ADDRESS (Security Classification) eewmexs: COPY OF Hafrdle-'laFia-- -Ghanfle-ls- Access to this document will be restricted to those approved for the following specific activities: NATIONAL INFORMATION Unauthorized Disclosure Suhlect to Criminal Sanctions (Security Classification} UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF ITANGIBLE THINGS FROM DOCKET NO. BR 09-06 . ORDER On - this Court issued a Supplemental Order in Docket No. that addressed several issues. Ainong other things, the -Supplemental Order noted the government's recent disclosure that the unrninimized results of authorized queries of rnetadata collected by the National Security Agency (N SA) pursuant to the Court's order in Docket No. and prior FISC orders- -had been shared with NSA other than the limited number of authorized to access such rnetadata. - Supplemental Order at 1-2. Such sharing had not previously been disclosed to the Court. at 2. The -Supplemental Order also noted the lgovernrnentis disclosure of an inaccuracy regarding the number of PR/TT-derived reports described in paragraph 14 of the declaration attached as Exhibit A to the application in Docket No. 1; at 3. The Court directed the government to submit, Within 20 days, a declaration correcting the inaccuracy regarding the number of reports and to provide a complete and "updated description ofNSA's dissemination practices." upplernental Order at 3-4. The Court further ordered that it would allow NBA, for a period of 20 days, to continue to share the unrnininiized results of authorized queries of the rnetadata with NSA other than the limited number of authorized to access such nietadata, but that such sharing was not to continue beyond the 20~day period unless the government first satisfied the Court, by written submission, that such sharing is necessary and appropriate on an ongoing basis. at 4. On -, the United States filed the Government's Response to the Court's Supplemental Order Entered On - in Docket No. Response"), and the supporting Declaration of Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, NSA The government asserted in its Page 2 -filings that "the ability of PR/TT-cleared to share nnminimized query results i with -cleared is critical to the success of the NSA's counterterrorism mission." --Declaration at 8. The government explained that while "[1]ess than ten percent of NSA's responsible for tracking and reporting foreign intelligence on counterterrorisni matters generally may query the metadata," NSA's "collective expertise"_ in the targeted foreign powers "resides in more than _inte11igence assigned not only to Counterterrorisrn Analytic Enterprise," but also to "other NSA organizations and product lines." I_d, at 7-8. Further, the government asserted that "[e]ach of the -product lines has some role in protectingthe homeland. from terrorists." Id at 8. Accordingly, the government has asked the Court to allow NSA to continue to share the results of authorized queries of the metadata with other than the limited number who are permitted to perform queries. fie -Response at 9. On the United States submitted the GoVernment's Response to the Cou1t's Supplemental Order Entered on-, in Docket No. Requesting a -- Corrective Declaration and the supporting Declaration of - Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, NSA In those filings, the government explained that the -reports described in the declaration filed in 'support of the government's application in Docket No. included only reports prepared by PR/TT-cleared however, that description did not include one additional report that was prepared by a analyst. --Declaration at 2-3. Accordingly, the government asserted that "-reports were produced and disseminated from inception of the to LL at 3. Page 3 Unfortunately, the government's responses to the Court's Eupplemental Order also raise two additional compliance issues, one which implicates not only the Court's orders authorizing the collection of metadata, but also its orders in the related bulk business records collection, which was last renewed by the Court in Docket No. BR 09-06. First, the government disclosed its 'filings in Docket No. -that NSA has generally failed to adhere to the special dissemination restrictions originally proposed by the government, repeatedly relied upon by the Court in authorizing the collection of the metadata, and incorporated into the Court's orders_as binding on NSA. See' Response at 2. The Court's current order, which is in pertinent part substantively identical to prior orders, provides that: The NSA shall treat information derived from queries of the metadata in accordance with United States Signals Intelligence Directive 18 SID 18) (Attachment to the application in docket number and shall apply USSID 18 to minimize information concernin ers ns 0 tained from the pen registers and trap and trace Additionally, prior to disseminating any U.S. person information outside of the NSA,'the Chief of - Information Sharing Services in NSA's Signals Intelligence Directorate shall determine that the information is related to counterterrorisrn information and is necessary to understand the counterterrorism information or to assess its importance. 