Order Granting the Government's Motion to Amend

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UNITED STATES
FOREIGN INTELLIGBNCB SURVEILLANCE COURT
WASHINGTON, D.C.
IN RE APPLICATION OF THE FEDERAL
BUREAU OF INVESTIGATION FOR AN
ORDER REQUIRING THE PRODUCTION OF
TANGIBLE THINGS
Docket No. BR 14-01
ORDER GRANTING THE GOVERNMENT'S MOTION TO AMEND
THE COURT'S PRIMARY ORDER DATED JANUARY 3, 2014
This matter is before the Court on the motion of the government to amend the
Primary Order issued on January 3, 2014, in the above-captioned docket ("January 3
Primary Order'' or "Jan. 3 Primary Order"), which was submitted on February 5, 2014
("Motion"). In the January 3 Primary Order, the Court approved the government's
application pursuant to Section 501 of the Foreign Intelligence Surveillance Act of 1978
("FISA" or "the Act"), codified at 50 U.S.C. § 1861, as amended (also known as Section
215 of the USA PATRIOT Act), 1 for orders requiring the production to the National
Security Agency ("NSA"), in bulk and on an ongoing basis, of call detail records or
1 "Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001," Pub. L. No. 107-56, 115 Stat. 272 (Oct.
26, 2001) ("PATRIOT Act"}, amended by, "USA PATRIOT Improvement
Reauthorization Act of 2005," Pub. L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006); "USA
PATRIOT Act Additional Reauthorizing Amendments Act of 2006," Pub. L. No. 109-
178, 120 Stat. 278 (Mar. 9, 2006); and Section 215 expiration extended by "Department of
Defense Appropriations Act, 2010," Pub. L. No. 111-118 (Dec. 19, 2009); "USA
PATRIOT-Extension of Sunsets," Pub. L. No.111-141(Feb.27, 2010); "FISA Sunsets
Extension Act of 2011," Pub. L. No. 112-3 (Feb. 25, 2011); and, "PATRIOT Sunsets
Extension Act of 2011," Pub. L. No. 112-14, 125 Stat. 216 (May 26, 2011).
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"telephony metadata" created by certain telecommunications carriers. The January 3
Primary Order approved and adopted a detailed set of minimization procedures
restricting NSA' s access to and use of the telephony metadata produced in response to
the Court's orders. The purpose of the Motion is to modify the applicable minimization
procedures. For the reasons set forth below, the Motion is granted.
Before discussing the changes proposed by the government in the Motion, some
background discussion is warranted. An application by the government for a
production order under Section 215 must include, among other things, "an enumeration
of the minimization procedures adopted by the Attorney General under subsection (g)
of this section that are applicable to the retention and dissemination" of the tangible
things that are received as part of the production. 50U.S.C.§1861(b)(2)(B). Subsection
(g) defines the term "minimization procedures" as follows:
(A) specific procedures that are reasonably designed in light of the
purpose and technique of an order for the production of tangible things,
to minimize the retention, and prohibit the dissemination, of nonpublicly
available information concerning unconsenting United States persons
consistent with the need of the United States to obtain, produce, and
disseminate foreign intelligence information;
(B) procedures that require that nonpubllcly available information, which
is not foreign intelligence information, as defined in section 1803(e)(1) of
this title, shall not be disseminated in a manner that identifies any United
States person, without such person's consent, unless such person's
identity is necessary to understand foreign intelligence information or
assess its importance; and
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for
the retention and dissemination of information that is evidence of a crime
which has been, is being, or is about to be committed and that is to be
retained or disseminated for law enforcement purposes.
Ids § 1861(g)(2}.
To approve an application under Section 215, this Court must find that the
application "meets the requirements of subsections (a) and (b)," including the
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requirement that the application provide an enumeration of minimization procedures
that have been adopted by the Attorney General and that meet the definition set forth in
subsection (g). ~~ § 186l(c}(l). Upon approval, the Court must, among other
things, "direct that minimization procedures adopted pursuant to subsection (g) of this
section be followed." kL.
