All nedacted information exempt under and except where othenNise noted Approved for public release UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, DC. IN RE CERTIFICATION.) Docket Number . MEMORANDUM OPINION This matter is before the Court on the ?Government?s Ex Parte Submission of Replacement Certi?cation and Related Procedures and Request for an Order Approving Such Certi?cation and Procedures,? ?led on August 5, 2008 (?Ex Parte Submission?). For the reasons stated below, the government?s request for approval is granted. 1. BACKGROUND A. Section 702 of the Foreign Intelligence Surveillance Act The government ?led the Ex Parte Submission pursuant to Section 702 of the Foreign Intelligence Surveillance Act which was enacted as part of Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (Jul. 10, 2008) and is new codi?ed at 50 U.S.C. 1881a. Subsection of Section 702 permits the government to authorize, ?for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.? 50 U.S.C. 1881a(a). The implementation of any authorization under Section 702 must conform to the Page 1 All redacted information exempt under and except where othemise noted Approved for public release limitations enumerated in subsection which provides that acquisition authorized under subsection (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to belin the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire 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; and (5) shall be conducted in a manner ponsistent with the fourth amendment to the - Constitution of the United States. 50 U.S.C. 1881a(b). Absent exigent circumstances, before implementing any authorization under Section 702, the Attorney General and the Director of National Intelligence must provide the Foreign Intelligence Surveillance Court with a written certi?cation, accompanied by targeting and minimization procedures, and must obtain the Court?s approval of the certi?cation and the procedures. l_d. '1881a(a), In the certi?cation, the Attorney General and IDNI must attest that: (1) there are procedures in place that are ?reasonably designed? to ?ensure that an acquisition authorized under subsection is limited to targeting persons reasonably believed to be located outside the United States,? and to ?prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States?; Page 2 All redacted information exempt under and except where otherwise noted Approved for public release (2) ?the minimization procedures to be used with respect to such an acquisition . . . meet the de?nition of minimization procedures under [50 U.S.C. 18010:) or as appropriate? and either ?have been approved, have been submitted for approval, or will be submitted with the certi?cation for approval by the (3) the Attorney General and DNI have adopted ?guidelines . . . to ensure compliance with the limitations in subsection [of Section 702] and to ensure that an application for a court order is ?led as required by (4) the targeting procedures, minimization procedures, and guidelines adopted by the government ?are consistent With the Fourth Amendment?; (5) ?a signi?cant purpose of the acquisition is to obtain foreign intelligence information?; (6) ?the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communications service provider?; and (7) ?the acquisition complies with the limitations in subsection 50 U.S.C. 1881a(g)(2)(A). - The certi?cation must be accompanied by targeting and minimization procedures adopted pursuant to Section 702(d) and respectively, and it must ?be supported, as appropriate, by the af?davit of any appropriate of?cial in the area of national security who is . . . appointed by the President, by and with the advice and consent of the Senate,? or the head of an element of the intelligence community.? 50 1881a(g)(2)(B) and Additionally, Section 702,. as applicable here, requires that the certi?cation include ?an effective date for the authorization that is at least 30 days after the submission of the written certi?cation to the court.? id, 1881a(g)(2)(D)(i)- Page 3 All redacted information exempt under and except where otherwise noted Approved for public release B. ?Judicial Review The FAA provides the FISC with jurisdiction to review the certi?cation, the targeting and minimization procedures, and any amendments to those procedures. 50 U.S.C. 1881a(i)(1)(A). That review, however, is limited. The role with respect to the certi?cation is merely to ?determine whether [it] contains all the required elements.? 15L 1881a(i)(2)(A). The Court reviews the targeting procedures to ?assess whether the procedures are reasonably designed to - ensure that an acquisition authorized under subsection is limited to targeting persons reasonably believed to be located outside the United States; and (ii) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the I acquisition to be located in the United States.? ILL 1881a(i)(2)(B). As for the minimization procedures, theCourt must ?assess whether such procedures meet the de?nition of minimization procedures under [50 U.S.C. 1801(h) or as appropriate." 1d.? 1881a(i)(2)(C). Section 702 requires the FISC to enter an order apprOving the certi?cation and the use of the targeting and minimization procedures if the Court ?nds that the certi?cation contains all the required elements, and that the targeting and minimization procedures are consistent with the requirements of 50 U.S.C. 1881a(d)(1) and and with the Fourth Amendment. 50 U.S.C. 1881a(i)(3)(A). Should the Court conclude that it cannot make those ?ndings, it must direct the government either to correct any de?ciency or to refrain from implementing the authorization for which the certi?cation was submitted. Iii; 1881a(i)(3)(B). Any order entered under Section 702 must be accompanied by ?a written statement of reasons for the order.? Id 1881a(i)(3)(C). The FISC must complete its review and issue an order not later than 30 days after the mm Page 4 All redacted information exempt under and except where othenNise noted Approved for public release submission of its certi?cation and procedures, unless the Court ?extends that time as necessary for good cause in a manner consistent with national security.? 1881a(i)(l)(B), C. The Govermnent?s Ex Parte Submission The government?s Ex Parte Submission includes 702(g) Certi?cation-? which was executed by the Attorney General and the DNI on -2008, and which authorizes the targeting of certain non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information (the ?Certi?cation?). Accompanying the Certi?cation are the supporting affidavits of the Directors of the National Security Agency the Central Intelligence Agency and the Federal Bureau of Investigation Also included in the govermnent?s EX. Parte Submission are two sets of targeting procedures (one set to be used by the NSA and the other by the FBI), and three sets of minimization procedures (one set each for the NSA, the FBI, and the CIA). Following the Court?s preliminary review of the Ex Parte Submission, the FISC staff met with counsel for the government to communicate the Court?s questions regarding the proposed targeting and minimization procedures. Thereafter, on August 26, 2008, the government submitted its ?Preliminary Responses to Certain Questions Posed by the Court? (?Govt Responses?). On August 27, the Court held a hearing during which the government answered additional questions and provided additional information about the scope and meaning of the proposed procedures. Following the hearing, the government made two supplemental submissions addressing, among other things, an issue of law itraised with the Court shortly before the hearing. The government has also submitted a copy of the guidelines adopted by the Attorney General and the DN1 for ensuring Page 5 All redacted information exempt under and except where otherwise noted Approved for public release compliance with the limitations set forth in 50 U.S.C. This Memorandum Opinion relies on the entire record before the Court, including each of the above-referenced submissions and information received at the August 27 hearing. II. ANALYSIS A. The Certi?cations Contain All the Required Elements. The Court is required to review the Certi?cation ?to determine whether [it] contains all the required elements.? 