4 Docket No. No.- Primary Order at 12.' In its -submissions, however, the government disclosed that "the NSA has generally permitted the dissemination of US. person identities derived from the metadata acquired pursuant to the Court's orders in this matter . . . in accordance with 18] rather than specifically requiringthat the narrower dissemination 1 Before September-, the Ccurt's orders designated the "Chief of Customer Response" in the NSA's Signals Intelligence Directorate as the official responsible for determining whether information proposed for ination had the necessary conne counterterrorism. See, Docket No. Order at 16; Docket No. at 10. Page 4 49FSE provision set forth in the Court's orders in this matter be strictly adhered to." -Response at 2 ?_e,e_alio_ 'Declaration at 3--5i The Court understands the government's disclosure to mean that NSA likely has disseminated US. person information derived from the metadata outside NSA without a prior determination by the NSA official designated in the Court's orders that the information is related to counterterrorism information and is necessary to understand the counterterrorism information or to assess its importance. fire -iesponse at 2. According to the government, 05- the Department of Justice instructed NSA only to disseminate U.S. person information derived from the metadata outside NSA after the designated official has made the required determination. The govemment further stated that it is investigating the matter. at 2~3. Second, the government referred in its -submissions to a dissemination-related problem that was first brought to the Court's attention in a "preliminary notice of compliance incident filed with the Court on 'Declaration Inotice -- and in a separate notice filed contemporaneously in Docket No. BR 09-06 the government informed the Court that the unminimized results of some queries of metadata collected in both matters had been "uploaded [by into a database to which other intelligence agencies . . had access." Preliminary Notice of Compliance Incident filed- in Docket No. at 2; Preliminary Notice of Compliance Incident filed June 16, A 2009, in Docket No. BR at 2. Providing such access, the government explained, may have resulted in the dissemination of US. person information in violation of USSID 18 and the more restrictive restrictions on dissemination proposed by the government and adopted by the Court in its current and prior orders in both of the abovencaptioned matters. Preliminary Notice of Page 5 Compliance Incident f1led_ in Docket No. at 2; Preliminary Notice of Compliance Incident filed June 16, 2009, in Docket No. BR 09-06 at 2. The government explained that, in the matter, any such disseminations would have been in addition to the -reports that are described by the government inthe -submissions. Declaration at 3 n. 1. The government asserts that NSA terminated access by outside agencies to the database at issue on- and that it is still investigating the matter. Preliminary Notice of Compliance Incident filed June 16, 2009, in Docket No. BR O9-06 it 2; Prelirninary. Notice of Compliance Incident tiled-- in Docket No. - at 2. Based upon the information provided by the government in its recent submissions, the Court has concluded that sharing of authorized queries of the metaclata with other than the limited number authorized to access the metadata is not the principal concern presented. Indeed, according to the 'government, only one of the -reports containing rnetadata and disseminated outside NSA was prepared by a non--c1eared analyst. The Court is gravely concerned, however, that NSA cleared and otherwise, have generally no_t adhered to the dissemination restrictions proposed by the government, repeatedly relied upon by the Court in authorizing the collection of the metadata, and incorporated into the Court's orders in this rnatter_:s binding on NSA. Given the apparent widespread disregard of these restrictions, it seems clear that NSA's Office of General Counsel has failed to satisfy its obligation to ensure that all with access to information derived from the Inetadata "receive appropriate training and guidance regarding the querying standard set out in paragraph c. above, as well as other rocedures and restrictions re ardin the retrieval stora and dissemination of such information." Docket No. Order at 11 (emphasis added). The Court is also seriously concerned regarding NSA's placement of Page 6 unrninimized metadata from both the above--captioned matters into databases accessible by outsideagencies, Which, as the government has acknowledged, violates not only the Court's orders, but also minimization and dissemination procedures set