Approved for Public Release By the ODNI March 28, 2014 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. IN RE PRODUCTION OF TANGIBLE THINGS FROM Docket Number: BR 08-13 ORDER On December 12, 2008, the Foreign Intelligence Surveillance Court or "Court") re-authorized the government to acquire the tangible things sought by the govemrnent in its application in the above-captioned docket Specifically, the Court ordered' -- to produce, on an ongoing daily basis for the duration of the order, an electronic copy of all call detail records or "telephony metadata" created by those companies. 3, Primary Order at 4. The Court found reasonable grounds to believe that the tangible things sought are relevant to authorized investigations being conducted by the Federal Bureau of Investigation to protect against international terrorism, which investigations are not being conducted solely upon the basis of First Amendment protected activities, as required by 50 U.S.C. and 1_cL at 3. In making this finding, the Court relied on the Approved for Public Release By the ODNI March 28, 2014 assertion of the National Security Agency that having access to the call detail records "is vital to NSA's counterterrorism intelligence mission" because "[t]he only effective means by which NSA are able continuously to keep track of and an amnates of one of the aforementioned entities [who are taking steps to disguise and obscure their communications and identities], is to obtain and maintain an archive of metadata that will permit these tactics to be uncovered." BR 08-13, Application Exhibit A, Declaration of- - Signals Intelligence Directorate Deputy Program Manager --, NSA, filed Dec. 11, 2008 Declaration") at 5. NSA also averred that [t]o be able to exploit metadata fully, the data must be collected in The ability to accumulate a metadata archive and set it aside for carefully controlled searches and analysis will substantially increase NSA's ability to detect and identify members 0 at 5-6. Because the collection would result in NSA collecting call detail records pertaining to -- of telephone communications, including call detail records pertaining to communications of United States persons located within the U.S. who are not the subject of any FBI investigation and whose metadata could not otherwise be legally captured in bulk, the government proposed stringent minimization procedures that strictly controlled the Approved for Public Release By the ODNI March 28, 2014 4F9 acquisition, accessing, dissemination, and retention of these records by the NSA and the BR 08-13, Application at 12, 19-28. The Court's Primary Order directed the government to strictly adhere to these procedures, as required by 50 U.S.C. 1861 at 4-12. Among other things, the Court ordered that: access to the archived data shall occur only when NSA has identified a known telephone identifier for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion that the telephone identifier is associated wit provided, however, that a telephone identifier believed to be used by a U.S. person shall not be re arded as associated with. solely on the basis of activities that are protected by the First Amendment to the Constitution. at 8 (emphasis added). In response to a Preliminary Notice of Compliance Incident dated January 15, 2009, this Court ordered further briefing on the non-compliance incident to help the Court assess whether its Orders should be modified or rescinded; whether other remedial steps should be directed; and whether the Court should take action regarding persons responsible for any misrepresentations to the Court or violations of its Orders. Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009, issued Jan. 28, 2009, at 2. The govemment timely filed its Memorandum in Response to the Court's Order on February 17, 2009. Memorandum of the United States In Response to the Court's Order Dated January 28, 2009 ("Feb. 17, 2009 'The Court notes that the procedures set forth in the government's application and the Declaration are described in the government's application as "minimization procedures." BR 08-13, Application at 20. 3 Approved for Public Release By the ODNI March 28, 2014 Memorandum"). A. NSA's Unauthorized Use of the Alert List The govemment reported in the Feb. 17, 2009 Memorandum that, prior to the Court's initial authorization on May 24, 2006 (BR 06-05), the NSA had developed an "alert list process" to assist the NSA in prioritizing its review of the telephony metadata it received. Feb. 17, 2009 Memorandum at 8. Following the Court's initial authorization, the NSA revised this alert list process so that it compared the telephone identifiers on the alert list against incoming FISC- authorized Business Record metadata metadata") and SIGINT collection from other sources, and notified NSA's counterterrorism organization if there was a match between an identifier on the alert list and an identifier in the incoming data. Feb. 17, 2009 Memorandum at 9-10. The revised NSA process limited any fi_u;_thgr_ analysis of such identifiers using the BR metadata to those telephone identifiers determined to have met the "reasonable articulable suspicion" standard (hereafter "RAS-approved identifiers") set forth above. 1; at 10-11. However, because the alert list included all identifiers (foreign and domestic) that were of interest to counterterrorism Who were Charged with tra<=1