50 U.S.C. 1881a(i)(2)(A). After examining the Certi?cation, the Court ?nds that: (I) it has been made under oath by the Attorney General and the DNI, as required by 50 U.S.C. 1381a(g)(1)(A), Certi?cation (?Cert?) at 4-5; (2) it contains each of the attestations required by 50 U.S.C. 1881a(g)(2)(A) and enumerated at pages 2?3 supra, Cert. at 1-2; (3) as required by 50 U.S.C. 1881a(g)(2)(B), it is accompanied by the applicable targeting procedures2 and minimization procedures;3 1 The Ex Parte Submission and accompanying materials provided by the government consist largely of classi?ed information. At the government?s request, the Court has conducted its review ex parte and in camera. S_e? 50 U.S.C. 1881a(k)(2). 2 Procedures Used by the NSA for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of ISA, as Amended Targeting Procedures?) (attached to the Certi?cation as Exhibit Procedures Used by the FBI for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Targeting Procedures?) (attached as Exhibit C). 3 Minimization Procedures Used by the NSA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended (continued. ..) Page 6 All redacted information exempt under and except where otherwise noted Approved for public release it is supported by the af?davits of appropriate national security of?cials, as described in 50 U.S.C. and - (5) it includes an effective date for the authorization in compliance with 50 U.S.C. 1881a(g)(2)(D). Cert. at 3.5 Accordingly, the Court ?nds that the Certification ?contains all the required elements.? 50 U.S.C. 1 881a(i)(2)(A). B. The Targeting Procedures and the Minimization Procedures Are Consistent With the Applicable Statutory Requirements With respect to the targeting procedures and minimization procedures, the Court is required to assess Whether they conform to the applicable statutory requirements. 50 U.S.C. 1881a(i)(3)(A). 1. The Targeting Procedures Satisfy the Requirements of Section 1881a(d)Ll The government has submitted two sets of targeting proceduresthe FBI. Each set of procedures is discussed in turn, .continued) Minimization Procedures?) (attached as Exhibit Minimization Procedures Used by the FBI in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of ISA, as Amended Minimization Procedures?) (attached as Exhibit Minimization Procedures Used by the CIA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA, as Amended Minimization Procedures?) (attached as Exhibit E). 4 See Affidavit of Lt. Gen. Keith B. Alexander, US. Army, Director, NSA (attached at Tab Af?davit of Robert S. Mueller, Director, FBI (attached at Tab Af?davit of Michael V, Hayden, Director, CIA (attached at Tab 3). 5 The statement described in 50 U.S.C. 1881a(g)(E) is not required in this case because there has been no ?exigent circumstances? determination under Section 1881a(c)(2). Page 7 All redacted information exempt under and except where otherwise noted Approved for public release a. Overview of the NSA Targeting Procedures NSA seeks to acquire foreign intelligence information from communications that are to, from, or about a targeted person. NSA Targeting Procedures at 2; Transcript of Proceedings on August 27, 2008 (?Trans?) at 19-22, It does so by tasking for acquisition a telephone number or electronic communications account (generically-referred to as ?selectors?) believed to be used by a I targeted person. NSA Targeting Procedures at 3; Trans. at 24. Pre-Taraeting Determination NSA is required to determine ?whether a person is a non?United States person[5] reasonably believed to be outside the United States? before that person is targeted for acquisition. NSA Targeting Procedures at 1. NSA makes this determination ?in light of the totality of the circumstances based on the information available with respect to that person, including - For every such determination, NSA must? 6 ?United States person? (hereinafter person?) is de?ned as a citizen of the United States, an alien lawfully admitted for permanent residence . . ., an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or association which is a foreign power, as de?ned in [50 U.S.C. 1801(a)(1), (2), or 50 U.S.C. 18010) and 1881(a). Page 8 All redacted information exempt under and except where otherwise noted Approved for public release NSA examine the same categories of information, in the manner described above, in assessing Whether the proposed target is a non~U.S. person. NSA Targeting Procedures at 1. In addition, prior to each tasking, w? in order to ?ascertain whether NSA has 7 Although the government ?reserve[d] the right to supplement and/or modify these responses? at the August 27, 2008 hearing, Govt. Responses at 1, nothing at the hearing detracted from the responses cited herein. 8 Page 9 All redacted information exempt under and except where otherwise noted Approved for public release reason to believe? that the proposed selector is being used by a U.S. person. at 4. This step is taken to avoid targeting United States persons. See NSA may avail itself of the following presumption regarding the nationality of a proposed target: NSA invokes the presumption only after have exercised ?due diligence? in attempting to ascertain the person?s location under the NSA Targeting Procedures. Trans. at 5-6. Moreover, even in cases where ?the actual location of the target may be unknown,? (ii) Post-Targeting Analysis NSA is also required to conduct post-targeting analysis ?to detect those occasions when a person who when targeted was reasonably believed to be located outside the United States has since entered the United States? and to ?enable NSA to take steps to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States, or the intentional targeting of a person who is inside the United States.? NSA Targeting Procedures at 6. In the event that NSA concludes that a target is Page 10 All redacted information exempt under and except where otherwise noted Approved for public release within the United States, or ?that a person who at the time of targeting was believed to be a non United States person was in fact a United States person,? it will ?terminate the acquisition without delay? and report the incident to the Department of Justice and the Of?ce of the DN1. l; at 9. - This post-targeting analysis includes ?routinely? comparing each selector- _0r indications that a tasked selector may be used inside the United States. at 6-7; Govt. Responses at 7. NSA reviews the results of these comparisons- - Govt. Responses at 7. The post?targeting analysis also includes examination of the content of communications obtained through surveillance of a tasked selector for indications that a targeted person is now in, or may enter, the United States. NSA Targeting Procedures at 6-7. There is no set schedule for this form of analysis, and its timing can depend on the intelligence priorities attached to a particular target. Govt. Responses at 7?8; Trans. at 8. At the outermost limit, the analyst responsible for a particular tasking is required to conduct an annual review of the target, though in practice such reviews usually occur more frequently. Trans. at 8. 46.9 9 See also 50 U.S.C. 1881 (requiring annual review of acquisition ?to determine whether there is reason to believe that foreign intelligence information has been or will be obtained?). Page 11 All redacted information exempt under and except where otherwise noted Approved for public release WW Documentation and Oversight At the time of targeting, are required to ?document in the tasking database a citation or citations to the information that led them to reasonably believe that a targeted person is located outside the United States.? NSA Targeting Procedures at 8.?3 This documentation facilitates later oversight of how the procedures are implemented. Internally, NSA oversight personnel ?conduct periodic spot checks of targeting decisions.? NSA Targeting Procedures at 8. In addition, personnel from the Department of Justice and the Of?ce of the DN1 conduct reviews of implementation of its targeting procedures ?at least once every sixty days.? NSA is also obligated within seven days to report to the Department of Justice and the Of?ce of the DNI ?any incidents of non-compliance? resulting in ?the intentional targeting of a person reasonably believed to be located in the United States or the intentional acquisition of any communication in which the sender and all intended recipients are known at the time of acquisition to be located within the United States.? l_d. at 8-9. NSA similarly will report any incident of intentionally targeting a person. Govt. Responses at 8. ?Any information acquired by intentionally targeting a United States person or a person not reasonably believed to be outside the United States at the time of such targeting will be purged from NSA databases.? NSA Targeting Procedures at 9. 