FISCR 18-01 Amicus Appendix - Part 2 (FISC 2018)
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IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING TIIE PRODUCTION OF TANGIBLE THINGS FRO~ Docket Number: BR 13-158 MEMORANDUM The Court has today issued the Primary Order appended hereto granting the "Application for Certain Tangible Things for Investigations to Protect Against International Terrorism" ("Application"), which was submitted to the Court on October TOPSECRETHSl//NOFORN App. 353 TOP SECRETHSl//NOFORN 10, 2013, by the Federal Bureau of Investigation ("FBI"). The Application requested the issuance of orders pursuant to 50 U.S.C. § 1861, as amended (also known as Section 215 of the USA PATRIOT Act), requiring the ongoing daily production to the National Security Agency ("NSA") of certain telephone call detail records in bulk. The Primary Order appended hereto renews the production of records made pursuant to the similar Primary Order issued by the Honorable Claire V. Eagan of this Court on July 19, 2013 in Docket Number BR 13-109("July19 Primary Order"). Qn August 29, 2013, Judge Eagan issued an Amended Memorandum Opinion setting forth her reasons for issuing the July 19 Primary Order ("August 29 Opinion"). Following a declassification review by the Executive Branch, the Court published the July 19 Primary Order and August 29 Opinion in redacted form on September 17, 2013. The call detail records to be produced pursuant to the orders issued today in the above-captioned docket are identical in scope and nature to the records produced in response to the orders issued by Judge Eagan in Docket Number BR 13-109. The records will be produced on terms identical to those set out in Judge Eagan' s July 19 Primary Order and for the same purpose, and the information acquired by NSA through the production will be subject to the same provisions for oversight and identical restrictions on access, retention, and dissemination. TOP SECRET/JSl//NOFORN App. 354 Page2 TOP SECRETHSl//NOFORN This is the first time that the undersigned has entertained an application requesting the bulk production of call detail records. The Court has conducted an independent review of the issues presented by the application and agrees with and adopts Judge Eagan' s analysis as the basis fo'f granting the Application. The Court writes separately to discuss briefly the issues of "relevance" and the inapplicability of the Fourth Amendment to the production. Although the definition of relevance set forth in Judge Eagan' s decision is broad, the Court is persuaded that that definition is supported by the statutory analysis set out in the August 29 Opinion. That analysis is reinforced by Congress's re-enactment of Section 215 after receiving information about the government's and the FISA Court's interpretation of the statute. Although the existence of this program was classified until several months ago, the record is clear that before the 2011 re-enactment of Section 215, many Members of Congress were aware of, and each Member had the opportunity to learn about, the scope of the metadata collection and this Court's interpretation of Section 215. Accordingly, the re-enactment of Section 215 without change in 2011 triggered the doctrine of ratification through re-enactment, which provides a strong reason for this Court to continue to adhere to its prior interpretation of Section 215. See Lorillard v. Pons. 434 U.S. 575, 580 (1978); see also EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984); Haig v. Agee. 453 U.S. 280, 297-98 (1981). TOP8ECRET/$Y/NOFORN App. 355 Page3 TOP SECRE'IY/Sl//NOFORN The undersigned also agrees with Judge Eagan that, under Smith v. Maryland. 442 U.S. 735 (1979), the production of call detail records in this matter does not constitute a search under the Fourth Amendment. In Smith. the Supreme Court held that the use of a pen register to record the numbers dialed from the defendant's home telephone did not constitute a search for purposes of the Fourth Amendment. In so holding, the Court stressed that the information acquired did not include the contents of any communication and that the information was acquired by the government from the telephone company, to which the defendant had voluntarily disclosed it for the purpose of completing his calls. The Supreme Court's more recent decision in United States v. Jones. - U.S.-, 132 S. Ct. 945 (2012), does not point to a different result here. Jone.§ involved the acquisition of a different type of information through different means. There, law enforcement officers surreptitiously attached a Global Positioning System (GPS) device to the defendant's vehicle and used it to track his location for 28 days. The Court held in Justice Scalia' s majority opinion that the officers' conduct constituted a search under the Fourth Amendment because the information at issue was obtained by means of a physical intrusion on the defendant's vehicle, a constitutionally-protected area. The majority declined to decide whether use of the GPS device, without the physical intrusion, impinged upon a reasonable expectation of privacy. TOP SECRETHSl/INOFORN App. 356 Page4 TOP SECRETNSl//NOFORN Five Justices in Jones signed or joined concurring opinions suggesting that the precise, pervasive monitoring by the government of a person's location could trigger Fourth Amendment protection even without any physical intrusion. This matter, however, involves no such monitoring. Like Smith, this case concerns the acquisition of non-content metadata other than location information. See Aug. 29 Op. at 29 at 4 n.5; id. at 6 & n.10. Justice Sotomayor stated in her concurring opinion in Jones that it "may be necessary" for the Supreme Court to "reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," which she described as "ill suited to the digital age." See Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (citing Smith and United States v. Miller, 425 U.S. 435, 443 (1976), as examples of decisions relying upon that premise). But Justice Sotomayor also made clear that the Court undertook no such reconsideration in Jones. See id. ("Resolution of these difficult questions in this case is unnecessary, however, because the Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision."). The Supreme Court may some day revisit the third-party disclosure principle in the context of twenty-first century communications technology, but that day has not arrived. Accordingly, Smith remains controlling with respect to the acquisition by the government from service providers of non-content telephony TOP SECRETHSl/JNOFORN App. 357 Page 5 '.fffi> SECRET//BI//NOFORN metadata such as the information to be produced in this matter. In light of the public interest in this matter and the government's declassification of related materials, including substantial portions of Judge Eagan' s August 29 Opinion and July 19 Primary Order, the undersigned requests pursuant to FISC Rule 62 that this Memorandum and the accompanying Primary Order also be published and directs such request to the Presiding Judge as required by the Rule. ENTERED this 11th day of October, 2013. Judge, nited States Foreign Intelligence Surveillance Court TOPSECRETHSY/NOFORN App. 358 Page6 TOP SBCRETl/Sl//NOFORN 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 TANGIBLE THINGS FROM- Docket Number: BR 13-158 PRIMARY ORDER A verified application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, requiring the TOP SECRET//Sl//NOFORN Derived from: Declassify on: Pleadings in the above-captioned docket App. 359 TOP SECRET/ISI//NOFORN production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, the Court finds as follows: 1. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12333 to protect against international terrorism, which investigations are not being conducted solely upon the basis of activities protected by the First Amendment to the Constitution of the United States. [50 U.S.C. § 1861(c)(l)] 2. The tangible things sought could be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things. [50 U.S.C. § 1861(c)(2)(D)] 3. The application includes an enumeration of the minimization procedures the government proposes to follow with regard to the tangible things sought. Such procedures are similar to the minimization procedures approved and adopted as binding by the order of this Court in Docket Number BR 13-109 and its predecessors. [50U.S.C.§1861(c)(l)] TOP SBCRBT//Sl/INOFORN 2 App. 360 TOP SECRETfl.Sl//NOFORN Accordingly, and as further explained in the accompanying Memorandum, the Court finds that the application of the United States to obtain the tangible things, as described below, satisfies the requirements of the Act and, therefore, IT IS HEREBY ORDERED, pursuant to the authority conferred on this Court by the Act, that the application is GRANTED, and it is FURTHER ORDERED, as follows: (1 )A. The Custodians of Records o shall produce to NSA upon service of the appropriate secondary order, and continue production on an ongoing daily basis thereafter for the duration of this order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" 1 created by B. The Custodian of Records of shall produce to NSA upon service of the appropriate secondary order, and continue production on an ongoing daily basis t For purposes of this Order "telephony metadata" includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMS!) number, International Mobile station Equipment Identity (!MEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer. Furthermore, this Order does not authorize the production of cell site location information (CSU). TOP SECRET//SI//NOFORN 3 App. 361 TOP SBCRET//-Sl//:NOFORN thereafter for the duration of this order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" created b~or communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. . . (2) With respect to any information the FBI receives as a result of this Order (information that is disseminated to it by NSA), the FBI shall follow as minimization procedures the procedures set forth .in The Attorney General's Guidelines for Domestic FBI Operations (September 29, 2008). (3) With respect to the information that NSA receives as a result of this Order, NSA shall strictly adhere to the following minimization procedures: A. The government is hereby prohibited from accessing business record metadata acquired pursuant to this Court's orders in the above-captioned docket and its predecessors ("BR metadata") for any purpose except as described herein. B. NSA shall store and process the BR metadata in repositories within secure networks under NSA' s control. 2 The BR meta data shall carry unique markings such The Court understands that NSA will maintain the BR metadata in recovery back-up systems for mission assurance and continuity of operations purposes. NSA shall ensure that any access 2 TOPSECRET.~~l//NOPORN 4 App. 362 TOP SECRET//Sl//NOFORN that software and other controls (including user authentication services) can restrict access to it to authorized personnel who have received appropriate and adequate training with regard to this authority. NSA shall restrict access to the BR metadata to authorized personnel who have received appropriate and adequate training. 3 Appropriately trained and authorized technical personnel may access the BR metadata to perform those processes needed to make it usable for intelligence analysis. Technical personnel may query the BR metadata using selection terms 4 that have not been RASapproved (described below) for those purposes described above, and may share the results of those queries with other authorized personnel responsible for these purposes, or use of the BR metadata in the event of any natural disaster, man-made emergency, attack, or other unforeseen event is in compliance with the Court's Order. The Court understands that the technical personnel responsible for NSA' s underlying corporate infrastructure and the transmission of the BR metadata from the specified persons to NSA, will not receive special training regarding the authority granted herein. 3 TOP SECRET//Sl//-NOFORN 5 App. 363 TOP SECRET/ISIJ,lNOFORN but the results of any such queries will not be used for intelligence analysis purposes. An authorized technician may access the BR metadata to ascertain those identifiers that may be high volume identifiers. The technician may share the results of any such access, i.e., the identifiers and the fact that they are high volume identifiers, with authorized personnel (including those responsible for the identification and defeat of high volume and other unwanted BR metadata from any of NSA's various metadata repositories), but may not share any other information from the results of that access for intelligence analysis purposes. In addition, authorized technical personnel may access the BR metadata for purposes of obtaining foreign intelligence information pursuant to the requirements of subparagraph (3)C below. C. NSA shall access the BR metadata for purposes of obtaining foreign intelligence information only through queries of the BR metadata to obtain contact chaining information as described in paragraph 17 of the Declaration o - attached to the application as Exhibit A, using selection terms approved as "seeds" pursuant to the RAS approval process described below. 5 NSA shall ensure, s For purposes of this Order, "National Security Agency" and "NSA personnel" are defined as any employees of the National Security Agency/Central Security Service ("NSA/CSS" or "NSA") and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to FISA if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA). NSA personnel shall not disseminate BR metadata outside the NSA unless the dissemination is permitted by, and in accordance with, the requirements of this Order that are applicable to the NSA. TOP SECR'ET/l.SI//NOFORN 6 App. 364 TOP SECRET//Sl//NOFORN through adequate and appropriate technical and management controls, that queries of the BR metadata for intelligence analysis purposes will be initiated using only a selection term that has been RAS-approved. Whenever the BR metadata is accessed for foreign intelligence analysis purposes or using foreign intelligence analysis query tools, an auditable record of the activity shall be generated. 6 (i} Except as provided in subparagraph (ii} below, all selection terms to be used as "seeds" with which to query the BR metadata shall be approved by any of the following designated approving officials: the Chief or Deputy Chief, Homeland Security Analysis Centerj or one of the twenty specially-authorized Homeland Mission Coordinators in the Analysis and Production Directorate of the Signals Intelligence Directorate. Such approval shall be given only after the designated approving official has determined that 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 (RAS) that the selection term to be queried is associated with 6 This auditable record requirement shall not apply to accesses of the results of RAS-approved TOP SECRETl/Sl//NOFORN 7 App. 365 TOP SECRET//SI//NOFORN provided, however. that NSA's Office of General Counsel (OGC) 8 App. 366 TOPSECR:ETh~Y/NOPORN shall first determine that any selection term reasonably believed to be used by a United States (U.S.) person is not regarded as associated wi~ First Amendment to the Constitution. (ii) Selection terms that are currently the subject of electronic surveillance authorized by the Foreign Intelligence Surveillance Court (FISC) based on the FISC' s finding of probable cause to believe that they are used by - including those used by U.S. persons, may be deemed approved for querying for the period of FISC-authorized electronic surveillance without review and approval by a designated approving official. The preceding sentence shall not apply to selection terms under surveillance TOP SECR:ET!l-SI#NOFORN 9 App. 367 TOPSECRETHSY/NOFORN pursuant to any certification of the Director of National Intelligence and the Attorney General pursuant to Section 702 of FISA, as added by the PISA Amendments Act of 2008, or pursuant to an Order of the FISC issued under Section 703 or Section 704 of FISA, as added by the FISA Amendments Act of 2008. (iii) A determination by a designated approving official that a selection term is associated with shall be effective for: one hundred eighty days for any selection term reasonably believed to be used by a U.S. person; and one year for all other selection terms. 9•10 9 The Court understands that from time to time the information available to designated approving officials will indicate that a selection term is or was associated with a Foreign Power only for a specific and limited time frame. In such cases, a designated approving official may determine that the reasonable, articulable suspicion standard is met, but the time frame for which the selection term is or was associated with a Foreign Power shall be specified. The automated query process described in th~ Declaration limits the first hop query results to the specified time frame. Analysts conducting manual queries using that selection term shall continue to properly minimize information that may be returned within query results that fall outside of that timeframe. The Court understands that NSA receiv~s certain call detail records pursuant to other authority, in addition to the call detail records produced in response to this Court's Orders. NSA shall store, handle, and disseminate call detail records produced in response to this Court's Orders pursuant to this Orde 10 TOP SECRET//8I//NOFORN 10 App. 368 TOP SECRET//SI//NOFORN (iv) Queries of the BR metadata using RAS-approved selection terms may occur either by manual analyst query or through the automated query process described below. 11 This automated query process queries the collected BR metadata (in a "collection store") with RAS-approved selection terms and returns the hop-limited results from those queries to a "corporate store." The corporate store may then be searched by appropriately and adequately trained personnel for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms. The specifics of the automated query process, as described in the-Declaration, are as follows: This automated query process was initially approved by this Court in its November 8, 2012 Order amending docket number BR 12-178. 11 As an added protection in case teclmical issues prevent the process from verifying that the most up-to-date list of RAS-approved selection terms is being used, this step of the automated process checks the expiration dates of RAS-approved selection terms to confirm that the approvals for those terms have not expired. This step does not use expired RAS-approved selection terms to create the list of "authorized query terms" (described below) regardless of whether the list of RAS-approved selection terms is up-to-date. 12 TOP SECRET//SI//NOFORN 11 App. 369 TOP SBCRET//Sl//NOFORN D. Results of any intelligence analysis queries of the BR metadata may be shared, prior to minimization, for intelligence analysis purposes among NSA analysts, subject to the requirement that all NSA personnel who receive query results in any form first TOP SBCRBT//Sl//NOFORN 12 App. 370 TOP SECRET//81//NOFOR..1\T receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information. 15 NSA shall apply the minimization and dissemination requirements and procedures of Section 7 of United States Signals Intelligence Directive SP0018 (USSID 18) issued on January 25, 2011, to any results from queries of the BR metadata, in any form, before the information is disseminated outside of NSA in any form. Additionally, prior to disseminating any U.S. person information outside NSA, the Director of NSA, the Deputy Director of NSA, or one of the officials listed in Section 7.3(c) of USSID 18 (!&., the Director of the Signals Intelligence Directorate (SID), the Deputy Director of the SID, the Chief of the Information Sharing Services (ISS) office, the Deputy Chief of the ISS office, and the Senior Operations Officer of the National Security Operations Center) must determine that the information identifying the U.S. person is in fact related to counterterrorism information and that it is necessary to understand the counterterrorism information or assess its importance. 16 Notwithstanding the above requirements, NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch 1s In addition, the Court understands that NSA may apply the full range of SIGINT analytic tradecraft to the results of intelligence analysis queries of the collected BR metadata. In the event the Government encounters circumstances that it believes necessitate the alteration of these dissemination procedures, it may obtain prospectively-applicable modifications to the procedures upon a determination by the Court that such modifications are appropriate under the circumstances and in light of the size and nature of this bulk collection. 16 TOP SECRET//81//NOFORN 13 App. 371 TOP SECRET//SI//NOFORN personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions. E. BR metadata shall be destroyed no later than five years (60 months) after its initial collection. F. NSA and the National Security Division of the Department of Justice (NSD/Don shall conduct oversight of NSA's activities under this authority as outlined below. (i) NSA' s OGC and Office of the Director of Compliance (ODOC) shall ensure that personnel with access to the BR metadata receive appropriate and adequate training and guidance regarding the procedures and restrictions for collection, storage, analysis, dissemination, and retention of the BR metadata and the results of queries of the BR metadata. NSA' s OGC and ODOC shall further ensure that all NSA personnel who receive query results in any form first receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information. NSA shall maintain records of all such training. 17 OGC shall provide NSD/DoJ with copies The nature of the training that is appropriate and adequate for a particular person will depend on the person's responsibilities and the circumstances of his access to the BR metadata or the results from any queries of the metadata. 17 TOP SECRET/ISI//NOFORN 14 App. 372 TOP SECRBT//SI//NOFORN of all formal briefing and/or training materials (including all revisions thereto) used to brief/train NSA personnel concerning this authority. (ii) NSA' s ODOC shall monitor the implementation and use of the software and other controls (including user authentication services) and the logging of auditable information referenced above. (iii) NSA's OGC shall consult with NSD/DoJ on.all significant legal opinions that relate to the interpretation, scope, and/or implementation of this authority. When operationally practicable, such consultation shall occur in advance; otherwise NSD shall be notified as soon as practicable. (iv) At least once during the authorization period, NSA's OGC, ODOC, NSD/DoJ, and any other appropriate NSA representatives shall meet for the purpose of assessing compliance with this Court's orders. Included in this meeting will be a review of NSA' s monitoring and assessment to ensure that only approved metadata is being acquired. The results of this meeting shall be reduced to writing and submitted to the Court as part of any application to renew or reinstate the authority requested herein. (v) At least once during the authorization period, NSD/DoJ shall meet with NSA' s Office of the Inspector General to discuss their respective oversight responsibilities and assess NSA' s compliance with the Court's orders. TOP SECRBTl/SI//NOFORN 15 App. 373 TOP SEC&ET/!Sll/NOFORN (vi) At least once during the authorization period, NSA's OGC and NSD/DoJ shall review a sample of the justifications for RAS approvals for selection terms used to query the BR metadata. (vii) Other than the automated query process described in th~ Declaration and this Order, prior to implementation of any new or modified automated query processes, such new or modified processes shall be reviewed and approved by NSA's OGC, NSD/DoJ, and the Court. G. Approximately every thirty days, NSA shall file with the Court a report that includes a discussion of NSA' s application of the RAS standard, as well as NSA' s implementation and operation of the automated query process. In addition, should the United States seek renewal of the requested authority, NSA shall also include in its report a description of any significant changes proposed in the way in which the call detail records would be received from the Providers and any significant changes to the controls NSA has in place to receive, store, process, and disseminate the BR metadata. Each report shall include a statement of the number of instances since the preceding report in which NSA has shared, in any form, results from queries of the BR metadata that contain United States person information, in any form, with anyone outside NSA. For each such instance in which United States person information has been shared, the report shall include NSA' s attestation that one of the officials TOP SBCRET/JSll/NOFORN 16 App. 374 TOP S8CRET/!SJ!/NOFORN authorized to approve such disseminations determined, prior to dissemination, that the information was related to counterterrorism information and necessary to understand counterterrorism information or to assess its importance. expires on the ~ lJl day of January, 2014, at 5:00 p.m., Eastern Time. 10-11-2013 p'j2:Q5 S i g n e d - - - - - - - - - - - Eastern Time Date Time Judge, U "ted States Foreign Intelligence Surveillance Court TOP SECRETHSl//NOFORN 17 App. 375 TOP SECRET/fSl//NOFORN UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D. C. IN REAPPLICATION OF 1HE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS RO Docket Number: BR 13-109 AMENDED MEMORANDUM OPINION I. Background. On July 18, 2013, a verified Final "Application for Certain Tangible Things for Investigations to Protect Against International Terrorism" (Application) was submitted to the Court by the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA or the Act), Title 50, United States TOP SECRETJ}SI//NOFORN App. 376 TOP SECRET//SI//NOFORN Code (U.S.C.), § 1861, as amended (also known as Section 215 of the USA PATRIOT Act), 1 requiring the ongoing daily production to the National Security Agency (NSA) of certain call detail records or "telephony metadata" in bulk. 2 The Court, after having fully considered the United States Government's (government) earlier-filed Proposed Application pursuant to Foreign Intelligence Surveillance Court (FISC) Rule of Procedure 9(a), 3 and having held an extensive hearing to receive testimony and "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001," Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) ("PATRIOT Act"), amended by, "USA PATRIOT Improvement Reauthorization Act of 2005," Pub. L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006); "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006," Pub. L. No. 109-178, 120 Stat. 278 (Mar. 9, 2006); and Section 215 expiration extended by "Department of Defense Appropriations Act, 2010," Pub. L. No. 111-118 (Dec. 19, 2009); "USA PATRIOT-Extension of Sunsets," Pub. L. No. 111-141(Feb.27, 2010); "FISA Sunsets Extension Act of 2011," Pub. L. No. 112-3 (Feb. 25, 2011); and, "PATRIOT Sunsets Extension Act of 2011," Pub. L. No. 112-14, 125 Stat. 216 (May 26, 2011). 1 For purposes of this matter, '"telephony metadata' includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and . terminating telephone number, International Mobile station Equipment Identity (IMEi) number, International Mobile Subscriber Identity (IMSI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer." App. at 4. In addition, the Court has explicitly directed that its authorization does not include "the production of cell site location information (CSU)." Primary Ord. at 3. 