Certification of Question of Law to the Foreign Intelligence Surveillance Court of Review

OCR transcription for search; preserved printed pages are authoritative

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Eller
United States Foreign
Intelligence Surveillance Court

UNITED STATES

FEB 12 2016

# FOREIGN INTELLIGENCE SURVEILLANCE COURT LeeAnn Flynn Hall, Clerk of Court

WASHINGTON, D.C.

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IN

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A U.S. PERSON.

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Docket Number: PR/TT 2016-

## CERTIFICATION OF QUESTION OF LAW TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW

Pursuant to 50 U.S.C. § 1803(j) and for the reasons explained below, the Court hereby
certifies to the Foreign Intelligence Surveillance Court of Review ("FISCR") a question of law
respecting the acquisition of post-cut-through digits by pen register/trap and trace ("PR/TT")
devices authorized under 50 U.S.C. § 1842.

Procedural History

On January 21, 2016, in the above-captioned docket, the undersigned judge of the Foreign
Intelligence Surveillance Court ("FISC") approved an Application for Pen Register and Trap and
Trace Device(s) ("Jan. 21, 2016 Application") upon finding that it met the requirements for a
PR/TT authorization under the applicable provisions of the Foreign Intelligence Surveillance Act
("FISA"), which are codified at 50 U.S.C. § 1842(b), (c). See Docket No. PR/TT 2016
Primary Order for Pen Register and Trap and Trace Device(s) ("Jan. 21, 2016 Primary Order") at
1-2. The resulting authorization, which expires on April 19, 2016, provides for the installation

and use of PR/TT devices on a cellular telephone number used by

with the assistance of the provider for that number,

See id. at 3-7.

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As requested by the Government, see Jan. 21, 2016 Application at 28, the Jan. 21, 2016
Primary Order granted "the authority to record and decode all post-cut-through digits, as
described in the Government's Verified Memorandum of Law Regarding the Collection of Post-
Cut-Through Digits Through Telephone Pen Register Surveillance Under the Foreign
Intelligence Surveillance Act, filed with the Court on August 17, 2009, in Docket Numbers
PR/TT 09-36, PR/TT 09-37, and PR/TT 09-38." Jan. 21, 2016 Primary Order at 3. It further
provided that the Government "shall not make any affirmative investigative use of post-cut-
through digits acquired through pen register authorization that do not constitute call dialing,
routing, addressing or signaling information, unless separately authorized by this Court." Id. A
secondary order to
directed it to "furnish . . . all information, facilities, or
technical assistance necessary to accomplish the installation and operation of the [PR/TT]
device(s)," to "include the recording and decoding of all post-cut-through digits." See Docket
No. PR/TT 16
☒
Secondary Order Authorizing the Installation and Use of Pen Register and
Trap and Trace Device(s) ("Jan. 21, 2016 Secondary Order") at 2-3.

The above-described authorization was consistent with prior FISC practice. Since 2006
FISC judges have issued PR/TT orders under 50 U.S.C. § 1842 that, at the Government's
request, authorize acquisition of all post-cut-through digits, while generally prohibiting use of
those digits that are not dialing, routing, addressing or signaling ("DRAS") information unless
additional authorization is obtained from the FISC.1

1
The Government has never sought FISC authorization to use such information. The FISC-
imposed prohibition on use varies from the language typically proposed by the Government, which
would prohibit "any affirmative investigative use of post-cut-through digits acquired through pen
(continued ... )

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SECRETFORCON/NOTURN

Post-Cut-Through Digits

Post-cut-through digits are digits entered by a caller after a phone call has been initially
placed (or "cut through"). Sometimes those digits represent instructions about processing the
call to the number the caller is ultimately trying to reach: for example, a caller connects with an
international calling card service, then is prompted to enter the number of the person with whom
the caller actually wants to speak. Other times, those digits can represent substantive content
unrelated to processing a phone call: for example, a caller connects with a bank's automated
service and, in response to prompts, enters digits that signify, "Transfer $1000 from my savings
account to my checking account."

In the calling-card example, the post-cut-through digits are non-content DRAS
information. In the banking example, the post-cut-through digits are not DRAS information, but
rather the substantive contents of a communication that are unrelated to processing a phone call.
This distinction is significant under applicable statutory provisions.