1? There is no requirement to record the basis for the reasonable belief that the target is not a US. erson. However, the cited sources re ardin the tar et?s location, in con'unction with a will often provide the grounds for reasonably presuming or concluding that the target is not a US. person. See Govt. Rte-Spouses at 8. Page 12 All redacted information exempt under and except where otherwise noted Approved for public release (iv) Emergency Departure The NSA Targeting Procedures contain the following emergency provision: If, in Order to protect against an immediate threat to national security, the NSA determines that it must take action, on a tenmorar?,r basis. in apparent departure from these procedures and that it is not feasible to obtain a timely modi?cation of these procedures from the Attorney General and [the NSA may take such action and will report that activity to [the Department of Justice and the Of?ce of the Under such circumstances, the Government will continue to adhere to all of the statutory limitations set forth in subsection 702(b) of 1d, at 10 (emphasis added). The government expects that this departure provision will be invoked only under ?very extreme circumstances,? Trans. at 17?18, and in fact is not likely to be used at all. at 19.? If it should be used, the government anticipates that such use would involve a relaxation of documentation requirements if_s unavailable at the time of the emergency, or a modi?cation of the schedule for oversight reviews in the event that personnel must be redeployed to respond to the emergency. 1; at 18. b. Targeting Procedures Cornpr With so U.S.C. 8813( 1) and Are Reasonably Designed to Prevent the Targeting of US. Persons. Section 1881a(d)( 1) requires: targeting procedures that are reasonably designed to (A) ensure that any acquisition . . . is limited to targeting persons reasonably believed to be outside of the United States; and A similar provision was included in the NSA procedures previously adopted for acquisitions under the Protect America Act of W, 121 Stat. 552 (Aug. 15, 2007). ,S_ee In re 105B Certifications emorandurn Opinion and Order entered January 15, 2008,_at 22. That provision has never been implemented. Trans. at 18. Page 13 All redacted information exempt under and except where otherwise noted Approved for public release (B) prevent the intentional acquisition of any as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States. 50 1881a(cl)(1). Section 1881a(d)(i) does not, by its terms, require that the targeting procedures seek to prevent the targeting of United States persons, as distinct from persons located in the United States. Nonetheless, another provision of the statute states that, pursuant to Section 1881 21,]2 the government ?may not intentionally target any person known at the time of acquisition to be located in the United States,? and also ?may not intentionally target a United States person reasonably believed to be located outside the United States.? _S__ee 50 U.S.C. 1881a(b)(1) and (emphasis added). Moreover, as discussed above, see, pages 8-11 supra, the targeting procedures adopted under Section 1881a(d) require government to assess whether a proposed target reasonably appears to be a US. person, as part of the same process whereby they ascertain Whether a proposed target reasonably appears to be located outside the United States. Because the limiting of acquisitions to non-US. person targets is important to the Court?s Fourth Amendment analysis, pages 3364, 37?38 infra, the Court will also assess how the NSA Targeting Procedures apply to determinations of US. person. In assessing the NSA Targeting Procedures, it is useful to consider separately the acquisition of communications that are to or from a tasked selector (?to/from communications? and the ?2 Other sectiOns of FISA provide separate means of authorizing electronic surveillance and physical search of targets in the United States, see 50 U.S.C. 1804?1805, 1823?1824, and of targeting U.S. persons outside the United States. 1881b-18810. I E. m: Page14 All redacted information exempt under and except where otherwise noted Approved for public release acquisition of communications that contain a reference to a tasked selector (?about communications?). To/From Communications For that are to or from a tasked selector, targeting procedures will satisfy both prongs of Section 1881a(d)(1) if they are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside the United States. For purposes of Section 1881a(d)(1)(A), the persons targeted by acquisition of to/from communications are the users of the tasked selectors: their communications are intentionally selected for acquisition, whereas the communications of other persons are incidentally obtained only when they are communicating with the users of tasked selectors. And because a user of a tasked selector is a party to every to/from - communication acquired by NSA, a reasonable belief that the users of tasked selectors are outside the United States will ensure that NSA does not intentionally acquire any to/from communication ?as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.? 50 U.S.C. 1881a(d)(1)(B). The Court ?nds that the NSA Targeting Procedures are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside the United States. are required in every case to consider- in assessing the target?s location. They are also trained to review Prior to targeting, an NSA analyst must form a reasonable belief that the user of a proposed selector is outside the United States. The basis for that belief is reviewed by a second analyst prior to tasking. Page 15 All redacted information exempt under and except where otherwise noted Approved for public release After targeting, additional analysis is conducted to ascertain whether the user may later be present in the United States. Moreover, implementation of these procedures is subject to regular review and evaluation by NSA, the Department of Justice, and the Of?ce of the DN1. Finally, the provision permitting NSA to depart-hem these procedures temporarily to respond to an emergency is, as explained by the government, suf?ciently narrow in scope that it does not undermine the Court?s general assessment of reasonableness. record of implementation of comparable procedures for acquisitions under the Protect America Act of 2007, Pub. L. No. 110?55, 121 Stat. 552 (Aug. 15, 2007) supports this conclusion. With over-targeting decisions made, Trans. at 43, cub-instances of improper targeting had been identified through May 9, 2008. Ld_. at 13. Most instances of non- compliance have involved inadequate documentation or delayed reporting, rather than improper targeting decisions. at 1 1, 13-14. The Court further ?nds, as a predicate of its Fourth Amendment analysis, see pages 32-41- m, that the NSA Targeting Procedures are also reasonably designed to ensure that the users of tasked selectors, the targets of acquisition for to/from communications, are reasonably believed to be non?US. persons. NSA perform the same steps in assessing the US. person status of the prospective target as they do in assessing location, as well as an additional pre-tasking step to ascertain whether the proposed selector is known to be used by 'a U.S. person. Moreover, as explained by the government, the presumption of non-US. person status that NSA may make based Page 16 All redacted information exempt under and except where otherwise noted Approved for public release on the overseas location of the target, page 10 ma, logically follows from the proposition, previously accepted by the FISC, ?that the vast majority of persons who are located overseas are not United States persons and that most of their cornmmiications are with other, non~United Stat-es persons, who are also located overseas.? In re Directives, Docket No. 07?01 Memorandum Opinion entered Aprii 25, 2008, at 87 (footnote omitted), eff?d, Docket No. 08-01 (FISA Ct. Rev. Aug. 22, 2008).13 (ii) About Communications For tasked electronic communications accounts, the NSA also acquires conununications that contain a reference to the name of the tasked account.