2 Prior to scheduling a hearing in this matter, the Court reviewed the Proposed Application and its filed Exhibits pursuant to its standard procedure. Exhibit A consists of a Declaration from the NSA in support of the government's Application. As Ordered by this Court in Docket No. BR 13-80, Exhibit Bis a Renewal Report to describe any significant changes proposed in the way in which records would be received, and any significant chan es to controls NSA has in place to receive, store, process, and disseminate the information. It also provides the final segment of information normally contained in the 30-day reports discussed below. As Ordered by this Court in Docket No. BR 13-80, Exhibit C is a summary of a meeting held by Executive Branch representatives to assess compliance with this Court's Orders. Furthermore, the Court reviewed the previously filed 30-day reports that were Ordered by this Court in Docket No. 13-80, discussing NSA's application of the reasonable, articulable suspicion (RAS) standard for approving selection terms and implementation of the automated query process. In addition, the 30-day reports describe disseminations of U.S.-person information obtained under this program. 3 TOP SBCRBT//Sl//NOFORN 2 App. 377 TOP SECRET//SI//NOFORN evidence on this matter on July 18, 2013, 4 GRANTED the application for the reasons stated in this Memorandum Opinion and in a Primary Order issued on July 19, 2013, which is appended hereto. In conducting its review of the government's application, the Court considered whether the Fourth Amendment to the U.S. Constitution imposed any impediment to the government's proposed collection. Having found none in accord with U.S. Supreme Court precedent, the Court turned to Section 215 to determine if the proposed collection was lawful and that Orders requested from this Court should issue. The Court found that under the terms of Section 215 and under operation of the canons of statutory construction such Orders were lawful and required, and the requested Orders were therefore issued. 4 The proceedings were conducted ex parte under security procedures as mandated by 50 U.S.C. §§ 1803(c), 1861(c){l), and FISC Rules 3, 17(a)-(b). See Letter from Presiding Judge Walton, U.S. FISC to Chairman Leahy, Senate Judiciary Committee Gui. 29, 2013), at 7 (noting that initial proceedings before the FISC are handled ex parte as is the universal practice in courts that handle government requests for orders for the production of business records, pen register/trap and trace implementation, wiretaps, and search warrants), http://www.uscourts.gov/uscourts/fisc/honorable-patrick-leahy.pdf. Pursuant to FISC Rules 17(b)-( d), this Court heard oral argument by attorneys from the U.S. Department of Justice, and received sworn testimony from personnel from.the FBI and NSA. The Court also entered into evidence Exhibits 1-7 during the hearing. Except as cited in this Memorandum Opinion, at the request of the government, the transcript of the hearing has been placed under seal by Order of this Court for security reasons. Draft Tr. at 3-4. At the hearing, the government notified the Court that it was developing an updated legal analysis expounding on its legal position with regard to the application of Section 215 to bulk telephony metadata collection. Draft Tr. at 25. The government was not prepared to present such a document to the Court. The Court is aware that on August 9, 2013, the government released to the public an "Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATIUOT Act" (Aug. 9, 2013). The Court, however, has not reviewed the government's "White Paper" and the "White Paper". has played no part in the Court's consideration of the government's Application or this Memorandum Opinion. TOP SECRET//SI//NOFORN 3 App. 378 I TOP SECRET//SI//NOFORN Specifically, the government requested Orders from this Court to obtain certain business records of specified telephone service providers. Those telephone company business records consist of a very large volume of each company's call detail records or telephony metadata, but expressly exclude the contents of any communication; the name, address, or financial information of any subscriber or customer; or any cell site location information (CSU). Primary Ord. at 3 n.1.5 The government requested production of this data on a daily basis for a period of 90 days. The sole purpose of this production is to obtain foreign intelligence information in support of individual authorized investigations to protect against international terrorism and concerning various international terrorist organizations. See Primary Ord. at 2, 6; App. at 8; and, Ex. A. at 2-3. In granting the government's request, the Court has prohibited the government from accessing the data for any other intelligence or investigative purpose.6 Primary Ord. at 4. s In the event that the government seeks the production of CSU as part of the bulk production of call detail records in the future, the government would be required to provide notice and briefing to this Court pursuant to FISC Rule 11. The production of all call detail records of a~ States has never occurre.d under this program. For example, the g o v e r n m e n t _ _ . . . . _ App. at 13 n.4. The government may, however, permit access to "trained and authorized technical personnel ... to· perform those processes needed to make [the data] usable for intelligence analysis," Primary Ord. at 5, and may share query results "[1] to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate lawful oversight functions." Id. at 14. 6 TOP SECRET/JSl//NOFORN 4 App. 379 ,I I I I I TOP SECRET//Sil/NOFORN By the terms of this Court's Primary Order, access to the data is restricted through technical means, through limits on trained personnel with authorized access, and through a query process that requires a reasonable, articulable suspicion (RAS), as determined by a limited set of personnel, that the selection term (e.g., a telephone number) that will be used to search the data is associated with one of the identified international terrorist organizations. 7 Primary Ord. at 4-9. Moreover, the government may not make the RAS determination for selection terms reasonably believed to be used by U.S. persons solely based on activities protected by the First Amendment. Id. at 9; and see 50U.S.C.§1861(a)(l). To ensure adherence to its Orders, this Court has the authority to oversee compliance, see 50U.S.C.§1803(h), and requires the government to notify the Court in writing immediately concerning any instance of non-compliance, see FISC Rule 13(b). According to the government, in the prior authorization period there have been no compliance incidents. 8 Finally, although not required by statute, the government has demonstrated through its written submissions and oral testimony that this production has been and remains valuable for obtaining foreign intelligence information regarding international A selection term that meets specific legal standards has always been required. This Court has not authorized government personnel to access the data for the purpose of wholesale "data mining" or browsing. 7 s The Court is aware that in prior years there have been incidents of non-compliance with respect to NSA's handling of produced information. Through oversight by this Court over a period of months, those issues were resolved. TOP SECRET//Sl//NOFORN 5 App. 380 TOP SECRET//Sl//NOFORN terrorist organizations, see App. Ex. B at 3-4; Thirty-Day Report for Filing in Docket Number BR 13-80 (Jun. 25, 2013) at 3-4; Thirty-Day Report for Filing in Docket Number BR 13-80 (May 24, 2013) a 3-4. II. Fourth Amendment.9 The production of telephone service provider metadata is squarely controlled by the U.S. Supreme Court decision in Smith v. Maryland, 442 U.S. 735 (1979). The Smith decision and its progeny have governed Fourth Amendment jurisprudence with regard to telephony and communications metadata for more than 30 years. Specifically, the Smith case involved a Fourth Amendment challenge to the use of a pen register on telephone company equipment to capture information concerning telephone calls, 10 but not the content or the identities of the parties to a conversation. Id. at 737, 741 (citing Katz v. United States, 389 U.S. 347 (1967), and United States v. New York Tel. Co., 434 U.S. 159 (1977)). The same type of information is at issue here. 11 "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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. 9 Because the metadata was obtained from telephone company equipment.; the Court found that "petitioner obviously cannot claim that his 'property' was invaded or that police intruded into a 'constitutionally protected area."' .W. at 741. 10 11 The Court is aware that additional call detail data is obtained via this production than was acquired through the pen register acquisition at issue in funith. Other courts have had the opportunity to review whether there is a Fourth Amendment expectation of privacy in call detail records similar to the data sought in this matter and have found that there is none. See United States v. Reed, 575 F.3d 900, 914 (9th Cir. 2009) (finding that because "data about the 'call origination, length, and time of call' ... is nothing more than pen register and trap and trace data, there is no Fourth Amendment 'expectation of privacy."' TOP SECRET//Sf//NOFORN 6 App. 381 TOP 6ECRETJ/6l//NOFORN The Supreme Court in Smith recognized that telephone companies maintain call detail records in the normal course of business for a variety of purposes. Id. at 742 ("All subscribers realize ... that the phone company has facilities for making permanent records of the number they dial. . .."). This appreciation is directly applicable to a business records request. "Telephone users ... typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes." Id. at 743. Furthermore, the Supreme Court found that once a person has transmitted this information to a third party (in this case, a telephone company), the person "has no legitimate expectation of privacy in [the] information ...." 12 Id. The telephone user, having conveyed this information to a telephone company that retains the information in the ordinary course of business, assumes the risk that the company will provide that information to the (citing Smith, 442 U.S. at 743-44)) cert. denied 559 U.S. 987, 988 (2010); United States Telecom Ass'n, 227 F.3d 450, 454 (D.C. Cir. 2000) (noting pen registers record telephone numbers of outgoing caJls and trap and trace devices are like caller ID systems, and that such information is not protected by the Fourth Amendment); United States v. Hallmark. 911F.2d399, 402 (10th Cir. 1990) (recognizing that "[t]he installation and use of a pen register and trap and trace device is not a 'search' requiring a warrant pursuant to the Fourth Amendment," and noting that there is no "'legitimate expectation of privacy' at stake." (citing Smith, 442 U.S. at 739-46)). The Supreme Court has applied this principle - that there is no Fourth Amendment search when the government obtains information that has been conveyed to third parties - in cases involving other types of business records. ~United States v. Miller, 425 U.S. 435 (1976) (bank records); see also S.E.C. v. Jerry I. O'Brien, Inc., 467 U.S. 735, 743 (1984) ("It is established that, when a person communicates information to a third party even on the understanding ·that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.") (citing Miller, 425 U.S. at 443). 12 TOP SECRET//Sl//NOFORN 7 App. 382 TOP SECRETJ/Sl//NOFORN government. See id. at 744. Thus, the Supreme Court concluded that a person does not have a legitimate expectation of privacy in telephone numbers dialed and, therefore, when the government obtained that dialing information, it "was not a 'search,' and no warrant was required" under the Fourth Amendment. Id. at 746. 13 In Smith. the government was obtaining the telephone company's metadata of one person suspected of a crime. See id. at 737. Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in - In that case, this Court found that "regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government's intruding into some individual's reasonable expectation of privacy." Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451U.S.204, 219 (1981); accord.~ Rakas v. Illinois, 439 U.S. 128, 133 (1978) ('"Fourth Amendment rights are personal rights which .. . may not be vicariously asserted."') (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that "[s]o long as no individual has a reasonable expectation of privacy 13 If a service provider believed that a business records order infringed on its own Fourth Amendment rights, it could raise such a challenge pursuant to 50 U.S.C. § 1861(f). TOP 8ECRET//5Jf/NOFORN 8 App. 383 TOP SECRET/181//NOFORN in meta data, the large number of persons whose communications will be subjected to the ... surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur." Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo. In sum, because the Application at issue here concerns only the production of call detail records or "telephony metadata" belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels the conclusion that there is no Fourth Amendment impediment to the collection. Furthermore, for the reasons stated in and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. Indeed, there is no legal basis for this Court to find otherwise. III. Section 215. Section 215 of the USA PATRIOT Act created a statutory framework, the various parts of which are designed to ensure not only that the government has access to the information it needs for authorized investigations, but also that there are protections and prohibitions in place to safeguard U.S. person information. It requires the government to demonstrate, among other things, that there is "an investigation to TOP SECRET//Sll/NOFORN 9 App. 384 TOP SECRET//SI//NOFORN obtain foreign intelligence information ... to [in this case] protect against international terrorism," 50 U.S.C. § 186l(a)(l); that investigations of U.S. persons are "not conducted solely upon the basis of activities protected by the first amendment to the Constitution," id.; that the investigation is "conducted under guidelines approved by the Attorney General under Executive Order 12333," id.§ 1861(a)(2); that there is "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant" to the investigation, id.§ 1861(b)(2)(A);14 that there are adequate minimization procedures "applicable to the retention and dissemination" of the information requested, id.§ 1861(b)(2)(B); and, that only the production of such things that could be "obtained with a subpoena duces tecum" or "any other order issued by a court of the United States directing the production of records" may be ordered, id. § 1861(c)(2)(D), see infra Part III.a. (discussing Section 2703(d) of the Stored Communications Act). If the Court determines that the government has met the requirements of Section 215, it shall enter an ex parte order compelling production.15 This section also provides that the records sought are "presumptively relevant to an authorized investigation if the applicant shows in the statement of facts that they pertain to-(i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known, to, a suspected agent of a foreign power who is the subject of such authorized investigation." 50 U.S.C. § 1861(b)(2)(A)(i)-(iii). The government has not invoked this presumption and, therefore, the Court need not address it. 14 is "Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of [Section 215), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things." Id.§ 1861(c)(l) (emphasis added). As indicated, the Court may modify the Orders as necessary, and compliance issues could present situations requiring modification. TOP SECRET//SJ//NOFORN 10 App. 385 TOP SECRETl/Sl//NOFORN This Court must verify that each statutory provision is satisfied before issuing the requested Orders. For example, even if the Court finds that the records requested are relevant to an investigation, it may not authorize the production if the minimization procedures are insufficient. Under Section 215, minimization procedures are "specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." Id.§ 186l(g)(2)(A). Congress recognized in this provision that information concerning U.S. persons that is not directly responsive to foreign intelligence needs will be produced under these orders and established postproduction protections for such information. As the Primary Order issued in this matter demonstrates, this Court's authorization includes detailed restrictions on the government through minimization procedures. See Primary Ord. at 4-17. Without those restrictions, this Court could not, nor would it, have approved the proposed production. This Court's Primary Order also sets forth the requisite findings under Section 215 for issuing the Orders requested by the government in its Application. Id. at 2, 4-17. TOP SECRET//Sl//NOFORN 11 App. 386 TOP SECRETllSll/NOFORN The Court now turns to its interpretation of Section 215 with regard to how it compares to 18 U.S.C. § 2703 (Stored Communications Act); its determination that "there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation," 50 U.S.C. § 1861(b)(2)(A); and, the doctrine of legislative re-enactment as it pertains to the business records provision. a. Section 215 of FISA and Section 2703(d) of the Stored Communications Act. It is instructive to compare Section 215, which is used for foreign intelligence purposes and is codified as part of FISA, with 18 U.S.C. § 2703 ("Required disclosure of customer communications or records"), which is used in criminal investigations and is part of the Stored Communications Act (SCA). See In Re Production of Tangible Things Docket No. BR 08-13, Supp. Op. (Dec. 12, 2008) (discussing Section 215 and Section 2703). Section 2703 establishes a process by which the government can obtain information from electronic communications service providers, such as telephone companies. As with PISA, this section of the SCA provides the mechanism for obtaining either the contents of communications, or non-content records of communications. See 18 U.S.C. §§ 2703(a)(c). TOP SECRET//SJl/NOFORN 12 App. 387 TOP SECRETh'Sl//NOFORN For non-content records production requests, such as the type sought here, Section 2703(c) provides a variety of mechanisms, including acquisition through a court order under Section 2703(d). Under this section, which is comparable to Section 215, the government must offer to the court "specific and articulable facts showing that there are reasonable grounds to believe that ... the records or other information sought, are relevant and material to an ongoing criminal investigation." Id.§ 2703(d) (emphasis added). Section 215, the comparable provision for foreign intelligence purposes, requires neither "specific and articulable facts" nor does it require that the information be "material." Rather, it merely requires a statement of facts showing that there are reasonable grounds to believe that the records sought are relevant to the investigation. See 50 U.S.C. §1861(b)(2)(A). That these two provisions apply to the production of the same type of records from the same type of providers is an indication that Congress intended this Court to apply a different, and in specific respects lower, standard to the government's Application under Section 215 than a court reviewing a request under Section 2703(d). Indeed, the pre-PATRIOT Act version of FISA's business records provision required "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." 50 U.S.C. §1862(b)(2)(B) as it read on October 25, 2001.1 6 In enacting Section 215, 16 Prior to enactment of the PATRIOT Act, the business records provision was in Section 1862 vice 1861. TOP SECRET//Sl//NOFORN 13 App. 388 TOP SECRETl/Sl//NOFORN Congress removed the requirements for "specific and articulable facts" and that the records pertain to "a foreign power or an agent of a foreign power." Accordingly, now the government need not provide specific and articulable facts, demonstrate any connection to a particular suspect, nor show materiality when requesting business records under Section 215. To find otherwise would be to impose a higher burden - one that Congress knew how to include in Section 215, but chose to dispense with. Furthermore, Congress provided different measures to ensure that the government obtains and uses information properly, depending on the purpose for which it sought the information. First, Section 2703 has no provision for minimization procedures. However, such procedures are mandated under Section 215 and must be designed to restrict the retention and dissemination of information, as imposed by this Court's Primary Order. Primary Ord. at 4-17; see 50 U.S.C. §§ 1861(c)(l), (g). Second, Section 2703(d) permits the service provider to file a motion with a court to "quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause undue burden on such provider." Id. Congress recognized that, even with the higher statutory standard for a production order under Section 2703(d), some requests authorized by a court would be "voluminous" and provided a means by which the provider could seek relief using a motion. Id. Under Section 215, however, Congress TOP SECRET//81//NOFORN 14 App. 389 TOP SECRET//Sll/'NO"FORN provided a specific and complex statutory scheme for judicial review of an Order from this Court to ensure that providers could challenge both the legality of the required production and the nondisclosure provisions of that Order. 50U.S.C.§1861(£). This adversarial process includes the selection of a judge from a pool of FISC judges to review the challenge to determine if it is frivolous and to rule on the merits, id.§ 1861(f)(2)(A)(ii), provides standards that the judge is to apply during such review, id. §§ 1861(£)(2)(B)-(C), and provides for appeal to the Foreign Intelligence Surveillance Court of Review and, ultimately, the U.S. Supreme Court, id.§ 1861(f)(3). 17 This procedure, as opposed to the motion process available under Section 2703(d) to challenge a production as unduly voluminous or burdensome, contemplates a substantial and engaging adversarial process to test the legality of this Court's Orders under Section 215. 18 This enhanced process appears designed to ensure that there are additional safeguards in light of the lower threshold that the government is required to meet for production under Section 215 as opposed to Section 2703(d). To date, no holder of 17 For further discussion on the various means by which adversarial proceedings before the FISC may occur,~ Letter from Presiding Judge Walton, U.S. FISC to Chairman Leahy, Senate Judiciary Committee Gui. 29, 2013), at 7-10, http://www.uscourts.gov/uscourts/fisc/honorable-patrick-leahy.pdf. In In re Applicatiort of the United States for an Order Pursuant to 18 U.S.C. § 2703(d). 830 F.Supp.2d 114, 128-29 (E.D. Va. 2011), the court found that only the service provider, as opposed to a customer or subscriber, could challenge the execution of a§ 2703(d) non-content records order. The court reasoned that "[b]ecause Congress clearly provided ... protections for one type of§ 2703 order [content] but not for others, the Court must infer that Congress deliberately declined to permit challenges for the omitted orders." .W.. The court also noted that the distinction between content and non-content demonstrates an incorporation of Smith v. Maryland into the SCA. Id. at 128 n.11. As discussed above, the operation of Section 215 within FISA represents that same distinction. 18 TOP SECRET//SJ//NOFORN 15 App. 390 TOP SECRETh'SI//NOFORN records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so. When analyzing a statute or a provision thereof, a court considers the statutory schemes as a whole. See Kokoszka v. Belford, 417 U.S. 642, 650 (1974) (noting that when a court interprets a statute, it looks not merely to a particular clause but will examine it within the whole statute or statutes on the same subject) (internal quotation and citation omitted); Jones v. St. Louis-San Francisco Ry. Co., 728 F.2d 257, 262 (6th Cir. 1984) ("[W]here two or more statutes deal with the same subject, they are to be read in pari materia and harmonized, if possible. This rule of statutory construction is based upon the premise that when Congress enacts a new statute, it is aware of all previously enacted statutes on the same subject.") (citations omitted). Here, the Court finds that Section 215 and Section 2703(d) operate in a complementary manner and are designed for their specific purposes. In the criminal investigation context, Section 2703(d) includes front-end protections by imposing a higher burden on the government to obtain the information in the first instance. On the other hand, when the government seeks to obtain the same type of information, but for a foreign intelligence purpose, Congress provided the government with more latitude at the production stage under TOP SECRET//Slf/NOFORN 16 App. 391 TOP 8ECRETl/Sil/NOFORN Section 215 by not requiring specific and articulable facts or meeting a materiality standard. Instead, it imposed post-production checks in the form of mandated minimization procedures and a structured adversarial process. This is a logical framework and it comports well with the Fourth Amendment concept that the required factual predicate for obtaining information in a case of special needs, such as national security, can be lower than for use of the same investigative measures for an ordinary criminal investigation. See United States v. United States District Court (Keith), 407 U.S. 297, 308-09, 322-23 (1972); and, In re Sealed Case, 310 F.3d 717, 745-46 (FISA Ct. Rev. 2002) (differentiating requirements for the government to obtain information obtained for national security reasons as opposed to a criminal investigation).19 Moreover, the government's interest is significantly greater when it is attempting to thwart attacks and disrupt activities that could harm national security, as opposed to gathering evidence on domestic crimes. See In re Directives Pursuant to Section 105B of . the Foreign Intelligence Surveillance Act, 551F.3d1004, 1012 (FISA Ct. Rev. 2008) ("[T}he relevant government interest-the interest in national security- is of the highest order of magnitude.") (citing Haig v. Agee, 453 U.S. 280, 307 (1981)); and, In re Sealed Case. 310 F.3d at 745-46. 19 As discussed above, there is no Fourth Amendment interest here, as per Smith v. Maryland. TOP SECRETl/SI//NOFORN 17 App. 392 TOP SECRET//SI//NOFORN b. Relevance. Because known and unknown international terrorist operatives are using telephone communications, and because it is necessary to obtain the bulk collection of a telephone company's metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations, the production of the information sought meets the standard for relevance under Section 215. As an initial matter and as a point of clarification, the government's burden under Section 215 is not to prove that the records sought are, in fact, relevant to an authorized investigation. The explicit terms of the statute require "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant ...." 50U.S.C.