Case 1:03-cv-02522-ESH Document 1 Filed 12/10/03 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004,

and

ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W., Suite 200 Washington, DC 20009,

and

AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION
139 Fulton Street., Suite 302 New York, NY 10038,

and
FREEDOM TO READ FOUNDATION 50 East Huron Street, Chicago, IL 60611,

Civil Action

Plaintiffs,

v.

DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530,

Defendant.

COMPLAINT FOR INJUNCTIVE RELIEF

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for

injunctive and other appropriate relief, and seeking the expedited processing and release of

agency records requested by Plaintiffs from Defendant U.S. Department of Justice (“DOJ”) and

DOJ’s component, Federal Bureau of Investigation (“FBI”).

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2. Plaintiffs’ FOIA request seeks the release of records related to DOJ’s implementation of Section 215 of the USA PATRIOT Act (“Patriot Act”), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).
3. In response to a prior FOIA request, the FBI released to Plaintiffs a list of surveillance orders issued under Section 215. Both the list itself and a line indicating the number of times that the FBI had used Section 215 were redacted. In September 2003, the Attorney General announced that he had declassified the number of times that the FBI had used Section 215 and that in fact the FBI had never used the provision. Plaintiffs filed a new FOIA request seeking, principally, an unredacted copy of the list that the FBI had previously released only in redacted form. This litigation relates to that second FOIA request.
Jurisdiction and Venue 4. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(E)(iii). This court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701706. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
Parties 5. Plaintiff American Civil Liberties Union (“ACLU”) is a nationwide, non-profit, nonpartisan organization with over 400,000 members dedicated to the constitutional principles of liberty and equality. The ACLU’s work includes assessing the impact of federal legislation on civil liberties. The organization publishes newsletters, news briefings, right-to-know handbooks, and other materials that are disseminated to the public. Its material is widely available to everyone, including tax-exempt organizations, not-for-profit groups, law students and faculty, for no cost or for a nominal fee through its public education department. The ACLU also
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disseminates information through its website, www.aclu.org, and through an electronic newsletter, which is distributed to subscribers by e-mail.
6. Plaintiff Electronic Privacy Information Center (“EPIC”) is a public interest research organization incorporated as a not-for-profit corporation in Washington, DC. EPIC’s activities include the review of federal investigative activities and policies to determine their possible impact on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also maintains a heavily-visited website, www.epic.org, containing extensive information on privacy issues, including information EPIC has obtained from federal agencies under the FOIA.
7. Plaintiff American Booksellers Foundation for Free Expression (“ABFFE”) is the bookseller’s voice in the fight against censorship. Founded by the American Booksellers Association in 1990, ABFFE’s mission is to promote and protect the free exchange of ideas, particularly those contained in books, by opposing restrictions on the freedom of speech; issuing statements on significant free expression controversies; participating in legal cases involving First Amendment rights; collaborating with other groups with an interest in free speech; and providing education about the importance of free expression to booksellers, other members of the book industry, politicians, the press and the public. ABFFE disseminates information about dangers to free expression on its website, www.abffe.com. ABFFE also publishes a monthly newsletter, which it distributes to subscribers, and makes other publications available to the public through its on-line store. Some of the materials are offered for sale; others are available without charge.
8. Plaintiff Freedom to Read Foundation (“FTRF”) is a non-profit membership organization established in 1969 by the American Library Association to promote and defend
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First Amendment rights; to foster libraries as institutions fulfilling the promise of the First Amendment for every citizen; to support the rights of libraries to include in their collections and make available to the public any work they may legally acquire; and to set legal precedent for the freedom to read on behalf of all citizens. FTRF disseminates information about its activities on its website, www.ftrf.org.
9. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch of the United States Government. DOJ is an agency within the meaning of 5 U.S.C. § 552(f)(1). DOJ is responsible for FBI’s compliance with the FOIA.
Section 215 of the Patriot Act 10. The Patriot Act was enacted in October 2001. The Act dramatically expanded the government’s power to collect information about individuals living in the United States, including permanent residents and United States citizens. 11. Section 215 of the Act amended the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., to allow the FBI to require any person or organization to disclose “any tangible things (including books, records, papers, documents, and other items).” Section 215 is now codified at 50 U.S.C. § 1861, under the title “Access to certain business records for foreign intelligence and international terrorism investigations.” 12. Section 215 allows the FBI virtually unfettered access to a vast array of highly personal and constitutionally privileged information. The provision could be used to require a library to disclose its circulation records, a political or advocacy organization to disclose its membership list, a journalist to disclose her sources, or a hospital to disclose medical records. At a June 2003 hearing before the House Judiciary Committee, Attorney General John Ashcroft
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stated that the FBI could use Section 215 to obtain, among other things, computer files, educational records, and genetic information.
13. Section 215 does not include a probable cause requirement or an individualized suspicion requirement of any kind. So long as the FBI can point to an ongoing foreign intelligence or terrorism investigation, it can use Section 215 to obtain records pertaining to anyone at all. Nothing in the statute forecloses the government from using the provision to obtain information about innocent people.
14. Section 215 does not require the FBI ever to notify those whose information it has obtained under the provision that their privacy was compromised.
15. Those served with Section 215 orders are prohibited from disclosing to any other person that the FBI sought or obtained information under the provision. The gag order applies with respect to every Section 215 order, without regard to the necessity for secrecy in the particular case.
16. Those served with Section 215 orders are not afforded any opportunity to challenge the validity or constitutionality of the order before complying with it.
17. Section 215’s constitutionality is currently the subject of litigation before the United States District Court for the Eastern District of Michigan. Plaintiff ACLU serves as counsel to plaintiffs in that lawsuit.
The Patriot FOIA Request 18. In August 2002, Plaintiffs filed a request (“Patriot FOIA Request”) under the FOIA for records concerning the FBI’s implementation of the Patriot Act’s surveillance provisions. Plaintiffs filed the Patriot FOIA Request with DOJ, FBI, and the Office of Intelligence Policy and Review (OIPR) (collectively, “government”).
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19. The Patriot FOIA Request sought, among other things, policy guidelines and directives issued by DOJ and/or FBI governing the use of Section 215 of the Act, and records indicating the number of times that Section 215 had been used in particular contexts. It also sought similar records pertaining to certain of the Patriot Act’s other surveillance provisions.
20. Plaintiffs sought expedited processing of the Patriot FOIA Request on the grounds that the records sought pertained to “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” 28 C.F.R. § 16.5(d)(1)(iv).
21. DOJ granted Plaintiffs’ request for expedited processing, expressly acknowledging that the Patriot FOIA Request satisfied the standard set out in the agency’s regulations.
22. The government did not expeditiously process the Patriot FOIA Request. Accordingly, Plaintiffs filed a Complaint on October 24, 2002, and moved for a Preliminary Injunction on November 13, 2002. Plaintiffs’ Memorandum in support of their Motion for Preliminary Injunction noted that the government had “neither disclosed any record in response to Plaintiffs’ request nor acceded to Plaintiffs’ demand for a processing schedule.”
23. This Court held a hearing on Plaintiffs’ Motion for Preliminary Injunction on November 26, 2002. At the hearing, the government agreed to process the Patriot FOIA Request by January 15, 2003. Following the hearing, the Court denied Plaintiffs’ Motion for Preliminary Injunction but ordered the government to process the Patriot FOIA Request by the agreed-upon date.
24. The government ultimately identified 391 pages as responsive to the Patriot FOIA Request. It released most of these pages, however, in heavily redacted form. To justify the redactions, the government relied principally on Exemption 1 to the FOIA, which authorizes the
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government to withhold records that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy . . . and are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 522(b)(1).
25. Among the redacted documents released by the FBI was a document titled “Business Record Order Requests Since 10/26/2001” (“Section 215 List”). The document appears to be a list of occasions on which the FBI invoked Section 215 of the Patriot Act between October 26, 2001, and February 7, 2003. Both the list itself and a line indicating the total number of times that the FBI used Section 215 are redacted.
26. By motions filed on January 24 and March 7, 2003, the government moved for Summary Judgment, arguing that it had complied with its obligations under the FOIA. Plaintiffs cross-moved for Summary Judgment by motion filed on March 21, arguing principally that the government could not rely on FOIA’s exemptions to justify the withholding of “aggregate, statistical information indicating the extent to which the FBI has relied on new surveillance authorities.”
27. This Court issued a ruling on May 19, 2003, granting the government’s Motion for Summary Judgment and denying Plaintiffs’ Cross-Motion. See American Civil Liberties Union et al. v. U.S. Dept. of Justice, 265 F.Supp.2d 20 (D.D.C. 2003). The opinion acknowledged that “the public has a significant and entirely legitimate desire for th[e] information” sought by the Patriot FOIA Request and that Plaintiffs’ had advanced a “compelling argument that the disclosure of this information will help promote democratic values and government accountability.” Id. at 31. However, the Court ultimately concluded that it was nonetheless “obliged to uphold DOJ’s withholding.” Id.
The Section 215 FOIA Request
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28. Public concern about the Patriot Act and about Section 215 in particular increased as the government continued to withhold even the most innocuous information concerning the use of new surveillance provisions. See, e.g., Amy Goldstein, Fierce Fight Over Secrecy, Scope of Law; Amid Rights Debate, Law Cloaks Data on Its Impact, Washington Post (Sept. 8, 2003) (“the paradox of this debate is that it is playing out in a near-total information vacuum: By its very terms, the Patriot Act hides information about how its most contentious aspects are used, allowing investigations to be authorized and conducted under greater secrecy”).
29. The Attorney General was dismissive of public concerns. See, e.g., Dan Eggen, Patriot Monitoring Claims Dismissed; Government Has Not Tracked Bookstore or Library Activity, Ashcroft Says, Washington Post (Sept. 19, 2003) (“‘The charges of the hysterics,’ Ashcroft added, ‘are revealed for what they are: castles in the air built on misrepresentation; supported by unfounded fear; held aloft by hysteria.’”); Eric Lichtblau, Ashcroft Mocks Librarians and Others Who Oppose Parts of Counterterrorism Law, New York Times (Sept. 16, 2003) (noting that Attorney General had characterized concerns about the Patriot Act as “baseless hysteria”).
30. On or about September 20, the Attorney General released a memo stating that he had “declassified the number of times to date the Department of Justice, including the Federal Bureau of Investigation (FBI), has utilized Section 215 of the USA PATRIOT ACT relating to the production of business records.” The memo stated that “The number of times Section 215 has been used to date is zero (0).”
31. The Attorney General’s memo did not explain the government’s previous insistence that national security would be irredeemably compromised by the release of the very information that the Attorney General was now declassifying. However, the memo stated:
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To date we have not been able to counter the troubling amount of public distortion and misinformation in connection with Section 215. Consequently, I have determined that it is in the public interest and the best interest of law enforcement to declassify this information. 32. Following the Attorney General’s declassification order, counsel for Plaintiffs contacted Anthony J. Coppolino, who had served as counsel to the government in the litigation concerning the Patriot FOIA Request, to ask whether the FBI would provide Plaintiffs with an unredacted copy of the Section 215 List. Mr. Coppolino agreed to convey the request to the FBI. In a subsequent telephone call, Mr. Coppolino informed Plaintiffs that he had not been able to obtain a response from the FBI. 33. On October 23, Plaintiffs filed a request (“Section 215 FOIA Request”) under the FOIA for an unredacted copy of the Section 215 List. The Section 215 FOIA Request also sought “Any and all records relating to Section 215 of the Patriot Act, including any and all records indicating the number of times Section 215 has been used.” Plaintiffs submitted the Section 215 FOIA Request to the FBI. 34. Plaintiffs sought expedited processing of the Section 215 FOIA Request on the grounds that the records sought pertained to “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” 28 C.F.R. § 16.5(d)(1)(iv). 35. Plaintiffs also sought expedited processing of the Section 215 FOIA Request on the grounds that Plaintiffs are “primarily engaged in disseminating information” and there is “[a]n urgency to inform the public about an actual or alleged federal government activity,” 28 C.F.R. § 16.5(d)(1)(ii).
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36. After filing the Section 215 FOIA Request, Plaintiffs again contacted Mr. Coppolino to ask for an unredacted copy of the Section 215 List. Mr. Coppolino reiterated that he had been unable to obtain any response from the FBI and advised Plaintiffs to contact the FBI directly.
37. By letter dated October 30, the FBI informed Plaintiffs that their request for expedited processing under 28 C.F.R. § 16.5(d)(1)(ii) had been denied. The letter stated, in relevant part:
Based on the information you have provided, I cannot find that there is a particular urgency to inform the public about an actual or alleged federal government activity beyond the public’s right to know about government activity generally. Additionally, the primary activity of the Electronic Privacy Information Center (EPIC) is not information dissemination, which is required for a requester to qualify for expedited processing under this standard. 38. Defendant has not responded to Plaintiffs’ application for expedited processing under 28 C.F.R. § 16.5(d)(1)(iv). 39. On November 10, Plaintiffs contacted Alina M. Semo at the FBI’s Office of the General Counsel, requesting an unredacted copy of the Section 215 List and stating Plaintiffs’ desire to avoid unnecessary litigation. Ms. Semo stated that she would consider Plaintiffs’ request by November 14. 40. Plaintiffs contacted Ms. Semo again on November 14. Ms. Semo explained that the FBI had not yet considered Plaintiffs’ request, that she did not know when the FBI would be able to consider it, and that the FBI would not be able to consider Plaintiffs’ request expeditiously because the relevant personnel were “too busy fighting the war on terror.” 41. Plaintiffs reiterated their desire to avoid litigation and offered to allow the FBI more time to respond to the remainder of the Section 215 FOIA Request if the FBI expeditiously released an unredacted copy of the Section 215 List. Ms. Semo agreed to consider this proposal but to date has not contacted Plaintiffs with a response.
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42. Defendant’s failure to grant Plaintiffs’ request for expedited processing under 28 C.F.R. § 16.5(d)(1)(ii) violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendant’s regulation promulgated thereunder, 28 C.F.R. § 16.5(d).
43. Defendant’s failure to respond to Plaintiffs’ request for expedited processing under 28 C.F.R. § 16.5(d)(1)(iv) violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendant’s regulation promulgated thereunder, 28 C.F.R. § 16.5(d).
44. Plaintiff has exhausted the applicable administrative remedies. 45. Defendant DOJ has wrongfully withheld the requested records from Plaintiff.
Requested Relief WHEREFORE, Plaintiffs pray that this Court:
A. Order Defendant immediately to process the requested records in their entirety; B. Order Defendant, upon completion of such expedited processing, to disclose the
requested records in their entirety and make copies available to Plaintiffs; C. Provide for expeditious proceedings in this action; D. Award Plaintiffs their costs and reasonable attorneys’ fees incurred in this action; and E. Grant such other relief as the Court may deem just and proper.
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Respectfully submitted,
___________________________________ DAVID L. SOBEL D.C. Bar No. 360418 Electronic Privacy Information Center 1718 Connecticut Ave., N.W., Suite 200 Washington, DC 20009 Phone: (202) 483-1140 x105 Fax: (202) 483-1248 JAMEEL JAFFER ANN BEESON American Civil Liberties Union 125 Broad St. New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2629 ARTHUR B. SPITZER D.C. Bar No. 235960 American Civil Liberties Union of the National Capital
Area 1400 20th St., N.W. #119 Washington, DC 20036 Phone: (202) 457-0800 Fax: (202) 452-1868
Counsel for Plaintiffs
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 Case 1:03-cv-02522-ESH Document 25 Filed 05/10/04 Page 1 of 23