FISA incorporates by reference the definitions of "pen register" and "trap and trace
device" that appear at 18 U.S.C. § 3127. See 50 U.S.C. § 1841(2). "Pen register" is defined in
relevant part as "a device or process which records or decodes dialing, routing, addressing, or
signaling information transmitted by an instrument or facility from which a wire or electronic
communication is transmitted, provided, however, that such information shall not include the

'( ... continued)

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## ARCHAIMARAANALARADN DUCRETTONIRTOR

contents of any communication . .. . " 18 U.S.C. § 3127(3) (emphasis added).2 Under the
applicable definition of the term, "contents" "includes any information concerning the substance,
purport, or meaning" of a "wire, oral, or electronic communication." See 18 U.S.C. §§ 2510(8),
3127(1).

FISC Practice

In May 2006, the Government first submitted to the FISC a brief addressing the
lawfulness of acquiring post-cut-through digits under PR/TT orders. See Docket Nos. PR/TT
2009-36, PR/TT 2009-37, and PR/TT 2009-38, Verified Memorandum of Law in Response to
the Court's June 18, 2009 Supplemental Order filed on Aug. 17, 2009 ("Aug. 17, 2009
Memorandum") at 2-3. On July 27, 2006, the Court ordered the Government to submit another
brief regarding Magistrate Judge Smith's decision on post-cut-through digits, which was reported
as In re Application of the United States, 441 F. Supp.2d 816 (S.D. Tex. 2006). Aug. 17, 2009
Memorandum at 4. The Government filed a responsive brief on September 25, 2006. Id. at 4-5.

As discussed below, the Government's argument in favor of acquiring post-cut-through
digits under PR/TT orders depends on the current state of technology. On June 18, 2009, the
Court directed the Government to update the technological representations it had made in its

2 Similarly, "trap and trace device" is defined as

a device or process which captures the incoming electronic or other impulses which
identify the originating number or other dialing, routing, addressing, and signaling
information reasonably likely to identify the source of a wire or electronic
communication, provided, however, that such information shall not include the
contents of any communication.

18 U.S.C. § 3127(4).

AHADELLARAANNALADN
DEURETURNTOTIT

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2006 submissions, as well as its legal arguments in view of additional decisions regarding post-
cut-through digits. See Docket Nos. PR/TT 2009-36, PR/TT 2009-37, and PR/TT 2009-38,
Supplemental Order issued on June 18, 2009, at 3-4. In response to that order, the Government
submitted its Aug. 17, 2009 Memorandum, which remains its most extensive submission to the
FISC regarding post-cut-through digits. The Government continues to rely on the Aug. 17, 2009
Memorandum when it seeks FISC authorization to acquire post-cut-through digits under 50
U.S.C. § 1842. See, e.g., Jan. 21, 2016 Application at 28.

On July 8, 2015, the Court again ordered the Government to provide an update on the
state of relevant technology. See Docket No. PR/TT 2015-53, Supplemental Order issued on
July 8, 2015. The Government made a responsive submission on October 2, 2015. See Docket
No. PR/TT 2015-53, Submission Regarding Post-Cut-Through Digits filed on Oct. 2, 2015
("Oct. 2, 2015 Submission").

On October 29, 2015, in conjunction with entertaining the immediately prior application
for
the Court ordered the Government to submit a brief addressing, among other things,
the lawfulness of acquiring post-cut-through digits under PR/TT orders. See Docket No. PR/TT
2015-78, Supplemental Order issued on Oct. 29, 2015. That briefing order was issued after the
FISC judges discussed the issues presented by post-cut-through digits at their semi-annual
conference on October 27, 2015. Id. at 1. Following that discussion, it was the consensus of the
judges that further briefing was warranted in view of concerns expressed by some judges about
continuing to authorize the acquisition of post-cut-through digits under PR/TT orders.

The Government submitted a brief in response to that order on January 15, 2016. See
Docket No. PR/TT 2015-78, Brief in Response to the Court's October 29, 2015 Supplemental

APARATLARGONNALOON
QUALITVRWYNIKIVAN

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Order filed on Jan. 15, 2016 ("Jan. 15, 2016 Brief").

### Statutory Rationale for Authorizing Acquisition of Post-Cut-Through Digits

To date, there has been no FISC opinion explaining a judge's rationale for authorizing the
acquisition of post-cut-through digits under 50 U.S.C. § 1842. In granting such authorizations,
FISC judges have accepted the Government's principal statutory argument, which hinges on 18
U.S.C. § 3121(c). See Jan. 15, 2016 Brief at 14-18, 20-23; Aug. 17, 2009 Memorandum at 33-
34, 36-38, 43-52, 62-67. That provision reads as follows:

Limitation .- A government agency authorized to install and use a pen
register or trap and trace device under this chapter[3] or under State law shall use
technology reasonably available to it that restricts the recording or decoding of
electronic or other impulses to the dialing, routing, addressing, and signaling
information utilized in the processing and transmitting of wire or electronic
communications so as not to include the contents of any wire or electronic
communications.