§1861(b)(2)(A) (emphasis added). In establishing this standard, Congress chose to leave the term "relevant" undefined. It is axiomatic that when Congress declines to define a term a court must give the term its ordinary meaning. See,~ Taniguchi v. Kan Pacific Saipan, Ltd., _ U.S. _J 132 S.Ct. 1997, 2002 (2012). Accompanying the government's first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that "[i]nformation is 'relevant' to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation." Mem. of Law in Support of App. for Certain Tangible TOP SECRET//Sf//NOFORN 18 App. 393 TOP 5ECRET//SI//NOFORN Things for Investigations to Protect Against International Terrorism, Docket No. BR 0605 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders. 437 U.S. 340, 351 (1978), and Fed. R. Evid. 40l2°). This Court recognizes that the concept of relevance here is in fact broad and amounts to a relatively low standard.21 Where there is no requirement for specific and articulable facts or materiality, the government may meet the standard under Section 215 if it can demonstrate reasonable grounds to believe that the jnformation sought to be produced has some bearing on its investigations of the identified international terrorist organizations. This Court has previously examined the issue of relevance for bulk collections. At the time of the government's submission in Docket No. BR 06-05, a different version of Fed. R. Evid. 401 was in place. While not directly applicable in this context, the current version reads: "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." (Emphasis added.) 20 Even under the higher "relevant and material" standard for 18 U.S.C. § 2703(d), discussed above, "[t]he government need not show actual relevance, such as would be required at trial." In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d). 830 F.Supp.2d 114, 130 (E.D. Va. 2011). The petitioners had argued in that case that most of their activity for which records were sought was "unrelated" and that "the government cannot be permitted to blindly request everything that 'might' be useful.. .." Id. (internal quotation omitted). The court rejected this argument, noting that "[t]he probability that some gathered information will not be material is not a substantial objection," and that where no constitutional right is implicated, as is the case here, "there is no need for .. . narrow tailoring." Id. 21 TOP SECRETh'SI//NOFORN 19 App. 394 TOPSECRET//SY/NOFORN ' - - - - - - - - - - - - - - - - - - - - - While those mat~ers involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) ("[R]elevant to an ongoing investigation to protect against international terrorism ...."). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the "finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives." - Indeed, in- this Court noted that bulk collections such as these are "necessary to identify _the much smaller number of [international terrorist] communications. As a result, it is this showing of necessity that led the Court to find that "the entire mass of collected metadata is relevant _to investigating [international terrorist groups] and affiliated persons." - - - - - - - - - - ' TOP SECRET//51//NOFORN 20 App. 395 - - - TOP SECRET//SJ//NOFORN This case is no different. The government stated, and this Court is well aware, that individuals associated with international terrorist organizations use telephonic systems to communicate with one another around the world, including within the United States. Ex. A. at 4. The government argues that the broad collection of telephone company metadata "is necessary to create a historical repository of metadata that enables NSA to find or identify known and unknown operatives ..., some of whom may be in the United States or in communication with U.S. persons." App. at 6 (emphasis added). The government would use such information, in part, "to detect and prevent terrorist acts against the United States and U .S. interests." Ex. A. at 3. The government posits that bulk telephonic metadata is necessary to its investigations because it is impossible to know where in the data the connections to international terrorist organizations will be found. Id. at 8-9. The government notes also that "[a]nalysts know that the terrorists' communications are located somewhere" in the metadata produced under this authority, but cannot know where until the data is aggregated and then accessed by their analytic tools under limited and controlled queries. Id. As the government stated in its 2006 Memorandum of Law, "[a]ll of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection." Mern. of Law at 15, Docket No. BR 06-05. TOP SECRET//Sl//NOFORN 21 App. 396 TOP SECRET//Sil/NOFORN The government depends on this bulk collection because if production of the information were to wait until the specific identifier connected to an international terrorist group were determined, most of the historical connections (the entire purpose of this authorization) would be lost. See Ex. A. at 7-12. The analysis of past connections is only possible "if the Government has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related." Mem. of Law at 2, Docket No. BR 06-05. Because the subset of terrorist communications is ultimately contained within the whole of the metadata produced, but can only be found after the production is aggregated and then queried using identifiers determined to be associated with identified international terrorist organizations, the whole production is relevant to the ongoing investigation out of necessity. The government must demonstrate "facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." 50 U.S.C. 1861(b)(2)(A). The fact that international terrorist operatives are using telephone communications, and that it is necessary to obtain the bulk collection of a telephone company's metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations, is sufficient to meet the low statutory hurdle set out in Section 215 to TOP SBCRET//Sl!/NOFORN 22 App. 397 TOP 8ECRBT//SIJ/NO~ORN obtain a production of records. Furthermore, it is important to remember that the relevance finding is only one part of a whole protective statutory scheme. Within the whole of this particular statutory scheme, the low relevance standard is counterbalanced by significant post-production minimization procedures that must accompany such an authorization and an available mechanism for an adversarial challenge in this Court by the record holder. See supra Part III.a. Without the minimization procedures set out in detail in this Court's Primary Order, for example, no Orders for production would issue from this Court. See Primary Ord. at 4-17. Taken together, the Section 215 provisions are designed to permit the government wide latitude to seek the information it needs to meet its national security responsibilities, but only in combination with specific procedures for the protection of U.S. person information that are tailored to the production and with an opportunity for the authorization to be challenged. The Application before this Court fits comfortably within this statutory framework. c. Legislative Re-enactment or Ratification. As the U.S. Supreme Court has stated, "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." Lorillard v. Pons, 434 U.S. 575, 580 (1978) (citing cases and authorities); see also Forest Grove Sch. Dist. y. T.A., 557 U.S. 230, 23940 (2009) (quoting Lorillard, 434 U.S. at 580). This doctrine of legislative re-enactment, TOP SECRET//81//NOFORN 23 App. 398 TOP SECRET//SI//NOFORN also known as the doctrine of ratification, is applicable here because Congress reauthorized Section 215 of the PATRIOT Act without change in 2011. "PATRIOT Sunsets Extension Act of 2011," Pub. L. No. 112-14, 125 Stat. 216 (May 26, 2011).22 This doctrine applies as a presumption that guides a court in interpreting a re-enacted statute. See Lorillard, 434 U.S. at 580-81 (citing cases); NLRB v. Gullett Gin Co., 340 U.S. 361, 365-66 (1951) ("[l]t is a fair assumption that by reenacting without pertinent · modification ... Congress accepted the construction ... approved by the courts."); 2B Sutherland on Statutory Construction§ 49:8 and cases cited (7th ed. 2009). Admittedly, in the national security context where legal decisions are classified by the Executive Branch and, therefore, normally not widely available to Members of Congress for scrutiny, one could imagine that such a presumption would be easily overcome. However, despite the highly-classified nature of the program and this Court's orders, that is not the case here. Prior to the May 2011 congressional votes on Section 215 re-authorization, the Executive Branch provided the Intelligence Committees of both houses of Congress with letters which contained a "Report on the National Security Agency's Bulk 22 The Senate and House of Representatives voted to re-authorize Section 215 for another four years by overwhelming majorities. See http://www.senate.gov/legislative/LIS/roll_ca!Uists/roll_call_vote_cfm.cfm?congress=l 12&session=1 &vot e=00084 (indicating a 72-23 vote in the Senate); and, http://clerk.house.gov/evs/2011/roll376.xml (indicating a 250-153 vote in the House). President Obama signed the re-authorization into law on May 26, 2011. TOP SECRET//81//NOFORN 24 App. 399 TOP SECRET//81//NOFORN Collection Programs for USA PATRIOT Act Reauthorization" (Report). Ex. 3 (Letter to Hon. Mike Rogers, Chairman, and Hon. C.A. Dutch Ruppersberger, Ranking Minority Member, Permanent Select Committee on Intelligence, U.S. House of Representatives (HPSCI), from Ronald Weich, Asst. Attorney General (Feb. 2, 2011) (HPSCI Letter); and, Letter to Hon. Dianne Feinstein, Chairman, and Hon. Saxby Chambliss, Vice Chairman, Select Committee on Intelligence, U.S. Senate (SSCI), from Ronald Weich, Asst. Attorney General (Feb. 2, 2011) (SSCI Letter)). The Report provided extensive and detailed information to the Committees regarding the nature and scope of this Court's approval of the implementation of Section 215 concerning bulk telephone metadata.23 The Report noted that "[a]lthough these programs have been briefed to the Intelligence and Judiciary Committees, it is important that other Members of Congress have access to information about th[is] ... program[] when considering reauthorization of the Specifically, the Report provided the following information: 1) the Section 215 production is a program "authorized to collect in bulk certain dialing, routing, addressing and signaling information about telephone calls ... but not the content of the calls ...." Ex. 3, Report at 1 (emphasis in original); 2) this Court's "orders generally require production of the business records (as described above) relating to substantially all of the telephone calls handled by the companies, including both calls made between the United States and a foreign country and calls made entirely within the United States," id. at 3 (emphasis added); 3) "Although the program[} collect[s] a large amount of information, the vast majority of that information is never reviewed by any person, because the information is not responsive to the limited queries that are authorized for intelligence purposes," id. at 1; 4) "The programs are subject to an extensive regime of internal checks, particularly for U.S. persons, and are monitored by the FISA Court and Congress," id.; 5) "Although there have been compliance problems in recent years, the Executive Branch has worked to resolve them, subject to oversight by the FISA Court," id.; 6) "Today, under FISA Court authorization pursuant to the 'business records' authority of the FISA (commonly referred to as 'Section 215'}, the government has developed a program to close the gap" regarding a terrorist plot, id. at 2; 7) "NSA collects and analyzes large amounts of transactional data obtained from certain telecommunications service providers in the United States," id.; and, 8) that the program operates "on a very large scale." Id. 23 TOP SECRET//Sil/NOFORN 25 App. 400 TOP SECRET//SI//NOFORN expiring PATRIOT Act provisions." Id. Report at 3. Furthermore, the government stated the following in the HPSCI and SSCI Letters: "We believe that making this document available to .all Members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215 .... " Id. HPSCI Letter at 1; SSCI Letter at 1. It is clear from the letters that the Report would be made available to all Members of Congress and that HPSCI, SSCI, and Executive Branch staff would also be made available to answer any questions from Members of Congress. 24 Id. HPSCI Letter at 2; SSCI Letter at 2. In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how It is unnecessary for the Court to inquire how many of the 535 individual Members of Congress took advantage of the opportunity to learn the facts about how the Executive Branch was implementing Section 215 under this Court's Orders. Rather, the Court looks to congressional action on the whole, not the preparatory work of individual Members in anticipation of legislation. In fact, the Court is bound to presume regularity on the part of Congress. See City of Richmond y. I.A. Croson Co.. 488 U.S. 469, 500 (1989) ("The factfinding process of legislative bodies is generally entitled to a presumption of regularity and deferential review by the judiciary." (citing cases)). The ratification presumption applies here where each Member was presented with an opportunity to learn about a highly-sensitive classified program important to national security in preparation for upcoming legislative action. Furthermore, Congress as a whole may debate such legislation in secret session. Sec U.S. Const. art. r, Sec. 5. ("Each House may determine the Rules of its Proceedings, .... Each House shall keep a Journal of its Proceedings, and from time to time publish the same excepting such Parts as may in their Judgment require Secrecy; ....")(emphasis added.). In fact, according to a Congressional Research Service Report, both Houses have implemented rules for such sess~ons pursuant to the Constitution. ~"Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency" Congressional Research Service (Mar. 15, 2013), at 1-2 (citing House Rules XVII, cl. 9; X, cl. 11; and, Senate Rules XXI; XXIX; and, XXXI). Indeed, both Houses have entered into secret session in the past decade to discuss intelligence matters. ~id. at 5 (Table 1. Senate "Iraq war intelligence" (Nov. l, 2005); Table 2. House of Representatives "Foreign Intelligence Surveillance Act and electronic surveillance" (Mar. 13, 2008)). 24 TOP SECRET//Sll/NOFORN 26 App. 401 TOP SECRET//Sl//NOFORN Section 215 was being implemented under this Court's Orders. 25 Documentation and personnel were also made available to afford each Member full knowledge of the scope of the implementation of Section 215 and of the underlying legal interpretation. The record before this Court thus demonstrates that the factual basis for applying the re-enactment doctrine and presuming that in 2011 Congress intended to ratify Section 215 as applied by this Court is well supported. Members were informed that this Court's "orders generally require production of the business records (as described above) relating to substantially all of the telephone calls handled by the companies, including both calls made between the United States and a foreign country and calls made entirely within the United States." Ex. 3, Report at 3 (emphasis added). When Congress subsequently re-authorized Section 215 without change, except as to expiration date, that re-authorization carried with it this Court's interpretation of the statute, which permits the bulk collection of telephony metadata under the restrictions that are in place. Therefore, the passage of the PATRIOT Sunsets Extension Act Indeed, one year earlier when Section 215 was previously set to expire, SSCI Chairman Feinstein and Vice Chairman Bond sent a letter to every Senator inviting "each Member of the Senate" to read a very similar Report to the one provided in the 2011 Letters, and pointing out that this would "permit each Member of Congress access to information on the nature and significance of intelligence authority on which they are asked to vote." Ex. 7 ("Dear Colleague" Letter from SSCI Chairman Dianne Feinstein and Vice Chairman Christopher Bond (Feb. 23, 2010)). The next day, HPSCI Chairman Reyes sent a similar notice to each Member of the House that this information would be made available "on important intelligence collection programs made possible by these expiring authorities." Ex. 2 ("Dear Colleague" Notice from HPSCI Chairman Silvestre Reyes (Feb. 24, 2010)). This notice also indicated that the HPSCI Chairman and Chairman Conyers of the House Judiciary Committee would "make staff available to meet with any member who has questions" along with Executive Branch personnel. kl. 25 TOP SECRET//Sl//NOFORN 27 App. 402 TOP SECRETNSlh':NO~ORN provides a persuasive reason for this Court to adhere to its prior interpretations of Section 215. IV. Conclusion. This Court is mindful that this matter comes before it at a time when unprecedented disclosures have been made about this and other highly-sensitive programs designed to obtain foreign intelligence information and carry out counterterrorism investigations. According to NSA Director Gen. Keith Alexander, the disclosures have caused "significant and irreversible damage to our nation." Remarks at "Clear and Present Danger: Cyber-Crime; Cyber-Espionage; Cyber-Terror; and Cyber-War," Aspen, Colo. Gui. 18, 2013). In the wake of these disclosures, whether and · to what extent the government seeks to continue the program discussed in this Memorandum Opinion is a matter for the political branches of government to decide. · As discussed above, because there is no cognizable Fourth Amendment interest in a telephone company's metadata that it holds in the course of its business, the Court finds that there is no Constitutional impediment to the requested production. Finding no Constitutional issue, the Court directs its attention to the statute. The Court concludes that there are facts showing reasonable grounds to believe that the records sought are relevant to authorized investigations. This conclusion is supported not only by the plain text and structure of Section 215, but also by the statutory modifications TOP SECRET//SI//NOFORN 28 App. 403 TOP SECRET//Sl//NOFORN and framework instituted by Congress. Furthermore, the Court finds that this result is strongly supported, if not required, by the doctrine of legislative re"enactment or ra tifica tion. For these reasons, for the reasons stated in the Primary Order appended hereto, and pursuant to 50 U.S.C. § 1861(c)(l), the Court has GRANTED the Orders requested by the government. Because of the public interest in this matter, pursuant to FISC Rule 62(a), the undersigned FISC Judge requests that this Memorandum Opinion and the Primary Order of July 19, 2013, appended herein, be published, and directs such request to the Presiding Judge as required by the Rule. ~ ENTERED this /d_ day of August, 2013. TOP i SECRET//61//NO~ORN 29 App. 404 .'I 1 ' ; I !. ' ~ \ TOP SECRET//Sf/INOFORN 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 TANGIBLE 1HINGS FRO I Docket Number: BR 13-109 PRIMARY ORDER A verified application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (the Act), Title 50, United States Code (U.S.C.); § 1861, as amended, requiring the TOP SECRET//Sf/fNOFORN Derived from: Declassify on: - Pleadings in the above-captioned docket App. 405 TOPSECRET//BI//NOFORN production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, the Court finds as follows: 1. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12333 to protect against international terrorism, which investigations are not being conducted solely upon the basis of activities protected by the First Amendment to the Constitution of the United States. [50 U.S.C. § 1861(c)(1)] 2. The tangible things sought could be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things. [50 U.S.C. § 1861(c)(2)(D)] 3. The application includes an enumeration of the minimization procedures the government proposes to follow with regard to the tangible things sought. Such procedures are similar to the minimization procedures approved and adopted as binding by the order of this Court in Docket Number BR 13-80 and its predecessors. [50 U.S.C. § 1861(c)(l)] TOP 6ECRET//8I//NOFORN 2 App. 406 TOP SECRETl/SI//NOFORN Accordingly, and as further explained in a Memorandum Opinion to follow, the Court finds that the application of the United States to obtain the tangible things, as described below, satisfies the requirements of the Act and, therefore, IT IS HEREBY ORDERED, pursuant to the authority conferred on this Court by the Act, that the application is GRANTED, and it is FURTHER ORDERED, as follows: (l)A. The Custodians of Records of shall produce to NSA upon service of the appropriate secondary order, and continue production on an ongoing daily basis thereafter for the duration of this order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" 1 created by B. The Custodian of Records of shall produce to NSA upon service of the appropriate secondary order, and continue production on an ongoing daily basis For purposes of this Order "telephony metadata" includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEi) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer. Furthermore, this Order does not authorize the production of cell site location information (CSLI). 1 TOP SECRET//Sl//NOFORN 3 App. 407 TOP 6ECRET//6I//NOFORN thereafter for the duration of this order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" created b y - for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. - (2) With respect to any information the FBI receives as a result of this Order (information that is disseminated to it by NSA), the FBI shall follow as minimization procedures the procedures set forth in The Attorney General's Guidelines for Domestic FBI Operations (September 29, 2008). (3) With respect to the information that NSA receives as a result of this Order, NSA shall strictly adhere to the following minimization procedures: A. The government is hereby prohibited from accessing business record metadata acquired pursuant to this Court's orders in the above-captioned docket and its predecessors ("BR metadata") for any purpose except as described herein. B. NSA shall store and process the BR metadata in repositories within secure networks under NSA's control.2 The BR metadata shall carry unique markings such The Court understands that NSA will maintain the BR metadata in recovery back-up systems for mission assurance and continuity of operations purposes. NSA shall ensure that any access 2 TOP SECRET//61//NOFORN 4 App. 408 TOP SECRETNSI//NOFORN that software and other controls (including user authentication services) can restrict access to it to authorized personnel who have received appropriate and adequate training with regard to this authority. NSA shall restrict access to the BR metadata to authorized personnel who have received appropriate and adequate training.a Appropriately trained and authorized technical personnel may access the BR metadata to perform those processes needed to make it usable for intelligence analysis. Technical personnel may query the BR metadata using selection terms4 that have not been RASapproved (described below) for those purposes described above, and may share the results of those queries with other authorized personnel responsible for these purposes, or use of the BR metadata in the event of any natural disaster, man-made emergency, attack, or other unforeseen event is in compliance with the Court's Order. The Court understands that the technical personnel responsible for NSA's underlying corporate infrastructure and the transmission of the BR metadata from the specified persons to NSA, will not receive special training regarding the authority granted herein. 3 - - - - - TOP SECRET//61//NOFORN 5 App. 409 - - TOP SECRET//SI//NOFORN but the results of any such queries will not be used for intelligence analysis purposes. An authorized technician may access the BR metadata to ascertain those identifiers that may be high volume identifiers. The technician may share the results of any such access, i.e., the identifiers and the fact that they are high volume identifiers, with authorized personnel (including those responsible for the identification and defeat of high volume and other unwanted BR metadata from any of NSA's various metadata repositories), but may not share any other information from the results of that access for intelligence analysis purposes. In addition, authorized technical personnel may access the BR metadata for purposes of obtaining foreign intelligence information pursuant to the requirements of subparagraph (3)C below. C. NSA shall access the BR metadata for purposes of obtaining foreign intelligence information only through queries of the BR metadata to obtain contact chaining information as described in paragraph 17 of the Declaration of attached to the application as Exhibit A, using selection terms approved as "seeds" pursuant to the RAS approval process described below. 5 NSA shall ensure, through s For purposes of this Order, "National Security Agency" and "NSA personnel" are defined as any employees of the National Security Agency/Central Security Service ("NSA/CSS" or "NSA") and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to FISA if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA). NSA personnel shall not disseminate BR metadata outside the NSA unless the dissemination is permitted by, and in accordance with, the requirements of this Order that are applicable to the NSA. TOP SECRET//SI//NOFORN 6 App. 410 TOP SECRET//SI//NOFORN adequate and appropriate technical and management controls, that queries of the BR metadata for intelligence analysis purposes will be initiated using only a selection term that has been RAS-approved. Whenever the BR metadata is accessed for foreign intelligence analysis purposes or using foreign intelligence analysis query tools, an auditable record of the activity shall be generated.6 (i) Except as provided in subparagraph (ii) below, all selection terms to be used as "seeds" with which to query the BR metadata shall be approved by any of the following designated approving officials: the Chief or Deputy Chief, Homeland Security Analysis Center; or one of the twenty specially-authorized Homeland Mission Coordinators in the Analysis and Production Directorate of the Signals Intelligence Directorate. Such approval shall be given only after the designated approving official has determined that 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 (RAS) - that the selection term to be queried is associated wi This auditab]e record requirement shall not apply to accesses of the results of RAS-approved queries. 6 7 App. 411 TOP SECREiT//Sl/,!NOFORN provided, however, that NSA' s Office of General Counsel (QGC) TOP SBCRBT//Sl//NOFORN 8 App. 412 TOP SECRET//Sl//NOFORN shall first determine that any selection term reasonably believed to be used by a United States (U.S.) person is not regarded as associated w i t h - n the basis of activities that are rotected b the First Amendment to the Constitution. (ii) Selection terms that are currently the subject of electronic surveillance authorized by the Foreign Intelligence Surveillance Court (FISC) based on the FISC's finding of probable cause to believe that they are used by · duding those used by U.S. persons, may be deemed approved for querying for the period of FISC-authorized electronic surveillance without review and approval by a designated approving official. The preceding sentence shall not apply to selection terms under surveillance TOP SECRET//51//NOFORN 9 App. 413 TOP SECRETNSINNOFORN pursuant to any certification of the Director of National Intelligence and the Attorney General pursuant to Section 702 of FISA, as added by the FISA Amendments Act of 2008, or pursuant to an Order of the FISC issued under Section 703 or Section 704 of FISA, as added by the FISA Amendments Act of 2008. (iii) A determination by a designated approving official that a selection term is associated shall be effective for: one hundred eighty days for any selection term reasonably believed to be used by a U.S. person; and one year for all other selection terms. 