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

AMERICAN CIVIL LIBERTIES

)

UNION, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 03-2522 (ESH)

)

UNITED STATES DEPARTMENT )

OF JUSTICE,

)

)

Defendant.

)

____________________________________)

MEMORANDUM OPINION

This lawsuit represents plaintiffs’ second attempt to obtain information under the

Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), regarding the Department of Justice’s (DOJ) use of the USA Patriot Act.1/ Plaintiffs’ first request concerned the number of times DOJ

had used various surveillance and investigatory tools authorized by the Patriot Act, which gives

federal officials greater authority to conduct surveillance within the United States to monitor the

activity of foreign intelligence agents. In that case, the Court granted summary judgment to the

government, upholding the government’s withholding under Exemption 1 of FOIA. See ACLU

v. DOJ, 265 F. Supp. 2d 20, 34 (D.D.C. 2003) (“ACLU I”).

1/ The Patriot Act is officially titled the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” Pub. L. No. 10756, 115 Stat. 272 (Oct. 26, 2001). Section 215 of the Act is codified at 50 U.S.C. § 1861. Plaintiffs include the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), the American Booksellers Foundation for Free Expression (ABFFE), and the Freedom to Read Foundation (FTRF).

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The section of the Patriot Act at issue here is section 215, which was also one of the provisions at issue in ACLU I. As explained in that case, section 215 substantially expands the powers of the FBI under the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq. (“FISA”), to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information . . . or to protect against international terrorism or clandestine intelligence activities . . . .” Patriot Act § 215, codified at 50 U.S.C. § 1861(a)(1). Before the amendment, the FBI could compel only the disclosure of certain business records (rather than “any tangible things”) in the possession a “common carrier, public accommodation facility, physical storage facility, or vehicle rental facility,” and could only exercise its authority when it had “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.” Pub. L. No. 105-272, 112 Stat. 2396 § 602 (Oct. 20, 1998). Now, the FBI need only specify in a FISA request that the “records concerned are sought for an authorized investigation” consistent with the purposes of section 215. 50 U.S.C. § 1861(b)(2).
Since its implementation, the government has provided limited information to the public regarding its use of section 215. The provision itself contains a subsection prohibiting anyone served with a section 215 order from disclosing that the FBI sought or obtained information under the provision. Id. § 1861(d). And, although the total number of secret surveillance warrants sought and issued under the Patriot Act is required to be disclosed annually,2/ the
2/ This disclosure is provided in April of each year pursuant to 50 U.S.C. § 1807. Although this provision only requires disclosure regarding “electronic surveillance,” the Attorney General has reported numbers related to applications made both for “electronic surveillance and
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number of applications submitted and approved under each provision is only shared with designated congressional oversight committees -- in classified form. See, e.g., 50 U.S.C. § 1862 (providing for biannual reporting to the committees on the judiciary of the “total number of applications made for orders approving requests for the production of tangible things” under section 215 and “total number of such orders either granted, modified, or denied”).
After the Court issued its opinion in ACLU I, the Attorney General, in order to address the “troubling amount of public distortion and misinformation in connection with Section 215,” issued a memorandum declassifying “the number of times to date that the Department of Justice, including the Federal Bureau of Investigation (FBI), has utilized Section 215 of the USA PATRIOT Act relating to the production of business records. The number of times Section 215 has been used to date is zero (0).” (Pls.’ Cross-mot. Ex. A, Attach. 3 [Mem. for FBI Director Robert S. Mueller from the Attorney General].) In other words, the declassified statistic “represents the number of times a Section 215 FISA application has been approved by the FISA court and then implemented by the FBI.” (Supp. Hardy Decl. ¶ 5.)
The Attorney General’s declassification decision prompted plaintiffs to renew their prior request, but this time focusing only on section 215. Currently, plaintiffs seek two categories of information pertaining to that provision. First, they have requested “the total number of Section 215 requests received by the FBI’s National Security Law Unit” (at FBI headquarters) from FBI field offices between October 26, 2001 and February 7, 2003,3/ and second, they seek “any and all
physical search.” See Report from John Ashcroft to L. Ralph Mecham, Director, Administrative Office of the United States Courts (April 29, 2003).
3/ In their October 23, 2003 request, plaintiffs sought an unredacted copy of a document dated February 7, 2003 entitled “Business Record Order Requests Since 10/26/2001” (the
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records relating to Section 215 of the Patriot Act” on an expedited schedule. (Hardy Decl. Ex. B. [Pls.’ Oct. 23, 2003 FOIA request to FBI] at 2.) The government maintains that the Attorney General’s declassification decision has no bearing on its continued Exemption 1 withholding of the statistic representing the number of times that FBI field offices have submitted section 215 applications to FBI headquarters, and contends that expedited processing of plaintiffs’ request for all section 215 records is not warranted. Both parties have moved for partial summary judgment on these issues. For the reasons given below, the Court concludes that plaintiffs are entitled to expedited processing of their request, but that the Attorney General’s declassification decision does not alter the Court’s conclusion that the requested information is properly withheld under Exemption 1.
ANALYSIS I. EXPEDITED PROCESSING
Plaintiffs have requested expedited processing of their request for “all records relating to Section 215.” FOIA provides for expedited processing of requests for agency records, directing agencies to “process as soon as practicable any request for records to which [they have] granted expedited processing.” 5 U.S.C. § 552(a)(6)(E)(iii). Expedition is available for requests “(I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency.” Id. § 552(a)(6)(E)(i). Plaintiffs invoke two possible avenues for expedited processing. First, “with respect to a request made by a person primarily
“Section 215 List”), that the government had released in heavily-redacted form in response to plaintiffs’ first (ACLU I) FOIA request. (See Hardy Decl. Ex. B. [Pls.’ Oct. 23, 2003 FOIA request to FBI] at 1-2.) Plaintiffs, however, have withdrawn that request “except insofar as the redacted information indicates the total number of Section 215 requests received by the FBI’s National Security Law Unit during a particular time period.” (Pls.’ Cross-mot. at 7.)
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engaged in disseminating information,” a compelling need for expedition may be shown by demonstrating an “urgency to inform the public concerning actual or alleged Federal Government activity.” Id. § 552(a)(6)(E)(v)(II); see also 28 C.F.R. § 16.5(d)(1)(ii). Second, pursuant to DOJ regulation, requests may be expedited if they involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(d)(1)(iv). Plaintiffs submitted a request based on the former standard to the FBI, and based on the latter to the Office of Public Affairs (OPA).4/ (See Hardy Decl. Ex. B.) Their requests were denied, and now both parties have moved for summary judgment with respect to plaintiffs’ request for expedited processing.
A. Compelling need under 28 C.F.R. § 16.5(d)(1)(ii) As a preliminary matter, the government contends that plaintiffs’ claim for expedited processing pursuant to 28 C.F.R. § 16.5(d)(1)(ii) should be dismissed because they did not appeal the decision refusing to expedite their request, thereby failing to exhaust the available administrative remedies before bringing suit. (See Def.’s Mot. at 19 (citing Oglesby v. United States Dept. of the Army, 920 F.2d 57, 65 (D.C .Cir. 1990) (“foregoing an administrative appeal will preclude the requester from ever bringing suit on that request because the individual will not have exhausted his administrative remedies”)).) FOIA, however, specifically authorizes judicial review for challenges to “[a]gency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph . . . .” 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added). This italicized language “clearly indicates that judicial review is appropriate at either of two
4/ OPA is responsible for deciding whether to grant expedited processing under 28 C.F.R. § 16.5(d)(1)(iv).
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moments: when the agency has denied a request for expedited processing, or when the agency has, upon administrative appeal, affirmed the denial of such a request.” Al-Fayed v. CIA, No. 00-2092, 2000 U.S. Dist. LEXIS 21476, *7 (D.D.C. Sept. 20, 2000), aff’d on other grounds, 254 F.3d 300, 311 (D.C. Cir. 2001) (holding that judicial review of agency’s denial of expedited processing request is appropriate where plaintiff did not appeal the decision to the agency); see also EPIC v. DOJ, No. 03-2078, slip op. at 5 (D.D.C. Dec. 19, 2003) (same).
This express provision for judicial review defeats the government’s attempts to discredit the holdings in Al-Fayed and EPIC. For example, contrary to the government’s position, the fact that section 552(a)(6)(E)(ii)(II) requires agencies to enact regulations ensuring “expeditious consideration of administrative appeals” of expedited processing decisions does not make such an appeal a prerequisite for judicial review. See 5 U.S.C. § 552(a)(6)(E)(ii)(II). The administrative appeal requirement imposed upon claimants seeking review of fee waiver denials is likewise not relevant here, because FOIA does not expressly allow a requester to seek immediate judicial review of a fee waiver refusal. See id. § 552(a)(4)(vii). Furthermore, although DOJ has issued a regulation stating that an administrative appeal is generally required before seeking judicial review, see 28 C.F.R. § 16.9(c), those regulations do not preempt the express allowance of an election provided by the statute. See EPIC, No. 03-2078, at 5 (quoting Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313 (D.C. Cir. 2003) (“‘No particular deference’ is owed to an agency’s interpretation of FOIA.”)). Thus, although complete exhaustion of administrative remedies is often required (as in Oglesby) before seeking the court’s review of FOIA determinations, it is applied “because of specific provisions in FOIA that are inapplicable in the expedited processing context,” EPIC, at 5-6, and therefore, plaintiffs’ failure
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to appeal the FBI’s refusal to expedite their request does not preclude judicial review of the
decision.
Turning to the merits, the Court must decide whether plaintiffs have demonstrated an
“urgency to inform” and hence a “compelling need” for the documents they seek. This
determination hinges on three factors: (1) whether the request concerns a matter of current
exigency to the American public; (2) whether the consequences of delaying a response would
compromise a significant recognized interest; and (3) whether the request concerns federal