As required by FISA, the application filed by the government in this docket
enumerated detailed minimization procedures for proposed use in connection with
telephony metadata received in response to the requested production orders. ~
Application for Certain Tangible Things for Investigations to Protect Against
International Terrorism (filed Jan. 3, 2014) at 15-25. The Court concluded that those
procedures, which were adopted by the Attorney General, satisfied the above-described
requirements of subsection (g), and directed that the government "strictly adhere" to
them. 	~Jan. 3 Primary Order at 4. Among other things, the minimization
procedures proposed by the government and approved by the Court in the January 3
Primary Order authorize NSA analysts to access the telephony metadata only through a
query process that requires a reasonable, articulable suspicion (RAS), as determined by
a limited set of NSA personnel, that each selection term or "seed" (e.g., a telephone
number) that will be used to search the data is associated with an international terrorist
organization listed in the order. ~id. at 4-12. The minimization procedures proposed
by the government and adopted by the Court also effectively limit the results of queries
to identifiers (e.g., telephone numbers) within three "hops" of the identifier used to
conduct the query. 5.egi!L at 11-12.2
In the Motion, the government proposes two changes to the previously-
2 The first "hop" from a seed returns results including all identifiers (and their
associated metadata) that have been in contact or are connected with the seed. ~
Application for Certain Tangible Things for Investigations to Protect A ainst
International Terrorism (filed Jan. 3, 2014), Tab A 	t 9
n.5. The second hop returns results that include all identifiers (and their associated
metadata) that have been in contact or are connected with an identifier revealed by the
first hop. ~id.. The third hop returns results that included all identifiers (and their
associated metadata) that have been in contact or are connected to an identifier at the
second hop. See ML
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approved minimization procedures. The first change would generally preclude the
government from querying the telephony metadata without first having obtained, by
motion, a determination by this Court that each selection term to be used satisfies the
RAS standard. See Motion at 2-3.3 The second change would limit the results of each
query to metadata associated with identifiers that are within two, rather than three,
"hops" of the approved seed used to conduct the query. Seg id.a at 3.4 To effectuate
these changes, the government proposes striking subparagraph (3)C from the January 3
Primary Order and replacing it with a new subparagraph (3)C that is set forth in the
Motion. ~id: at 3-10.
3 The proposal includes a provision that would allow the Director or Acting
Director of NSA to authorize the /1
emergency querying'' of a seed upon determining
that (1) "an emergency exists with respect to the conduct of such querying before an
order authorizing such use of a selection term can with due diligence be obtained" and
(2) "the RAS standard has been met with respect to the selection term." Motion at 3.
As soon as practicable, but not later than seven days following any use of this
emergency provision, the government would be required to make a motion to the Court
for approval of the query based on a determination that the RAS standard was satisfied.
See ~ at 3-4. In the event the Court were to determine that RAS was Iackin~ the
government would be required to take appropriate remedial measures, including any
steps the Court might direct (e.g., destroying the results of the emergency query and
recalling any reports or other disseminations based on those results). See id. at 8.
4 Other important aspects of the process would remain largely the same. For
example, NSA would still be required to ensure through "adequate and appropriate
technical and management controls" that queries of the telephony metadata are
conducted only using RAS·approved selection terms. ~Motion at 4. RAS approvals
made by the Court (like RAS approvals made by NSA under the current process) would
be effective for 180 days for any selection term reasonably believed to be used by a
United States personi other RAS approvals would be effective for one year. ~ids
NSA would be permitted to use as a querying seed any selection term that is the subject
of ongoing Court-authorized electronic surveillance pursuant to 50 U.S.C. § 1805, based
on the Court's finding of probable cause to believe that the selection term is being used
or is about to be used by an agent or agents of one of the terrorist groups enumerated in
the Primary Order in this docket. See kb at 8-9.
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Both proposed changes have been adopted by the Attorney General, as required
by subsection (b)(2)(B). Sgg Motion at 15.5 Furthermore, both bear directly on the
balancing of privacy and national security interests that is required by the first
component of the definition of "minimization procedures" set forth in subsection (g).
That portion of the definition requires:
specific procedures that are reasonably designed in light of the purpose and
technique of an order for the production of tangible things, to minimize the
retention, and prohibit the dissemination, of nonpublicly available information
concerning unconsenting United States persons consistent with the need of the
United States to obtain, produce, and disseminate foreign intelligence
information ....
50U.S.C.§1861(g)(2)(A).