[4 The government asserts that, for purposes '3 The minimization procedures contain similar presumptions regarding non?US. person status, ?e NSA Minimizatidn Procedures at 2; FBI Minimization Procedures at 1, which the Court ?nds reasonable on the understanding that they will be applied in the manner described for the presumption in the NSA Targeting Procedures. 14 These about communications fall into .categories ?rst described to the in prior proceedings. Trans. at 40-41. Those categories are as follows (for ease of reference, the tasked account is called Page 17 All redacted information exempt under and except where otherwise noted Approved for public release of Section 1881a(d)(1)(A), the person being ?targeted? by such an acquisition is the user of the tasked account, not other persons who are parties to the acquired contirnunieation.?S Govt. Responses at Trans. at 24. The Court accepts this conclusion. It is natural to regard the user of the tasked account as the ?target? of the acquisition, because the government?s purpose in acquiring about communications is to obtain information about that user. Trans. at 24.16 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 tasked account; indeed, the government may have in re 105B Certi?cations entered January 15, 2008, at 17 n.18. ?5 In some cases the user of the tasked account may also be a arty to an acquired about communication; for exam Trans. at 20. ?6 For purposes of FISA surveillances conducted under 50 U.S.C. 1804?1805, the ?target? of the surveillance ??is the individual or entity . . . about whom or from Whom information is sought.? In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002) (quoting HR. Rep. 95- 1283, at 73 (1978)). There is no reason to think that a different meaning should apply here. . Page 18 All redacted information exempt under and except where othenNise noted Approved for public release no knowledge of those parties prior to acquisition. See ii at 19?20. And parties to an acquired about conuntmication do not become targets of acquisition unless and until they are separately vetted under the NSA Targeting Procedures and a selector used by them is separately tasked. at 26?27. Of course, anyone assessed to be a US. person or to be inside the United States cannot be targeted at all. See pages 8?11 31pm. Having concluded that this mode of acquisition targets the users of tasked selectors, and that the NSA Targeting Procedures are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside the United States, pages 15?16 m, the Court finds that the NSA Targeting Procedures satisfy Section 1881a(d)(1)(A). Similarly, based on the discussion at pages 16-17 $11112, the Court ?nds that the NSA Targeting Procedures are reasonably designed to prevent the targeting of US. persons in the acquisition of about communications. A separate analysis is required of whether, in conformance with Section lSSlaCd)(l)(B), the NSA Targeting Procedures are reasonably designed to prevent the intentional acquisition of about communications ?as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.? For each acquisition of an about communication, NSA relies on _means of ensuring that at least one party to the communication is outside the United States; will-mploy an Internet Protocol ?lter to ensure? that at least one party to a communication is outside the United States NSA Targeting Procedures at 2. Page 19 All redacted information exempt under and except where otherwise noted Approved for public release The Court ?nds that these measures are reasonably designed to prevent the intentional acquisition of communications as to which all parties are in the United States. 17 c. The FBI Targeting Procedures In addition to NSA, the FBI may also conduct acquisitions under the certi?cation, in conformance with the FBI Targeting Procedures. The FBI will apply its procedures ?in acquiring foreign intelligence information, in the form by targeting electronic communications accounts ?designated by the FBI Targeting Procedures at 1. Prior to requesting the FBI to _for an account, NSA will have followed its own targeting procedures in determining that the user of the account ?is a person reasonably believed to be located outside of the United States and is nota United States person.? Id, Thus, the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures, whenever- acquired. Because the FBI is only involved in the acquisition of to/from communications, Trans. at 32, the FBI Targeting Procedures will satisfy Section 1881a(d)(1) if they are reasonably designed to ensure that the users of tasked selectors are reasonably believed to be outside of the United States. Egg page 15 supra. Because the Court has found that the NSA Targeting Procedures meet this ?7 The government has represented that these measures have prevented the acquisition of wholly domestic communications under the PAA. Trans. at 28? Govt. Res cases at 5. With regard to Internet Protocol IP ?lters the Court on standst at Trans. at 28-29. Although it acquiredofWNm not aware of this actually happening. at 29?3 1. Page 20 All redacted information exempt under and except where otherwise noted Approved for public standard, see pages 15-16 sum, and also are reasonably designed to prevent the targeting of U.S. persons, pages 16-17 m, it should readily follow that the FBI Targeting Procedures, which provide additional assurance that users of tasked accounts are non-US. persons located outside the United States,18 also pass muster. The Court has reviewed the FBI Targeting Procedures and found that they satisfy these criteria also. 2. The Government?s Minimization Procedures Satis 50 U.S.C. 1881a . Section 18813(e)(1) requires the government to ?adopt minimization procedures that meet the de?nition of minimization procedures? under 50 U.S.C. 1801(h) or ?1821(4), ?as apprOpriate.? Those de?nitions are substantively identical for purposes of this case,19 and de?ne ?minimization precedures? as (1) speci?c procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance [or physical search], to minimize the acquisition and retention, and ?9 They differ only in referring to electronic surveillance 1801(h)) or physical search 1821(4)), and to the procedure for emergency approval for those respective modes of collection in a context that does not apply to this case. Page 21 All redacted information exempt under and except where otherwise noted Approved for public release 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; [20] (2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as de?ned in [50 U.S.C. 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] (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes. 50 U.S.C. 1801(h); see alsoicL? 1821(4). 20 ?Foreign intelligence information? is defined as (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United'States to protect against (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to - (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. 50 U.S.C. 1801(e) and 1881(a). Page 22 All redacted information exempt under and except where otherwise noted Approved for public release In this case, there are three sets of minimization procedures that have been adopted by the Attorney General: a set of procedures for each of the two agencies that will conduct acquisitions, the NSA and the FBI, and a third set of procedures for the CIA, which may receive from those agencies the raw data from acquisitions. NSA Minimization Procedures at 8; FBI Minimization Procedures at 2. Each of these sets of procedures closely resembles minimisation procedures that have been found by judges of this Court to meet the de?nition of minimization prosedures under section 1801(h) in the context of cases that have a signi?cantly greater likelihood of acquiring communications to, from, or about United States persons. See, Docket Nos-(In re Various Known and Unknown Agents of (In re - and- (In (mo The targeting of communications pursuant to Section 702 is designed in a manner that I diminishes the likelihood that U.S. person. information will be obtained. page Ella. Yet, the protection to U.S. persons afforded by the proposed minimization procedures nearly replicates the protection afforded such persons in cases involving search or surveillance intentionally targeting U.S. persons. Procedures that have been found to be reasonably designed for the purpose of surveillance targeting U.S. persons should be reasonable for the acquisition of communications targeting non-U.S. persons