government activity. See Al-Fayed, 254 F.3d at 310. Review of the agency’s decision that a
request poses no “compelling need” is de novo, but the factors must be “narrowly applied,” see
id. at 310-11, and the Court is restricted to the record before the agency at the time it denied the
request for expedited processing. See 5 U.S.C. § 552(a)(6)(E)(iii).
The government concedes that plaintiffs’ request concerns federal government activity,
but argues that there is no urgency to inform the public about it, nor any significant recognized interest at stake.5/ Section 215, however, unquestionably implicates important individual liberties
5/ The FBI denied plaintiffs’ request for expedited processing not only because it found “no particular urgency to inform the public,” but also because the “primary activity of the Electronic Privacy Information Center (EPIC) is not information dissemination” as required under 5 U.S.C. § 552(a)(6)(E)(v)(II) for expedited processing pursuant to 28 C.F.R. § 16.5(d)(1)(ii). (Hardy Decl. Ex. C [Oct. 30, 2003 Letter from David M. Hardy to ACLU] at 1.) In its opposition to plaintiffs’ cross-motion, however, the government indicates that “[t]hrough administrative error, the FBI’s letter identified EPIC instead of ACLU as the primary party seeking expedited processing as ‘not primarily engaged in disseminating information.’” (Def.’s Opp. at 13 n.3.) The government’s position regarding the issue is left unclear, but it seems to have abandoned this ground for refusal to expedite the request. If it means only to concede that EPIC is primarily engaged in the dissemination of information, this plaintiff’s status is sufficient to allow expedited processing. See Al-Fayed, 254 F.3d at 309 (as long as one of the plaintiffs qualifies as an entity “primarily engaged in disseminating information,” the requirement is satisfied). Even if the government did not intend to concede EPIC’s status, the Court concludes that EPIC is indeed “primarily engaged in disseminating information” for the purposes of
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and privacy concerns which are of immediate public interest in view of the ongoing debate
regarding the renewal and/or amendment of the Patriot Act. Newspaper articles plaintiffs cited in
their request for expedited processing discuss, for example, how widespread public concern is
reflected by the many resolutions passed by local and state governments urging Congress to
narrow provisions of the Patriot Act. See, e.g., Dan Eggen, Patriot Monitoring Claims
Dismissed, Washington Post, Sept. 19, 2003, at A2 (“More than 150 cities and three states have
passed resolutions condemning the legislation as an attack on individual liberties.”). Plaintiffs
also cited an article discussing the Attorney General’s August 2003 cross-country tour initiated to
defend the Patriot Act against its numerous critics. See Editorial, Ashcroft’s Dragnet, Boston
Globe, Sept. 9, 2003, at A14 (“The invitation-only session [in Boston] is part of Ashcroft’s 18city tour to defend the Patriot Act against mounting claims that it undermines civil liberties.”)6/
expediting the request. Cf. EPIC v. Dep’t of Defense, 241 F. Supp. 2d 5, 11 (D.D.C. 2003) (finding that EPIC is a “representative of the news media” for FOIA fee waiver request purposes because it “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience”) (internal citation and quotation omitted).
6/ The articles cited by plaintiffs in their request for expedited processing reflect not only the public concern regarding the Act but also address section 215 specifically. See, e.g., Bernie Sanders, Patriot Act Overreaches, USA Today, Sept. 23, 2003, at 22A (“The legal standard for obtaining an order [under section 215] is so loose that the government is virtually certain to get whatever it wants, whenever it wants.”); Editorial, Ashcroft’s Dragnet, Boston Globe, Sept. 9, 2003, at A14 (“Of particular concern is section 215, which authorizes searches of private documents including financial, medical, and library records without a warrant, and prevents doctors, librarians and others from informing clients that the records have been requested.”); Bob Egelko & Maria Alicia Gaura, Libraries Post Patriot Act Warnings, San Francisco Chronicle, March 10, 2003, at A1 (“[I]n the last year, Section 215 has roused organizations of librarians and booksellers into a burst of political activity, and is being cited increasingly by critics as an example of the new law’s intrusiveness.”).
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Because the records that plaintiffs seek relate to current surveillance efforts, the potential invasion of the public’s privacy interests is of immediate concern, weighing in favor of a finding of expediency. See Al-Fayed, 254 F.3d at 310 (finding expedited processing inappropriate where “[a]ll of the events and alleged events occurred two to three years before plaintiffs made their request for expedited processing” and thus “none of the events at issue is the subject of a currently unfolding story”). In fact, the Attorney General declassified the number of times the provision has been used in an attempt, as he acknowledged, to “counter the troubling amount of public distortion and misinformation in connection with Section 215.” (Pls.’ Cross-mot. Ex. A, Attach. 3 [Mem. for FBI Director Robert S. Mueller from the Attorney General].) By finding that declassification was “in the public interest,” and in the best interest of law enforcement since “[p]ublic confidence in law enforcement is of paramount importance” (id.), the Attorney General implicitly, if not explicitly, recognized that information relating to section 215 implicates a matter of current exigency.
Moreover, a principle aim of plaintiffs’ FOIA request is to provide information for “the ongoing national debate about whether Congress should renew Section 215 and other Patriot Act surveillance provisions before they expire in December 2005.” (Pls.’ Cross-mot. at 16.) Plaintiffs contend that information about the way that the FBI has implemented and used the provision is required now to inform this debate, and that if plaintiffs’ request is relegated to the ordinary processing queue, production of responsive information would not occur before June 2005. (See Hardy Decl. ¶ 31.) Pending legislative proposals to amend the Patriot Act, plaintiffs argue, also require disclosure of current practices under the Act.
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The government takes a piecemeal approach to plaintiffs’ “compelling need” showing. It parses language from Al-Fayed, arguing that “newsworthiness alone” does not make a matter one of “current exigency,” see 254 F.3d at 310,7/ that the “public’s right to know” is insufficient by itself to satisfy the statutory standard, see id., and that sunset provisions or discussions of new legislation do not establish urgency, because otherwise every FOIA request related to pending legislation would be entitled to expedited processing.8/ While the government may well be correct that any one of plaintiffs’ justifications standing alone is insufficient to demonstrate a “compelling need,” the Court finds that, when considered together, the host of factors relied on by plaintiffs (see Pls.’ Reply at 13) are more than sufficient to satisfy the requirements of 28 C.F.R. § 16.5(d)(1)(ii). The FBI, therefore, erroneously denied plaintiffs’ request for expedited processing under this standard.
7/ The government also complains that the cursory descriptions that plaintiffs provided of the articles they reference in their request are insufficient to demonstrate “current exigency.” Although the descriptions do not provide a complete recitation of the contents of the articles, the Court is unwilling to deny expedited processing simply because plaintiffs did not provide a more exhaustive description (or full copies) of the publicly-accessible articles.
8/ The government also argues that the Court should not consider the renewal and/or amendment of the Patriot Act in its evaluation of “current exigency” because plaintiffs did not specifically refer to these issues in their request for expedited processing. (See Def.’s Opp. at 17.) The articles plaintiffs address, however, discuss both reauthorization and amendment. See, e.g., Frank Kramer, Why the Patriot Act Worries Booksellers, Boston Globe, Oct. 8, 2003, at A23 (“Section 215 is due to expire in 2005. However, despite the fact that it has never been used, the administration clearly wants to see it reauthorized.”); Dan Eggen, Patriot Monitoring Claims Dismissed, Washington Post, Sept. 19, 2003, at A2 (“Ashcroft and the administration have reacted aggressively, vowing to thwart any attempts to limit the Patriot Act’s reach. And in an announcement last week, President Bush proposed expanding the powers granted by the law to investigate terrorism cases.”)
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B. Media interest under 28 C.F.R. § 16.5(d)(1)(iv) Alternatively, even if plaintiffs could not satisfy the criteria for expedited processing under the “compelling need” test, they do meet the agency promulgated media-related standard. Under this standard, plaintiffs need only demonstrate that the subject matter of their request involves “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(d)(1)(iv).9/ As this Court has recognized,“[e]ver since it was proposed, the Patriot Act has engendered controversy and debate.” ACLU I, 265 F. Supp. 2d at 24. The government, however, argues that the newspaper articles cited by plaintiffs in their request for expedited processing do not suffice to demonstrate a significant amount of media interest in the issue or suggest an improper government act to the detriment of public confidence. But even focusing only on the record before the agency at the time of the determination, as one must, the Court finds the government’s position fails to pass the reasonableness test. See Al-Fayed, 254 F.3d at 307 n.7.10/ The articles cited by plaintiffs in their request and discussed in Section I(A), supra, demonstrate that the manner and frequency of the government’s use of section 215 are matters of “widespread and exceptional media interest.” Although plaintiffs presented only a handful of
9/ As the government acknowledges, this Court previously held that this regulation was promulgated pursuant to DOJ’s discretionary authority, and thus, a requester is not required to demonstrate a “compelling need” to qualify for expedited processing under it. See Edmonds v. FBI, 2002 U.S. Dist. LEXIS 26578, at *8-9 (D.D.C. Dec. 3, 2002).
10/ The government does not argue that plaintiffs failed to exhaust administrative remedies for this expedited processing request, because plaintiffs did not receive a timely response to their request (see Pls.’ Cross-mot. at 6; Def.’s Mot. at 18), and it assumes that plaintiffs have thus constructively exhausted available administrative remedies. (See Def.’s Mot. at 18 (citing Oglesby, 920 F.2d at 63-66).)
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articles, they were published in a variety of publications, and repeatedly reference the ongoing national discussion about the Patriot Act and section 215.11/ Their request for expedited processing, moreover, incorporated by reference their earlier Patriot Act FOIA request that cited over a dozen additional news articles describing the controversy surrounding the Act. (See Hardy Decl. Ex. B. at 5 & Attach. 2.) As DOJ’s “media specialists,” see 63 Fed. Reg. at 29592, OPA cannot simply turn a blind eye to the flurry of media attention (of which plaintiffs’ articles are a representative sample) the Act has generated, nor can it turn a deaf ear to the Attorney General’s acknowledgment of the “troubling amount of public distortion and misinformation in connection with Section 215.” (Pls.’ Cross-mot. Ex. A, Attach. 3.)