9•10 9 The Court understands that from time to time the information available to designated approving officials will indicate that a selection term is or was associated with a Foreign Power only for a specific and limited time frame. In such cases, a designated approving official may determine that the reasonable, articulable suspicion standard is met, but the time frame for which the selection term is or was associated with a Foreign Power shall be specified. The automated query process described in th~Declaration limits the first hop query results to the specified time frame. Analysts conducting manual queries using that selection term shall continue to properly minimize information that may be returned within query results that fall outside of that timeframe. The Court understands that NSA receives certain call detail records pursuant to other authority, in addition to the call detail records produced in response to this Court's Orders. NSA shall store, handle, and disseminate call detail records roduced in res o Court's Orders pursuant to this Orde 10 TOP 8ECRET//SL'/NOFORN 10 App. 414 TOP SECRET//Sl//NOFORN (iv) Queries of the BR metadata using RAS-approved selection terms may occur either by manual analyst query or through the automated query process described below.11 This automated query process queries the collected BR metadata (in a collection store") with RAS-approved selection terms and returns 11 the hop-limited results from those queries to a "corporate store." The corporate store may then be searched by appropriately and adequately trained personnel for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms. The specifics of the automated query process, as described in the -Declaration, are as follows: This automated query process was initially approved by this Court in its November 8, 2012 Order amending docket number BR 12-178. 11 12 As an added protection in case technical issues prevent the process from verifying that the most up-to-date list of RAS-approved selection terms is being used, this step of the automated process checks the expiration dates of RAS-approved selection terms to confirm that the approvals for those terms have not expired. This step does not use expired RAS-approved selection terms to create the list of "authorized query terms" (described below} regardless of whether the list of RAS-approved selection terms is up-to-date. TOP SBCRETNSl//NOFORN 11 App. 415 TOP SECRET/ISl//NOFORN D. Results of any intelligence analysis queries of the BR metadata may be shared, prior to minimization, for intelligence analysis purposes among NSA analysts, subject to the requirement that all NSA personnel who receive query results in any form first TOPSECR~Tl~Y/NOFORN 12 App. 416 TOP SECRET//SI//NOFORN receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information.15 NSA shall apply the minimization and dissemination requirements and procedures of Section 7 of United States Signals Intelligence Directive SP0018 (USSID 18) issued on January 25, 2011, to any results from queries of the BR metadata, in any form, before the information is disseminated outside of NSA in any form. Additionally, prior to disseminating any U.S. person information outside NSA, the Director of NSA, the Deputy Director of NSA, or one of the officials listed in Section 7.3(c) of USSID 18 (i.e.. the Director of the Signals Intelligence Directorate (SID), the Deputy Director of the SID, the Chief of the Information Sharing Services (ISS) office, the Deputy Chief of the ISS office, and the Senior Operations Officer of the National Security Operations Center) must determine that the information identifying the U.S. person is in fact related to counterterrorism information and that it is necessary to understand the counterterrorism information or assess its importance.16 Notwithstanding the above requirements, NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch In addition, the Court understands that NSA may apply the full range of SIGINT analytic tradecraft to the results of intelligence analysis queries of the collected BR metadata. 15 In the event the Government encounters circumstances that it believes.necessitate the alteration of these dissemination procedures, it may obtain prospectively-applicable modifications to the procedures upon a determination by the Court that such modifications are appropriate under the circumstances and in light of the size and nature of this bulk collection. 16 TOP SBCRET//SI//NOFORN 13 App. 417 I I I I I I ' i I TOP SECRET/tSJ//NOFORN personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions. E. BR metadata shall be destroyed no later than five years (60 months) after its initial collection. F. NSA and the National Security Division of the Department of Justice (NSD/DoJ) shall conduct oversight of NSA's activities under this authority as outlined below. (i) NSA' s OGC and Office of the Director of Compliance (ODOC) shall ensure that personnel with access to the BR metadata receive appropriate and adequate training and guidance regarding the procedures and restrictions for collection, storage, analysis, dissemination, and retention of the BR metadata and the results of queries of the BR metadata. NSA' s OGC and ODOC shall further ensure that all NSA personnel who receive query results in any form first receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information. NSA shall maintain records of all such training. 17 OGC shall provide NSD/DoJ with copies The nature of the training that is appropriate and adequate for a particular person will depend on the person's responsibilities and the circumstances of his access to the BR metadata or the results from any queries of the metadata. 17 TOP 5ECRETl/SY/NOFORN 14 App. 418 Ii TOP SECRET//Sl//NOFORN of all formal briefing and/or training materials (including all revisions thereto) used to brief/train NSA personnel concerning this authority. (ii) NSA's ODOC shall monitor the implementation and use of the software and other controls (including user authentication services) and the logging of auditable information referenced above. (iii) NSA's OGC shall consult with NSD/DoJ on all significant legal opinions that relate to the interpretation, scope, and/or implementation of this authority. When operationally practicable, such consultation shall occur in advance; otherwise NSD shall be notified as soon as practicable. (iv) At least once during the authorization period, NSA' s OGC, ODOC, NSD/DoJ, and any other appropriate NSA representatives shall meet for the purpose of assessing compliance with this Court's orders. Included in this meeting will be a review of NSA's monito~ing and assessment to ensure that only approved metadata is being acquired. The results of this meeting shall be reduced to writing and submitted to the Court as part of any application to renew or reinstate the authority requested herein. (v) At least once during the authorization period, NSD/DoJ shall meet with NSA's Office of the Inspector General to discuss their respective oversight responsibilities and assess NSA' s compliance with the Court's orders. TOP SECRBT//Sl//NOFORN 15 App. 419 TOP SBCRET//Sil/NOFORN (vi) At least once during the authorization period, NSA's OGC and NSD/DoJ shall review a sample of the justifications for RAS approvals for selection terms used to query the BR metadata. (vii) Other than the automated query process described in the Declaration and this Order, prior to implementation of any new or modified automated query processes, such new or modified processes shall be reviewed and approved by NSA' s OGC, NSD/DoJ, and the Court. G. Approximately every thirty days, NSA shall file with the Court a report that includes a discussion of NSA's application of the RAS standard, as well as NSA's implementation and operation of the automated query process. In addition, should the United States seek renewal of the requested authority, NSA shall also include in its report a description of any significant changes proposed in the way in which the call detail records would be received from the Providers and any significant changes to the controls NSA has in place to receive, store, process, and disseminate the BR metadata. Each report shall include a statement of the number of instances since the preceding report in which NSA has shared, in any form, results from queries of the BR metadata that contain United States person information, in any form, with anyone outside NSA. For each such instance in which United States person information has been shared, the report shall include NSA's attestation that one of the officials TOP SECRBT//SI//NOFORN 16 App. 420 TOP SECRET//Sll/NOFORN authorized to approve such disseminations determined, prior to dissemination, that the information·was related to counterterrorism information and necessary to understand counterterrorism information or to assess its importance. This authorization regarding . I\~ pires on 'the .u_ day ! of October, 2013, at 5:00 p.m., Eastern Time. l. I ! S i g n e d - - - - - - - - - - Eastern Time Date Time I :-.· . I \\ .\ I•.\ •.. ' Ii , I\ I. TOPSECRET//Slh'NOFORN "\ I • 17 App. 421 ·, I ·, 1 .,,1 : • • \ t \ CR 0962 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. Docket Number 105B(g); 07 ~01 .. IN RE DIRECTIVES TO YAHOO!, INC. PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT MEMORANDUM OPINION Background This case comes before the Court on the governmenfs motion to compel compliance with directives it issued to Yahoo!, Inc, (Yahoo) pursuant to the Protect America Act of 2007, Pub. L. No. 110~55, 121 Stat 552 (PAA), which was enacted on August 5, 2007. The PAA amended the .Foreign Intelligence Survei!lance Act (FISA) (which, in its present fonn, can be found at 50 U.S.C.A. §§ 1801-1871 (West 2003, Supp. 2007 & Oct. 2007)), by creating a new fr~nework for the collection of foreign intelligence information concerning persons reasonabLy believed to be outside of the United States. Under the PAA, tbe Attprne:y General and the Director ofNational Intelligence may authorize the acquisition of such information for periods of up to one year ., TOP SECRET/JCOMIN'l'J/ORCONrNOFOR..~HX1 Page 1 279 App. 422 CR 0963 TOP SECRET/-ICQMINTHORCON,NOFORN//Xl pursuant to a ':certification" that satisfies speclfio statutory criteria, and may direct third parties to assist in sucb acquisition. 50 U.S.C.A. §§ 1805a ~ 1805c. Subsequent to the passage ofthe PAA, the Attorney General and the Director ofNational Intelligence, pursuant to 50 U.S.C.A. § 1805b(a), executed .certifications that al.lthorized the acquisition of certain types offoreign ~ntelligence information conceming persons reasonably believed to be outside the United States. 1 In furtherance of these acquisitions, 2007, the Attorney General and the Director ofNa1ional Intelligence issued . directives to Yahoo. Feb. 2008 ClassifiedAppendix 2 Yal10o refused to comply Each directive states that (continued ...) TOP 8ECRET//COM1NT/IORCON,NOFORN//X1 Page2 280 App. 423 CR 0964 T OP SECRETl-/COl\flNTHORCON,NOFORN/IXl with the directives, alld on November 21, 2007, the government filed a motion asking this Court to compel Yahoo's compliance. Motion to Compel Compliance with Direchves ofthe Director of National Intelligence and Atto.rney General {Motion to Compel). Yaboo responded by contending that the directives should not be enforced becm.tse they violate both the PAA and the Fourth Amendment. Yahoo also contends that the PAA violates separation of powers principles arrd is otherwise Hawed. Extensive briefing followed on Hiis complicated matter of first" impression. Yahoo has rnised numerous stat11tory claims relating to the PAA, which is hardly a model of legislative clarity or precision. Yahoo's principal constitutional claim relates to the Fourth Amendment rights of its customers and other third pmties~ and raises complex issues relating to both standing and substantive matters. Furthermore, additional issues have arisen during the pendency of the litigation. For one thing, most ofthe PAA bas sunset, raising the issue of whether this Comt retains jurisdiction over the govermnenfs motion to compel. For another, the govemment filed a classified appendix with the Court in December 2007,3 which contained the certi'fications and l(... cont. Y I I I YP I with all information, facilities, and assistance necessary to accomplish this acquisition in such a manner as will protect the secrecy of the acquisition and produce a mini111um of interference with the se1;vices that Yahoo provides. Feb. 2008 Classi-fied Appendix a j This classified appendix was filed ex: parte, pursuant to 50 U.S.C.A. § 1805b(k). Yahoo did not object to the ex parte filing of this initial classified appendix. Pursuant to section (continued: .. ) TOP 8ECRETlfCOMINTf/ORCON,NOFO&."fHJh Page3 281 App. 424 CR 0965 TOP SECRET//COMINTNORCON,NOFOR..~l procedures undei·Iying the directives, but the government then inexplicably modified and added to those certifications and procedures without appropriately informing the Court or supplementing the record in this matter ui1til ordered to do so. These changes and missteps by the government have greatly delayed the resolution of its motion, and, among other things, required this Court to order additional briefing and consider additional statutory issues, such as whether the PAA authorizes the govemment to amend cettifications after they are issued, and whether the govemment can rely on directives to Yahoo that were issued prior to the amendments.4 For the reasons· set forth below, the Court holds that it retains jurisdiction over the government's motion to compel, and that the motion is in fact meritorious. The Court also finds that the directives issued·to Yahoo comply with the PAA and with the Constitution. A separate Order granting the government's motion is therefore being issued together with this Opinion. Part I ofthis Opinion explains why the expiration ofnmch of the PAA does not deprive the Court of jurisdiction over the govei1unent's motion. Part II of this Opinion rejects the statutory c~1allenges advanced by Yahoo, and concludes that the directives in this case comply with the PAA and are still in effect pursuant to the amended certifications. Part II also rejects Yahoo's separation of powers challenge to the PAA. P~t III of the Opinion hoids that Yahoo 3 ( . .. continued) _ 1805b(k), the Court subsequently aUowed the govemment to file, ex parte, the updated, February 2008 classified appendix. Although Yahoo requested a copy of that appendix redacted to the level ofthe security clearance held by Yahoo's counsel, section 1805b(k) does not require, and the Court did not order, the government to provide such a document to Yahoo. 1 The Court's February 29, 2008 Order Directing Further Briefing on tl1e Protect America Act lays out in greater detail the circumstances that required the additional briefing. . TOP SBCRETNCOMINTf!ORCON,NOFORN//Xl Page4 ' 282 App. 425 CR 0966 TOl' SECRET/fCOMlNT//ORCON1NOFOHNJ/Xl may in fact raise the Fourth Amendment rights of its custorners and other third parties, but . ' further holds that the directives to Yahoo comply with the Fourth Amendment because they fall within the foreign inteUigence exception to the warrant requirement and are reasonable. Analysis I. The Court Retains Jurisdiction Over the Motion.to Compel Notwithstanding the Lapse oftl1e PAA. As originally enacted~ the PAA had a "sunset" provision, under which its substantive terms would 4 ~cease to have effect 180 days after the date of the enactment" of the PAA, subject to exceptions discussed below. PAA § 6(c), On January 31, 2008, Congress extended this period to ..195 days afier the date of the enactment of [the original PAA]." See Pub. L. 11 0~ 182, § 1, 122 Stat. 605. Congress took no further action, and th.is 195~day period expjred on February 16,2008. Yahoo argues that t~1is statutory lapse deprives this Court ofjurisdiction to entertain the government's motion to compel. Yahoo's Supplemental Briefing on PAA Statutory Issues (Yahoo's Supp. Brief. on Stat. Issues) at 13~16. For the following reasons, the Court finds that it retains jurisdiction by virtue of section 6(c) ofthe PAA. Section 2 ofthe PAA amended FISA.by adopting addiVonal provisions, codified at 50 U.S.C.A. ~§ 180Sa and l805b, One ofthe provisions added to FlSA by section 2 of the PAA states as follows: In the case of a failure to comply with a directive issued pursuant to subsection (e), the Attorney General may invoke the aid of the [Foreign Intelligenc~ Surveillance Court (FISC)] to compel compliance with the directive. The court shall issue an order requiring the person to comply with the directive if it finds that the directive was issued in accordance with subsection (e) and is othe1wise lawful. TOP 8ECRET//COMINT//O.RCON,NOFOR.TWIX1 Page 5 283 App. 426 CR 0967 TOP SECRETJ!COMINT/JOl~COP.l,NOFORN//Xl PAA § 2 (codified at 50 U.S.C.A. § 1805b(g)). Unquestionably, this provision gave the Comt jurisdiction over the goVernment's motion prior to February 16, 2008. Section 6 of the PAA, as amended, states in relevant part: (c) SUNSET.-Except as provided in subsection (d), sections 2, 3, 4, and 5 of this Act, and the amendments made by this ACt, shall cease to have effect 195 days after the date of the enactment of this Act. (d) AUTHORIZATIONS IN EFFECT.-Authorizations for the acquisition of . foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such an1endments and shall not be deemed to constitute electronic s·urveillance as that term is defined in [50 U.S.C.A. § 1801(f)]. PAA § 6, as amended by Pitb. L. 110-182, § 1, 122 Stat. 605 (emphasis added). Yahoo concedes that under the first sentence of§ 6(d), the directives remain in effect. Yalioo's Supp. Brief. on Stat. Issues at 14. However, Yahoo contends that§ 6(d) does not preserve this Court's jurisdiction over the government's motion to compel compliance with the directives it received. On the other hand, the government posits that the second sentence of§ 6(d)- providing that "[s]uch acquisitions shall be governed by the applicable provisions of such amendments" preserves the Courfs jurisdiction. Amendmen~ Unit~d States of America's Supplemental Brief on the Fourth (Govt. 's Supp. Brief on the Fourth Amend.) at 10 n.8. The Court begins its analysis of the parties' conflicting views by examining the controlling statutory text. In the second sentence of§ 6(d), the plu·ase "[s]uch acquisitions" plainly refers to acquisitions conducted pursuant to the "[a]uthorizations for the acquisition of foreign intelligence information pursuant to the amendments made" by the PAA, "and directives issued pursuant to such authorizations," both which "remain in effect" under the immediately TOP SECRETh'COMINTHORCON,NOFO~~f/Xl Page 6 284 App. 427 CR 0968 TOP SElCRETI/CO~ii~IT/l-QRCON,P.iOFOR."fo'fXl preceding sentence. 1l1e second sentence of§ 6(d) provides that those acquisitions "sha11 be govemed by tl1e applicable provisions of such amendn1ents." Here too, the phrase "such amendments" refers to the "ameJJdments" in the immediately precedjng sentence- i.e., the amendments made by the PAA, pursuant to which the acqaisition of foreign intelligence. ;nfonnation has been authorized. Thus, acquisitions that remain authorized under the tirst sentence of§ 6( d) shall, by virtue of the second sentence1 be governed by the ''applicable1' provisions of those amendments. The relevant question under§ 6(d) therefore becomes whether the provision ofthe PAA codified at § 1805b(g) is fai_rly understood to be part of those PAA amendments pursuant to which the relevant acqLLisitions were authorized, and which are ''applicable" to those acquisitions. If sot then section 6(d) operates to maintain the applicability of§ 1805b(g) with regard to the directives issued to Yahoo, thereby preserving the Court's jurisdiction to enforce those directives. The structure and logic of the amendments enacted by the PAA strongly support the conclusion that section 6(d) has this effect. Section2 of the PM added to FISA all afthe provisions codified at 50 U.S.C.A. §§ 1805a and 1805b in the form of a single, comprehensive amend.ment.5 Section 1805b (which is titled "Additional Procedure for Authorizing Certain Acquisitions Concemh1g Persons Located Outside of the United States") provides a comprehensive framework for the authorization and conduct of certain acquisitions offoreign intelligence information. In addition to§ 1805b(g), 5 "The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended . by inserting after [50 U.S .C.A. § 1805] the following: (the full tex.t of§§ 1805a and l805b foHows].~' PAA § 2. TOP 8ECRET,4COMlNT//OR-CO~I,~fO:FO~fNX1 Page 7 285 App. 428 CR 0969 TOP SECRET//COMINTHORCON,NOFORN//Xl this framework includes a grant of authority to the Attorney <;Jenera.lJ;~nd the Director of National Intelligence, "[n]othwithstanding any other law," to authorize such acquisitions, subject to specif1ed procedural and substa.ritive requirements (i.e.,§ 1805b(a), (c), (d)); authority to "direct" a person, such as Yahoo, to assist i"n such acquisition(.!..&,.,§ 1805b(e)); immunity fi·om civil liabiliLy for providing assistance in accordance with such a directive (i.e., § t 805b(l)); a mechanism by which a person who has received such a directive may challenge its legality before the FISC (i.e., § 1805b(h)), with an ability to appeal to the Foreign Intelligence Surveillance Court of Review (i.e..!., § I 805b(i)); and procedural and security requirements for judicial proceedings under§ 1805b (i.e., § 1805bU), (k)). Thus, § 1805b(g) constitutes one part ofthe integrated stattitory framework codified by § 1805b fol' authorizing the acquisition of foreign intelligence information. It is therefore no stretch to regard § 1805b(g) as included within "the amendments" pursuant to which the relev~nt acquisitions were authorized, and as "applicable•• to those acquisitions. Indeed, that is the natural construction of the tenns of§ 6(d) as applied to§ 1805b(g). Yahoo takes the view that § 6(d) does not preserve· the efficacy of§ 1805b(g) with regard to directives that had not been complied with at the time that the PAA expired. Yahoq's Supp. Brief. on Stat. [ssnes at 14. But as explained above, nothing in the language of§ 6(d) supports this result. The phrase "[s]uch acquisitions" in the second sentence of§ 6(d) plainly refers to the description, in the immediatety preceding sentence, of acquisitions authorized pursuant to a1nendments made by the PAA. And~ the preserving language in the second sentence is not TOP SECRETI/COMINT//ORCON,NOFOR.~//Xl Page 8 286 App. 429 CR 0970 'POP SECRETIICOMINTHORCON,NOFORN//Xl limited to acquisitions both authorized pursua!lt to amendments made by the PAA and actually occmTing before the PAA •s expiration date. However, assuming aJ'Q:uendo that this statutory language might also reasonably bear the interpretation that§ 1805b(g) is not preserved by§ ?Cd) for purposes of the directives issued to Yahoo, the Court would then have to assess which interpretation would serve the purposes envisioned by Congress.6 Without doubt, Congress intended·for the FISC to havej~risdiction over § 1805\?(g) actions to compel compliance \¥ith directives prior to the expiration date for the PAA specified in § 6(c). It is equally clear that, even a-fter that expiration date, the challenged directives "remain in effect until their expiration." § 6(d). There is no discemib1e reason why Congress woul9 hav~ chosen to dispense with the forum and process that it specifically established to compel compliance with lawfully issued directives, while providing that the directives themselves remain in effect. And the pruticular interpretation advanced by Yahoo yields the inexplicable outcome that recipients who have never complied with directives are now beyond the reach.of § 1805b(g)'s enforcement mechanism, but recipients who were compliant as of February 16, 2008, would still be subject to it. The "i~logical results of applying such an interpretation ... argue strongly against the conclusion that Congress intet1ded" such divergent 6 See, e.1r., Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377 (2004) (ambiguous statute interpreted in view of "the contexi in which it was enacted and the putposes it was · designed to accomplish"). TOP SECRETHCOMJNT//ORCON ,NOFOR.~//Xl · Page 9 287 App. 430 CR 0971 TOP SECRETHCOMINTHORCON,NOFORNf/Xl results when it enacted§ 6(d). Western Air Lines. Inc. v. Board ofEquaHzation of the State of South Dakota, 480 U.S. 123, 133 (1987).7 In support of it s interpretation, Yahoo cites authority which concludes that the repeal of a jurisdiction-conferring statute deprives a court of jmisdiction over pending cases, in the absence of a clause in the repealing statute that preserves jurisdiction.8 But the PAAincludes a preservation clause,~§ 6(d), and the issue in this case is ·how broadly or nan·owly that clause should be constmed. The authority cited by Yahoo does not shed light on that issue. Yahoo also Stlggests that De La Rama S.S. Co. v. United States, 344 U.S .. 386 (1953), requites that Cong~·ess employ "plain terms" to presei-ve jurisdiction over pending cases when the statute previously conferring jurisdiction is repealed . Yahoots Supp. B1ief. on Stat. Issues at 15. But De La Rama does not enunciate an unqualified "plain statement" requirement. [nstead, in 7 Yahoo cites several statements from congressional debate on the PAA that emphasize that the PAA was a teinporary statute, set to expire in six months (subsequently extended by 15 days, as noted above). Yal1oo's Supp. Brief. on Stat. Issues at 16 (quoting,~, 153 Go~1g. Rec. I-19958~59 (daify ed. Aug. 4, 2007) (statement ofRep. Issa) ("(WJhat we're doing is passing a stopgap 6-month, I repeat, 6-month bill. This thing sunsets in 6 months.")). But the statements cited by Yahoo, of which Rep.lssa's statement is illustrative, shed no light on the interpretative issue presented, which is the intended scope of §6(d)'s exception from the general sunset provision. Indeed, the statements quoted by Yahoo do not even acknowledge the existence of any exceptions to the PAA's sunset provision. B Yahoo's Supp. Brief. on Stat. Issues at 15 (citingBnmerv. United States, 343 U.S. 112, 1 I 6-17 (1952); Santos v. Guam, 436 F.3d J051, 1052 (91h Cir. 2006); United States v. Stromberg~ 227 F.3d 903, 907 (5111 Cir. 1955)). TOP SECRBT/lCOMINT/lORCON,NOFORNf/Xl Page 10 288 App. 431 CR 0972 TOP SECRET/fCOMINT/IORCON,NOFOfu'f/I:Xl the context ofinterpreting the general savings statute in l U.S.C. § 109 (2000}/1 the De La Rama Court observed: The Government lightly points to the difierence between'the repeal of statutes solely jurisdictional in their scope and the repeal of statutes which create rights and also prescribe how the rights are to be vindicated. In the latter statutes. "substantive'' and "procedural" are not disparate categories: they are fused components ofthe expression of a policy. When the very purpose of Congress is to take away jurjsdiction, of course it does not survive, evell as .to pending suits, unless expressly reserved ... But where the object of Congress was to destroy rights in the future while saving those which have accrued. to strike down enforcin~~: provisions that have special relation to the accrued right and as such are part and parcel of it is to mutilate tbat ri rrht and hence to defeat rather than further the legislative purpose. 