abroad. The Court?s review of the minimization procedures con?rms that they are reasonable in the context of this case. Although the procedures proposed by the government are-not identical to these previously approved procedures, the differences, as discussed below, do not undermine a ?nding that they meet Page 23 All redacted information exempt under and except where otherwise noted Approved for public releaSe the de?nition of minimization procedures under the statute. Therefore, for the reasons stated below, the Court ?nds that each set of minimization procedures is reasonably designed to minimize the acquisition and retention, and prohibit the dissemination, of private US. person information, consistent with the foreign intelligence needs of the government, and otherwise conforms to the statutory de?nition. a. Cross-cutting Issues Some issues worthy of discussion are presented by more than one agency?s minimization procedures.21 Special Retention Provisions All three sets of minimization procedures permit the head of the agency, under certain circumstances, to authorize retention of information from communications acquired when the government reasonably believed that the target was a non?US. person outside the United States, when in fact the target was a US. person or was inside the United States.22 For example, the CIA Minimization Procedures state: Any communication . . . acquired through the targeting of a person who at the time of targeting was reasonably believed to be a non-United States person located outside 2? The NSA and FBI minimization procedures include presumptions of non-US. person status based on a person?s location outside the United States. NSA Minimization Procedures at 2; FBI Minimization Procedures at 1. The Court understands that those presumptions apply in the same manner as the analogous presumption in the NSA Targeting Procedures, which is discussed above. See page 10 Mg. 011 that understanding, the Court ?nds that the minimization presumptions comport with the statutory de?nitions. 22 For purposes of applying the NSA Minimization Procedures, such communications are treated as ?domestic communications.? NSA Minimization Procedures at 4. Page 24 All redacted information exempt under and except where otherwise noted Approved for public release the United States but is in fact located inside the United States at the time such communication is acquired or was in fact a United States person at the time of targeting shall be destroyed unless the Director of the determines in writing that such cemmunication is reasonably believed to contain: signi?cant foreign intelligence information; evidence of a crime that has been, is being, or is about to be committed; or information retained for traf?c analytic, or signal exploitation purposes. CIA Minimization Procedures at 6.23 In addition to these categories of information, the Director of NSA may also authorize retention upon a ?nding that ?the communication contains information I pertaining to a threat of serious harm to life or property? or ?information necessary to understand or assess a communications security vulnerability.? NSA Minimization Procedures at 5-6. For ease of reference, the Court Will refer to these provisions collectively as ?special retention provisions.?24 For the following reasons, the Court ?nds that the special retention provisions are reasonable and consistent with the statutory definition of minimization procedures. First, the Court concludes that the government is authorized to acquire communications When it has a reasonable, but mistaken, belief that the target is a non-US. person located outside the United States. The Certi?cation authorizes ?the targeting of non?United States persons reasonably believed to be located outside the United States? in accordance with the targeting procedures. Cert. at 3; see also 50 U.S.C. 1881 a(a) (?the Attorney General and the may 23 Corresponding provisions are in the FBI Minimization Procedures at 1-2 and the NSA Minimization Procedures at 5-6. 24 Although the agencies? special retention provisions use somewhat different language to describe the form of approval, the government has explained that, for all three agencies, the agency head will make such determinations in writing on a case?by-case basis. Govt. Responses at 11; Trans. at 36-37. Page 25 All redacted information exempt under and except where othemise noted Approved for public release authorize jointly . . . the targeting of persons reasonably believed to be outside the United States?). There may be cases where, after properly applying the targeting procedures, the government reasonably believes at the time it acquires a communication that the target is a non-U.S. person outside the United States, when in fact the target is a U.S. person and/or is in the United States. The acquisition of such communications is properly authorized under Section 1881a, notwithstanding the fact that the government is prohibited from intentionally targeting U.S. persons or any persons inside the United States, or intentionally acquiring a communication when it is known that all parties thereto are inside the United States}25 The Court also ?nds that 50 U.S.C. 18060) does not require the destruction of information from such communications. Section 1806(i) provides that, in the case of the unintentional acquisition . . . of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a- warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person. 25 The government may not: (1) ?intentionally target? any person ?known at the time of acguisition to be located in the United States;? ?intentionally target a United States person,? even if such person is ?reasonably believed to be located outside the United Statesf? or (3) ?intentionally acguire 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(b)(1), (3), and (4) (emphasis added). ?Any information acquired by intentionally targeting a United States person or a person not reasonably believed to be outside the United States at the time of such targeting will be purged from NSA databases.? NSA Targeting Procedures at 9. WW Page 26 All redacted information exempt under and except where othemise noted Approved for public release Wm 50 U.S.C. 1806(i) (emphasis added).26 The goverrunent argues that, by its terms, Section 18060) applies only to a communication that is unintentionally again:de7 not to a communication that is intentionally acquired under a mistaken belief about the location or non?US. person status of the target or the location of the parties to the communication. ?e_e Government?s ?ling of August 28, 2008. The Court ?nds this analysis of Section 18066) persuasive, and on this basis concludes that Section 1806(i) does not require the destruction of the types of communications that are addressed by the special retention provisions?"a Having concluded that such communications are within the scope of authorized acquisition, and that Section 18060) does not apply to such communications, the only remaining question is whether the special retention provisions comport with the statutory definition of minimization procedures. The Court concludes that they do. Once an agency head has made a case-Speci?c, written determination that certain information falls within one of the categories speci?ed in the 26 Prior to the FAA, this subsection had only applied to radio communications. See FAA 106, 122 Stat. 2462 (replacing ?radio communication? with ?communication? in this subsection). 2'7 A communication would be unintentionally acquired, for purposes of Section 1806(i), if, for example, the acquisition resulted from a technical malfunction or an inadvertent mis- identi?cation of a selector. 