The articles plaintiffs cite also illustrate that the information they have requested implicates government integrity. For example, the San Francisco Chronicle article reports that concerns regarding section 215’s potential unconstitutionality have spawned proposed legislation to repeal the provision, resolutions declaring “a present danger to constitutional rights and privacy rights,” and declarations urging defiance of the law. See Bob Egelko & Maria Alicia Gaura, Libraries Post Patriot Act Warnings, San Francisco Chronicle, March 10, 2003, at A1. The article from the Washington Post reports that section 215 has been “a central focus of criticism from civil liberties groups, booksellers and librarians, and has perhaps been some lawmakers’ most frequently cited example of potential government abuse.” Dan Eggen, Patriot Monitoring Claims Dismissed, Washington Post, Sept. 19, 2003, at A2. This article specifically discusses the fact that members of Congress have “continually charged that abuses were taking
11/ Contrary to the government’s contention, it is unworkable to measure the merit of a request for expedited processing under the “media interest” standard by solely counting the number of news articles that the request cites.
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place” under section 215, “despite the lawmakers’ access to classified reports that showed that the Patriot Act provision had never been used.” Id. It cites Senator John Edwards, concerned about potential abuses of some parts of the statute, as he warns of turning over “our constitutional rights to John Ashcroft.” Id. See also Editorial, Ashcroft’s Dragnet, Boston Globe, Sept. 9, 2003, at A14 (“Ashcroft’s defenders challenge skeptics to provide evidence that anyone’s rights have been abused by the Patriot Act. But how could anyone tell?”); Frank Kramer, Why the Patriot Act Worries Booksellers, Boston Globe, Oct. 8, 2003, at A23 (“The secrecy that surrounds Patriot Act subpoenas makes court challenges virtually impossible . . . [and gives us] no way of knowing whether the FBI is abusing its power.”) The suggestions of possible violations of privacy rights presented by these articles are sufficient to raise serious questions about the government’s integrity with respect to its use of section 215.
The conclusion that OPA’s refusal to expedite the processing of plaintiffs’ request under 28 C.F.R. § 16.5(d)(1)(iv) was unreasonable is further bolstered by the fact that approximately a year earlier the agency granted plaintiffs’ request for expedited processing in conjunction with their earlier Patriot Act FOIA request based on this standard, acknowledging that the request “pertain[ed] to a matter of widespread and exceptional media interest in which there exists possible questions about the government’s integrity which affect public confidence.” (Pls.’ Cross-mot. Ex. A, Attach. 2 [Sept. 3, 2002 Letter from Melanie Ann Pustay to ACLU].) Although that request was more extensive than the current one, both set forth a purpose to “further the public’s understanding of the government’s use of surveillance powers inside the United States” because of the “strong public interest” in the information sought. (Hardy Decl.
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Ex. B [Pls.’ Oct. 23, 2003 FOIA request to FBI] at 4 & Attach. 2 [Pls.’ Aug. 21, 2002 FOIA
request to FBI] at 5.)12/
Thus, both requests have sought to compel DOJ to be more forthcoming with respect to
the implementation and use of section 215, relate to some of the same documents, and would
necessarily involve a similar analysis under 28 C.F.R. § 16.5(d)(1)(iv). Yet, the government has
offered absolutely no justification for reversal.13/ Indeed, the record before the Court indicates
that skepticism regarding government integrity with respect to the Patriot Act has not subsided
12/ The first request sought “[a]ll policy directives or guidance issued . . . regarding the use of authority granted by” certain provisions of the Act, including Section 215. (Hardy Decl. Ex. B, Attach. 2 at 2.) It also requested records containing aggregate statistical information revealing how often certain provisions had been used, including “[t]he number of times . . . that the DOJ and/or the FBI has sought orders under 50 U.S.C. § 1861 et seq., as amended by Section 215 of the Act, directing the production of ‘tangible things,’” specifically requesting a breakdown of section 215 orders directed to libraries, bookstores or newspapers as they related to “a specific book or other specifically identified content,” “a named individual,” “a named United States citizen,” “a named permanent resident,” and as they were sought “at least in part on the basis of activities protected by the First Amendment . . . .” (Id. at 3.) Additionally, the request sought any records prepared and collected by DOJ and the FBI in connection with the determination that certain information was classified, including the number of times DOJ had obtained tangible objects or business records under certain provisions, including section 215. (Id. at 1-2.)
13/ Under the Administrative Procedures Act, by analogy, courts consider whether an agency’s actions were arbitrary or capricious by “examining whether it has acted consistently with its previous applications of the governing regulations and whether the application of its general regulative doctrines to the specifics of this case has been reasonable.” DSE, Inc. v. United States, 169 F.3d 21, 28 (D.C. Cir. 1999). In that context, it is axiomatic that “an agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so.” Indep. Petroleum Ass’n of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996); Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996); Nat’l Ass’n of Broadcasters v. FCC, 740 F.2d 1190, 1201 (D.C. Cir. 1984) (an agency is bound by its conclusion in a prior instance unless it has provided a reasoned explanation for its departure); Doubleday Broad. Co. v. FCC, 655 F.2d 417, 423 (D.C. Cir. 1981) (by “deciding a case one way today and a substantially similar case another way tomorrow,” without a reasonable explanation, the commission has acted arbitrarily and capriciously). This same logic can be applied here to support a finding of unreasonableness.
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since plaintiffs’ first Patriot Act FOIA request. Therefore, the Court finds the government’s decision to be unreasonable and orders expedited processing of plaintiffs’ FOIA request. II. EXEMPTION 1
The information that plaintiffs seek -- the total number of times within a specified time frame that FBI field offices compiled FISA applications pursuant to Section 215 and sent them to FBI headquarters for further required approvals -- was previously requested in ACLU I. It was part of the “Section 215 List,” identified in the Vaughn description submitted in that case as a document that “identifies project numbers (Proj ID), which are numbers chronologically assigned to each FISA request from the field offices to the National Security Law Unit (NSLU) at FBI Headquarters, the date the NSLU received each request and the total number of requests received since 10/26/2001.” (Hardy Decl. ¶ 37) (emphasis added). In ACLU I, the Court held that Exemption 1 protected records -- including the Section 215 List -- that indicate the “total number of times the FBI has used particular surveillance and investigatory authorities during a specified time period,” because the government had satisfactorily explained that these records that “indicate how DOJ has apportioned its counterespionage resources [and] that reveal the relative frequency with which particular surveillance tools have been deployed . . . may undoubtedly prove useful to those who are the actual or potential target of such surveillance, and may thereby undermine the efficiency and effectiveness of such surveillance.” ACLU I, 265 F. Supp. 2d at 28-31. Because the Court already ruled that this information was properly withheld, the government argues that the doctrine of res judicata bars plaintiffs’ claim with respect to the information, or alternatively, that the information should continue to be shielded by Exemption 1.
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A. Res judicata The government contends that res judicata bars plaintiffs’ request for the number of field office section 215 requests because that issue was litigated in ACLU I. While plaintiffs do not dispute the identity of the two requests, they argue that res judicata is inapplicable because a post-judgment event has given rise to a new claim. It is clear that res judicata does not preclude claims based on facts not yet in existence at the time of the original action, see Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (citing Page, 729 F.2d 818, 820 & n.12 (D.C. Cir. 1984)); see also Stanton v. Dist. of Columbia Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997) (“post-judgment events give rise to new claims, so that claim preclusion is no bar”), or when changed circumstances alter the legal issues involved. Wolfe v. Froehlke, 358 F. Supp. 1318, 1319 (D.D.C. 1973), aff’d, 510 F.2d 654 (D.C. Cir. 1974). As here, Wolfe involved a FOIA request for the same information unsuccessfully sought in a prior suit. Id. The Court held that since the justification for withholding the information had changed after the first suit, a challenge to continued nondisclosure under the newly proffered exemption was not barred by claim preclusion. Id. at 131920. Here, plaintiffs argue that the Attorney General’s declassification of the frequency with which section 215 has been deployed undermines the justification previously offered and accepted for withholding the “Section 215 List.” Thus, rather than seeking to relitigate issues that were decided in ACLU I, plaintiffs present a new question -- whether the statistic they seek is properly withheld in light of the Attorney General’s declassification decision. The Attorney General’s declassification occurred in September 2003 -- four months after the issuance of ACLU
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I -- and, as in Wolfe, altered the legal issues bearing upon plaintiffs’ FOIA request. Res judicata, therefore, cannot preclude plaintiffs’ claim, for “[t]he doctrine does not bar a litigant from doing in the present what he had no opportunity to do in the past.” Drake, 291 F.3d at 66.
B. Exemption 1 While plaintiffs’ claim for the information does not run afoul of res judicata, it still must overcome the formidable hurdle erected by Exemption 1, FOIA’s national security exemption. The law relating to this exemption was set forth in this Court’s prior opinion (see ACLU I, 265 F. Supp. 2d at 27-28) and need not be repeated here. See also Ctr. for Nat’l Security Studies v. DOJ, 331 F.3d 918, 918 (D.C. Cir. 2003); Coldiron v. DOJ, No. 02-0927, 2004 WL 440445, at *1 (D.D.C. March 2, 2004). In ACLU I, the government successfully argued that the “Section 215 List” falls within Executive Order 12,958 and was properly classified because it contains information related to “intelligence activities . . . , sources or methods” that, if disclosed, “‘reasonably could be expected to result in damage to national security.’” 265 F. Supp. 2d at 28 (quoting Exec. Order No. 12,958 §§ 1.2, 1.5). There, the Court found that the government had satisfactorily explained that revealing information regarding the focus of the FBI’s counterintelligence efforts could enable our adversaries to avoid or defeat such efforts, and in particular with respect to section 215, that “disclosing the number of FISA applications made for the production of tangible things could enable adversaries to discern whether and to what extent business records and other items in the possession of third parties offered a safe harbor from the FBI.” Id. (citing Decl. of James A. Baker ¶ 17). Thus, the issue now before the Court is whether the Attorney General’s September 2003 decision to declassify the number of section 215
