user" is not known to be a tasked seleotor, do not meet the requirements
of 50 U.S.C. § l881a(e) with respect to retention; and

5 . NSA’s targeting and minimization procedures, as the government proposes to apply
them to MCTs as to whiclt the "active tiser” is not known to be a tasked selector, are inconsistent

with the requirements of the Fourth Anieiidinent.

““ see Dc@kef Ne 

Page 80

 

Orders approving the certifications and amendments in part are being entered
contemporaneously herewith

EN'I'ERED this Brd day of October, 201 1.

sitr,@ »@r~,_g

Jo’HN 1). nATEs
Jtzdge, United States Foreign_
intelligence Surveillance Court

D@I)\\ly Ci&l'l{, l v pa
ge 8 l
{)LSC, certify that this docum;nt
lessee and correctoopy° (b)(6)
the original-

l"(“b')i(i`)/§'(b~>'(*b`>i  v

 

UNITED STATES

FOREIGN ]NTELLIGENCE SURVEILLANCE COURT

WASH]NGTON, D.C, l

ORDER

These matters are before the Court on: (1) the "Government’s Ex Parte Submission of

Reauthorization Certification and Rela‘ced Proceduxes, Ex Parte Submission of Amended

Certifications, and Request foran Order Approving Such Certification and Amended

Certifications" for DNI/AG 702(g) C_ertifications; which was filed

 

  "(FT»<‘B$(SY> w  "

sense

on April 20, 2011; (2) the "Governxnent’s Ex Parte Subnrtission of Reauthorization Certitication
and Related Procedures, Ex Parte Submission of Amended Certit`lcations, and Request for an
Order Approving Such Certitioation and Amended Certit'tcations" for DNI/AG 702(§)
Ccrtitications  which was filed on April 22, !2011; and (3)
the "Govermnent’s Ex Parte Submission of Reauthot'ization Certit`ication and Related
Procedurcs, Ex Parte Subinissicn ofAmended Certiiications, and Request for an Order

Approving Such Certitication and Amended Certiiications” for DNI/AG 702(g) Certitications

  which was also filed on April 22, 2011 (collcctively, the

"April 2011 Submissions").

Through the April 2011 Submissions, the government seeks approval of the acquisition of
certain tefephone and Intexnet communications pursuant to Section 702 of the Foreign
intelligence Survcillance Act ("FISA” ortho "Act"), 50 U.S.C. § 188la, which requires judicial
review for compliance with both statutory and constitutional requirements. For the reasons set
forth in the accompanying l.\/iernorandllm Opinion, the government’s requests for approval are
granted in part and denied in pznt. The Court concludes tliat one aspect of the proposed
collection ~ the "upstremn collection" of Inteznet transactions containing multiple
communications, or "MCTs" - is, in some respects, deficient on statutory and constitutional

grounds Spccitically, the Court finds as follows:

l. DNI/AG 702(5) Ce1tii`1cations  as well as the

amendments to the other certifications listed above and contained in the April 2011 Subrnissions,

-  
’ Page 2



 

contain all the required elcments;

2. As applied to telephone communications and discrete internat communications that
are to or from a facility tasked for collecticn, to non~MCT "about" communications falling
within the -categories previously described by the govemment,‘ and to MCTs as to which the
“active user" is known to be a taskcd selector, the targeting and nn'nirnization procedures adopted
in accordance with 50 U,S.C. § 1881a(d)-(e) are consistent with the requirements of those
subsections imd with the Fourth Arnendmeiit to the Constitution of the United States;

3. NSA’S targeting pi'ocedures, as the government proposes to implement them in
connection with the acquisition of MCTs, meet the requirements of 50 U.S.C. § 188ia(d);

4. NSA’s mininiizatioii prooedures, as the government proposes to apply them to MCTs
as to which the "active user" i's not known to be a taslced selector, do not meet the requirements
of 50 U.S.C. § l881a(c) with respect to retention; and

5. NSA’s targeting and miniinization procedures, as the government proposes to apply
them to MCTs as to which the "active user" is not known to be a tasl`Y(F*)§”(E>“F<@”)Y"iiii; i *mm