344 U.S. at 390 (emphasis added). Applying this principle, the De La Rama Court found that jurisdiction over pending cases was preserved, despite the repeal of the statute originally conferring jurisdiction. Id. at 3 90-91. 9 Tlus provision, which has not been amended since 1947, states: The repeal of any statute shall not have the effect to release or extinguish ai1y penalty, forfeiture) or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liabiJity. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty; fo1feiture, or liability incurred under such stat11te, unless the temporary statute shall so expressly provide, and sqch statute shall be treated as still remaining in force for tbe purpose of sustaining any proper action or prosecution for.the enforcement of such penalty, fmfeiture, or liability. 1 U.S.C. § l09. Because the Court finds that§ 6(d), the PAA's specific savings clause, serves to preserve jurisdiction over the government's action to enforce the directives issu~d to Yahoo, it is not necessary to consider whether this general savings c1ause would stlp!Jort the same conclusion, TOP SECRET//COMINT//ORCON,NOFOR:N/fXl Page 1I 289 App. 432 CR 0973 TOP ~ECRETf/COMINTHORCON,NOFORNI/Xl In this case, the jurisdictional, pmcedural, and substantive provisions of§ 1805b are fairly regarded as "'fused components of the expression of a policy'-' that Congress adopted when it enacted the PAA. To the extent De La Rama bears on t~1is case, it counsels against the interpretation advanced by Yahoo. For the above~described reasons, the Court finds that it retains jurisdiction over the government's motion"to compel complinnce with the directives issued to Yahoo, by virtue of§ 6(d)'s preservation of§ 1805b(g) with regard to the directives that the govemment seeks to enforce against Yahoo. II. The Yahoo Directives Comply With the PAA and Can Be Enforced Without Violating the Constituti011al Separation of Powers Doctrine. A. Compelling Compliance With the Directives Under the PAA Does Not Violate Separation of Powers Principles. Yahoo argues that the PAA is unconstitutional on separation of powers grounds because its "limitations on judicial review impose[] constitutionally impermissible restrictions on the judicial branch." 'Yahoo's Memorandum in Opposition to Motion to Compel (Yahoo's Mem. in Opp'n) at 21. In pal1icular, Yahoo objects that, in proceedings under 50 U.S.C.A. § 1805c, judicial review is confined to the government's determination that its procedures are reasonably designed to ensure that acquisitions do not constitute "electronic surveillance," as defined at 50 U.S.C.A. §§ 1801 (f) and 1805a, and that the FISC applies a "clear en·or" standard in reviewing that determination. Yahoo's Mem. in Opp'n at 21 -22. Yahoo contends that these limitations are inconsistent with the scope and nature of the inquiry necessmy for a court to determine, under TOP SECRETNCOMlNT//ORCON,NOFOllNNXl ~age 290 App. 433 12 CR 0974 . TOP SECRETHCOMINT//ORCON,NOFORN/!Xl prior judicial decisions, whether a Stlrveillance.10 comports with th~ Fourth Amendm~nt. Id. at 21-23. As authority for its separation of powers objection~ Yahoo cites Doe v. Gonzales, 500 f. Supp. 2d 379 (S.D.N.Y. 2007), which involved First Amendment challenges to non-disclosure obligations imposed on the recipient of a national security letter (NSL) under 18 U.S.C.A. § 2709 (West 2000 & Supp. 2007). In Doe, the separation of powers concerns derived from 18 U.S.C.A. § 3511(b) (West Supp. 2007), which governs the scope and standard of review to be applied by a district comt when the recipient of an NSL petitions for relief fi·om the non-disclosure obligations. 500 F. Supp. 2d at409, 411-13. 11 Employing one ofthe quintessential tenets of separation of powers jurisprudence -that "Congress cannot legislate a constitutional standard of review that contradicts or supercedes what the cottrts have detem1ined to be the standard applicable under the First Amendment for that purpose)"~' 500 F. Supp. 2d at 411 (citing Dickerson v. United States1 530 U.S . 428 1 437 (2QOO); Marbury y, Madison, 5 U.S. (1 Cranch) 13 7, 177 (18 03)) - the Doe cotnt invalidated cert~in aspects of § 3511 (b). 12 tr The Doe cotut entettained facial challenges to sections 2709 and 3511 because those statutory provisions "are broadly written and certainly have the potential to suppress constitutionally protected speech.'' 500 F. Supp. 2d at 396. 11 See Doe, 500 F. Supp. 2d.at 405-06 (under Freedman V. Maryland, 380 U.S. 51 (1965), government must beEll' burden of proving need for restriction on speech); hl. at 409 (§ 3511 (b)(2)' s limitations on judicial review of government's certification of need for non~ disclosure w~s '<plainly at odds with First Amendment jurisprudence which requires that courts strictly construe content-based re~trictions and prior restraints to ensure they are narrowly (continued...) TOP SECRETHCOMINTHORCON,NOFORNHXl Page 13 291 App. 434 CR 0975 TOP SECRETHCOMINT//ORCON,NOFORN//Xl Assuming anwendo that this separation of powers principle was con·ectly applied in Doe, it does not apply to the situE;Ltion presented in this case. The limitations on judicial review legislated in § 1805c apply only to the ex parte review of the government's pi'Ocedures submit-ted to the FISC under § 1805c(a). Here, the challenged event involves an effort by the Ali:omey General, under 50 U.S.C.A. § 1805b(g), to ~'invoke the aid ofthe [FISC] to compel compliance" . . with his directives. Under§ 1805b(g), the FISC is to determine whether "the directive(s were] issued in accordance with [50 U.S.C.A. § l805b(e)] and [are} otherwise lawful." The recipient of a directive, such as Yahoo, may raise Fourth Amendment challenges in response to a motion to compel compliance,~ infl·a Part III.A, triggering an assessment by the FISC ofwhetlwr acquisitions pu~uant to the directive would violate the Fourth Amendment. The limitations on judicial review imposed on the separate, ex parte ·proceeding under§ 1805c do not apply to the CoUL·fs analysis ofFomth Amendment issues in this case. Thus~ the PAA does not intrude on the Court's "pow.er to . .. decide what constil1.1tiona.l rule of law must apply" in this case. Doe, 500 F. Supp. 2q at 411. B. Yahoo's Other Non~Fourth Amendment Objections to the PAA Are Not Persuasive. Yahoo argues nex~ that the PAA is "defective'.' or "problematic" in three other respects. Yahoo's Mem. in Opp'n at 23-24. First, it notes that 50 U.S.C.A. § 1805b(a)(l) and 50 U.S.C.A. § 1805c(b) use divergent language to describe the procedures to be adopted by the govet1Ull~nt and reviewed by the FISC, such that "it is unclear what should be submitted to: and reviewed by, 12 ( ... cantinued) tailored to advance a compelling govenunent interest")T011 SECRETI/COMINT//ORCON,NOFOR.""t#Xl Page 14 292 App. 435 CR 0976 T011 SECll:ETHCOMINTHORCON,NOFORNHXl this Court." Yahoo's Mem. in Opp'n at 23 .13 Another judge of the FISC ack,nowledged this ambiguity when reviewing the gqvernment' s procedures under § 1805c(b). See ln re DNlfAG Opinion and Order entered January 15, 2008 (In re DNVAG Certifications) at 6-8. However, that judge, after applying ordinary p1inciples of statutory construction, concluded that for the types of acquisition pertinent to this case, the statute should be understood to require that the procedures be "reasonably designed to ensure thatthe users oftasked facilities[ 14] are reasonably believed to be outside oftbe United States." M. at 15 . This understanding of the statutory requirement is also adopted here, tbr the reasons stated in In rv DNI/AG Certifications. 15 Because this ambiguity can be resolved by such 11 Comuare § 180Sb(a)(l) (requiring "reasonable procedures . . . for determining that the acqtdsition of foreign intelligence information ... concerns persons reasonably believed to be located outside the United States'' and providing that "such procedures will be subject to review" by the I:ISC under.§ 1805c) .Yill.h § 180Sc(b) (the FISC shall review for clear error "the Government's determination~' that the§ 1805b(a)(l) procedures ·~are reasonably designed to ensure that acquisitions ... do not constitute electronic surveillance"). These procedures axe sepmate from the "minjmization procedmes" required by § 1805b(a)(5). In the context of the challenged dil'ectives here, the ''tasked facilities" are tho~e -identified by the goverrunent to Yahoo for acquisition. 1 " IS In reaching this conclusion, .Judge KoJJar-Kotelly reasoned as follows:· [T]he stat11te describes the subject matter oft11e Comt•s review under§ 1805c using varying and ambiguous language. Section 1805b(a)(1) sets out the relevant executive branch "determination" as follows: that ~'there are reasonable procedures in place for detennining that the acquisition of foreign intellil!ence information under this section concerns persons reasonably believed to. be located outside the United States." § 1805b(a,)(I) (emphasis added) . However, § 1805c(b) states that the Court "shall assess the Governmenes determination undet; [§ 1805b(a)(l)] that thbse procedures al'e reasonably designed to ei1st1re that acquisitions conducted pursuant to [§ 1805b] do -not constitute electronic (continued ... ) TOP SECRET//COJ\HNTI/ORCON,NOFORN//Xl Pagel 5 f 293 App. 436 CR 0977 TOP SECRETHCOMINT//ORCON;NOFOR.'WIXl interpretative anal'ysis, there is no force to Yahoo's argument that it renders the challenged directives unlawful. Second, Yahoo raises a separate argument that challenges the propriety of enforcing the directives while judicial review of these procedures under 50 U.S.C.A. § 1805c(b) has not been 15 ( •• •continued) surveillance." § 1805c(b) (emphasis added). One provjsiqn focuses on the location of persons implicated by the acquisitions of foreign intelligence inforJUation, while the other provision focuses on whether the acquisitions constitute electronic surveillance. · This &eeming disconnect betWeen the language of§ 1805b(a)( 1) and § 1B05c(b) is bridged in part by the PAA's amendment to the definition of ''electronic surveillance" to exclude "surveillance directed at a person reasonably believed to be located outside ofthe.United States." . § 1805a (ei·nphasis added). Section 1805a arguably hmmonizes § 1805b(a)(l) and § 1805c(b), to the extent that the acquisition of foreign intelligence infmmation concerning persons reasonably believed to be outside of the United States (per § 1805b(a)(1 )), will often, and perhaps usually, be accomplished through surveillance directed at persons reasonably believed to be outside of the United States. In that event, ·such surveillance will not constitute "electronic surveillance', by virtue of§ 1805a But . at first glance, at least, this harmonization is imperfect. For example, an acquisition of foreign intelligence information that concems a person outside of the United States might not necessarily be understood to involve surveillance directed at a person outside cif the United States. The concepts are related and overlapping, but not necessarily co-extensive under the terms of the statute. Despite these interpretative difficulties, it seems clear that procedures will satisfy the relevant statutory requirements if they are reasonably designed to ensure both (1) that such acquisitions do not constitute ''electronic surveillance," because they · are s1..n:veillance directed at persons reasonably believed to be outside of the United States, and (2) that the acauisitions of foreign intelligence infonnation concern persons reasonably believed to be located outside ofthe United States. In re DNI/AG Certifications at 6-8 (footnotes omitted). TOP SECRET//COMINT//ORCON,NOFOR.l!#/Xl Page 16 294 App. 437 CR 0978 TOP SE;CRET/JCOMINT//ORCON,NOFORNI/Xl completed. Yahoo~s Mem. in Opp'n at 23. A brief explanation ofthe procedures involved in this case will be -useful before addressing the merits of this argument. This case involves multiple sets of procedures that, separately from this proceeding, have been submitted by the governme11t to the FISC for review under§ 1805c(b). The fi rst set of procedmes is implemented by the National Security Agency (NSA) and was the subject of them re DNI/AG C~rtification~ decision discussed above. Hi After that decision, the government submitted the second set of procedures, which applies to uisitions involving Federal Bureau oflnvestigation (FBI).17 As related to this case, the NSA procedures apply bt;zt for accounts identified for the FBI procedures. app ly. 1U In other words, all accounts identified for acq uisition are screened - ff an account passes this screening and is identified for then it is subject to With this background, the Court retums to Yahoo's second argmnent. More precisely, there a r e -losely similar sets ofNSAprocedures, one for each of the certifications at SA procedures can be found in the Feb. 2008 Classified Appendix at Hi 17 There are also. . closely similar sets ofFBI procedures, one for each of t h e cettifications at issue in this case. These FBl can be found in the Feb. 2008 Classified Appendix at They were adopted on Januaty 31 , 2008, pursuant to ·ons, which may be found in the Feb. 2008 Classified Appendix discussed later in this Opinion. The legal effect of these amendments is · ~ i.n.frn Part Il.D. Classified Appendix a t TOP SECRETI/COMINTf/ORCON,NOFORN/fXl rg See Feb. 2008 Page 17 295 App. 438 CR 0979 TOP 8ECRET/fCOl\HNT/fORCON,NOFOR1>U/Xl. Yahoo' claims that it "should not be required to comply with the Directives until this I . . Court has approved the government's procedures" under 50 U.S.C.A. § 1805c(b). Yahoo's Mem. in Opp'n at.23. With regard to the NSA procedures, this argument is mooted by the intervening In re DNI/AG Certifications decision: which tbund that the NSA procedures satisfy tbe applicable review for clear error under § I 805c(b). However, FISC review of the FBI procedures under§ 1805c(b) has not been completed, although as noted above, the FBI NSA procedures that procedures · With regard to the FBI procedures, the Court finds that the terms of the PAA foreclose Yahoo's suggestion that the completion ofjudicialreview unde1~ § 1805c(b) is a prerequisite to a directive's having compulsive effect. Upon the effective date ofthe PAA, see§ PAA 6(a), the '• Attorney General and the Director of National Intelligence were empowered to authorize acquisitions offoreign intelligence information under§ 1805b(a), and to issue directives "Iw]ith respect to an authorization of an acquisition'' under§ 1805b(e). The recipient of a directive is obligated to "immediately provide the Govemment with all information, facilities, and assistance necessary to accomplish the acquisition." § 1805b(e)(l) (emphasis added). In contrast, Congress envisioned that judicial review of the government's procedures under§ 1805c(b) could take up to 180 days after the effective date of the PAA to complete. See§ 1805c(b), Congress plainly TOP 8ECRET//COMINT//ORCON, NOFOR~//X1 Page 18 . 296 App. 439 CR 0980 TOP 8ECRETNCOMINTIIORCON,NOFORNI/Xl intended that directives could take effect before the§ 1805c(b) process was completed. 19 Thus, Yahoo's second argument must also be rejected. Third, Yahoo challenges the directives, arguing that, under section 6(cHd) of the PAA, it remains obligated to comply with the directives for up to one year, evetl though the protection of immunity provided to it by the legislation may not apply by virtue of the lapse of 50 U.S.C.A. § 1805b(l). Yahoo's Mem. in Opp'n at 24. In response, the government asserts that the immunity provision remains in effect throughout the life oftbe directives. Memorandum in Supp01i of Govenm1ent's Motion to Compel (Mem. in Support of.Gov't Motion) at 24 n.22. For essentially the san1.e reasons that support the Cotni' s holding that § 1805b(g) remains in effect with regard to the directives at issue by operation of§ 6(d) ofthe PAAt ~supra Part I~ the Court finds that§ 6(d) also preserves the operability of the imn1unity provision of§ l805b(l). Not only does § 180Sb(l) fit comfortably within the preserving language of§ 6(d), but it would be wholly illogical for Congress to have initially afforded civil immunity to the recipients of dil·ectives. only to have it subsequently extinguished even though the obligation to comply with the directives remains in effect. 20 19 Yahoo's argmnent regarding the timing of judicial review under§ 1805c(b) is als·o 1.mpersuasive if constmed as a Fourth Amendment challenge. As explained below, the Court finds that authmized acquisitions pursuant to the directives issued to Yahoo comport with the Fourth Amendment jurisprudence. See infra Part III.B~C. And, as part ofthe Court's assessment of compliance with the reasonableness requirement of the Fourth Amendment, the Court has ~cedures in question, which seek to ensure that acquisitions wHI be directed at - - u s e d by persons reasbnably believed to be overseas. See infra note 83 and accompanying text. 20 Moreover, in Yahoo's case, any assistance rendered will be pursuant to this Court's (continued ...) TOP SECR:ET/ICOMINT//ORCON,NOFORN//Xl Page 19 297 App. 440 CR 0981 T011 8E.CRETI/COMJNT/lORCON,NOFORNHXl C. The PAA Does Not Require Certifications or Directives to Identif-y Each Individual Target.. Yahoo also argues that the directives do not comply with the terms of the PAA, beca~tse they require Yahoo to assist in survemance of persons who are not lcnmvn to the government at the time of the certit1cation, but rather become known to the government after the certification is made. Yahoo's Mem. in Opp'n at 24-25. Yahoo advances this argument despite its acknowledgment that 50 U.S.C.A. § 1805b(b) expressly states that a certification ~'is no~ required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed." Yahoo opines that there is an implicit requirement that the government identify each person at whom the surveillance will be directed when a certification is made, and that the govermnent can target persons identified thereafter only pursuant to a subsequent certi±lcadon. Yahoo bases tbis argument on 50 U.S.C.A. § l805b(a)(2), which requires the Attorney General and the Director ofNationai'Intelligence to issue a celtification if they "determine, based on the inf01:mation provided to them, that ... the acquisition does not-constitute electronic sur-veillance." Yahoo's Mem. in Opp'n at 24. Yahoo notes that 50 U.S.C.A. § 1805b(a)(1) separately requires the Attorney General and the Director of National Intelligence, before issuing a certification, to detennine that ~'there are reasonable procedures in place for determining that the acquis.itlon of foreign infonnation ... concerns 10 ( ••• continued) Order requiring compliance with the directives. And, failure to obey the Order "may be punished .. . as contempt of court.': § 1805b(g). ·under such circumstances, Yahoo would likely have recourse to some form of immunity, even apart from the express language of·§ 1805b(l). Cf. Rodrigues v. Furtado, 950 F.2d 805, 814~16 (P1 Cir. 1991) (qualified immunit-y for physician assisting in search authorized by warrant). TOP 8ECRETHCOMINTHORCON,NOFOllNNX1 . Page20 298 App. 441 CR 0982 TOP SECR:ETHCOM INT/fORCON ,NOFO&~f/X l persons reasonably beHeved to be located outside the United States." Yahoo's Mem. in Opp'n at 24-25. Yahoo argues that in order for§ 1805b{a)(2) to have any independent effect, this provision must require the Attorney G<:meral and the Director of National Intelligence to detern1ine, on an individualized basis, that each person at whom smveillance will be directed is outside of the Uniied States, such that surveillance directed at them will not constitute ~'electronic surveillance" by virtue of 50 U.S.C.A. § 1805a. Yahoo's Mem. in Opp'n at 25. Otherwise, the argument continues~ the detem1ination unde.r § 1805b(a)(2) would merely (and redundantly) rely on the efficacy of the procedures, which are already the subject ofthe determination under § 1805b(a)(l), in ensuring that new persons a.t whom the surveillance is later directed are outside ofthe United States. Yahoo's Mem.1n Opp'n at 25. ln response, the govenm1ent essentially inverts Yahoo's argument by contending that, if § 1805b(a)(2) required individualized determinations by the Attorney General and the Director of National Intelligence regarding the location of each person at whom surveillance will be directed~ then it would be supert1uous for § l805b(a)(l) to require procedur~s to ensure that the surveillance is directed flt persons reasonably believed to be outside of the United States. Mem. in Support of Gov't Motion at 23. This appears to be another occasion where the PAA is not n model of clear and concise legislative drafting. See ~unra notes 13-15 and accompanying text. Non-:the!ess, for the reasons described below, the Cow·t concludes that the govenu11ent's interpretation of§ 1805b(a)(l) and (a)(2) better serves the canon of statutory construction which requires that stat\.ltes be construed in a manner that promotes a "symmetrical and coherent regulatory scheme, and fit[s], if possible, TOP 8ECRET//COMINTHORCON1NOFOR,"'(//Xl Page 21 299 App. 442 CR 0983 TOl' SECRETHCOMINTHORCON,NOFORN!/Xl all patts [of a statute] into an harmonious whole," such that the tem1s of the statute are "read in their context and with a view to their place in the overall statutory scheme." Food & Drurr Admin. y, Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotations and citations omitted). Under the PAA, both the Attorney General and the Director ofNational Intelligence must as make determinations "in the fonn of a written certification, under oath, [and] supported . . appropriate by affidavit" of Presidentially-appointed and Senate-confirmed na~ional security ofi1cials or the head of an agency within the intelligence community. 50 U.S.C.A. § 1805b. However, in circumstances where "immediate action by the Government is required and time does not permit the preparation of a certification; ... the determination of the Director of National Intelligence and the Attorney General sball be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made." Id. These requirements for senior executive branch official participation are generally comparable to the involvement required by 50 U.S.C.A. § 1804, when application is made to the FISC for an order authorizin~ electronic surveillance.21 . Requiring Hie executive branch to meet these procedural requirements every time it identifies n new person (or group of persons) at whom it intends to direct surveillance would sub.stantially burden and very·likely impede the intelligence gathering efforts authorized undet' 21 See§ 1804(a) (requiring approval ofthe Attorney General based upon his finding that the application satisfies applicable statutory criteria); § I 804(a)(7) (requiring certification by "the Assistant to the President for National Secmity Affairs" or a Presidentially-appointed, Senate~ confirmed national security official). TOP 8ECRETI/COMINTNORCON,NOFO~~HX1 Page 22 300 App. 443 CR 0984 'fOP SECR:E'fHCOMINTr'/ORCON,NOFORN/fKi the PAA, compared to an interpretation that permits surveillance of newly-identified persons under 11 previously issued certification, assuming that the other requirements for conducting surveillance are satisfied. It is true that based on Yahoo's interpretation, surveilla11ce of a newly~ identified account could commence immediately if the user of the newly-identified account also used a ·separate accm.mt already covered by a prior certification. But, in many instances) it will not be self-evident whether tl1at is the case, and the analytical effort devoted to this question would constitute an additional burden on intelligence agencies.22 Imposing such burdens is contrary to the congressional intent ofeasing the procedural requirements for targeting persons reasonably believed to be outside ofthe United States, in order to allow intelligence agencies to pursue new overseas targets with greater expediency and _effectiyeness.2-1 This objective is reflected in§ 1805b(b)'s express statement that a certification need not "identify the specific facilities, places, premises, or properly at which the acquisition of 2 J See 153 Cong. Rec. H9954 (daily ed. Aug. 4, 2007) (statement of Rep, Smith) (PAA <'adopts flexible procedures to collect foreign intelligence from foreign tenorists overseas," and "does not impose unworkable, bureaucratic requirements that would burden the intelligence community"}; see also 153 Cong. Rec. 810,869 (daily ed. Aug. 3, 2007) (statement ofSet'J.. Bond) (PAA meets "the needs that were identified . .. to clear up the backlog because there is a huge backlog," resulting from "the tremendous amount of papenvork" involved in the pre~PAA FISA process). · TOP 8ECRETHCOMfNTh'ORCON;NOFORNf/X1 Page 23 301 App. 444 CR 0985 TOP 8ECHETHCOMINTHORCON,'E'fOFOffif//X:l foreign intelligence infommtion wiH be directed." In view of the evident purpose for enacting the PAA, the Court declines to find an implicit requirement that certifications specify the persons at whom surveillance will be directed. [fCongress had intended a limitation of this magnitude on the flexibility it otherwise intended to confer when it passed into law the PAA, one would expect a much clearer statement of such intent. The Court therefore·concludes that certifications and directives do not have to specify the persons at whom surveillance will be directed in order to comply with the PAA. This constn1ction ofthe PAA- wherein the Attorney General and the Director of.National Intelligence determine that there are "reasonable procedures in place" regarding the overseas location of targeted persons tmder § 1805b(a)(1 ), the FISC reviews those procedures under§ 1805c(b),34 and intelligence agency persam1el make reasonable assessments of the location of persons to be targeted in conformance with those procedures -provides a framework more conducive to the congressional purpose of enabling intelligence agencies to identify and pursue overseas targets with greater speed and efficacy. D. The Directives Issued to Yahoo Survive the Amendment ofthe Govermnenfs Certifications. As explained above, see supra notes 3-4 and accompanying text, the government pmported to amend each of the . certifications relevant to this proceeding pl'ior to the 21 ' The only judicial review that is necessarily mandated under the PAA is the FISC's review of these procedures under§ 1805c(b); other modes of judicial review occur only in response to contingent decisions by parties) such as the govermnent's decision to bring the instant motion to compel under § 1805b(g). Tl1e decision of Congress to single out the § 1805b(a")(l) procedures for mandatory judicial review suggests that Cong1·ess expected these procedures to be especially important in properly implementing the PAA. , TOP SECRETHCOMINTHORCON,NOFORNt'/Xl Page24 302 App. 445 CR 0986 TOP SECRET//COMINT//ORCON ~NOFOR.~/f:Xl expiration of the PAA on February L6, 2008 . The government contends that these amendments are effective, ru1d that tbe govemment may use the directives that were issued to Yahoo prior to these amendments as the means fqr conducting acquisitions under the amended certifications. Govetnment's Response to the CoUit's Order of February 29, 2008 (Govt.'s Resp . to Feb. 29 Order) at 6-12, 16-20. Yahoo, on the other hand, argues that the-issuance of new directives is required to effectuate material amendments to certifications. Yahoo's Supp. Brief. on Stat. Issues at 6-12. Now that the PAA bas expired, it is by no means clear that the govenu11ent could issue new directives at this time, Ol' otherwise take additional steps to effectuate the cha11ges it intended to implement by the amendments. See PAA § 6(c), (d). For this reason, the_impact of the government's actions prior to the expiration of the PAA has assumed greater importance. 