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applications granted by the FISA court means that the information that plaintiffs seek can no longer be withheld under Exemption 1.
While the resolution of this issue is hardly free from doubt, the Court will uphold the government’s claim of exemption because it is mindful of the “long-recognized deference to the executive on national security issues,” and the need to accord “substantial weight” to an agency’s affidavit attesting to the classified status of documents implicating security issues. Nat’l Security, 331 F.3d at 927-28 (quoting McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983)). Indeed, the Court of Appeals in this Circuit has cautioned that the “judiciary is in an extremely poor position to second-guess the executive’s judgment in this area of national security,” and has counseled deference to executive affidavits predicting harm to national security. Id. (citing King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987)). Thus, although “deference is not equivalent to acquiescence,” Campbell v. DOJ, 164 F.3d 20, 30 (D.C. Cir. 1998), it is the responsibility of the executive, not the courts, to “weigh the variety of subtle and complex factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the agency’s intelligence-gathering process.” Nat’l Security, 331 F.3d at 927 (quoting CIA v. Sims, 471 U.S. 159, 180 (1985)); see also Assassination Archives and Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir. 2003).
Given this binding precedent, it is not a question of whether the Court agrees with the defendant’s assessment of the danger, but rather, “whether on the whole record the Agency’s judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the [agency] is expert and given by Congress a special role.” Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982). The declarations of David
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M. Hardy, the Section Chief of the FBI’s Record/Information Dissemination Section, satisfy this standard.14/ They describe how the release of the number of section 215 field office requests poses the continuing potential to “harm our national security by enabling our adversaries to conduct their intelligence or international terrorist activities more securely.” (Supp. Hardy Decl. ¶ 7.) Specifically, Mr. Hardy states the release would disclose the frequency of use of this specific technique during a specific time period, could signal to targets of investigations that it is comparatively safe to conduct certain operations and activities based on the FBI’s allocation and direction of resources, and as successfully submitted in ACLU I, it would enable our adversaries to discern whether or to what extent business records and other such “tangible things” in the hands of third parties were a safe harbor from the FBI. (Id. ¶ 8.)
In response, plaintiffs challenge the government’s explanation by arguing that “[a]pplications submitted by FBI field offices have no bearing whatsoever on actual surveillance unless the applications are ultimately approved by FBI headquarters (and by the FISA court).” (Pls.’ Reply at 6-7.) According to plaintiffs, since the number of section 215 requests actually approved and implemented is the only statistic of consequence for national security, any harm to national security that might result from the disclosure of the field office requests has already
14/ The government submitted an initial declaration by Mr. Hardy with its motion, and a supplemental declaration with its opposition to plaintiffs’ cross-motion. Plaintiffs are correct in noting that the first declaration mimics the declaration offered by the FBI in ACLU I, and that this Court found that declaration to be inadequate. (See Pls.’ Cross-mot. at 11-12 (citing ACLU I, 265 F. Supp. 2d at 29) (“The analysis here has in no way been tailored to the particular surveillance tools about which plaintiffs seek information, and does not address the specific harm likely to flow from the [information’s] release . . . .”).) There, the Court found a second declaration by the Office of Intelligence Policy and Review (OIPR) served to remedy the gaps in the FBI declaration (see 265 F. Supp. 2d at 29), and similarly, in this case the Court finds that Mr. Hardy’s supplemental declaration addresses the glaring deficiencies in his first declaration.
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resulted from the declassification order. Thus, in plaintiffs’ view, the only reason the number of field office requests in ACLU I was protected was because of its potential to reveal something about the actual implementation of section 215, and given the Attorney General’s declassification decision, adversaries have now been informed to what extent business records were a safe harbor from the FBI, and thus, the number of field office requests should not be protected.
In ACLU I, the Court confronted a similar claim by plaintiffs. There, they argued that since aggregate statistical information regarding the use of the Patriot Act had been disclosed (in that case pursuant to section 107 of FISA), there could be no further harm to national security from further disclosure of the number of times DOJ has used each particular surveillance and investigatory tool authorized by the Patriot Act. The Court rejected that argument and will also do so here, for as noted in ACLU I, the fact that the Attorney General has declassified some information relevant to section 215 does not “mean that different, but arguably analogous, information must thereby automatically be disclosed under FOIA. Instead, the question must turn . . . on whether the government has provided a specific and persuasive explanation of why such disclosures would be at odds with national security.” Id. at 31.
Moreover, the Attorney General’s decision to declassify certain statistics relating to the use of section 215 does not operate to estop the government from refusing to disclose different information relating to the proposed use by FBI field offices of this investigatory tool. Nat’l Security, 331 F.3d at 930-31 (rejecting plaintiffs’ “discredited argument” that the disclosure of some of the detainees’ names undermines the government’s claim of national security). For, as explained by the Circuit Court, “‘[i]t is the responsibility of the [executive] not that of the
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judiciary’ to determine when to disclose information that may compromise intelligence sources and records.” Nat’l Security, 331 F.3d at 931 (quoting Sims, 471 U.S. at 180).
In this regard, the Court is satisfied that the government has carried its burden. As explained by the government, the number of section 215 field office requests deserves protection in its own right, not merely by virtue of what this number might reveal about section 215’s actual implementation. “While a hostile intelligence service or international terrorist group now knows that for a certain time period, no Section 215 FISAs were issued, by disclosure of [the requested] information they would know the level of FBI activity . . . seeking to use . . . this particular Patriot Act technique.” (Def.’s Opp at 9.) Disclosure of the number of section 215 applications sought could also permit an adversary to “assess the exposure of business records to current or future operations” and to conclude that “it is comparatively safe to conduct certain operations and activities based on the FBI’s allocation and direction of resources.” (Hardy Supp. Decl. ¶ 8; Def.’s Opp. at 8.) Thus, by properly construing “use” more broadly than plaintiffs do to encompass proposed -- as well as actual -- use, the government has offered a reasonable explanation for the continued withholding of the statistic under Exemption 1.15/
Moreover, despite plaintiffs’ protestations to the contrary (see Pls.’ Reply at 8-9), this Circuit has embraced the government’s “mosaic” argument in the context of FOIA requests that implicate national security concerns. See, e.g., Nat’l Security, 331 F.3d at 928 (and cases cited
15/ The Court acknowledges that not all of the declarant’s explanations are of sufficient specificity or applicability. For example, the fact that publicizing the statistic would “disclose the very fact that the FBI is engaged in certain investigations which contemplate the use of this particular FISA technique,” as plaintiffs argue, does not identify any harm that would derive from the release of the statistic, and the government’s concern regarding the disclosure of field-office specific data is irrelevant, as plaintiffs do not seek that information. (See Pls.’ Reply at 5-6 (quoting Supp. Hardy Decl. ¶ 8).)
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therein). The Hardy declaration explains that, viewed as a piece of a “mosaic,” disclosure of the
withheld number would likely reveal a great deal about the FBI’s investigative efforts under the
Patriot Act:
The significance of one piece of information may frequently depend on knowledge of many other items of information. Although the statistics to which plaintiffs seek access may appear, on their face, to be innocuous, their disclosure would be harmful to national security. This is because the information that has already been placed in the public domain (through statutorily required disclosures, media accounts, etc.), coupled with the classified information that has not been released, represent pieces of the mosaic which reveal a very significant and meaningful picture of the FBI’s investigative efforts in the post-September 11, 2001 war on terror.
(Hardy Supp. Decl. ¶ 11.) As plaintiffs recognize, this approach may cast too wide a net, but
both this Circuit and the Supreme Court have observed that “[w]hat may seem trivial to the
uninformed, may appear of great moment to one who has a broad view of the scene and may put
the questioned item of information in its proper context,” and “bits and pieces” of data “‘may aid
in piecing together bits of other information even when the individual piece is not of obvious importance in itself.” Nat’l Security, 331 F.3d at 928 (quoting Sims, 471 U.S. at 178).16/
CONCLUSION
This Circuit’s law constrains the Court to conclude that the government’s explanation is
sufficiently detailed and persuasive to justify the continued withholding under Exemption 1 of
16/ The Hardy declaration also details concerns about the FBI’s ability to protect other sets of statistics from disclosure if plaintiffs were to succeed here. (Supp. Hardy Decl. ¶ 11.) He describes that “if these kinds of classified statistics were coupled with the number of FISAs which have been authorized . . . and the number of cases opened/closed per year, a database could be built with relative ease which would reveal a detailed road map of how the FBI conducts its investigations . . . [and] sheer demographics would reveal the geographical concentration of these investigative activities, which in turn would reveal the full extent of the nature and scope of the FBI’s counterterrorism and counterintelligence activities.” (Id. ¶ 9.)
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the number of section 215 applications submitted by FBI field offices. Accordingly, defendant’s motion and plaintiffs’ cross-motion will be granted in part and denied in part. Plaintiffs are entitled to expedited processing of their request for all records relating to section 215, but the specific statistic they seek has been properly withheld under Exemption 1. A separate Order accompanies this Memorandum Opinion.