forth in USSID 18. Accordingly, it is hereby DRDERED that: 1. With regard to Docket No. - NSA may share the results of authorized queries of the rnetadata with NSA other than the limited number of who are authorized to access the metadata, provided, however, that any NSA analyst receiving such query results in any form has first received appropriate and adequate training and guidance . regarding all rules and restrictions governing the use, storage, and dissemination of such information; 2. With regard to Docket Nos. BR 09-06, the government shall, by 5:00 pan. each Friday, commencing on -2 file with the Court a report listing each instance during the seven-day period ending the previous Friday in which NSA has shared, in any forrnfinforrnation obtained or derived frorn the or BR nretadata collections with anyone outside NSA. For each such instance, the government shall specify the date on which the information was shared, the recipientof the inforrnaticn, and the form in Which the information was communicated written report, email, oral cornrnunication, etc.). For each such instance in which US. person information has been shared, the Chief of Information Sharing of NSA's Signals Intelligence Directorate shall certify that such official deterrnined, prior to dissemination, the information to be related to ccunterterrorisrn information and necessary to understand the counterterrorisrn information or to assess its importance; 3. With regard to Docket Nos. Iand BR 09-06, the government shall 2 If Friday is a holiday, the report shall be submitted 'on the next business day. Page 7 include, in its submissions regarding the results of the 'end-to-end reviews, a full explanation of Why the governrnent has permitted the dissemination outside NSA of US. person inforrnation without regard to whether such dissemination complied with tlie clear and acknowledged requireinents for sharing U.S. person information derived frorn the metadata collected pursuant to the Court's orders. IT IS so ORDERED this_7 .7 ll. B. WALTON Judge, United States Foreign Intelligence Surveillance Court eputy Clerk FISC. canny that this document a A . Page 3 is a true andcorreet the original. 4P UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. DOCKET NO. SUPPLEMENTAL ORDER On in the above~captioned docket, the Court ordered the National Security Agency to cease rising the "master list described in the goVernrne11t's Preliminary Notice of Compliance Incident filed on - within 20 days unless the government showed cause, in Writing, why it is necessary and appropriate for the NSA to continue to use the list. -Supplemental Order at 4. In addition, the Court ordered the government to explain, in writing, why any ongoing rise of metadata collected under the authori of orders in this matter metadata" in connection with deletin information . 8 associated with is consistent with this Court's orders and otherwise appropriate. E. . The Court has reviewed the Government's Response to the Court's Supplemental Order, filed on and the Dec.1aration of Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, The National Security Agency, filed on the same date As the government has acknowledged, its practices with regard to the creation and use of defeat lists for -selectors deviated, at least in part, from the procedures governing the handling of metadata. It is important to note that the procedures at issue were devised by the government and incorporated into the Court's orders as binding upon the NSA at the government's suggestion. Had the government initially proposed procedures permitting defeat list practices such as those described in the - Response and the --l)eclaration, the Court likely would have found them reasonable and would have incorporated such procedures in its orders. In any event, the Court finds that the continuation of the defeat list practices is reasonable and appropriate. Therefore, subject to further consideration following the submission of the government's report on its end--to-end review, it is HEREBY ORDERED that the restrictions imposed by the Court in paragraph 3 of its -Supplemental Order, are hereby lifted and, as the government requests, NSA is authorized to: Continue to use the existing "master defeat list" for metadata reductionland management in its contact~chaining repositories, including those repositories containing T6 metadata and those containing rnetadata; 0 Add to the "master defeat lis _identifi_ers discovered by NSA technical personnel through chain summary building and management processes, as described in paragraphs 6-8 of the'Dec1aration; and 0 Add to the "master defeat list" --identifiers discovered by NSA reviewing the results of authorized queries of the metadata. This authorization was orally conveyed to the government on- IT is so ORDERED this igz it as @133 WALTON Judge, United States Foreign Intelligence Surveillance Court sf//igjjt FISC. 09 atrue and correct COPY Oi IS the Grigimi