18 U.S.C. § 3121(c) (emphasis added).

The government represents that there is no technology reasonably available to it that
would permit a PR/TT device at the time of acquisition to distinguish between post-cut-through

3 FISC orders issued under 50 U.S.C. § 1842 are not, strictly speaking, "issued under" the
chapter referenced in Section 3121(c) (i.e., chapter 206 of Title 18 of the United States Code).
FISC judges have accepted that § 3121(c) applies in the FISA context because there is no indication
that Congress, having adopted for purposes of § 1842 the Title 18 definitions of "pen register" and
"trap and trace device," nevertheless intended PR/TT devices to operate differently under a § 1842
order than under an order issued under 18 U.S.C. § 3123.

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## DEVRETTIVACONTROTURN

digits that are non-content DRAS information used in processing a phone call (e.g., the calling-
card example) from post-cut-through digits that are not DRAS information, but instead are
contents unrelated to processing a phone call (e.g., the banking example). See Oct. 2, 2015
Submission at 4. Nor, according to the Government, is there a reasonably available technology
that would allow it, at the time it receives data collected by a PR/TT device and without further
analysis, to discard the digits that constitute contents and retain only the non-content DRAS
information. Id. at 4-5. On the reading proposed by the Government and accepted by FISC
judges, Section 3121(c) permits the Government to obtain all post-cut-through digits in the
absence of such reasonably available technology, at least when the affirmative investigative use
of contents is prohibited as described above. See Jan. 15, 2016 Brief at 13-18, 20-23.

### Fourth Amendment Issues

The acquisition of post-cut-through digits that constitute contents also has constitutional
implications. The use of a PR/TT device to acquire digits entered by a caller in order to place a
phone call does not intrude on a reasonable expectation of privacy and does not constitute a
search under the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 741-46 (1979). In
contrast, the use of a device to acquire the contents of private phone communications, at least as
a general rule, does constitute a search under the Fourth Amendment. See Katz v. United States,
389 U.S. 347, 351-53 (1967).

The Government nonetheless argues that the acquisition of contents digits pursuant to a
FISA PR/TT order comports with Fourth Amendment requirements. In the Government's view,
the "national security" exception to the Fourth Amendment's warrant requirement is applicable.
See Jan. 15, 2016 Brief at 7; Aug. 17, 2009 Memorandum at 69-70. Nevertheless, the Fourth

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Amendment requires that all searches be reasonable, including those that may be conducted
without a warrant. See In re Directives, 551 F.3d 1004, 1012 (FISCR 2008). Assessing
reasonableness under the Fourth Amendment "requires the court to balance the interests at
stake." Id. The "reasonableness of a search is determined 'by assessing, on the one hand, the
degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it
is needed for the promotion of legitimate governmental interests." United States v. Knights, 534
U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). "The more
important the government's interest, the greater the intrusion that may be constitutionally
tolerated." In re Directives, 551 F.3d at 1012.

The Government argues that, under the current state of technology, it is necessary to
acquire some post-cut-through digits that constitute contents in order for it to acquire all of the
non-content DRAS information relating to processing calls placed from a phone number targeted
under a PR/TT order. The government has a weighty interest in obtaining the entire set of post-
cut-through digits, as the only available alternative is to forgo acquisition of post-cut-through
digits that constitute non-content DRAS information needed to identify with whom the subject of
a national security investigation communicates - the very purpose of a FISA PR/TT surveillance.
See Jan. 15, 2016 Brief at 8-9; Aug. 17, 2009 Memorandum at 72-73.

The Government's interest in acquiring such digits is concretely presented by this case.

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In comparison, the privacy interests implicated by the acquisition of post-cut-through
digits are not great. Although post-cut-through digits that constitute contents are at least
arguably subject to a reasonable expectation of privacy, they nonetheless involve a narrow
category of information from a subset of calls placed from a targeted phone number. This form
of acquisition represents a lesser intrusion than, for example, obtaining the full contents of all
calls to or from a targeted phone number pursuant to an electronic surveillance order under 50
U.S.C. § 1805. Moreover, as suggested by the Government, see Aug. 17, 2009 Memorandum at
71-72, the intrusion on privacy interests is also mitigated by the prohibition on affirmative
investigative use of non-DRAS information. See In re Directives, 551 F.3d at 1012 ("If the
protections that are in place for individual privacy interests are sufficient in light of the
governmental interest at stake, the constitutional scales will tilt in favor of upholding the
government's actions.").