Date: May 10, 2004

s/ ELLEN SEGAL HUVELLE United States District Judge

-23-

 
 Case 1:03-cv-02522-ESH Document 31 Filed 08/24/04 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, and FREEDOM TO READ FOUNDATION,
Plaintiffs,

Civil Action No. 03-CV-2522 (ESH)

v.

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

MOTION TO DISMISS THE CASE WITH PREJUDICE
Plaintiffs American Civil Liberties Union, Electronic Privacy Information Center,
American Booksellers Foundation for Free Expression, and Freedom to Read Foundation
(“Plaintiffs”), and defendant United States Department of Justice (“Defendant”), have agreed
to a settlement of this litigation. Under the terms of this settlement, plaintiffs have agreed to
move and hereby move to dismiss this case with prejudice.
Raphael O. Gomez, counsel for the defendant, has advised counsel for the plaintiffs
that defendants do not oppose the granting of this motion.
A proposed order is attached hereto.
Respectfully submitted,
________________________ DAVID L. SOBEL D.C. Bar No. 360418 MARCIA HOFMANN D.C. Bar No. 484136 Electronic Privacy Information Center 1718 Connecticut Ave., N.W., Suite 200

Case 1:03-cv-02522-ESH Document 31 Filed 08/24/04 Page 2 of 2

August 24, 2004

Washington, DC 20009 Phone: (202) 483-1140 x105 Fax: (202) 483-1248
JAMEEL JAFFER ANN BEESON American Civil Liberties Union Foundation 125 Broad St. New York, NY 10004
ARTHUR B. SPITZER D.C. Bar No. 235960 American Civil Liberties Union of the
National Capital Area 1400 20th St., N.W. #119 Washington, DC 20036
Counsel for Plaintiffs

 
 RULES OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT

Rule 1 Name ~ Court

This court shall be known as the Foreign Intelligence

Surveillance Court.

Rule 2 Clerk of Court

The clerk shall maintain the docketr records, and seal ’of the court and shall have the usual powers of a clerk of

court.

The presiding

Rule 3 Duties~f Presiding

Judge~

judge designated by the Chief Justice of

the United States from among the membership ~f the court shall be responsible for (ai allocating the business of the

court to the judges thereof on an equitable and ~parhial

basis, (b) calling the judges of the’court to sit from time

to time so that at least one judge will always be available

to serve on the court at the seat of government, (c) placing

matters before the judges for coliegial consideration,

such

as administrative

actions and amendments of these rules, and

(d) calling meetings of the full court. The presiding

judge or his deslgnee will re~ain available to be reached

in emergency situations by the Attorney General for the purposes set forth in section 105(e) of the Act.

-2Rule 4

Each judge of the court is empowered to administer oaths

and affirmations: to hold hearings and to consider applications

and such affidavits, exhibits, testimony, and other evidence

as may be presented to the court; to require the applicant to

furnish such other information as may be necessary

"determination;

to issue orders pursuant to’section

to a !S~ of the

Act; to grant extensions of an order upon an application for

an extension; and to assess compliance cedures by reviewing the circumstances

with ~inim~ization prounder ~-hich informatio~

concerning United States persons was acquired, retained, or

disseminated.

A judge may/ for the court, also act ~n an

application to approve an emergency authorization purs=u~nt to

section 10S(e).
Rule 5 Submission of Applic~.tions
Each application for an order under section ~04 of the

Act shall contain, in addition to other information required t~o be provided by statute or by the court, a marginal annota

tion to the left of the first line of each paragraph thereof

indicating the appropriate part of the Act to which each

p~ragraph pertains.

Rule Procedure on Denial of AFplication
(a) No judge of the court may hear tha same application

for electronic surveillance under the Act which h~s been

-3-

denied previously by another judge of the court. ~hen an application is denied, the judge shall provide imanediately

for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted by the clerk, under seal, to the

Foreign Intelligence Surveillance Coccrt of Review. (b) If the emergency employment of electronic

surveil-

lance has been previously, authorized by the Attorney General pursuant to section 105(e), and a subsequent order approvin~ the surveillance is not obtained, the judge shall cause to

be served on any United States person named in the application, and on such other United States persons subject to electronic -’su~eillance as the judge m~y dete~mine in his discretion it is in the interest of justice to serve, notice of --

(1) the fact of the application;

(2) the period of the surveillance;

and

(3) the fact that, during the period, information

was or was not obtained. On an ex parte ihowing of good cause to the judge, the serving of the notice required by this subsection may be

postponed Qr suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court may forego ordering the serving of the notice required~

under this sub~ection.

Rule 7 Meetings of the Full Court

The full court shall meet at the call of the presiding

judge ox on the request of any judge of the court. Policy

determinations

by the court shall be governed by majority

vote of those present and voting-

Rule 8 Docket, Order ~---i~, and Indices

(a) The clerk shall keep a book known as the "docket"

in such fo~-m as may he approved by the cogrt and shall enter

therein each application to which these rules are made appli-

cable. Applications shall be assigned consec~tlve file numbers

which file numbers shall be noted on the folio of the docket

~hereon the first entry of the action is made, All papers

filed with the clerk and all appearances, orders, exhibits,

papers and other records required by the cou~t to be filed

shall be entered chronologically

in the docket on the folio

assigned to the application and shall be marked with its file

number. These entries shall be brief but shall show the nature

of each_paper or exhibit filed and the substance of each order

issued. The entry of an order shall show the date the emt-~-y

is made.

(b) The clerk shall keep in such form as the court may prescribe a copy of each o~der and any memorandutm opinion.

(c) Suitable indices of the docket and of any order referred to in subdivision (b) of this rule shall be kept by the clerk under the direction of the court,
Rule 9 ~ttorneys .an~ Governm.ent A~ents (a) Only those attorneys who have be~n duly admitted to the bar of any United States court, and who have been ~uly empowered by the Attorney General to practice before this court, will be permitted to represent the government before the bar of this court. {b) ~nly those agents whose authority to represent the government is established to the satisfaction of the court .shall be permitted to be prgsent in the court or to participate in any hearing before the court. Any agent appearing as a witness, or any other government ~itness, must be duly suorn to testify truthfully or must affirm, and a record shall be made of his oath or affirmation,
Rule i0 Search Warrant Returns
All search warrant returns shall contain a cover filing from the Government’s att0_~n~y certifying tha= they have reviewed ~he return an4 believe it ~o be ~r~e and correct.
~etur~s on search warrants ~hall be ~£mely filed with the Clerk of 9ourt no later than 21 days following execution of the warrant, Returns filed more than 21 days after execution of the ~arrant shall’ contain an explanation of ~he reason for ~he deiav.

 
 ~~; •.
~

I" Reply, Pie-an Rda to
flk. No · .

[Oraft~ng) F1eld D1v1s1on [Street Address) [C1ty, State, Z1p)

.. [Month Date, Year)

[Mr /Mrs. J {COMP?WY POINT OF CONTACT) [TITLE] (COMPANY]
[STREET .ADDRESS)
[CITY, STATE No Zip Code]

Dear [Mr /Mrs I [LAST NAHE) :

Under the author1ty of Execut1ve Order 12333, dated

December 4, 1981, and pursuant to T1tle 18, Un1ted States Code

(U S.C), Sect~on 2709 (as amended, October 26, 2001), you are

d~rected to

'he

of

:: .•.....
..
'
·.

In accordance Wlth T1tle 18, U.S.C., Sect1on 2709(b), I cert1fy that the 1nformat~on sought 1s relevant to an author1zed 1nvest1gat1on to protect aga1nst 1nternat1onal terror1sm or clandest1ne 1ntell1gence actl.Vltl.es. and that such an • 1nvest1gat1on of a Uru.ted States person 1s not conducted solely on the bas1s of actl.Vltles protected by the first amendment of the ConstltUtlon of the United States

You are further adv1sed that Tltle 18, U.S c , Sect1on

:

2709(c), proh1b1ts any officer, employee or agent of yours from

d1sclos1ng to any person that the FBI has sought or obta1ned

access to 1nformat1on or records under these proVl.Sl.ons.

CAtOHS22

·...

' ..

[Mr /Mrs

\
{COMPANY POINT OF CONTACT)

Your cooperat~on 10 th1s matter 1s greatly apprec1ated

•

Agent 1n Charge

S1ncerely,

,,

..•

•' l I

[ADIC/SAC Name]

Ass1stant D1rector/Spec1ai

,..•~i•·"l•i~l
• ·~l;j
l•'t1·!lJ

CA# 03-2522

..
'. '\,' M•. ~ •:f.• ··...
' - - ·: .. .
'.~"'
·'-C.t

 
 UNJTED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC

IN RE [SUBJECT NAI\IIE]
A [NON} UNITED STATES PERSON

DECLASSUJ&D B'i c);)19d•h/bc:O/¢pb 0!1 0'1-30·200•1

AJ'Pl..lCATlON FOR CERTAJN BUSI NESS RECORDS JIOR FOREIGN INTELLIGENCE PURPOSES

Pursuant to the Foretgn lntelhgenee Survetllance Act of 1978, as amended, Title 50, Uruted States Code (U S C ), SectJon !861, the Umted S tates of Amenca, through the understgned destgnce of the Dtrector of the Federal Bureau oflnvesugatton (FBI), hereby apphes to thts Court for an ex parte order requtnng ihc production to the FBI ofthe tangtble thmgs -]cscnbed m pamgraph four below {l:J4:

On September_, 2003, the Dtrector of the FBI destgnatcd

, FBI, to make

:tpphcauons to th•s Coun for access to cenam bus111css records for forctgn tntelhgence purposes
50USC §1861(a)(l) M

2

[Name of Subject], the subJeCt of the auil1onzcd mvesugalion lbr whtch these busmess

records "rc sought, IS a [non] Umtcd States person (U tbe business records pertains to a

person otber than tbc s ubject of the authorized lnvcstlgatloo, add (Name of Subject], tbe

subject of the business records sought hy this application, is afluon]-United States person(
~(

J

The FB!ts currently conductmg an mvesuganon of the [subJect of the mvcstlgallon)

authonzcd under U1c Allomcy General Gutdehncs for FBI Forc•gn Intelligence Collection and

Foretgn Countcnntcl hg~nce lnvcsttgattons (FCIG) The FCIG was approved by the Auomcy

General under Exccuttvc Order 12333 T he full mvcsugatton of the [subjecl of the mvesttganon]