1. Certifications May Be Amended and Such Amendments Do Not Necessarily Require the Issnance of New Directives. The PAA does not expressly address whether and how certifications may be amended, or what effect such amendments have on previously issued directives. Nevertheless~ the following general principles can be gleaned from the text of the statute: (1) The Attorney General and tl1e Director ofNational Intelligence must make a written certification in order to authorize acquisitions of foreign intelligence information under§ l805b(a). 23 1 ~ As noted earlier~ in emergency situations; the Attorney General and the Director of Nationallntelligence may make the determinations in support of a11 acquisition less formally, and then make the written certification within 72 hours. § 1805b(a). Tlus emergency provision does not apply to this case because the authorizati.ons. in question have at all relevant times been supported by written certifications. TOP SECRET/ICOMIN'f//ORCON,NOFOfu"'t//X1 Page 25 303 App. 446 CR 0987 TOP SECRETh'COMlNT/JORCON,NOFORi'W/Xl (2) Acquisitions may only be conducted in accordance with the applicable certification. § 1805b(d). (3) "With respect to an authorization of an acquisition," the Attorney General and the DNI may direct a. person to provide assistance in the .acquisition. § 1805b(e). These principles do not foreclose the poss'ibility that the Attorney General and the ' . Director of National Intelligence could amend previous certifications. Indeed, the government argues that the authority to make a certification logically implies the ability to modify a cmtification in response to changed circumstances, see Govt. 's Resp. to Feb. 29 Order at 8, a principle courts have t•ecognized in other contexts. 2~ The FISC's practice of entertaining motions to amend previously issued orders could be Se!!n as illustrating a similar principle, since (as noted by the government.~ Govt. 's Resp. to Feb. 29 Order at 9).FISA does not explicitly provide for the amendment of FISC orders. Yahoo, for its part, does not object to the general proposition that the government could amend ce1tifications while the PAA was in effect Yahoo's Supp. Brief. on Sfat. Issues at 6. Accordingly, the Court concludes that, prior to the PAA's expiration, the Attorney General and the Director of National Intelligence were not categorically prohibited from amending certifications previously made under § 1805b. The more difficult issue, however, is whether an m11endment to a certification required the issuance of a new (or approptiately • amended) directive, or i~stead whether the previously issued directive was a proper and effective 16 See,~. Belville Min. Co. y. United States, 999 F.2d 989, 997-98 (6'11 Cir. 1993) ("Even if an agency lacks express statutory anthority to.reconsider an earlier decision, an agency possesses inherent authority to reconsider administrative decisions, subject to certain limttations."); Gun South. Inc. v. Brady, 877 F.2d 858, 862-63 (11 111 Cir. 1989) (recognizing "an implied authority in .. . agencies to reconsider and rectify errors even though the applicable statute and regulations do not expressly provide for such reconsideration"). TOP SECRET//COMINT/IORCON,NOFORN//Xl Page 26 304 App. 447 CR 0988 TOP SECRETI/COMlNT/IORCOi\l,NOFORNl/Xl means to obtain assistance for acquisitions conducted in accordance with the post-amendment terms of the certifi cation. To that issue the Court now turns.:17 The govel'nment analogizes the relationship between certifications and directives t<:> the relationship between primary and secondary orders issued by the FISC pursuant to SO U.S.C.A. §§ 1804-1805, See Govt.'s Resp. to Feb. 29 Order at 9-11; see also Yahoo's Supp. Brief. on Stat Issues at 4 (certifications are comparable in effect to couti orders authorizing sui.-veillance). In the latter context, the "order" by which the FISC uapprov[esJ the electronic survei1lance" under 50 U.S.C.A. § 1805(a), and makes the findings, directions, and specifications necessary under§ 1805(a) and (c): is customarily refened to as the ''primmy order." Ifthe surveillance requires assistance from a third party under § 1805(c)(2)(B)-(D), the FISC also issues a separate "secondary order,'~ which the govermnent serves on the third party .zs The secondary order does 11 TI1e goverru11ent also argues that, on these questions of statutory interpretatio11, the Attomey General's nnd the Director ofNational Intelligence's decisions are entitled to deference under Chevron U.S.A. Inc, v. Natural Resources Defense Council. Inc., 467 U.S. 837 (1984). See Govt.'s Resp. to Feb. 29 Order at 8. Indeed, the govermnent argues that an especially heightened version of Chevron deference is due in this case because the statute to be interpreted coi1cerns foreign affairs. See id. (citing Springfield Indus. Corp. v. United States, 842 F.2d 1284, 1286 (Fed. Cir. 1988), ano Population lnst. v, McPherson, 797 P.2d 1062, 1070 (D.C. Cir. l 986)). However, the government does not explain why, in this case, the conditions for according any level of Chevron deference are S?-tis:fied. See. e.g., Gonzales v, Oregon, 546 U.S. 243,255-56 (2006) (Chevron deference applies only when agency interpretation of statute was promulgated pursuant to statutorily-delegated "authority to the agency ... ·to make rules carrying the force of law") (internal ql.totations omitted). In any case, because the CoUl~t finds that the an1ended certifications are valid and may be effectuated tlu·ough the previously~issued directives without accmding ChevrQn deference, it is unnecessary to decide whether Chevron applies to this case. 28 Congress used nearly identical language to describe third-'party assistance under a P AA under a FISC order to assist in an electronic sm-veillance authorized under§ 1805. (continued... ) TOP SECHET//COMIPH/lORCON,NOFORNJIXl Page 27 dir~ctive and 305 App. 448 .C R 0989 TOP SECRETHCOMINTI/ORCON,NOFORNHXl .not include aU ofthe reqllired elements ofthe primary order, but instead is. limited to information that the third party needs to know in order to provide the required assistance. The government con·ectly observes that the FISC has granted motions by the govenunent to amend a previously issued primary order- for ex~ple, to approve modified minimization procedm·es. Govt. 's Resp. to Feb. 29 Order at 9~ 11 (discussing, .!h[,, FISC has sometimes amended primary orders without amending secondary orders, see, e.!!.,. based on the implicit undet~standing that the efiicacy of previously issued secondary orders was not undermined by the amendment: As a. general rule, the FISC has issued new or amended secondary ·orders to a third party who is already subject to a.n extant secondary order in the same docket only when the primary order has been a~nended in a way that changes t}le nature or s~ope of the assistance to be provided- for example, when the amendment authorizes surveillance of a new facility that was beyond the scope of the original ordeL·s. See, 2K( ... continued) See § 1805b(e)(1 )-(3) (P AA directive); § 1805(b)(2)(B)-(D) (FISC order). TOP S£CRET,LfCOMINF//OR:CON,NOFORNt/Xl Pa~e28 306 App. 449 CR 0990 TOP SECMTIICOMINT/IORCON,NOFOR.l\fi/X1 The govenm1ent's analogy to this motions practice is on point. Under§ 1805, the primary order issued by the FISC is the means ofauthorizationrequired by the statute in n~:~n~ emergency situations/9 and must include certain findings and specifications identified in § 1805(a) and (c). Surveillance authorized by the FlSC under§ 1805 must be conducted in accordance with the primary order. 30 Under§ 1805b(a), the certification made by the Attorney General and the Director ofNatiolmllntelligence is the means of authorization required by the PAA in non-emergency situations, and must include certain determinations identHied in § 1805b(a)(l )-(5). Acquisitions authorized by the Attorney General and the Director of National Intelligence under§ l805b must be conducted in accordru1ce with the applicable certification (except under an emergency authorization) after which a ·written certification must be made within72 hours under§ 1805b(a))? 1 On the other hand, secondary orders issued by the FISC are the means of compelling third parties to assist ln a11 authorized surveillance pursuant to § 29 In cases of emergency, the Attorney General may authorize electronic surveillance, provided that a FISC order approving such surveillance is obtained "as soon as practicable, but not more than 72 hours" aft~r the Attorney General's authorization. § 1B05(f). 30 See§ l805(c)(2)(A) (order "shall direct ... that the minimization procedures be followed"); FISC Rule lO(c) (govenm1ent must immediately inform FISC when "any authority granted by the Court has been implemented in a manner that did not comply with the Court's authotization"). The FISC's rules are a,vailable online at: <http://wv.;w.uscotu1s.gov/rules/FISC_Final_Rules_Feb_2006.pdf.>. JJ The government suggests that there is aiso a non~emergency exception to this requirement, Le., when the government has modified procedures that were originally adopted under§ 180Sb(a)(l) in response to an adverse ruling by the FISC under§ 1805c(c), it may follow the new procedures even if that results in an acquisition that is not in accordance with the certification. See Govt. 's Resp. to Feb. 29 Order at 17. But those hypothetical circumstances are not presented here and the Court expresses no opinion on whether the government's view is conect. TOP 8ECRET/fCO:A41NT/IORCON,NOFORN//Xl Page 29 307 App. 450 CR0991 TOP SECRETNCOMINTl-IORCON ,NOFO~~HXl 1805(b)(2)(B)-(D). They are only issued when the FISC, in a primary orderl has made the findings and specifications necessary to authorize the surveillance under§ 1805(a) and (c). So, too, the Attorney General and the Director of National Intelligence issue directives, pursuant to § 1805b(e), to compel third parties to assist in acquisitions that.have been authorized under § 1805b(a). Directives may be isst.ted only after the Aitomey General and the Director of National Intelligence have made the detennlna.tions specified in§ 1805b(a)(l)-(5) and,. except in emergencies, those detenninati9ns must take the form of a written certification under § l805b(a). Given these similarities, the practice under§ 1805 of amending primary orders, while implicitly relying on the continued efficacy of secondary orders issued prior to the amendment, supports the conclusion that a certification may be amended without undermining the effectiveness of a previously issued directive, at least Jn some circtm1stances. YaJmo acknowledges that this is the case for "purely ministe1ial amendments." Ya1Joo's Supp. Brief. on Stat. Issues at 9 n.l 0, How~ver, Yahoo contends that amendments that tnodizy minimization procedures tmder § 1805b(a)(5) or "targeting'' procedures under§ 1805b(a)(l) are "material," Yahoo's Supp. Brief. on Stat. Issues at 8~9, and that materially amended certifications are tantamount to t'!ew ce11ifications that require new directives. Id. at 9-10: But Yahoo's approach is difficult to reconcile with the motions practice described above. For example, the FISC has granted motions to amend primary orders to approve mod1fied minimization procedures (and those amendments are fairly regarded as matet•ial). But those amendments were not understood to vitiate secoi1dary orders that the FISC had issued prior to the amendment. TOP SECRET//COMINT//ORCON,'J:'JOFOR..l\f//Xl Page 30 308 App. 451 CR 0992 TOP SECRET//COMINT/IORCON,NOFOR.."W!Xl Moreover, as a matter of logic, it does not follow that any material amendment to the terms of an authorization- whether they ate embodied in a FISC order undei· § 1805 or an executive branch cetti"fication under § l805b(a)- necessarily vitiates the obligation of third parties to assist in the authorized surveillance. The fact of an amendment does not imply that the pre-amendment authorization had been ~nvalid. For example, an amendment that modifies minimization procedures may replace one legally sufficient set of procedures with another. h1 such a case, there is a.n equally valid authorization for surveillancet both before and after the amendment, and the amendment has no effect wha~soever on the nature of the assistance to be provided by a third paxty. Therefore, there is no reason why the amendment should necessarily extinguish a third party~s obligation to assist the surveillancet whether that obligation adses under a FISC secondary order or a directive under§ 1805b(e). And if that obligation is not extinguished, then there is no reason to require t11e government to issue and serve a new directive (or an amendment to the prior directive), provided that the prior ditective still appropriately describes the obligations of the third party to assist surveillance conducted pursuant to the amended authorization.32 2. Requiring the Govenm1ent to Issue New Directives Would Not Appreciably Enhance Judicial Review of Directives Under the PAA. The Court has carefully cpnsidered whether~ and to what extent, the issuance of new directives whenever a certification is materially amended would fttrther the purposes of the PAA .n In. addition, Yahoo>s approach involves practical disadvantages. As the govemment conectly contends,~ Govt. 1S Resp. to Feb. 29 Ot•der at 23, the issuapce of multiple directives would involve at least a marginal increase in the risk of improper disclosure of classi'fied information. TOP SECRET/ICOMJNT/IORCON,NOFOR.~//Xl Page 31 309 App. 452 CR 0993 TOP SE:iCRBTl/COMTNTI/ORCON,NOFORN//Xl by facilitating judicial review of directives in the context of govenm'lent actions to enforce compliance under§ 1805b(g), or cha1lenges to directives brought 'by recipients un.der § 1805b(h). As explained below, the Court concludes that a11y such furtherance of congressional intent based on Yahoo's position is illusory, a11d accordi11gly provides no basis for construing the PAA to require the issuance of new or amended directives in all cases where there has been a 111~terial amendment of a certification. Yahoo makes three arguments regarding the availability of meaningful judiCial review of directives. Yahoo's Supp. Brief. on Stat. Issues at 9-12. Although only the third of these arguments directly pertains to the impact of amendments, all three are considered below. . The first argument contends that the PAA violates the Fourth Amendment because there is no mechanism for judicial review of the reasonableness of surveillance under § 1805b, unless and until a directive is challenged tll1der § 1805b(h) or becomes the subject of an enforcement action under§ 1805b(g). Yahoo's Supp. Brief. on Stat. Issues at 9-12. But the directives at issue in this case are the subject of such an enforcement action, ruJd for reasons discussed below, see infra Part IILB-C, the Court detelmines that the requirements of the Fomih Ainendment are satisfied. Secondly. Yal1oo notes that the tecipient of a directive does not have access to the underlying certification and procedures. Yahoo's Supp. Brief. on Stat. Issues at lOP Yahoo 31 The directives issued to Yahoo recite, in language tracking the terms of§ 1805b(a)(l )(5), chat the Attorney General and the Director of National Intelligence have made the detenninations required for them to authorize acquisition under.the PAA, ·but Yahoo is correct that they do not provide any information about the basis for these determinations. See Feb. 2008 (continued ...) TOP SECRETHCOMINT/r'ORCON,NOFOR.l\1HX1 Page 32 310 App. 453 CR 0994 TOP SECRETNCOMINTHORCON,NOFOR.l\INXl objects that this lack of access puts the recipient in the position of deciding whether to comply wlth the directive, and whether to seek judicial review, without the inform ation necessary for a full assessment of the directive's lawfulness. l!h at 10-11. Tb.e Court appreciates this conund1um, but it has nothing to do with whether a second, posl-amendmetlt directive needs to be issued. Even in circumstances where there is no amendment, the recipient will not necessarily have access to the underlying certification and procedures. Indeed, the 'PAA specifically provides that, even when u recipient is a party to litigation involving the lawfulness of n directive under § I 805b(g) or (h), "the court shall, upon request of the Government, review ex parte and in camera any Gove11Unent submission, or portions of a submissiol'l, which may include classified infon11ation." § 1805b(k). With this provision 1 Congress created an opportunity for the .government to provide a full record to the Court, without disclosing sensitive !nfonnation to nongovemmental parties. 3 ~ Under other provisions ofFISA, it is the norm for federal district courts ' 3 ~ On February 20, 2008, the govemment filed a motion for leave, pursuant to § 1805b(k), to submit ex parte for the Court's in camera review a cla~sified appendix containing a complete set of the cerLifications, amendments, and procedures pmtaining to the directives to Yahoo. See Response to Ex Parte Order to Government and Motion for Leave to File Classified Appendix for the Court's Ex Parte and In Camera Review, tiled Feb. 20, 2008. As referenced above,~ supra note 3 1 Yahoo filed a motion for disclosure of that submission, as well as ofthe Memorandum Opinion and Order in In re DNI/AG Certifications. See Motion for Disclosure of Filings, filed Feb. 20, 2008. On February 28,2008, the Court granted the government's motion and denied Yahoo's motion. See Order entered on Feb. 28, 2008. Under the circumstances of this case, the Court has been able to assess the lawfulness of the directives without the benefit of a more f\.tlly inf01med adversarial process. TOP SECR:ETH€0MINT//ORCON,NOFORNI/Xl Page 33 311 App. 454 CR 0995 TOP SECRETHCOMINTHORCOl'f,NOFOR,~J/Xl to conduct an ex parte in camera review in assessing the basis for a prior authorization of surveillance. 35 If the recipient of a ·directive is not' entitled to information abo!Jt the basis for the underlying autborizati011, it foiJows logically that a rule requiring that any material amendment to a certific~tion be supported by the issuance of new directives would not appreciably enhance the recipient's ability to litigate the lawftdness of a directive. Service of a new directive might put the recipient on notice that a certification has been amended, but it would not inform the recipient of the nature ofthe amendment. Thus, from the perspective of judicial review, the recipient would scarcely be better~equipped to contest the lawfu1ness of the underlying authorization by virtue of having received a second, post~amendment directive. 35 Fqr example, under 50 U.S.C.A. § 1806(f), federal district comts have jurisdiction over challenges to the Iawfufness of electronic surveillance conducted pursuant to FISC orders issued under§ 1805. In such cases, the district court shall~ notwithstanding any other law, if the Attomey General files an affidavit under oath that disclosure or an adversary proceeding would harm the national security ofthe United States, review in camera and ex parte the application, order, and such other materials as may be necessary to determine whether the surveillance of the aggrieved person was lavvfully authorized and·conducted. § 1806(f). After the filing of such an affidavit, materials may be disclosed to the aggrieved person ~'only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.'' Id. "In practice, the government has filed an affidavit from the Attorney General in every case in which a defendant has sought to suppress FISA evidence," DavidS. Kris & J. Douglas Wilson'" National Security Investigations and Prosec\ltioris § 28:7 (2007), and "no court has ever ordered the dlsclosure to a defendant or the p11blic of a FISA application or ordel'." ld. § 29:3. Moreover, courts have found that such ex parte proceedings do not violate the . constitutional rights of criminal defendants seeking to suppress the evidential)' use ofFISA information. See, e.l!., United States v. Belfield, 692 F.2d 141,148 (D.C. Cir. 1982); United States v. Nicholson. 955 F. Supp. 588~ 592 (E.D. Va. 1997). TOP SECRETHCOMINTHOH:CON,NOFORI>WX} Page 34 312 App. 455 CR 0996 TOP SECRETHCOMINTHORCON,NOFORNI/Xl Yahoo's third argument is that pennitting the amendment of certit1catio11S without issuing new directives complicates judicial review by potentially presenting the FISC with a «moving target." Yahoo's Supp. BTief. on Stat. Issues at 11 ~ 12. It is true in this matter that the "target11 has been displaced, and that the Court was only belatedly made aware of this fact. See supra notes 3A and accompanying text. And, the govenm1ent now acknowledges: While litigation is pending before this Court regarding the legality of directives under the Protect America Act, the Govennnent has an obligation to alert this Court to any material changes made to an authorization, an accompanying certification, or the procedures the Government uses in the course of its acquisition of foreign intelligence information. The Government's obligations to keep the Court informed of changes that may inforin its analysis are amplified where as here the materials at issue are filed e!\ parte. Govt.'s Resp. to Feb. 29 Order at 21. The Court agrees with this assessment, subject to the modi-fication that, because they are so central to the case, the CoUJ."t should be apprised immediately of rurt change to an authorization certification, or set of procedures that pertains to 1 a directive that is the subject of either (1) pending litigation under § l805b(g) or (h); or (2) a FiSC order compelling compliance with such directive. The Order accompanying this Opinion therefore directs the govenunent to notify the Court forthwith of any such changes pertaining to the directives issued to Ya.hoo.36 With these corrective measures in place, the "moving target" concern becomes manageab1e from the perspective ofjudicial review. Moreover, the alternative of requiring the government to isst\e new directives after a certification bBs been amended would not necessarily 36 In issuing this requ~rement, the Comt expresses no opinion on whether or to what extent the government now has the authority to make such chang~s, given the expiration of the PAA. TOP SECRET/fCOMl~THOR:CON,~O:\i'ORNHXl Page 35 313 App. 456 CR 0997 TOP SECRE1Y/COM1PIT//ORCON,NOFOR'W/X1 simplify judicial review. Rather, the pending litigation regarding the lawfulness ofthe prior, superseded directives would presumably be mooted, therefore requiring the institution of a new challenge to the lawfulness of the new direct,ives. This is hardly a desirable result from the Court's perspective. For these reo,sons, the Court concludes that the efficacy of judicial review would not be enhanced by requiring the government to issue new directives following a matetial amendment to a celiification. 3. The Particular Amendments in Question Do Not Require New Directives. Based on the foregoing ai1alysis, see supra Part ILD.l-2, the Court concludes, as a generat matter/7 that the amendment of a certification does not require the issuance of a new (or amended) directive to replace a previously issued directive when the following conditions are present: (1) The directive, when issued (i.e., pre-amendment), was supported by a valid authorization; · (2) After the a.mendrnent; a·vaJid (albeit modified) authorization remains in effect; and (3) The previously issued directive accurately describes the obligations of the recipient l'egarding the assistance of acquisitions pursuant to the amended authorization. The Cotnt now applies these criteria to the amendments at issue in this case. -Prior to any amendments, the-ertifications at issue contained each of the detenninations specified in § 1805b(a)( 1H5), and otherwise conformed \\lith the require1nents of 37 With respect to amendments to procedttres adopted under§ 1805b(a)(l), the impact of statutory timetable for submission to, and review by, the FISC under§ l805c(a) and (b) merits a separate evaluation. See infra Part ll.D.4. TOP SECRETNCOMINTtJORCO~hNOFORN//Xl Page 36 tl1e 314 App. 457 CR 0998 TOP SECRET/JCOMJNT//ORCON,NOFOR.l\1f1Xl Moreover, each of t h e - the PAA. See Feb. 2008 Classified Appendix at Yahoo directives corresponded with its underlying certification, ,both in duration and in the nature ofthe information and assistance to be provided. 3a Therefore, as to ail ofthe amendments, the first of the three above-stated conditions is satisfied, The first amer1dment in question. pertained only to Certification- This amendment modified the applicable minimization procedures to permit the ~Feb. 2008 Classified Appendix at 119-33. Pursuant to§ 1801b(a)(5), the Attorney General and the Director ofNational Intelligence detem1ined that these modHied minimization procedures satisfy the definition of"ruinimization procedures" under 50 U.S.C.A. § 180l(h). See Feb. 2008 Classified Appendix at 116. Accordingly, after this amendment, a valid (albei~ modlfied) authorization was st11l in effect, so the second of the conditions is also present as to the first amendment. Jn addition, this amendment entirely concerned the govenm1ent's handling of information once The directives provide a more on so certifications do, btlt the information described by the directives does not extend beyond the authorization in each certification to obtain '%reign intelligence information fi·om or with the assistance of . .. . .ra'W • • u n.rat •an!Jid•,._,.•"•W'• • 315 . .. •.,...,...,.:oa ..._,.... ..,,,.t,.ra,. IU'"a'll App. 458 ' . •"~"•"~••&•..:;; ~ Page 37 CR 0999 TOP SECRBT/ICOMINTI/ORCON,NOFO&'I//Xl acquired, and had no bearing on the nature of Yahoo's assistance in acquiring the information in the first place. Therefore, the directive still appropriately described Yahoo's post-amendment obligations, and accordingly the third condition as to the first amendment was also satisfied. As described .above,~ supra notes 17-18 and accompanying text, the government also amended all.ce1tifications to adopt additional pro~edures under§ 1801 b(a)(l) for the acquisition o f - b y the FBI. See Feb. 2008 Classified Appendix at These amendments also approved, under·§ !80lb(a)(S), the minim.ization procedures to be foll9wed by the FBI, the CIA, and the NSA under the amended ce1tifications?9 Pursuant to § 1801b(a)(l) and (5), the Attorney General and the-Director ofNational Intelligence made the required determinations with regard to each of these procedures. See Feb. 2008 Classified Appendix at Accordingly 1 after these amendments 1 valid (albeit modified) authorizations were still in ef"(ect under all-ertifications, and therefore the second of the above-stated conditions is present. As to the third conditioz1, these amendments pertained to the govermnent's inte~al processes for identi:f)'ing accounts for-acquisition, and to the government's handling of information once acquired. Neither type of amendment altered the nature of the assistance to be rendered by Yahoo.4·0 Therefore, each directive still appropriately 40 Yahoo has submitted a sworn statement indicati1tg that, prior to serving the directives on Yahoo, rypresentatives of the government "indicated that, at the outset, it only would expect (continued... ) TOP S'gCfrnT/fCOMINT/f{)RCON,NOFOR."'W/Xl , . 