Limiting query results to two, rather than three, "hops" will have the effect of
enhancing the protection of "nonpublicly available information concerning
unconsenting United States persons." .kL Eliminating the third hop will reduce the
amount of metadata - including metadata of or concerning United States persons - that
is accessed by NSA analysts. Of course, metadata that is never accessed cannot be used
or disseminated by the government. 6
Regarding the requirement that the proposed procedures be "consistent with the
need of the United States to obtain, produce, and disseminate foreign intelligence
information," kt, the Court observes that metadata returned at the third hop is less
likely to have foreign intelligence value than the metadata returned at the first and
second hops. That is because identifiers that are three steps removed from a RAS-
s The Deputy Attorney General approved the proposed amendments. See
Motion at 15. FISA defines "Attorney General" to include the Deputy Attorney
General. 50 U.S.C. § 1801(g).
6 For this reason, limiting query results to two hops also will help to limit the
dissemination of United States-person identifying information in accordance with the
second component of the definition of "minimization procedures" that is set forth 9n
page 2 above. See 50 U.S.C. 1861(g)(2)(B).
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approved selection term are less likely to have a connection to international terrorism
than those that are more closely connected to the seed identifier. For these reasons, the
Court has no difficulty concluding that the proposed reduction in the number of hops
from three to two is consistent with the applicable definition of "minimization
procedures."
The government's proposal to require RAS determinations by the FISC is less
straightforward. To be sure, this change would enhance the protection of "nonpublicly
available information concerning unconsenting United States persons," kL, that is
included in the telephony metadata received by NSA. In applying the warrant
requirement of the Fourth Amendment in the context of more intrusive investigative
measures used in criminal investigations, the Supreme Court has recognized the value
of having a "neutral and detached magistrate" determine whether the circumstances
justify the intrusion:
The point of the Fourth Amendment ... is not that it denies law
enforcement the support of the usual inferences which reasonable men
draw from evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of
ferreting out crime.
Johnson v. United States. 333 U.S.10, 13~14 (1948).
Although the protection of the Fourth Amendment does not extend to the
government's acquisition or use of the telephony metadata at issue here,~ Smith v.
Maryland, 442 U.S. 735 (1978), the Supreme Court's reasoning in Johnson can plausibly
be extended to the RAS determinations that are required to query the data. Having a
disinterested judicial officer determine whether each selection term has the requisite
connection to international terrorism can reasonably be expected to minimize the risk of
erroneous queries and the attendant risk that United States-person information will be
accessed or disseminated without adequate justification.
The proposed judicial approval requirement is also "consistent with the need of
the United States to obtain, produce, and disseminate foreign intelligence information."
50 U.S.C. § 1861(g)(2)(A). The substantive standard for querying the metadata - the
RAS standard -will remain the same. Although requiring that RAS determinations be
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made by an entity outside NSA will burden the approval process to some degree, the
Executive Branch, which has primary responsibility for safeguarding our national
security, proposed this change and thus presumably believes it to be workable. Further,
the emergency exception described in footnote 3 above will give the government
reasonable flexibility in appropriate situations to act expeditiously when obtaining prior
judicial approval for particular queries is not feasible.
Although the Court is satisfied that the effect of the government's proposal to
require RAS approvals by the FISC would be consistent with Section 215' s definition of
"minimization procedures," that is not the end of the discussion. FISA contemplates
that the Executive Branch, which formulates the minimization procedures and receives
the tangible things from the recipient of the production order, will apply those
procedures, with appropriate oversight by the FISC. ~ 50 U.S.C. § 1861(b)(2)(B); ~
film 50U.S.C.§1803(h). Historically, the minimization procedures proposed by the
government and approved by the Court under FISA have reflected this allocation of
responsibilities, which also recognizes the distinct roles of the Executive Branch and the
Judiciary in our system of government. The government's proposal to require RAS
determinations by the FISC as a prerequisite to NSA queries of the database would
deviate from this framework by giving the Court a more prominent role not just in
overseeing Executive Branch compliance with FISC-approved procedures, but in the
actual application of those procedures. It could also impose substantial new burdens on
the FISC that are not contemplated by FISA.
The Executive Branch, of course, cannot unilaterally compel the FISC, an Article
III court, to assume the RAS-approval function, and the Court would be within its
discretion under PISA to reject this aspect of the Motion. Sgg 50U.S.C.§1861(c)(l)
(permitting the Court to grant the government's application "as modified").