2? In approving other minimization and targeting provisions that refer to ?inadvertently? acquired communications, the Court relies on the government?s representations that those provisions will be implemented in accordance with the explanations provided in the government?s Notice of Clari?cation and Correction, ?led September 2, 2008. So understood, those provisions of the minimization procedures do not implicate Section 1806(i). Page 27 All redacted information exempt under and except where otherwise noted Approved for public release WW special retention provisions, continued retention and appropriate dissemination of such information do not con?ict with the requirements of Sections 1801 and (ii) Technical and Linguistic Assistance from Foreign Governments The NSA and CIA minimization procedures provide for the sharing of raw data with foreign governments for ?technical and linguistic assistance.? NSA Minimization Procedures at 8-10 CIA Minimization Procedures at-4-5 (permitting such sharing with foreign governments generally).30 Access to this raw information is restricted to foreign government personnel involved in rendering the necessary assistance to NSA or CIA, and the foreign government may not permanently retain or otherwise make use of information so received. NSA Minimization Procedures at 9?10; CIA Minimization Procedures at 4-5. Given these tight restrictions, the PISC 29 Speci?cally, evidence of a crime may be retained and disseminated for law enforcement purposes under Sections 1801(h)(3) and ?[S]ignif1cant foreign intelligence information? may be retained and, as appropriate, disseminated under Sections and ?[I]nformation retained for traf?c analytic, or signal exploitation purposes? which NSA refers to as ?technical data base? information, NSA Minimization Procedures at 2 may not, once fully processed, be identi?ed as foreign intelligence information, but the Court is satis?ed that retention of information for such purposes, and subject to other minimization requirements, is permissible as ?consistent with the need of the United States to - obtain, produce, and disseminate foreign intelligence information.? 50 U.S.C. 1801(h)(1) and Finally, in the context of acquisitions under this Certi?cation, ?information pertaining to a threat of serious harm to life or property? and ?information necessary to understand or assess a communications security vulnerability? can reasonably be regarded as information to be retained under the abovewquoted provisions of Sections 1801(h)(1) and 30 Previously, the FISC has authorized disseminations of raw PISA information to forei overnments on a more limited basis. See, e. ., Docket No. All redacted information exempt under and exCept where otherwise noted Approved for public release finds that such information-sharing comports with the requirements of Sections 1801(h) and 1 821 (4). b. NSA Minimization Procedures The NSA Minimization Procedures in this matter are substantially similar to other sets of minimization procedures employed by NSA in the conduct of electronic surveillance in other contexts. The procedures propOsed herein borrow from four sets of procedures: (1) the NSA Standard Minimization Procedures adopted by the Attorney General for use in nearly all NSA requests for electronic surveillance sought pursuant to Section 1804 and authorized by judges of this Court in accordance with Section 1805 (2) the procedures adopted by this Court in Lam Electronic Surveillanbe and Physical Search of International Terrorist Groups. Their Agents, and Related Targets, Order, No.- (May 2002), as extended and modi?ed by orders of this Court, most recently on December 6, 2007 (?Raw Take Motion?); (3) the procedures proposed by the government and approved by several judges of this Court in several dockets captioned, In re Various Known and aim most recently in Docket-?Domestic Selector ProCedures?); and (4) the procedures adopted by the government for use in acquisitions authorized pursuant to the PAA 3? Unlike the other sets of minimization procedures, the PAA Procedures have never been presented to a judge of the FISC for a determination as to whether they meet the de?nition of minimization procedures in Section 1801(11). However, a judge of this Court considered the minimization procedures as a factor that supported ?nding that certain directives issued in accordance with Certi?cations satis?ed the reasonableness requirement of the Fourth (continued. .) Page 29 All redacted information exempt under and except where othenNise noted Approved for public release Prior to now, any deviation from the SMP was made by asking the Court to adopt the SMP with speci?ed modi?cations. Thus, to assess such minimization procedures, a judge needed to review the SMP as well as the proposed modi?cation. The NSA Minimization Procedures in this matter, however, are drafted as a stand alone set of procedures, complete unto themselves. Notwithstanding the changed verbiage, the NSA Minimization Procedures at issue here are substantially the same as the Domestic Selector Procedures and the PAA Procedures.32 The most signi?cant difference involves the special retention provisions discussed at pages 24-28 Ema. Other differences appear to be of less moment. The NSA Minimization Procedures at issue here adopt the previously approved ?ve?year period of retention for ?inadvertently acquired information,? information acquired ?notwithstanding reasonable steps taken to minimize the acquisition of information not relevant to the authorized purpose of the acquisition.? Government?s submission of September 2, 2008, at 4 (internal quotations omitted)??3 The NSA Minimization Procedures at issue here, however, extend the period of time for which NSA may retain technical Amendment. In re Directives, Docket No. 1058(g): 07~Ol, Memorandum Opinion entered April 25, 2008, at 88-89, 94. . - 32 For example, it is the Court?s understanding that Section of the NSA Minimization Procedures at issue here is meant to convey the same meaning as Section of the SMP, as modi?ed in the Domestic Selector Procedures and the FAA Procedures to permit retention for ?ve years. 33 NSA Minimization Procedures at 3 (?inadvertently acquired communications of or concerning a United States person may be retained no longer than five years . . . see also note 28 so ra. WW - Page 30 All redacted information exempt under and excapt where otherwise noted Approved for public release data base information from one year to ?ve years.34 For the reasons presented by the government, both in its written submissions and in the hearing, and consistent with the ?ndings of other judges of the FISC, the Court-?nds an outside retention period of five years, even for the technical data, to be reaSonable. - c. FBI Minimization Precedures The FBI Minimization Procedures are the standard FBI minimization procedures for a non- U.S. person agent of a foreign power, subject to certain modi?cations. They shall be implemented in accordance with a recent FBI policy directive, FBI Minimization Procedures at 2, and in the same manner in which that policy directive applies in cases where the FBI Govt. Responses at 10. In many orders authorizing? the FISC has found that those standard FBI minimization procedures, implemented in conformance with that policy directive, comply with the applicable statutory de?nition. Nothing in the case-speci?c modi?cations to those procedures presents any additional concern. 3'4 The NSA Minimization Procedures also include an additional category of technical information that may be retained for this period - information necessary to understand or assess a communications security vulnerability. NSA Minimization Procedures at 5-6. Page 31 All redacted information exempt under and except where otherwise noted Approved for public release d. CIA Minimization Procedures The CIA Minimization Procedures are also similar in many respects to procedures previously approved by the They include a new category of US. person information expressly authorized for retention and dissemination: information that ?concerns a US. Government of?cial acting in an official capacity.? CIA Minimization Procedures at 2. The Court ?nds that this category is reasonable and complies with the statutory de?nition, on the understanding that CIA will disseminate this category of information, and other information disseminated pursuant to Paragraph 2 of the CIA Minimization Procedures, in a manner consistent with Section 1801(h)(2) that nonpublicly available information that is foreign intelligence information as defined at Section 1801(e)(2) ?shall not be disseminated in a manner that identi?es any United States person, without such person?s consent, unless such person?s identity is necessary to understand foreign intelligence information or assess its importance.? C. The Targeting Procedures and the Minimization Procedures Are Consistent With the Fourth Amendment. The Court is also charged with assessing whether the targeting procedures and minimization procedures ?are consistent . . . with the fourth amendment to the Constitution of the United States.? 50 U.S.C. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 35 Various Unknown Agents of Docket No. CIA Minimization Procedures (Exhibit to Application) (including substantively identical provisions for retention of certain categories of information (1i handling of privileged communications (11 4a); and dissemination of intelligence reporting to foreign governments 4c). LEW Page 32 All redacted information exempt under and except where otherwise noted Approved for public release Warrants shall issue, but upon probable cause, supported by Oath or af?rmation, and particularly describing the place to be searched, and the persons or things to be seized. US. Const. amend. IV. There is no question that the government?s acquisition of private telephone calls can constitute a ?search? or ?seizure? Within the meaning of the Fourth Amendment. egg Kata v. United States, 389 13.8. 347, 353 (1967). Although the scope of Fourth Amendment protection for email communications is not settled,36 the Court will assume that, at least under some circumstances, the acquisition of electronic communications other than telephone calls can also result in such a ?search? or ?seizure.? The Court concludes that the Fourth Amendment does not require the government to obtain a warrant for acquisitions under the procedures at issue, and that the procedures are reasonable and consistent with the Fourth Amendment. I. The Government Is Not Required to Obtain a Warrant for Acquisitions Pursuant to the Procedures in Question. The applicable targeting procedures are reasonably designed to con?ne acquisitions to targeting persons reasonany believed to be outside the United States. go pages 15?21 supra. They also are reasonany designed to avoid targeting U.S. persons. pages 16-17, 20-21 supra. 35 David S. Kris J. Douglas Wilson, National Security Investigations Prosecutions 7:28 (2007). 49W Page 33 All redacted information exempt under (axe), and except where otherwise noted Approved for public release Because there is no reason to think that these procedures will be implemented in bad faith,37 the acquisitions can generally be expected to target non-US. persons located outside the United States. Under these circumstances, it can be questioned whether the Warrant Clause of the Fourth Amendment has any application at all, insofar as the targets of acquisitions under the procedures are non-US. persons located overseas.38 However, to the extent that the Warrant Clause might otherwise apply, the Court concludes that acquisitions under these procedures fall within an exception to the warrant requirement recognized by the Foreign Intelligence Surveillance Court of Review in In re Directives, Docket No. 08-01, Opinion at 28 (FISA Ct. Rev. Aug. 22, 2008) (hereinafter ?In re Directives?). That case, like this one, involved the warrantless acquisition of communications targeting persons reasonably believed to be outside the United States. lane, Directives at 3. Unlike this case, In re Directives involved acquisitions that targeted U.S. Dersons reasonably believed to be outside the United States. See id; at 25-26 (discussing requirements for targeting U.S. persons). In that case, the Court of Review found that an exception to the warrant requirement applied to ?surveillance'undertaken for national security purposes and directed at a 37 Qt; In re Directives, Docket No. 08-01, Opinion at 28 (PISA Ct. Rev. Aug. 22, 2008) (?Once we have determined that protections suf?cient to meet the Fourth Amendment?s reaSOnableness requirement are in place, there is no justi?cation for assuming, in the absence of evidence to that effect, that those prophylactic procedures have been implemented in bad faith?). 33 United States v. Verdugo-Urqidez, 494 US. 259, (I990) (observing that a warrant ?would be a dead letter outside the United States? and holding that ?the Fourth Amendment ha[d] no application? where reSpondent ?was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico?); id, at 278 (?the Fourth Amendment?s warrant requirement should not apply in Mexico as it does in this couatry?) (Kennedy, ., concurring); id, at 279 do not believe the Warrant Clause has any application to searches of noncitizens? homes in foreign jurisdictions because American magistrates have no power to authorize such searches?) (Stevens, ., concurring in the judgment). Page 34 All redacted information exempt under and except-where otherwise noted Approved for public release foreign power or an agent of a foreign power reasonably believed to be located outside the United States.? In; at 15?16.39 The acquisitions at issue here fall within the exception recognized by the Court of Review. They target persons reasonably believed to be located outside the United States, see pages 15?21 sum, who will have been assessed by NSA to possess andfor to be likely to communicate foreign intelligence information concerning a foreign power authorized for acquisition under the Certi?cation. Cert. at 2~3; NSA Targeting Procedures at 4; Govt. Response-s at Alexander Af?davit at 3.40 And the acquisitions are conducted for national security purposes, with a ?signi?cant purpose . . . to obtain foreign intelligence information.? Cert. at 2. Moreover, the Court of Review?s reasons for recognizing and applying a foreign intelligence exception in In re Directives apply with equal force here. First, the government?s purpose in conducting the acquisitions in'this case ?goes well beyond any garden-variety law enforcement 39 In so doing, the Court of Review analogized to cases in which the Supreme Court ?excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment Of that purpose." 1; at 15 (citing, among other cases, Vernonia Sch. Dist. 47.] V. Acton, 515 U.S. 646, 653 (1995)). 40 Page 3 5 All redacted information exempt under and except where otherwise noted Approved for public release objective. It involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security,? a circumstance ?in which the government?s interest is particularly intense.? In re Directives at 16. Second, the Court of Review relied on the high degree of probability that requiring a warrant would hinder the government?s ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake. . . . Compulsory compliance with the warrant requirement would introduce an element of delay, thus frustrating the government?s ability to collect information in a timel manner. In some cases, that delay might well allow the window in whichh or information is available to slam shut before a warrant can be secured. at 18. This case similarly involves targets who are attempting to conceal their communications, thereby presenting the same concerns that weigh against requiring the government to obtain a warrant.? Moreover, the government tasked over-overseas selectors for acquisition under the FAA, Trans. at 43, and it is reasonably anticipated that the government will seek to task -selectors under Section 1881a certi?cations. Subjecting .umber of targets to a warrant process inevitably would result in delays and, at least occasionally, in failures to obtain perishable foreign intelligence information, to the detriment of the national security. For these reasons, the Court concludes that the government is not obligated to obtain a warrant before conducting acquisitions under the procedures in question. Page 36 All redacted information exempt under and except where otherwise noted Approved for public release WW 2. Acquisitions Conducted Under the Procedures in OueStion Are Reasonable Under the Fourth Amendment. The Court of Review opinion in In re Directives also provides the analytical framework for analyzing reasonabieness under the Fourth Amendment. A reviewing court must consider ?the nature of the government intrusion and how the government intrusion is implemented. The more important the government?s interest, the greater the intrusion that may be constitutionally tolerated.? In re Directives at 19-20 (citations omitted). The court must balance the interests at stake. If the protections that are in place for individual privacy interests are suf?cient in light of the governmental interests at stake, the constitutional scales will tilt in favor of upholding the govermnent?s actions. If, however, those protections are insuf?cient to alleviate the risks of government error and abuse, the scales will tip toWard a ?nding of unconstitutionality. 