~y..._:{?lenc Cnprom, G9J.Cfacl~

Re.,son

__O1Tf-itc.-o5u(hJ~'-G-c-1l-C-ra-l C-o-u-nsel. FBI

p t . tAct · a no

11_858

~~-fy"On Xl

----

-CDi:tP:lA:R~nT~Hs~E<U~o7~•Rc~t~sr,~o~"a'mltl'fl"l~\'1-:!1!:-~{O~f.tC,~J-

· OAr~·

- zoo~

eM 03·2522

}I ]_126~ . s;.c~E T

~9- CS179 d•ll/bco/4
P.EASOU: 1. i (C~ ~r;lo: 0/J0/202~

200<t

I
I

was mwated by 01e FBI on {Date] based upon spectlic and arhculable facts gtvmg reason to
belteve that the subjeCt of Lhe mvcstJga!ton tS or may be [an mtcmauonal terronsllan agent of a foretgn power/a target ofrecru!lment by a foretgn power/etc) 50 USC §1861 (a)(2)(A) ~(

4 Thts apphcauon seeks [ccrlllicd coplcslthc ongmalsJof an)' tangtble !lungs (tncludmg hooks, records, papers, documents, and other !Iems) wh1ch arc hehevcd to be m the posseSSIOn of
[name of the custodtan of the tangtble thmgs or another authonzed eustodtan of records],
hereafter referred to as the custod.Jan of records Such records may mclude [spectfically dcscnbe records sought] 50 USC §1861(a)(l) }S-~

5 The records sought by the FBI m th1s apphcatton arc for an authonzcd tnvcs!tgatton conducted under the FCIG to obtam fore1gn mtelltgence mforrnatJon not concemmg a Umtcd
Stat<:.~ person or to protect agamstmternattonaltcrronsm or clandcs!tnc tntelhgence acttvtltes
Such mvcsugat1on tS not bemg conducted solely upon the basts of actiVJttcs protected by the first nmcndment to the Consutuhun of the Umted Stoles 50 US C §JS61(b)(2) ~(

6

Spcctfically, these records are relevant to the authonzed mvesttgatton tn that they [gtve

bnef descnpuon of how the records sought are related to the mvesngatton) 50 USC I 86l(a)(2)(B) ~(

7 Tins apphcauon requests the Court to tssue an unclasstficd ex pane order requmng the custodtan of records to produce for the FBI the tangtble thrngs descnbcd m paragraph four above wnhtn five calendar days of servtce 50 U S C §!86I(c)( I) The Untted States also requests that the Court's order shall not dtsclose that1l tS tssucd for purposes of an authonzcd mvesngauon conducted by the FBI under the FCIG 50 USC §1861(c)(2) Thts appltcauon also requests that the Court's ex pane order contam the followmg caveat "No person shall d1sclose to any other person (other than those persons necessary to produce the tangtble thmgs spectfied tn thts order) that the FBI has sought or obtamed the tangtble tlungs spcctfied rn thts order" 50 USC § 1861 (d) Further, lhts apphcauon requests that the ex parte order contam such other provtstons
:>s arc set forth m the proposed order auached hereto (kl.{
~PO~T lOtJ COtt;t;<It~
!I.CRUrJ 1:: ~~ll &XCGP1' ~lfliiilf OTRERtii!::~

O£CLMI$lfl&O 8\' 65-H'Mmh/bco/c:pb Otl 07-30-2004

CA# 03-2522

Patriot Act II-859

SEC,RET
WIIEREFORE, the Umted States submtts that tins apphcauon sausfies the cntem and requnemcnts ofSecuon 1861 of the Forctgn lntclhgence Survetllance Act, as amended I, the understgned dcstgnee of the Dtrector of the FBI, hereby approve the fihng ofthts apphcanon
with the Umtcd States Forctgn lntelhgence Survctllnncc Court.}1:1(
Respectfully Submutcd,
Name Tnle Fedcrnl Bureau of !nvesugauon
OLCLASSiflCD Dl' t#~l1'f<l•h/bc•/cpb Ql f 01·30~2004
-----

CA# 03-2522

\
SEG~ET

Patriot Act ll-860

 
 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, DC

IN REAPPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION
FOR AN ORDER REQUIRlNG THE PRODUCTION OFTANGIB LE THINGS FROM _ _ _ _ _ _ __ _

Docket Number
0-!:Ct.ASS!FJED 8'1 o~l71dllllt/bc•/cpb OU 0'7-lO-ZOO'I

TO

Custodmn ofRecords

ADDRESS

ORDER

Tins Court hav>ng found that the Appheauon of the Federal Bureau oflnvest1gauon (FBT) for a.n order rcqumng the production oftang1ble thmgs from _ _ _ _ _ sat1sfies the reqmrements of 50 U S C ~ I861, Ills by the Court,

O RI>ERED, that the CustodHUl of Records shall produce to the FBI, w1thm [insert time frame stated in paragraph 7 of npplicntion) ofserv1ce of th1s OrJ.ier, the following tangible
thmgs ) match description of tangible thiugs set forth in parngrapl! 4) , and
IT IS FURTHER ORDERED, I) that no person shall dtsclose to any other person (other than those persons necessary to produce the tang1blc thmgs pursuant to th1s Order) that the FBI has sought or obtained the

Patriot Act II-1082

\

SECRET

;

1

. --- ·- - -- - -

SECRET
/ \
2) that servtce ofthts Order shall be by 3 method agreed UJ>On by the Custodtan or
Records and the FBI, and tf no agreemcntts reached, servtcc shall be personal, and
3) that failure to comply wtth the requorcm~nts ofthts Order served upon the Custodtan of Records may be pumshable by contempt or court pursuant to IS U S C § 401 (3) and the All Wnts Act, 28 USC §1651
ISSUED THIS_ OAY OF [MONTH], 2004
Judge, Umted States Foretgn lntclhgence Survetllancc Court

~~· 6S1.7~ d111h/ be•/
RCA$01:: 1. 4 (C'I
~· 06/22/202.

...:: 004

D5CLA5&rFltD IY 6~179dMh/bc-~/~pb
ou 0?-30-200.f

#03·2522

2
'\.
SE<;RET

Patriot Act Il-1083

SECRET

CLAI JJ

l 1td.hlbc•

J!.tASOi ~; l . . (CJ

0/ZZ/04

CERTIFICATE OF SERVICI3 01' ATTACHED ORDER

Dare ond Ttme ofServtce - - - - -- - - -
Place ofScmce - - - - - -- - -- Served upon _ _ _ __ _ ________ Served by_ __ __ _ _ _ _ _ __ __

oteu.s uruo t Y 6 U ? 9dnoh/tl>co/ c::pb ou 0'1'· 30..200-t

DECLARATION OF SERVER
I declare under penalty ofpel)ury under the laws of the Umttd States of Amenca that the forcgomg tnfonnauon contatncd m the Ccmficate ofScrvtce of Attached Order ts true and correct

l!x~utcd o n - - -- - - -- -- - Date

By ~----~---------------
Stgnature of Server

InqUtncs Rcgardmg Producuon May Be Dm:ctcd to
Name of Spectal Agent Federal Bureau of lnvcsnganon
FteldOffice Telephone Number

CA# 03-2522

S'ECRET

Patriot Act Il-1084

 
 FBI

FOREIGN

INTELUGENCE

SURVEILLANCE

ACT

(Rt:v!:>ed
(FISA)

7/11,

2003)

BUSINESS RECORDS REQUEST FORM

INSTRUCTIONS RpreecpoarrdesTaOhneradFpeBpr,hIpcmuarutwssutnauntsotettothluethsFefooFrreomirgentiogInrnetIqenlutleeiglsletignthceeantcSethuServuNervialetllaiolnlnacanelcCSeoeAuccruttn((tFFyIILSSCaAw)),fBo5rr0aaUncBShuC(sNmS§eL1sBs86)1
FBI field offices must adhere to the followmg procedures m usmg this form wr(1ehs)picoThnhstehibFeiBlrietIqysupfeoescrt1trahelelaafgtoeersnetsigh(noSuAclo)dumcnottemhnepnlrteeetlleehvgthaeinnstcfFeoBromIr fcioeuldntoefrfticeerr/doinVsImsiOmnvWesi\tIhgapln!omnatroy A(C2sh)siieTsfthaDinsitvfiSospriOmecnimaCluoAsutgnbeseenltr-e(mvCi-DeCwChe)a,drgaanen(ddAtaShpeApSCrop)evceidalbAy gSeunptemmCsohrayrgSep(eSciAaCl A) oger ntht e(SPSrAog)r, atmhe

(R(C3o)oouTmnht7ies9n7fno5tre,mlahngsdheonthuceeldFobIrSeCAsoeuUnntmtteotr,ttRehreorooamnpspmIrBo)p,0nt4ha6eteNFaBtiOI HnaelaSdeqcuuarntteyrsLdaiwviBsiroannch (NSLB),

Based on the mformatwn provided on Records Apphcahon, and Order and present It

th1s limn, NSLB to the FISC

will

prepare

a

FISA

Busmess

D!fect 324-3951

any

quesl!ons

about

how

to

complete

this

form

to

the

FBI

HQ

SSA

or

NSLB

(202)

Blank accordmg to

versiOns of tlus form are the classification of the

unclassified information

Add classification you provide.

markings

to

the

form

-:.r r. n:Ft·r::rr."-T<"tl.! ·crH-.·.ro:::-
-f':::f..B.:c: I~· J2';CLLO~L·~1C
, ., --,,:-,:r .. ~, "In'-·

Patriot Act II-101

- - - = -(C-!a,ss:lf-!ca-no-n:o-f c-om-p-le-tedcfocnn-) · - · - -

PIF.AEIS.P,AE"ARRSNE,QYDUTOEACSNUTGMFIEBONLRTEASTCAHCNIENDSGSO(TTINOHCEBLRUUSIDTINEINEMGSSSB)"RO(ESOCOKOUSR,SDRCSES,CecOtiRo(RnDevS11s8,ed6711)11/03) 1. General Information

a.

Name of Subject(s) sought:

of the

investigation for •

which

the

tangible

things

are

b. FBI file number(s):

c. Date full investi!!ation(s\ of sncb subiect was authorized:

d. Office of origin:

e. Case Agent Point of Contact: i. Name: ii. Telephone: iii. Secure Fax:

f. FBI Headquarters SSA: i. Name: ii. Telephone: iii. Secure Fax:

g.

Status i. USP

of

S

ubject

of

tbe

Investigation

ii. Non-USP or

iii. Foreign power

h.

Status 1. USP

of

Subject

of

the

Request,

if

different

from

Subject

of

the

Investigation

ii. Non-USP

oii. Foreign Power

2 Basis of Request for Tangible Things

a.

aSypopuaercatimfriecearnleltqykuedeyes)ts,icnengxb.pellatfihtnehwetahtnaygniygboilbueletbhetilhnieignvsge(etish.gan.tobitotaoiskwbsr,eiritnteegcnokrdedopsc,tupbmaypeaenrtcsu(,esd.tgoo.d,ciuaanmneonntsth) e

(CIJSSificatlon u{ comp!ctul Conll)

Patriot Act II-109

(Ciass•ficat10n of completed form)

normal course be the subject

of business. Note of the investigation.

that

the

subject

of

the

request

does

not

have

to

b.