316 App. 459 Page 38 CR 1000 TOl' SH!CRE'F/fCOPtilNTHORCON,NOFORNHXl described Yahools obligations pursuant to these arnended authorizations, so the third abovestated condition is satisfied. Accordingly, the Comt finds that ali three conditions are satisfied as to each of the amendments in this case. However, amendments to procedures under § l805b(a)(l) also require consideration of the potential impact of the statutory timetable for the government to submit, and the FISC to review, such procedures under§ 1805c(a) and (b). The Court's analysis of that issue follows. 4. The Timetables for Submission and Review of Procedures Under§ l805c(a) and (b) Do Not Foreclose the Govenunent irom Amending Procedures Under § 180Sb(a)(l ). Section § 1805b(a)(l) requires "reasonable procedures . .. for determining that the acquisition of foreign intelligence infonnation ... concerns persons reasonably believed to be located outside of the United States,'' and these procedw·es are «subject to rev1ew of.the [FISC) pursttant to" section 1805c. § 1805b(a)(l). The Attorney General was required to submit such procedures to the FISC ''[n]o Inter than -120 days after the effective date" ofthe PAA. § 1805c(a). The FISC was required to complete its review of those prm;ed\.\res by "[n)o later than 180 days after the effective date'' of the PAA. § l805c(b). The statute expressly provides that , those procedures "shall be updated and submitted to the Com1 on an rumual basis.'~ § l805c(a). Page 39 317 App. 460 CR 1001 TOP SECRETHCOMIP'~T/IORCON,NOFORNh'Xl Presumably, the purpose of these annual submissions is for the Court to review the updated procedmes um!er the standards provided by§ 1805c(b) and (c), although no timetable for such Court review is statutorily provided .~' The 120-day and 180-day timetables were followed with regard to the originalllll?ets of procedures adopted under§ 1805b(a)(l). See In re DNl/AG Cettificatiops. The PAA does not expressly provide for the submissi!;>n and review of procedures after these 120-day and 180-day intervals, but before .an annual submission would become due. The government advances a construction of these provisions under which the 120-day and I 80~day intervals would apply to the procedures initially adopted by the government, but would not preclude the government from adopting and submitting new ot· revised procedures at any time thereafter. Govt.'s Resp. to Feb. 29 Ord~r at 23-28. The Court agrees that this construction is in accord with the purpose and structure of the PAA, because the alternative construction, under which the government could not submit new or revised procedures after 120 days, except as part of an "annual" update, would produce anomalous results. Under the terms of§ 1805b(a), the Attorney General nnd the Director of National Intelligence were empowered to authori7..e acquisitions while the PAA was in effect. To do so, they were req.ujred to make determinations, including a detennination that the procedures adopted w1der § 1805b(a)(1) "will be subject to review of the [FISC] pursuant to [§ 1805c]. '' § ~1 However, when one takes into acc'ount that the PAA was originally enacted for a tenn of only 180 days (later extended to 195 days),~ § 6(c), and that authorizations may be authorized "for periods up to one year,"~ § 1805b(a), the purpose of requiring submissions "on an annual basis" is less clear. · TOP SECRET//COMINT/IORCON,NOFORNHXl . Page 40 0 318 App. 461 CR 1002 TOP SECRETh'COMlNT/!ORCON,NOFORNJ/Xl 1805b(a)(1 ). If the government could not submit procedures to the FISC for review after 120 days, then any authorizati(lllS after that time wot1ld necessarily have to rely on previously submitted procedures. But there is no apparent reason why Congress would have desired to prohibit the government from revising proceclmes, or adopting new ones, as warranted by new authorizations, or for that matter, other changed circumstances.41 For example, previously .submitted procedu~es might not be as well-suited for new authmizations, which could involve new classes of targets or new means of acquisition. Indeed, previously submitted procedures ~ might not satisfy the requirements of§ 1805b(a)(l) at nll, when transplanted to the circumstances of a new authorization. In such a case, the inability to adopt new or revised procedures would prevent the Attorney General and the Director ofNational Intelligence from making the . determination that is required by § 1805b(a)(}) in order to authorize otherwise valid acquisltions of foreign intelligence infmmation. Yahoo, for its part, contends that the timing of the government's submission of procedures must not have the et1ect ofavoidingjudicin.I review under§ 1805c. Yahoo's Supp. Brief. on Stat. Issues at 12-13, Indeed) judicial review of the procedLu·es relevant to this case ·under§ 1805c has not been avoided. FISC review under§ 1805c of the§ 1805b(a)(1) procedures adopted by the original, prewamendment certifications has been completed. See ln re P1'ilfAG Certifications. On the other bru1d, judicial review of the § 18G5b(a)( 1) procedures ~2 Indeed, Congress perceived a need to examine § 1805b(a)(l) procedures periodically, as evide11ced by the requirement to update them annually under§ 1805c(a), It would be inexplicable for Congress to have required annual review 0.11d updating, but to have prohibited such efforts on a. more frequent basis when circumstances so required. · 'FOP SRCRETHCOMIN'fHORCON,NOFORNf/Xl Page 41 319 App. 462 CR 1003 TOP SECRETHCOMINT//ORCON,NOF:OR.~//Xl adopted by the amended certifications has not been completed; however, the 180-day timetable for· completion ofthe FISC review established by § 1805c(b) is properly subject to the same construction as the 120-day timetable for govermnent submission of procedures established by§ 1805c~a), i.e., that the 180-day timetable applies to the procedures initially submitted by the government. It is only natural to construe these parallel provisions in a similar matter. Thus; the. Court concludes that the 180-day timetable applies to the completion of FISC review of procedures initially submitted by the govenunent, and that the FISC may and should review procedures subsequently submitted by the gove11u11ent, even if such review cmmot be completed within 180 days of the effective date of the PAA. Moreovert the Court ·finds that, by virtue of§ 6( d) of the PAA. the judicial review provisions 'of§ 1805c remain operative with regard to tl1e § 1805b(a)(l) procedures adopted under .the amended certifications.. The amendments adopting new § 1805b(a)(l) procedures were m'ade on January 31, 2008 1 see Feb. 2008 Classified Appendix at the PAA was still in effect. Those amendments modified authorizations under the PAA. Despite the subsequent lapse of the PAA, those authorizations "remain in effect until their expil·ation," and acquisitions made thereunder ''shall be governed by the applicable provisions of ... amendments" enacted by the PAA. PAA § 6(d).'13 The judicial review provisions of§ 1805c were enacted by § 3 of the PAA and, by ti1eir terms, those provisions are "applicable" to the . acquisitions conducted pursuant to the procedures in question. Thus, the Court finds that these procedures remain subject to judicial review under § 1805c. 43 A mol'e thorough analysis of§ 6(d) is provided above. See supra Pat1 I. TOP BECRBT//COMINT/fORCON,NOFORNI/Xt Page42 320 App. 463 CR 1004 TOP SECRET//COMINT!/ORCON,NOFORN//Xl For these reasons, the Court concludes that the government's amendments to the § 1805b(a)(1) procedures do not conflict with the judicia! review provisions of§ I 805c. Accordingly, based on the analysis set out in this Part of the Opinion (Part 11), the Court . finds that ( 1) the dire.ctives issued to Yalmo comply with the P AA and- subject to the Court's analysis of Fourth Amendment issues, see infra Part III -remain in effect pursuant to the amended certifications; and (2) enforcement of the directives in this proceeding does not violate separation of powers principles. III. The Directives to Yahoo Comply with the Fourth Amendment. A. Yahoo's 'Fourth Amendment Arguments Are Properly Before the Court. Having disposed of most of Yahoo's arguments, the Court now turns to whether Yahoo , can raise its claim that the directives at issue violate the Fourth Amendment rights of third parties. In its memorandum in opposition to the government's motion to compel, Yahoo argued that implementatim1 ofthe directives would violate the Fourth Amendment rights of United States citizens whose communications would be intercepted. The government filed n reply that not only responded to Yahoo~s Fourth Amendment arguments on the merits: but also disputed Yahoo's right to raise them, since Yahoo was not claiming that its own Fomih Amendment rights would be violated if it comp!ied with the directives. The Court then ordered further briefing on the issue of whether Yahoo's Fourth Amendment argtiments were properly before the Comt. For the reasons set forth below, the Court agrees with Yahoo that· it can challenge the directives as violative of the Fourth Amendment rights of third parties. TOP BECRET//COMINTHORCON;NOFOR'W/Xl Page 43 321 App. 464 CR 1005 TOP 8~CRBTI/€0MINTJ/ORCON,NOFORNHJH The Court stmis its analysis ofthis issue with three basic propositions. First, Yahoo's attempt to assert the Fourth Amendment rights of others as a defense to·the governmellt' s motion to compel does not raise any Article III standing concerns. See Warth v. Seldin, 422 U.S. 490, 500 n.12 (1975) (a litigant's attempt to assert the rights of third parties defensively:, as a bar to judgment against him, does not raise any Article III standing problem). Second, ptudential standing rules frequently (though not always) prevent litigants from asserting the lights of third parties. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (a party generally must assert its own legal rights and interests, and cannot base its claim for relief on the legal rights or interests of third parties, but also noting exceptions to this m!e); Warth, 422 U.S. at 500 n.l2 (litigants who assert the rights of third parties defensively are also subject to prudential standing rules). Third, prudential limitations on standing do not apply where Congress has spoken and confelTed standing to seek relief or raise defenses on the basis of the legal rights and interests of third patties, See Raines v. Byrd, 521 U.S. 811 1 820 n.3 (1997); Warth, 422 U.S. at 501; Alderman v. United States, 394 U.S. i65, 174-75 (1969) (a. Fourth Amendment case discussed f·urther below). As to this third pl'OJ?osition, the Court concludes that Congress has indeed spoken here, and that Yahoo therefore may assert the Fourth Amendment rights of third parties as a defense to the governmenf s motion to compel. The Court's analysis begins with the specific language of 50 U.S.C,A. § 1805b(g), which provides in pertinent part: "In the case of a failure to comply with a directive . . . , [t]he court shall issue an order requiring the person to comply with the directive if it finds that the directive TOP SECRETI/COMINTHORCON\NOFORNNXl Page 44 322 App. 465 CR 1006 TOP SECRBTf/COMINTHORCON,NOFORN//Xl was issued in accordance with subsection (e) and is otherwise lawful." I d. (emphasjs added), 44 The plah1 reading of this language leads the Court to the conclusion that a govemment directive to Yahoo that violates the Fourth Amendment is not "otherwise lawfui," regardless of whose Fourth Amendment rights are being viofated.45 Moreover, in the context of a statute that authorizes the govenm1ent to acquire the contents of communications to and from United States persons46 without their knowledge or consent, the protections provided by the Fourth Amendment are critically important. See,~. United States v. United States District Court, 407 U.S. 297 (1972); Katz v. United States, 389 U.S . 347 (1967). In this context especially, the expansive language that Congress used to 4 ~ Cf. 50 U.S.CA. § 1805b(h)(2), which is a similar provision that would have applied if Yahoo had affirmatively filed a petition .challenging the directive. Subsection (h)(2) provides, in pertinent part, that "[a] judge considering a petition to modify or set aside a directive may gl'ant such petition only if the judge finds that such directive does not meet the requirements of this section or is otl1erwise unlawful." (emphasis added). ~s Indeed, the govemment implicitlY. acknowledged as much in its opening motion to compel. where, prior to any filing by Yahoo, the government argued that the directives in question were ''otherwise lawful" precisely because they comported with any Fourth Amendments rights of third parties. Motion to Compel at J.:.7. •Ia Yahoo's arguments focus on the Foutth Amendment rights ofUnited States citizens. The govermnent, however, focuses on uunited States persons," of whom United States citizens are a subset. Govt.'s Supp. Brief on the Fourth Amend. at 1, n.l. This Court agrees with the govemment' s assertion that, "in general, the Foutth Amendment rights of non-citizen U.S. . persons are substantially coextensive with the rights of U.S. citizens." Id. The phrase "United States person"' is a term of m·t in the intelligence community that is defined in similar but not identical tem1s in FISA, 50 U.S .C.A. § 1801 (j); Exec. Order No. 12,333, 3 C.F.R. 200 (1982), reprinted as amended in 50 U.S.C. § 401 (2000 & Supp. V 2005) (E.O. 12333); and the Department of Defense Procedures Governing the Activities ofDoD Intelligence Components that Affect United States Persons, DoD 5240.f-R.(l982), Appendix A, definition25 , This Court will use the phrase "United States persGn" in referring to those persons who ~njoy the protections of the Fourth Amendment. TOP SECRETHCOMINTI/ORCON,NOFORN/lXl Page 45 323 App. 466 CR 1007 TOP BECRET//COMJNT/fORCON,NOFOR:.~//Xl describe the Court'.s inquiry is difficult to reconcile with an intent to ex~lude the central question of whether compliance with a challenged directive would tTansgress the Fourth Amendment rights of United States persons whose communications would be acquired.47 Despite the broad and unqualified natme of the statutory language (and notwithstanding what the government stated in its initial filing,~ mm.rn note 45). in subsequent filings the govenunent is now urging the Court to conclude that Congress intended for the terin "otherwise [awful" to preclude challenges to the legality of its directives based on the Fourth Amendment rights of third parties. See Mem. in Suppol't of Gov't Motion at 5-7; Reply to Yahoo Inc.'s SurReply. The govenm1ent relies primarily on Supreme Cot1rt caselaw as suppo11 for its cunent position, in which the Court held that litigants could not raise the Fourth Amendment claims of others. The govemment also ~sserts that allowing Yahoo to raise the Fotuth Amendment rights of others would lead to acljudication ofthose rights without sufficient concrete factual context.48 41 The scant legislative histmy on the statutOiy provision at issue does not undermine its plain meaning. In the House, one proponent of the bill simply noted without fi1rther elaboration that, "(w]ith this new legislatiou ... [t)he Court may also issue orders to assist the Govertm1ent in obtaining compliance with lawful directives to provide assistance under the bill, and review challenges to the legality of such directives." See 153 Cong. Rec. H9965 (daily ed. Aug. 4, 2007) (statement of Rep, Wilson). In the Senate, one .opponent ofthe bill charged that "[i]n effect, the only role for the court under this bill is as an enforcement agent- it is to rubberstamp the Attomey General's decisions and use its authority to order telephone companies to comply. The court would be stripped of its authority to serve as a check and to protect the privacy of people within the United States." See 153 Cong. Rec. S10,867 (dailyed. Aug. 3,2007) (statement of Sen. Leahy). However, the remarks by an opponent ofthe legislation carry little weight. See UI1lted States v. Andrade, l35 F.3d 104, 108 (1st Cir. 1998). 48 The govemment c-ites Soi.1th Dakota v. Oppe1·man, 428 U.S. 364, 375 (1976) for tlus proposition, where the Supreme Court stated that, "as in all Fourth Amend111ent cases, we are obliged to look to all the facts and circumstances of this case." This Court is obviously obliged (continued ...) TOP 8ECMTJ/COMINTNORCON,NOFORNHXl Page 46 324 App. 467 CR 1008 '"FOP SECRET/lCOt\'llNTHORCON,NOFORNllX:l Howevel', these arguments do 11ot persuade the Court"to adopt the strained reading of the statutory language advoca'ted by the government. The Cou1t will assume, an!tlendo, that there is some validity to the government's argument that allowing Yahoo to assert the Fourth Amendment rights of third parties could be problematic because ofinadequate factual context. But this is the type of prudential standing consideration that can be outweighed by countervailing considerations even in the absence of congressional action. See Kowalski v. Tesmer, 543 U.S . 125, 129"30 (2004) (discussing circumstances in which thhd parties may be granted standing to assert the rights of others). Here, however, Congress has spoken, and nothing absurd or outlandish will result 11·om adhering to the natmal meaning of its words. See generally Akio Kawashima v. Gonzalri§ 1 503 F.3d 997, 1000 (9 111 Cir. 2007) {plain meaning of statute controls absent an absurd or unreasonable result). The reality is that third parties whose communications are acqulred pursuant to·the govenunent' s directives will generaUy not be in a position to vindicate their ovvn Fourth Amendment rights. It is unlikely that. they will receive notice that the government is seeking or has already acquired their communications under the PAA unless the acquisitions are going to be used against them in an official proceeding within the United States, see 50 U.S.C.A. § 1805b(e)(l); 50 U.S.C.A. § 1806, and such proceedings will probably be rare g~ven the foreign intelligence nature ofthe acquisitions and the fact that such acquisitions must concern persons reasonably believed to be .outside the United States. See 50 U.S.C.A. § 1805b(a). Thus, aUowing the recipient of a ~ 8 (•••continued) to adhere to the directives of the Supreme Court, and will do so by exami11ing all the facts and circtunstances of this case, as ref1ected in the record before it, in rendering its decision. TOP 8ECRETt.'COMII:'fT//ORCON,NOFOltl'f//Xl Page 47 325 App. 468 CR 1009 TOP SECRET/ICOMINTHORCON,NOFORN//Xl directive such as Yahoo to contest its constitutionality under the Fourth Amendtnent will generally be the only possible meru1s to protect the Fourth Amendment rights of third parties. albeit on a relatively undeveloped factual record in some situations. Although Congress could have chosen a differellt path, the one reflected in the wording of the statute is far from absurd, and gives no cause to stray from the plain meaning of what Congress said. Furthennore, giving the "otherwise lawful" language its plain and obviou.s meaning is consistent with the Supreme Court precedent cited by the govemment conceming the assertion of Fourth Amendment rights. The govemment cites several cases, h1cluding Alderman v. United States, 394 U.S. 165 (1969), Rakas v. Illinois, 439 U . ~. 128 (1978), and Minnesota y. Carter, 525 U.S. 83 (1998), in which the Supreme Court rejected attempts by criminal defendants to suppress evidence allegedly obtained in violation of others' Fourth Amendment rights. The government also cites a civil case, California Bankers Association v. Shultz, 416 U.S. 21 (1974), in which the Court stated that a bank could not challenge a provision of the BEmk Secrecy Act on the grounds that the provision violated the Fourth Amendment rights of bank customers. None of these cases, however, support the govemment's position. In California Bankers. a bank, a bankers association, and individual banlc customers challenged the Bank Secrecy Act of 1970, Pub.L. 91 ~508, 84 Stat. 1114, on Fourth Amendment grounds. In rejecting a challenge to the domestic reporting requirements of the Act and its implementing regulatioi1s, the Comt held that the requirements did not violate the banks' own Fourth Amendment rights. California Bankers, 416 U.S. at 66. The Cmut also held that the depositor plaintiffs lacked standing to challenge the regulations, since they had failed to allege TOP SECRET//COMINTHORCON,NOFORN//Xl Page 48 326 App. 469 CR 1010 TOP 8ECRETHCOMINT/IORCON,NOFOffiVIXl any t1-ansactions that would necessitate the filing of a report. I d. at 68. The Court then made the following statement ·without further explanation: "Nor do we think that the Califomia Bankers AssociatiOLl or the Security National Bank can vicariously assert such Fourth Amendment claims on behalf of bank customers in general.H Id. at 69. Although the unexplained uatw-e of this last statement makes it difficult to know what the Court's rationale was for making it1 one important point to note for purposes of this case is that there is no suggestion in the Supreme Court's opinion that the Bank Secrecy Act contained any language that even arguably conferred standing on a bank to assert the Fowth Amendment rights of its depositors. Thus, at most, C@fornia Bankers stands for the proposition that the banks in that case lacked orudential standing to assert the Foui:th A111endment rights of their customers1 iu the absence of a congressional enactment affirmatively authorizing the banl<s to do so. See Haitian Refugee Center v. Gracey, 809 F.2d 794, 808-10 (D.C. Cir. 1987) (analyzing California Bankers as falling within the prudential standing rule that the plaintiff generally must assert .his own legal rights and interests, while also noting that Congress may expressly confer third party standing so long as Article III is satisfied).49 In the instant case~ unlike California Bankers, Congress has enacted a provision that does appear to pennit Yahoo to rely on the Fourth Amendment rlghts of others as a defense to a motion to compel. it is also possible that California Banl(ers was decided on a narrower ground entirely, i.e., that the plaintiff banks had failed to show that they had business with depositors whose tnnsactions would require the filing of repo1ts. See Nm!ID1al Cottonseed Products Association, 825 F.2d 482, 491 n.ll (D.C. Cir. 1987) ('Lthe Solicitor Generars brief in California BanJ&ere, however, suggested that depositors affected by the regulation in question were not so common as to make their business with the plaintiff banks predictable:'). TOP SECR:ETI/CO:MINTHORCON,P(OlfOR.'lf//Xl Page 49 49 327 App. 470 CR 1011 TOP 8ECRETflCOMINTHORCON,NOFORN/IXl Tuming now to the criminal cases cited by the government, in Alderman, the defendants were convicted prior to becoming aware that allegedly illegal electronic surveillance had been conducted. Alderman, 394 U.S. at 167. On appeal, they demanded a retrial if any of the evidence used to convict them was obtained in violation of the Fourth Amendment, regardless of whose Fourth Amendment rights had been violated. Id. at 171. The Court rejected that demand, and instead "adhere[d) ... to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Id. at 174.. The Court noted, however, that special circumstances that might justify expanded standing were not pres~nt. Id. And the Court specifically stated that '"[olf course: Congress or state legislatures may extend the exclusionary rule and provide that illegally sejzed evidence is inadmissible auainst anyone _for any ourpose." l4 at 175 (emphasis added). As Aldemmn demonstrates, it is perfectly consistent for the Supreme Court to hold that, in the absence of con!!ressional action, Fourth Amendment rights (at least in the criminal suppression context) are "personal rights~' that may not be asse1ted vica1iously, while also envisioning that Congress might calibrate a different balance and confer expanded authority for third-party Fourth Amendment challenges as a matter of legislative prerogative. Thus, Aldennan provides no support for a strained reading of the "otherwise lawful" legislative language. fn Rakas, the Supreme Court reaffirmed the holding of Aldennan that (at least in the cdminal suppression context) Fourth Amendment rights are personal rights that cannot be vicariously asserted. Raka~, 439 U.S. at 133-34. The Rakas Court also detem1ined that it served no useful analytical purpose to consider this principle as a matter of ~:standing." T hus, what had TOl' SECRETf/COMINTHORCON,NOFOR""l//Xl Page 50 328 App. 471 CR 1012 TOP SECRETJ/COMINT//ORCON,NOFORN//Xl been analyzed as "standing'1 in Alderman and other earlier cases was now to be considered a substantive Fourth Amendment question> so that the suppression analysis would "forthrightly focusO on the extent of a particular defendant's rights under the Fourth Amendment." Rakas, 439 U.S. at 139. This shift in analytical framework for criminal suppression motions does not support the government's position that Yahoo is batTed from arguing that the directives to it ar~ unlawful because they violate the Fourth Amendment rights ofthird parties. As the Court itself explained, its shif.t in Rakas from the ·rubric of "standing" to a pure "FoUlth Amendment" analysis was not intended to affect the outcome of any cases. JJj} 11 Ftrrthermore, Rakas did not address a federal statute which afftrmatively confers to a party the ability to assert another's Fourth Amendment rights, and nothing in Rakas undermined the statement in Aldennan that Congress could "of coursen confer what at the time was characterized as "standing" tlu·ough legislative enactment. 50 In this regard, the Court" noted that "[r)igorous application of the principle that the rights secured by this Amendment are personal, in the pla.ce of a notion of 'standing,' will produce no additional situations in which evidence must be excluded. The inguhy under either approach is the san1e." Rakas, 439 U.S. at 139 (emphnsis added); see also Rawlings v. Kentucky, 448 U.S. 98, 106 (1980). As this Court understands Rak.as, the Supreme Cotut's ''standing" analysis in Alderman and in other earlier cases, and the substantive analysis in Rakas itself, make clear that what bad bee11 called Fourth Amendmellt "standing" principles, properly applied, inexorably lead to the conclusion that a defe1ldant in a criminal case seeking to suppress probative evidence on FoUlth Amendment grotmds couJd only IJssert his own FourtJ; Amendment rights, and not the Fourth Amendment rights of others. See Ral<as, t~39 U.S. at 132-39. It therefore made sense, in futme cases, for courts to dispense wit11 the "standing" nomenclature and proceed.directly to the question of whether the defendant could make out a violation ofhis own Fourth Amendment rights. Rakas. 439 U.S. at 139. But as the Supreme Cmu-t made clear, no .substantive change in the Jaw was intended, TOP 8ECRETNCOMINT/!ORCON,P'IOJ4!0R."I\hi/Xl Page 51 329 App. 472 CR 1013 .. TOP SECRETIICOMJNT/lORCON',~fOFOR.l\(l/Xl Thus, nothing in Rakas requires tlrls Comito read tbe "otherwise lawful'' language in the manner suggested by the government. Finally, the govemment cites Minnesota v. Carter, 525 U.S. 83 (1998), a criminal suppression case in which the Supreme Court held that.the Fourth Amendment rights of two criminal defendants were not violated by a police officer who looked through a drawn window blind into an apartment they were using to package cocaine. Id. at 85. There, the Supreme Court chastised the state courts in that case for using the discarded rubric of"standing/~31 and reiterated tlmt a criminal defendant seeking suppression had to demonstrate a violation of his own Fatu'th Amendment rights. Id. a! 87-88. In analyzing whether the defendants' own Fourth Amendment rights had been violated, the Court stated that the text of the Fomth Amendment (which protects persons against umeasonable searches of "the_ir" persons and houses) "indicates that the Fourth .Amendment is a personal right that must be invoked by an individual. 