### Weight of Contrary Authority

As stated previously, FISC judges have authorized the acquisition of post-cut-through
digits by PR/TT devices when the requirements for a PR/TT order under 50 U.S.C. § 1842 have
otherwise been met. In granting the requested authorization in this case, the undersigned judge
accepted the Government's arguments as summarized above. Other courts, however, have seen
similar, if not identical, issues differently and denied Government requests to acquire post-cut-

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## DECRETORCONNOTURN

through digits that constitute contents in applications for the installation and use of PR/TT
devices in support of law enforcement investigations under 18 U.S.C. § 3122.4 Indeed, the
Government has not cited any decision by another court to authorize investigators to obtain such
digits under a PR/TT order and, insofar as research in publicly available sources indicates, the
FISC may be the only court to have done so. See Fern L. Kletter, Annotation, Allowable Use of
Federal Pen Register and Trap and Trace Device to Track Post-cut-through Dialed Digits
(PCTDD), 37 A.L.R. Fed.2d 323 § 2 ("No court has concluded that the pen/trap statute permits
the government to obtain PCTDD .... ") (originally published in 2009; updated weekly on
WESTLAW).

Although the rationales put forward by other courts for denying such requests differ
somewhat, those courts have generally concluded that the definitions of "pen register" and "trap
and trace device" exclude a device or process that acquires contents, see In re Application of the
United States, 622 F. Supp.2d at 421-22; In re Application of the United States, 2008 WL
5255815 at *3; In re Application of the United States, 441 F. Supp.2d at 823, 826-27, and that
the "technology reasonably available" language at § 3121(c) is better understood to reinforce,
rather than qualify, the obligation to exclude contents from a PR/TT collection, see In re
Application of the United States, 622 F. Supp.2d at 421-22; In re Application of the United

4 See In re Application of the United States, No. 08 MC 595(JO), 2008 WL 5255815
(E.D.N.Y. Dec. 16, 2008) (Magistrate Judge Orenstein); In re Applications of the United States, 515
F. Supp.2d 325 (E.D.N.Y. 2007) (Magistrate Judge Azrack), aff'd, Nos. 06-mc-547, 06-me-561, 07-
me-120, 07-mc-400 (E.D.N.Y. Dec. 17, 2007) (District Judge Gleeson); In re Application of the
United States, 622 F. Supp.2d 411 (S.D. Tex. 2007) (District Judge Rosenthal); In re Application of
the United States, 441 F. Supp.2d 816 (S.D. Tex. 2006) (Magistrate Judge Smith); In re Application
of the United States, No. 6:06-mj-1130 (M.D. Fla. May 23, 2006) (Magistrate Judge Spaulding),
aff'd, No. 6:06-mj-1130 (M.D. Fla. June 20, 2006) (District Judge Conway).

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## DUCKETTORCONNUTURN

States, 441 F. Supp.2d at 824-27. Some of those decisions also have found that the Fourth
Amendment requires a probable cause-based warrant for the Government to acquire post-cut-
through digits that constitute contents, or at a minimum that Fourth Amendment concerns weigh
heavily in favor of a statutory interpretation that precludes the acquisition of contents under a
PR/TT order. See In re Applications of the United States, 515 F. Supp.2d at 335-39; In re
Application of the United States, 441 F. Supp.2d at 836-37.

Procedural Options Afforded by USA FREEDOM Act

The USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, amended FISA, inter alia,
to give the FISC new options when presented with a significant legal issue: appointment of an
amicus curiae from a pre-designated pool of experts to assist the FISC, and certification of a
question of law to the FISCR.

Pursuant to the amicus provisions, the presiding judges of the FISC and FISCR have
designated "to be eligible to serve as amicus curiae" individuals "who possess expertise in
privacy and civil liberties, intelligence collection, communications technology," or other areas
"that may lend legal or technical expertise" to those courts. See 50 U.S.C. § 1803(i)(1), (3)(A).
The FISC or FISCR - consistent with the requirement to conduct their proceedings "as
expeditiously as possible" under 50 U.S.C. § 1803(c) -

shall appoint [such] an individual .. . to serve as amicus curiae to assist [the]
court in the consideration of any application for an order or review that, in the
opinion of the court, presents a novel or significant interpretation of the law,
unless the court issues a finding that such appointment is not appropriate.