1d, at 20 (citations In conducting this balancing test, the court must consider the totality of the circumstances, In re Directives at 19; Samson v. California, 547 US. 843, 848 (2006), rather than rigidly apply a set of pie-determined factors. In re Directives at 20?2 1; Ohio v. Robinette, 519 US. 33, 39 (1996). The government?s national security interest in conducting these acquisitions ?is of the highest order of magnitude.? at 20.43 On the other side of the balance, the targeting procedures reasonably con?ne acquisitions to targets who are non-US. persons outside the United States. Such persons are not protected by the Fourth Amendment. United States v. Verdugo-Uroidez, 494 U.S. 42 Accord In re Sealed Case. 310 F.3d at 742 (describing ?a balance of the legitimate need ?of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens?). 43 Accord Haig v. Agee, 453 US. 280, 307 (1981) (there is no governmental interest more compelling than the security of the nation). Page 37 All redacted information exempt under and except where otherwise noted Approved for public release 259, 274-75 (1990). As a result, the acquisitions will intrude on interests protected by the Fourth Amendment only to the extent that (1) despite the operation of the targeting procedures, U.S. persons, or persons actually in the United States, are mistakenly targeted; or (2) US. persons, or persons located in the United States, are parties to communications to or from tasked selectors (or, in certain circumstances, communications that contain a reference to a tasked These circumstances present a real and non?trivial likelihood of intrusion on Fourth Amendment-protected interests, but they do not, by?themselves, render the procedures unreasonable under the Fourth Amendment.? Indeed, the extent of such intrusion will be less in this context than in cases involving the intentional targeting of persons protected by the Fourth Amendment or otherwise lacking comparable targeting procedures. Weighing the government?s national security interest in conducting the acquisitions against the degree of intrusion on Fourth Amendment-protected interests, the Court ?nds that the procedures are reasonable under the Fourth Amendment. In addition to the targeting procedures, which limit the extent of Fourth Amendment intrusion as described above, the Court relies on the following protections in reaching this assessment. Foreign Intelligence Assessments: Prior to conducting acquisitions for a new target, NSA assesses whether the person to be targeted ?possesses and/or is likely to communicate foreign 4? It is reasonable to presume that most persons in communication with a non-US. person target located overseas are themselves likely to be non-US. persons located overseas. gee page 17 SUE a. 45 In re Directives, at 28 (?the fact that there is some potential for error is not a suf?cient reason to invalidate the surveillances?), 30 (?incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful?). Page 38 Ail redacted information exempt under and except where otherwise noted Approved for public release intelligence information? concerning a foreign power authorized under the Certi?cation. NSA Targeting Procedures at 4; Cert. at 3; Alexander Af?davit at 3. In making these assessments, NSA considers several factorsa?' In In re Directives, the Court of Review examined similar factors46 and found that they were ?in conformity with the particularity shouting contemplated by [the Fourth Amendment reasonableness analysis in] Sealed Case.? In re Directives at 24. The corresponding provisions of the NSA Targeting Procedures at issue here likewise direct the government?s acquisitions toward communications that are likely to yield the foreign intelligence information soughtf?7 and thereby ?6 A comparison of the factors identi?ed in the NSA Targeting Procedures with those at issue in In re Directives, see FISC Docket No. 1053(g): 07-01, Classi?ed Appendix submitted February 20, 2008, at page reVeals that the two sets of factors are substantively identical, except for the references to the pertinent forei r1 owers and the inclusion an additional factor in the NSA Tar etin Procedures re ardin NSA Targeting roce ures at It is fairly obvious why communications to and from targets identi?ed under these procedures would be expected to contain foreign intelligence information. The Court has received Page 39 All redacted information exempt under and except where otherwise noted Approved for public release afford a degree of particularity that is reasonable under the Fourth Amendment. Qt; In re Directives at 21 (rejecting suggestion that, to satisfy the Fourth Amendment, the government?s procedures ?must contain protections. equivalent to the three principal warrant requirements: prior judicial review, probable cause, and particularity?). Minimization Procedures: As previously stated, ?g pages 21?32 mg, the minimization procedures used by the NSA, FBI, and CIA are ?reasonath designed . . . to minimize the acquisition and retention, and prohibit the dissemination,? of US. person information, ?consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.? 50 U.S.C. 1801(h)( 1). These procedures constitute a safeguard against improper use of information about U.S. persons that is inadvertently or incidentally acquired, and therefore contribute to the Court?s overall assessment that the targeting and minimization procedures are consistent with the Fourth Amendment. ?ee In re Directives at 29?30. The Court recognizes that there are differences between the procedures at issue here and those at issue in In re Directives. Most prominently, in In re Directives, the government followed procedures adopted under section 2.5 of Executive Order No. 12,333, requiring the Attorney General to ?nd probable cause to believe that a US. person to be targeted for acquisition was an agent or an employee of a foreign power, and limiting the duration of an authorization for a US. person target to 90 days. In re Directives at 25-26. In this case, the government?s procedures testimony that acquiring communications enables the government to discover additional accounts used by targets, and to identify previously unknown persons who are associated with targets and may be involved in or possess information regarding targets? activities. Trans. at 20?2 1 . Page 40 All redacted information exempt under and except where otherwise noted Approved for public release 46W provide for no comparable probable cause determination, presumably because U.S. persons cannot be intentionally targeted at all. A probable cause determination by a high-level of?cial is not an indispensable component of reasonableness in the circumstances of targeting non-US. persons overseas for foreign intelligence purposes. United States v. Bin Laden, 126 F. Supp.2d 264, 281 (S.D.N.Y. 2000) (under Supreme Court decision in Verdugo, government not required to obtain a warrant or section 2.5 approval in order to conduct surveillance of non-US. persons? phone comn'nunications in Kenya). Where, as here, the government has ??special needs, beyond the normal need for law even suspicionless searches can be reasonable under the Fourth Amendment. In re Sealed Case, 310 F.3d at 745 (quoting Vernonia School Dist. 47] v. Acton, 515 US. 646, 653 (1995)). In this case, the assessment under its targeting procedures of the likelihood of obtaining foreign intelligence information provides a reasonable factual predicate for conducting the acquisitions, in View of the gravity of the governmentis national security interests and the other safeguards embodied in the targeting and minimization procedures. CONCLUSION Based on the foregoing statement of reasons and in reliance on the entire record in this matter, the Court ?nds, in the language of Section 1881a(i)(3)(A), that the certi?cation ?submitted in accordance with [Section 1881a(g)] contains all the required elements and that the targeting and minimization procedures adopted in accordance with [Section are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United Page 41 All redacted information exempt under and except where otherwise noted Approved for public release States.? A separate order approving the certi?cation and the use of the procedures pursuant to Section 1881a(i)(3)(A) is being entered contemporaneouSIy herewith. +35 ENTERED i day of September, 2008, in Docket No. MARY 21. (I Judge, United States Foreign httelligenoe Smeillance Court Page 42 Deputy Cierk FISC, cent} .a is document is a true and eorrec the originalW