1' lQ,_ at 88. Further, the Court noted, under Rakas, the individual seeking protection had to have a legitimate expectation of privacy in the invaded place. ld. The Court concluded that the defendants in that case had no legitimate expectation of privacy in the apartment they were temporarily using to package cocaine, and accordingly could not successfu11y challenge the seizure ofthe.drugs . .lJL at 89-91. Like Rakas, nothing in Carter suggests that this Court should read the congressional enactment at issue in a mann.er contrary to its most natural meaning. Rather, Carter merely 51 The Carter Court stated that the shift in Rakas from standing to substantive Fourth Amendment law was •·cent~aP' to the Court's analysis in Rakas. 525 U.S. at 88.. This Court does not think, however, that tlus characterization of the analytical shift in Rakas undermines th]s Court's interpr.etation o(Rakas, as set forth above. TOP SECRETH€0MINT/IOH:CON 2 NOFOR..~l/Xl Page 52 330 App. 473 CR 1014 TOP SECREF/fCOMINTHORCO~~ tP"fOFORNHXl follows and applies Rakas, which precludes the assertion of another's rights in the absence of a federal statute authorizing one defendant to assert another defendant's Fourth Amendment rights. The language in those cases concerning the "personaP' nature of Fourth Amendment rights echoes similat language in. Alderman, but, as alr~ady noted, Aldem1an saw no inconsistency between such language and a congressional eriactment that would extend the reach ofthe exclusionary mle. Furthennore, unlike the defendants in Carter, Yahoo is not "claim[ing] the protection ofthe Fourth Amendment," lih at 88; rather, Yahoo is claiming the protection of a federal statute that entitles it not to comply with an unlawful directive. Nothing in the text.ofthe Fourth ~mendment affim1atively precludes Congress fTom extending such protection to Yahoo, and Carter is not to the contrary. Finally, none ofthe comts of appeals cases cited by the government are apposite. In Ellwest Stereo Tl-ieatres.lnc. v. Wenner, 681 F.2d 1243, 1248 (9 1h Cir. 1982) {altemative holding), a movie arcade was deemed to lack standing to assert the Fourth Amendme11t rights of its customers. But, again, there is no hint of any legislative enactment that would have conferred upon tile arcade the ability to make the challenge. Similarly, cases cited by the government that were brought wlder42 U.S.C. § 1983 (2000) or Bivens v. Six Unknown Nruned Agent11 of Federal Bureau ofNarcotics, 403 U.S. 388 (1971)/2 do not support the government's argument n See Hollingsworth v. Hill, 110 F.3d 733, 738 (1 0111 Cir. 1997) (Fourth Amendment rights are personal rights which may not be vicariously asserted in section 1983 action); Pleasant v, Lovell, 974 F.2d 1222t 1228-29 (1 0111 Cir. 1992) (''To recover for a Fomth Amendment violation in a Bivens action plaintiffs must show that they personally had an ~xpectation of privacy in the illegally seized items or the place illegally searched'1); Shamaeizadeh v. Cunigan, 338 F.3d 535, 544-45 (6'" Cir. 2003) (plaintiff in section 1983 a~tion had no standing to assert (continued ...) TOP 8ECRETHCOMINT/-IORCGN,NOFORNHX1 Page 53 331 App. 474 CR 1015 TOP SECRETh'COMINTHORCON,NOFORN//Xl in regards to the pmticular statute at issue here. The Court's holding in this situation is based on the speCific wording of 50 U.S.C.A. § 1805b(g). And this language compels the conclusion that 50 U.S.C.A. § 1805b(g) confers upoh Yahoo the ability to raise the Fourth Amendment rights of third parties whose rights would allegedly be violated if Yahoo complied with the directives iss·ued to it, and that Yahoo's arguments on this score are properly before the Court. B. Yahoo's Fourth Amendment Arguments Fail on the Merits. The. Court turns next to the merits of the Fourth Amendment issue. The crux ofYahoo~s Fourth Amendment argument is that the directives are unconstit11tional because they allow the government to acquire the communications of United States citizens without first obtaining a particularized warrant from a disinterested judicial officer. See Yahoo's Mem. in Opp•n at 1013. Yahoo contends that there is no foreign intelligence exception to the Fourth Amendment's warrant requirement, but that even ifsuch an exception exists, it does not apply to the directives issued to it under the PAA. See id. at 13-17. Finally, Yahoo asserts that even if a Fomth Amendment warrant is not required, the directives are still "unreasonable" under the Fourth Am:endment. See id. at 19-21. The government counters by arguing that there is a foreign inteiligence exception to the Wan·ant Clause ofthe Fourth Amendment, and that the exception is applicable to this case. See Mem. in Support of Gov>t Motion at 8-12. The government further contends that surveillance of 52 ( .. . ~ontinued) the Fourth Amendment rights of his lessees); but see Heartland Academy Community Church v. Waddle, 427 F.3d 525, 532 (8 111 Cir. 2005) (cited by Yahoo) (statement that Fourth Amendment right$ are personal and may not be vicariously asserted was made in context of exclusionary rule in criminal cases and is not controlling in a case tmdet 42 U.S.C . § 1983). TOP 8ECRETNCOMINTI/ORC0l'I,'NOFOID>+IIX1 Page 54 332 App. 475 CR 1016 TOP BECRE'f//COMINT//ORCOP.f,NOFORN//Xl United States persons pursuant to the challenged directives is reasonab1~ under the Fomth Amendment because the directives advance a compelling govemment interest; are limited in scope and duration; and are accompanied by substantial safeguards specifically designed to protect the privacy of United States persons. See id. at 13-20. . The Court begins its analysis with the text of the Fourth Amendment, which provides: The right of the people to be secure h1 their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affim1ation, and particularly describing the place to be searched, and the persons or things to be seized. Yahoo contends53 (and the government has not argued to the contrary) that "the people'' protected by the Fourth Amendment include not only United States citizens located wi~hin the country's bom1daries, but also United States citizens abroad as well~~ United States v. Bin Laden, 126 F. Stlpp. 2d 264,270-71 (S.D.N.Y. 2000) (Fourth Amendment protects American citizen in Kenya), and that the directives may sweep up conuuunications to which a United States citizen is a parly.54 The CoU11 assumes that United States citizens {and other United States persons, as well) will have a reasonable expectation of privacy in at least some of these communications, even though the scope of Fomih Amendment protection for email communications is not a settled ' 3 See Yahoo's Mem. in Opp'n at 6-8. s4 1n·particular, Yahoo notes that its accounts with United States citizens reasonably believed to be abroad could be targeted directly tmder the directives,~ Yahoo's Mem. in Opp'n at 7~8, and, in addition, communicationey between non-targeted United States citizens (who may be within the boundaries oft11e United States) and targeted accounts would also be acquired. See id. at 9. TOP 8ECRETHCOMINTI/ORCON,NOFOR.~NX1 Page 55 333 App. 476 CR 1017 TOP SECRETNCOMINTI/ORCON,NOFORNI/Xl ' Legal issue.ss Indeed, the govemn~ent has conceded the point.56 Nevertheless, for the reasons stated below, the Court agrees with the govenm1ent that the Fourth Amendment's Wan·ant Clause is inapplicable: because the government's acquisition of foreign intelligence under the PAA falls within the foreign int€1Iigence exception to the warrant requirement.57 1. There is a Foreign Intelligence Exception to the Warrant Clause and It is Applicable Here. Yahoo correctly notes tbat the Supren1e Court has never recognized a foreign intelligence exception to the wanant requirement. See United States v. United States District Court, 407 U.S. 297,321-22 & n.20 (1972) (expressing no view as to whether warrantless electronic surveillance may be constitutional with respect to foreign powers_ or their agents, even as the Court held that there is no exception to the Fourth Amendn1ent's warrant requirement fo_r electronic surveillance conducted to protect national security against purely domestic tlu·eats). Nevertheless, the Court 55 See David S. Kris & J. Douglas Wilson, National Security Investigations &; Prosecutions at§ 7:28. 56 ~ Govt.'s Supp. Brief on the Fourth Amend. at 2 (''U.S, Persons Abroad and U.S. Persons Communicating with Foreign Intelli2:ence Tartlets Have a Reasonable Expectation of Privacy in the Content ofCettnin Communications Acqqired Pursuant to the Directives") (emphasis in at 4 ('-with respect to.elech·onic comn1unications of U.S. persons while the Government does not conte~t that the acquisition contemplated by the directives would implicate the reasonable expectation of privacy of U.S. persons"). 57 This conclusion does nofend the Court's Fourth Ame11dment inquity, as the warrantless searches must also be '"reasonabte" upon consideration of all pertinent factors. See In_t~Sealed Case, 310 F.3d 717 (FISCR 2002) (discussed below); United States v. Bin Laden, 126 F. Supp. 2d at 277-82,284-86 (conducting bifurcated Fourth Amendment inquiry into (1) whether the foreign intelligence exception to the warrant requirement was satisfied; and (2) whether the wanantless electronic surveillance at issue was reasonable). The Court resolves the reasonab[eness inquiry in the government's favor in Part III.B.2 of this Opinion. TOP 8ECRETHCOMINT/fORCON,P'~OFOR:NHX1 Page 56 334 App. 477 CR 1018 TOP SECRET//COMINT//ORCON,NOFO:RNmH is not without appellate guidance on this issue. In addition to being bound by decisions of the Supreme Court, the FISC must also adhere to decisions issued by the Foreign Intelligence Sm'Veillance Court of Review (FISCR), the relationship of the FISC and the FISCR being akin to that of a federal district court and its circuit court of appeals. (b)~ 50 See.~~ 50 U.S.C.A. § l803(a) & U.S.C.A. § l805b(i); cf. Springer v. Wal-Mart Associates' Group Health Plan, 908 F.2d 891, 900 n.l (11 111 Cir. 1990) (district court bound by court of appeals precedent in its circttit). The FISCR bas issued only one decision during its existence, but that c;lecision bears directly on the existence of a foreign intelligence .exception to the warrant requirement. · 1n In reSealed Case, 310 F.3d 717 (FrSCR 2002), the FISCR considered the constitutionality of electronic surveillance applic:ations under FISA, as amended in 2001 by the USA Patriot Act, Pub. L. No. 107.,.56, 115 Stat. 272 (Oct. 26, 2001), but prior to enactment ofthe PAA. Under the individualized application procedure that was before the FISCR, the government submits an applicati-on for "electronic surveillance," as defined in 50 U.S.C.A. § 1801 (f), to a FISC judge either prior to initiating surveillance or, tmder emergency procedures, shortly after such initi.ation. In order to approve such surveillance, the FISC judge must make a number of findings, induding a probable cause finding that the target of the surveillance is a "foreign power" or Em "agent of a foreign power,'' as defined 1n 50 U.S.C.A. § 1801 (a) & (b). Furthennore, a high ranking executive branch official must certify, among other things, that "a significant purpose1' oftlw surveillance is to obtain "foreign intelligence infom1ation," as defined in 50 U.S.C.A. § 180l(e). See generally 50 U.S.C.A. §§ 1801, 1803-1805. TOP SECRET//COl\f.INTI/ORCON,NOFOR~/!Xl Page 57 335 App. 478 CR 1019 l'OP SECRE'fHCOMINTI/ORCON,NOFORNHXl The FISCR held that the pre-PAA version ofFISA was constitutional under the Fourth Amendment "because the surveillances it authorizes are reasonable." 31 0 F.3d at 746. In so holding" the FISCR expressly declii1ed to decide whether an electronic surveillmce order issued by a FISC judge constituted a uwarrant" under the Fourth Amendment. In re Sealed Case, 310 FJd at 74.1-42 ("a FISA or~er may not be a 'warrant' contemplated by the ~ourth Amendment .. . . We do not 'decide the issue"); id. at 744 (''assuming arguendo that FISA orders are not Fourth Amendment wmTants, the question becomes, are the searches constitutionally reasonable"). But if the Warrant Clause of the Fourth Amendment had been deemed applicable, it would have been necessary for the FISCR to decide whether a FISG electronic surveillance order under 50 U.S.C.A. § 1805 constituted a "wanant" under the Fourth Amendment. The FISCR did not feel compelled to decide that issue because it concluded that the President has inherent authority to conduct wa!Tantless searches to obtain foreign intelligence information, so long as those searches are "reasonable" under the Fourth Amendment, noting: Th~ e Truong court, 8] as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct wamtntiess searches to obtain foreign intelligence information... . We take for granted that the President does have that authority and, assuming that is so; FlSA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore s·upports the governmenfs contention that FISA searches are constitutionally reasonable. 58 United States v. Truong Dinh Hung, 629 F .2d 908 (4111 Cir. 1980). TOP SECRETI/COMJNT/!ORCON,NOFORN//Xl Page 58 336 App. 479 CR 1020 TOP SECR:ETHCOMINTHORCON,NOFORN/IXl ln reSealed Case, 310 F.3d at 742 (emphasis added). Thus, it is this Court's view that binding precedent requires recognition of a foreign intelligence exception to the Fourth Amendment's warrant requirement The Cou1t .Lurns next to the contours of the exception. Case law indicates that two criteria must be satisfied in order for the foreign intelligence exception to the warrant requirement to apply. The ftrst critetion, naturally, is that the goyenm1enfs actual purpose, or. a sufficient portion thereof (and there is so111e dispute as to what degree is sufficient), be the acquisition of foreign intelligence. Second, a sufficiently authoritative official must ii.nd probable cause to believe that tlJe target of the search or electronic surveillance is a foreign power or its agent. See United States v. Trllong Dinh Hung, 629 F.2d at 915-16 (laying out criteria for tl1e exception); 59 United States y. Bin Laden, 126 F. Supp. 2d at 277 (same); see also United States v. United States Pist1ict Court, 407 U.S. at 321-22 (expressing no view on "the issues which may be 59 In re Senled Case was extremely critical ofTruong's assessment that obtaining foreign intelligence must be the government's primary purpose in order to qualify for this exception from the warrant requirement. See infra pp. 61-62. However, there is nothing in In reSealed Case that undermines or is otherwise inconsistent with the two criteria set forth in Truong and Bin Laden and applied herein. Certainly there is no suggestion in tn reSealed Case that there are additional criteria that need to be met before a court may conclude that the warrant exception is applicable and that a reasonableness analysis must therefore be undertaken. Furt11ermore, neither Yahoo nor the government has argued that there' are some other, additional criteria that need be met for the foreign inteJiigence exception to apply. TOP 8ECRET/I€0MINT/fORCON,NOFORNHX1 Page 59 337 App. 480 CR 1021 TOP SECRETI/COM:;INTHORCON,~fOFOR~I/Xl involved with respect to activities offoreitm powers or their al!ents") (emphasis added).60 The Court therefore focuses on whether these two criteria are satisfied in this case; As to the first criterion, Yahoo cites Truong and United States v. Butenko, 494 F.2d 593 (3d Cir. 1974), for the proposition that any foreign intelligence exception to the warrant requirement can only apply where the "primarir (or even exclusive) purpose of the search is for forei~n intelligence purposes. See Yahoo's Mem. in Opp'n at 16. Ifthose cases were followed on this point, then tbe first criterion would not be satisfied here, because the Attomey General and the Directorof.National Intelligence are required by the PAA to certify, and have certified, only that a "significant" purpose of the acquisttion is to acquir'e foreign intelligence information. Relying, once again, on the controiling authority ofin reSealed Case, this Court rejects . . the proposition that the foreign intelligence exception to the wanant requirement is only applicable if the primary or exclusive.purpose of an acquisition is to acquire foreign intelligence information. In fa~t, under the FISCR opinion, a "significant purpose" to obtain foreign intelligence information is sufficient. In In reSealed Case, the FISCR focused on the meaning and constitutionality of 50 U.S.C.A. § 1804(a)(7), which was amended by Congress in section 218 of the USA Patriot Act (115 Stat. at 291) to require an executive branch certification that a "significant purpose" of an 60 ln the context of this case, where the acquisitions are targeted against persons reasonably believed to be abroad, and in light ofJ]nited States v. Verdugo-Urqujdez, 494 U.S. 259 ( 1990), which indicates that foreigners abroad.generally have no Fourth Amendment rights, the probable cause finding presumably need not be made as to targeted non-United States persons. Indeed, Yahoo "does not dispute that the Fourth Amendment does not apply to nonU.S. persons located outside the United States." Yahoo's Mem. in Opp~n at 6 n.7. TOP SECRETNCOMINTHORCON,NOFORN//Xl Page 60 338 App. 481 CR 1022 T0l1 SECRETHCOMINTHORCO?i,NOFOR.~b'/Xl electronic surveillance is to obtain foreign intelligence infonuation. The FISCR construed this "significant purpose" amendment, together with a related amendment/; 1 as "clearly disapprov[ing] the primmy plllpose test." lJl reSealed Case, 310 FJd at 734. The FISCR further noted that "as a matter of straightforward logic, if a FISA application can be granted even if •foreign intelligence' is only a significant- not a primary- purpose, another purpose can be primary.'' ld.62 The FISCR then held that the "significant purpose" test in section 1804 comports with the Fourth Amendment. Id. at 736-46. As noted above, this holding rested in pali on the foreign intelligence exception to the wanant clause. Thus, tl1e FISCR necessarily concluded that an electronic surveillance that had a "significant pur~ose" of obtaining foreign intelligence information, qualified under this exception. Moreover, in conducting its Fourth Amendment analysis, the FTSCR extensively criticized the conclusion in Truong, 629 F.2d at 908 --"the case that set forth the primary purpose test as constitutionally required"-- as "rest(ing] on a false 61 See 50 U.S.C.A. § 1806(k) (authorizing consultation and coordination for specified purposes between law enforcement officers and officers conducting electronic surveillance to acqu(re foreign intelligence information~ and stating that such activities shall not pteclude the ..significant purpose" certification under section 1804), which was added by section504 ofthe USA Patriot Act, 115 Stat. at 364. 62 The FISCR added, however, based on FISA •s legislative history, that the primary objective of an electronic surveillance application could not be criminal prosecution for ordinary crimes that are unrelated to foreign inteiligence crimes such as sabotage or international tenorism. In reSealed Case, 310 F.3d at 735-36. f)..lrthermore, based again on legislative history, the FISCR held that a significant foreign intelligence pUllJOSe had to exist apart from any criminal prosecutive purpose, including criminal prosecution for foreign intelligence crimes. ~ at 735. TOP 8ECRETHCOMINT//OR:COt'l 1 NOFOR:N//Xl Page 61 339 App. 482 CR 1023 .TOP SECREl¥/COMINTHORCON,NOFORN/!Xl premise," and drawing a line that "was inherently unstable, unrealistic. and confusing." ~ Sealed Case, 310 F.3d at 742-43 (emphasis in original). The FISCR having seemingly concluded that an electronic surveillance can fall within the foreign intelligence exception to the WalTant requi.rement even if it merely has as a "significant purpose'' the collectio~1 offoreign intelllgence infonnation, this Court rejects the proposition that the exception is inapplicable to acqt1isitions under the PAA because the pertinent officials are required to certify (and have certified in this case) merely that a "significant purpose'! of an acqtlisition is to obtain foreign inteJiigence information. That brings the Court to the question of whether the acquisitions at issue satisfy the second prong of the foreign intelligence exception to the warrant requirement, which, as set forth . above, would require a probable cause finding by an appropriate ofiicial that a United States person targeted for acquisition is a foreign power or an agent of a foreign power. Yahoo contends that this condition is not satisfied, because the PAA in fact authorizes siJiveillance direqted at U.S. citizens abroad, whether or not they are age~ts of any foreign power. Yahoo's description of the PAA is correct. See 50 U.S.C.A. § 1805b. I-Iowever, the gove:rnme!lt counters Yahoots argument by citing the original certifications, each ofwhicb ptovides that "[a]ny time NSA seeks to acquire foreign intelligence infmmation against a U.S. person abroad in the above-referenced matter, NSA must first obtain Attomey G_eneral authorization, using the procedures under Executive Order 12333, section 2.5." Feb. 2008 Classified Appendix at The gove1'mnent maintains that this la11guage requires the Attorney General to find probable cause tbat any U.S. person targeted under the certifications is a TOP SECRRTHCOMJNTHORCON1NbFOR1\l//Xl Page 62 340 App. 483 CR 1024 TOP SECRETHCOMINTHOll:CO!>!,NOFOFrnh'Xl foreign power or an agent of a foreign power. See Mem. in Support of Gov't Motion at 12 n.l 0 &15-16. As noted above, the government subsequently filed amended certifications, which the Court has conducted encompass the directives issued to Yahoo. The amended certifications provide that·"[a]ny time the acquisition offorei.gn intelligence information against a. U.S. person abroa.d is sought pursuant to the above-referenced certification, Atton'ley General a1.1thorization, pursuant to the procedures under Executive Order .12333: section 2.5, must 'first be obtained." Feb. 2008 Classified Appendix Although the language in both the original and amended certifications is similar, the original certifications specif-y that it is "NSA" that must obtain i;he authorization from the Attorney General. The amendment was made presumably because the original certifications en~isioned that the acquisitions would be accomplished by the NSA, while under the amended certifications the FBI also plays a role in securing some acquisitions. In any event, it seems reasonably clear that, tmder both the original and amended ce1tifications, Attorney General authorization is required for all acquisitions targeting U.S. persons abroad, p1.u·suru.1t to ''the procedures" under section 2.5 ofE.O. 12333. 63 The Court agrees with the government that the language in the certific~tions concerniug the applicability of the section 2.5 procedures is of significant importance. The issue before this Court is nat what the PAA might authorize in the abstract; rather, the issue is the lawft1lness of Of cow·se, there may be cases in which there is significant doubt or lack of c1ality about whether the target is a United States person or not. However. the Court asstm1es that the government will follow the section 2.5 procedures whenever it is reasonable to believe that the target js a United States person. 63 'TOP 8ECRET//COMINTffORCO:N,NOFOR.'l"//Xl Page ~3 341 App. 484 CR 1025 TOP 8ECRET/ICOMINT//ORCON,NOFOR,"1"//Xl · the particular directives isslled to Yahoo. The scope of each directive isslted to Yahoo is dete:nnined and limited by the applicable certification. See 50 U.S .C.A. § 1805b(d) (an· acquisition of foreign intelligence infom1ation under section 1805b may only be conducted in accordance with the certification by the DNT and AG, or in accordance with their oral instructions if time does not permit a ce1tification). The Court therefore turns to the requirem~nt in the certifications for Attomey General authorization pllrsuant to the section 2.5 procedures. . Section 2.5 of E.O. 12333 is a delegation to the Attorney General fi·om the President to approve the use of certain teclmiques for intelligence collection purposes, ''provided that such teclU1iques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power." E.O. 12333, § 2.5.64 As for "the procedures" under section 2.5 referenced in the certificationst the government's memorandum in support of its motion to compel identifies the Depa1iment ofDefe11se Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons, DoD 5240.1-R (1982) (DoD Procedures), as the applicable procedures. 6ot Within the four comers of the Executive Order, section·2.5 specifically applies to the use for intelligence collection purposes "of any technique for which a warrant would be required if undertaken for law enforcemei1t purposes." However, there is nothing in the certification language that incorporates this limitation. Rather, the fair import of the certification language is that Attorney General authorization is requh·ed for all acquisitions undertaken pursuant to these certifications that target a United States person abroad, and that the existing procedures for Attorney General authorization under section 2.5 shall be followed with regard to all such acquisitions. TOP SECRETHCOMINTI/ORCONtNOFORN//Xl Page 64 . 342 App. 485 CR 1026 TOP SECRETHCOMINTHORCON,NOFOR..-....1/Xl Although the certifications could describe in clearer terms what is intended by their reference to "the procedures," the Court accepts the goverrunent's representation as to what is being referenced. The DoD Procedures by their terms apply to the NSA, which is a DoD intelligence component, see DoD Procedures, Appendix A) definition 8(a), and, as discussed below, individual procedures contained therein require Attorney Gene1·al approval of proposed DoD intelligence activities in a maimer consistent with section 2.5 ofE.O. 12333. Furthennore, even unqer the amended certifications providing authority to the FBI F of those amended certifications envisions FBI reliance o n - eb. 2008 Classified Appendix a t - T11us, the DoD Procedures are central to the Court'-s analysis. In its memorandum in suppqrt of its motion to compel (filed prior to the submission of the amended certifica~ions), the government cites specifically to Procedure 5, Part 2.C, which envisions, as a general rule,65 that DoD intelligence components cannot direct "electronic 65 There is a temporary emergency exception set forth in the procedures, but it is not relevant here. The language of both the original and amended certifications specifically require that Attorney General authorization must "firsC be obtained "[a]ny time" (i.e., every time) acquisition of foreign intelligence in:fotmation against a United States person abroad is sought under a certification. For pm]Joses of acquisitions under the certifications and directives at issue here, this language in the certifications overrides the exception language in the procedures. Also, although Procedure 5, Part 2 by its terms does not require Attorney General approval where the United States person target has no reasonable expectation of privacy, under the language of the certifications Attorney General approval is always required for acquisitions pursuant to the certifications when United States persons abroad are targeted. TOP 8ECRETNCOMIPIT//ORCON,NOFOR'WIXl Page 65 343 App. 486
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