The Court is cognizant of the fact that this program is under review by the other
branches of government and that changes may result from the review. While this
policymaking assessment is ongoing, the Executive Branch is asking the Court for
additional assistance in reassuring the public that adequate protection is afforded to
information concerning United States persons that is being acquired pursuant to a FISC
order.
The Court sees nothing in the language of the Act that would preclude it from
accepting the Executive Branch's invitation to assume responsibility for making RAS
determinations. This role in fact parallels the FISCs core judicial function of
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determining whether applications for authority to conduct electronic surveillance or
physical search are supported by probable cause; ~ 50 U.S.C. §§ 1805, 1824.7 Indeed,
the Court has previously approved query requests in this matter, albeit under distinct
circumstances and pursuant to different authority.8 Provided that the number of
7 This matter is distinguishable from In Re Sealed Case. 310 F.3d 717 (FISA Ct.
Rev. 2002), in which the FISC, under the rubric of "minimization procedures" and over
the government's objection, prohibited law enforcement officials from directing or
controlling the use of FISA proceedings to enhance criminal investigations or
prosecutions. kL at 720. To effectuate that prohibition, the FISC required that certain
Executive Branch officials participate, effectively as "chaperones," in meetings and
consultations between other Executive Branch officials. kL The Foreign Intelligence
Surveillance Court of Review held that the prohibition imposed by the FISC was
inconsistent with language of FISA, and that by asserting authority to govern the
internal organization and investigative procedures of the Executive Branch, the FISC
"may well have exceeded the constitutional bounds that restrict an Article mcourt."
hL at 731. Here, the Executive Branch is asking the Court to undertake what is
essentially a core judicial function, and one which, as discussed in the text above, is not
inconsistent with the language of the Act.
8 In 2009, after the Executive Branch reported widespread noncompliance by
NSA with the RAS-approval provisions of the FISC's orders in this matter, the Court, on
its own motion, mandated that all queries of the telephony metadata be approved by
the Court pending investigation of the incident and restoration of the Court's
confidence that NSA was prepared to comply with its orders. ~Docket No. BR 08-13,
Order dated March 2, 2009, at 18-19. In taking this unusual step, the Court expressly
invoked its "authority and responsibility to 'determine [and] enforce compliance' with
Court orders and Court-approved procedures [under] 50U.S.C.§1803(i)," which has
since been renumbered as 50 U.S.C. § 1803(h). ~id. at 14. Once adequate remedial
measures had been implemented by the Executive Branch, NSA was permitted to
resume making RAS determinations on its own, with oversight by the FISC and other
elements of the Executive Branch. See Docket No. BR 09-13, Primary Order (Sept. 3,
2009) at 6-18. Insofar as the Court is aware, there is at present no similar pattern of
pervasive noncompliance.
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selectors used to query the metadata remains relatively close to the present level, the
Court is satisfied that it will be able to undertake the additional work that will be
required, at least until the expiration of the January 3 Primary Order. In consideration
of the unique facts and circumstances that are now presented, the Court will approve
the Executive Branch's proposal to require RAS approvals by the FISC as a prerequisite
to queries of the telephony metadata acquired pursuant to the Court's orders in this
matter.
For the foregoing reasons, the Motion to amend the January 3 Primary Order is
granted. Subsection (3)C of that Primary Order shall be stricken and replaced with the
revised subsection (3)C that is set forth in the Motion.
In light of the ongoing public interest in this matter and the President's recent
public remarks regarding the proposed changes that are the subject of the Motion, the
government is directed to review this Order for declassification in anticipation of likely
publication by the Court pursuant to FISC Rule 62(a). The Court understands that a
declassification review of the January 3 Primary Order is already underway. Because
the revised subsection (3)C of the Primary Order is set forth in the Motion, the
government is also directed to conduct a declassification review of the Motion. The
government shall complete its declassification reviews of this Order, the January 3
Primary Order, and the Motion as promptly as is practicable and report to the Court
with the results of such review no later than February 17, 2014.
SO ORDERED, this 5th day of February, 2014, in Docket Number
Presiding Judge, United States Foreign
Intelligence Surveillance Court
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