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SECRET/ORCON/NOFORN

50 U.S.C. § 1803(i)(2)(A).5

Here, the issues presented by post-cut-through digits have repeatedly been considered by
FISC judges. Moreover, the Government has recently advised that there have been no significant
changes in the relevant technology, see Oct. 2, 2015 Submission at 4-5, nor did the
Government's Jan. 15, 2016 Submission present any new legal arguments. Accordingly, from
the FISC's perspective, this matter does not present a "novel . . . interpretation of the law."
Given the weight of contrary authority, however, the Court believes that a "significant
interpretation of the law" may well be presented.

Nevertheless, the Court did not appoint an amicus pursuant to § 1803(i)(2)(A) because it
found that it was not appropriate to do so under applicable time constraints and in view of the
requirement under § 1803(c) to proceed as expeditiously as possible. The prior PR/TT
authorization for
was set to expire on January 22, 2016. See Docket No. PR/TT 15-78,
Primary Order for Pen Register and Trap and Trace Device(s) issued on Oct. 29, 2015, at 7.

Pursuant to FISC Rule of Procedure 9(a), the Government submitted its proposed application to
continue this PR/TT collection on January 15, 2016 (the same date that it filed its most recent
legal brief on post-cut-through digits).6 Unless the Court had permitted authorization for all
PR/TT collection targeting
to lapse, it had one week to decide whether to grant or deny
the Government's request to continue to acquire post-cut-through digits - a period of time that

5 In addition, the FISC or FISCR "may appoint an individual or organization to serve as
amicus curiae, including to provide technical expertise, in any instance as such court deems
appropriate." 50 U.S.C. § 1803(i)(2)(B).

6 The FISC received the final application, submitted pursuant to FISC Rule of Procedure
9(b), on January 21, 2016.

Man CHIARASAMMAN
SLUNETURWIRTH

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SECRETHORCON/NOFORN

would have been insufficient for appointment of an amicus, formulation and presentation of an
amicus's views, and consideration of those views by the Court.

With regard to certification, 50 U.S.C. § 1803(j) provides: "Following issuance of an
order," the FISC "shall certify for review to [the FISCR] any question of law that may affect
resolution of the matter in controversy that [the FISC] determines warrants such review because
of a need for uniformity or because consideration by [the FISCR] would serve the interests of
justice." To date, FISC judges have been uniform in their handling of the principal issues
presented by post-cut-through digits, though some have recently expressed concerns about
continuing to authorize acquisition of such digits under PR/TT orders. In any event, it appears
that every other court to have issued a decision respecting such acquisitions has resolved the
same, or substantially similar, issues differently. The disagreement between the FISC and other
courts provides reason to believe that consideration of these issues by the FISCR would serve the
interests of justice. The FISCR would also be able to assess whether it is appropriate to appoint
an amicus without the strict time constraints that the January 22, 2016 expiration date placed on
the FISC.

For the reasons stated above, the Court has found as follows:

(1) The appointment of an amicus curiae by the FISC under § 1803(i)(2)(A) was not
appropriate in this matter.

(2) The following question of law may affect resolution of the matter in controversy and
warrants review by the FISCR because consideration by that court would serve the interests of
justice:

SECRETHADCONINOLADN

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## AHARHLADCANNALAINN

## DECRETORUNT

Whether an order issued under 50 U.S.C. § 1842 may authorize the Government
to obtain all post-cut-through digits, subject to a prohibition on the affirmative
investigative use of any contents thereby acquired, when there is no technology
reasonably available to the Government that would permit:

(1) a PR/TT device to acquire post-cut-through digits that are non-content
DRAS information, while not acquiring post-cut-through digits that are
contents of a communication; or

(2) the Government, at the time it receives information acquired by a
PR/TT device, to discard post-cut-through digits that are contents of a
communication, while retaining those digits that are non-content DRAS
information.

Accordingly, it is HEREBY ORDERED that the above-stated question of law is certified
for review to the FISCR pursuant to 50 U.S.C. § 1803(j).

ENTERED this /2 day of February, 2016, in Docket Number PR/TT 2016-

James 1 Hrana

THOMAS F. HOGAN
Judge, United States Foreign
Intelligence Surveillance Court

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Chief Dopoty Glark.
FISC, certify that this document is a
true and conect copy of the original