If relevant, things.

state

whether you

are

requesting

the

original

or

copy of the

tangible

d.

Explain provide

ftohreeimgnaninneterlliingewnhciechintfhoermreaqtuioenstfeodr

tangible things are ex the full investigation

3. Service of the Business Records Order a. rIedqennteisftyedthteancguirbrleentthciunsgtso.dian, owner, or person in possession of the

b.

Identify the name, to whom an order tangible things.

address, needs to

btietldei,raecntdedtetloeprheoqnueirneutmhebperroodfuacntiyocnuosftotdhieanreoqruepsetresdon

4. Field Office Approval

abiIGfnnuoyutvrtethiehadrosInneetralihiFigaztaniuaievoerttdsesinhotaoifrnAnleorsvivrtm,zeeiFeesretwdBortniogIediorndamiJbtsv<titeme'oahonsinrinettsoiiioggrsrfnafoecntqrtliIeohauonitnenegtdebs,nCleteclosiiioanngntnnitgesneddntleciucltcoicueigennttreCeitdtenodiuolfcnllcyieil.ntgeetnechadnotcaitcsoctoecnotlohreaadnelcnyactridneveurciqFpnteuiooienewnrsesg.itittgehahIdneUftuhbtCSaareonPtshAugiEsenitRbrttooelcfeorreainrtnrchettttyoiieifnvlypGgliitrstgieoehenastanreetepccratertsholaoetgueagcithnetsdt

Supervisory Special A2ent Prmted (or Typed) Name:

(SSA)

approvin~:

this

form:

Telephone Number:

Signature:

Date:

- - - - - - - - - - - - - - (Ci<JO.SifiC:li!Oil oft.:ompi~l~:d fom1j
2

Patriot Act II-110

CDC approving this form: Printed (or Typed) Name: Telephone Number: Signature:

(Ciass!lkatJOn of completed fonn)
Date:

SAC or Printed

Program ASAC approving (or Typed) Name:

this

form:

Telephone Number:

Signature:

Date:

ALL INFr::·.R[\1fU'TCN CONTA1.NED :-i.SE.EIN IS L:NCLA2SIFIEJ

dmhjbcejamw

Patriot Act II-111

 
 FEDERAL BUREAU OF INVESTIGATION

Precedence: lMMEDIA~'E

Date: 10/ 10/2003

To: All Dlv1s.ions

Attn: ADIC, AD, DAD, SAC, CDC

From:

O

f

f1ce Nat

of Lhe Genera 1onal Secup Ly

l

LCawouBnrsaelnp~

Contact: L'-------"""T-:;-________.1

~ u; - '
b ,C /

Approved By: Drafted By:

Mueller Robert S III
I .

Case ID #:66F HQ-A1431182

I b6I 'L.,7·\., ·-

Title: BUSINESS RECORD APPLICATIONS DELEGATION OF AUTHORITY

Synopsis: Delegates s1gnature author•ty for Appl1cat1ons for Business Records to FBIHQ off1c1als under 50 U.S.C § 1861.

Details: The Foreign Intelligence Surve1llance Acl of 1978 (FISA), SOU S.C § 1861, prov1des for access to certain business records for fore1gn intell1gence (FI) and 1nternat1onal terror1sm ( l'l') 1nvest1gat1 ons through 1ssuance of an order from the FISA Court (FISC) Sect1on 186l(a) author1zes the "D1rector of the Federal Bureau of Invest1gat1on or a des1gnec of the Ducector (whose rank shall be no lower than Ass1stant Spec1al Agent 1n Charge)" to make an appl1cat•on for the order.

'l'hus, as perm1tted by ~0 US C. ~ 18.6l(a), I hereby des1gnate certlflcation signature authority for appl1cations for FISA bus1ncss records to the fol1ow1ng FBI Offoc1als:

1. The Deputy D1rector,

2. The Execut1ve Ass1stant D1rector for Counterterror1sm/Coun ter1nte llJ_gence 1

3 'l'he Ass1stant D1rector and all Deputy Ass1stant D1rectors of the Cou~tertcrrorlSID, Counterintelligence, and Cyber DlVlSlons, and

4 ThG General Counsel, the Deputy General Counsel for National Sccur1ty Affa1rs, and the Senior Counsel for Natlonal Securlty Affairs.

H3F.BD) 1l! T.JCl
J..,..,_:J!: cu-u; ;:oJ4

Patriot Act II- 254

------------- ---------··---

To All DlVlstons From· Office of lhe General Counsel Re· 66F-HQ Al431182, 10/10/2003
'l'he Nat1onal Secur1ty Law Branch lS hereby author1zed to prepare bus1-ness record appl1cat1ons and Wlll 1ssue guidance on the application process. ALL INFORMATION CONTAINED HEREIN IS UNCLASSIFIED
DATE 06-04-2004 BY 65179 dmh/bcejamw '
2 Patriot Act II- 255

To. All Divis1ons From Off1ce of the General Counsel Re: 66F-HQ-Al43ll82, 10/10/2003 LEAD: Set Lead 1: (adm)
ALL RECEIVING OFFICES
Dtssem1nate to personnel lnvolved 1n CI and IT operat.1ons and to other personnel as appropr1ate.
ALL INFORMATION CONTAINED HEREIN IS UNCLASSIRED DATE 06-04-2004 BY 65179 dmh/bce/amw
3
Patriot Act II-256

 
 Memorandum
To
OIPR

b6 -1 _ _ _ _ __

llF: -1

Date 10 I l S /2 0 0 3

1
'
•"

From
NSLB

b!C -1

SubjeCt

50 USC 1861 Business Onler App1Jcatron

Allached please frnd an Applrcallon for an 1861 Order

rt for
I lhe

flllng Court

Wl for

th F

the Co rlday' s

usrets.~:avovne

would llke to g. (NSLB aLtorney_

J t 2 P front of

L-~:-;:-:~':""""7":~will be ln Cour:. on Fr2day and she lS very famll2arb6 ··1

I I I wlth the Applrcatron.
Please call me

should the Court have any guest1ons.)

or Valerre Caprorn

lrf you

bF-. - 1

have any questions Thanks

b:~ ··1

Patriot Act Il-281

 
 FEDERAL BUREAU OF INVESTIGATION

Precedence: IMMEDIATE

Date: 10/29/2 00 3

To: All Field Offices Counterterror1sm Counterintelligence

Attn:

ADIC;
SAC;
CDC CI/CT Supervisors AD Pistole, DADs; Section Chiefs AD Szady;
DADs; Sect1on Chiefs

bC -J

From: General Counsel

App,roved

Nat1onal
Contact: By: Capr

SIeLq-1-r1--t-y--L-a-w--U~n-1-t ---R-o-p-m-l-----------~
oni Valer1e E~ bG -J

b7~~· -1

b~!C.: -1

Drafted By: ~----------------Jbik

hC -1

Case ID #:

66F-HQ-Al431182

r-_\7C' -1

Title: BUSINESS RECORDS ORDERS UNDER 50 U.S.C. § 1861

Synopsis:
service of of the For

Provides
Business eign Inte

l

guidance on the preparation, approval, and Record Orders, Implementing 15 U S.C. §1861 ligence SurveJ.l1ance Act (Fl.SA), as amended

by the 2001 USA Patr1ot Act.

Reference:

66F~HQ-A1431182

Enclosure(s): Model Busnwss Records Order Form and Instruction Sheet

Dss1ceneovvtpceae=rialssotll:fgsa1itnP1govunnbelfssl11t1ccgOaLannatetw1vpo1erfo07tvteh-lc5eshl6on,pn1rotsqhvuew1essiU1thSoaAnvrsaeP1swalpaatebsrciloetthtetionAecenxtx,appta1acnnoosdnnio1taannl1gnoseetfhdceut_rh1e ty scope of bus1ness records that may be obta1ned from ar. order issued by the FISA Court (F'lSC)

1. Introduction to Procuring Business Records

Pr1or to 1998, there was no provJSlon ln FISA nor any

oth bus
~l1e

er stotutory 1ncss recor-ds
telephone, f

prov·1 Slon for a na
1nanc1al,

t

that autho ional secJ and crcd1L

rized rJty
Info

the FBJ to obta1n JnvesL-lgatlon othe rmation ava1lable

r

t.han

.:,I_ I. _f 'd"•~·r.;Ji .'i-T C''' (--,N- -~- T_-,; l\-
fifJf'_Jn\' l~ "r<CL-".:':;':j_ ·_:1:!:.,'

Patriot Act II-360

To. All F1eld Off1ces From. General Counsel Re 66F-HQ-A1431182, 10/29/2003

through national security letters. In 1998, FISA was amended to

authorize an appllcation to the FISC to procure certain limited

types of bus1ness records, namely, those of a common carrier,

publlc accommodation facillty, physical storage facility, vehJcle rental facility. Further, the amendment provided

or that

the appllcant must establish "specif1c and art1culable facts

g1v1ng reason to bel1eve that the person Co whom the records

pertain 1s a fore1gn power or an agent of a fore1gn power," 1n

addi t1on to the requirement that the 1nformation is •1 sought for"

a fore1gn 1ntelligence or 1nt..ernat1onal terrorism invest1gat1on.

The 2001 Patrlot Act expanded the scope of buslness

records that are ava1lable pursuant we can obta1n "any tangible things

to a FISC order. (1nclud1ng books,

currently, records,

papers, documents, and other 1temsl for an investigation to

protect against 1nternat1onal terr intell1gence activ1ties, provided United States person [USP] is not

orism or clandest1ne that such investigation
conducted solely upon th

of e

a bas

is

of activities protected by the first amendment to the

Constitut1on." Further, the Patriot Act requirement for a bus1ness record order

eliminated the that the person

to whom

the documents pertain is a foreign power or agent of a fore1gn

power, just as 1t eliminated siiDllar security letters and pen registers.

criteria for national Thus, the requJrements

for

a

FISC bus1ness record pen reg1ster order.

order are very Basically, the

s1milar records

to those for a must be sought

FISC for an

investlgation author1zed under the Attorney General Guidel1nes

for FBI Foreign Intelllgence Collect1on and Counteru1telligence Investo.gat1ons (FCIG)

Fore1gn ConsistQnt

w1th

that

requ1rement, H1t.ell1gence

the 1nvest1.gation must be to lnformation not concernlng a

obta1n USP or

forelgn to protect

against 1nternational terror1sm or clandestine 1ntelligence act1v1t1es. The 1nvest1gation, 1f of a USP, cannot be solely

based upon F1.rst Amendment actlVJ.tles

'l'he bus1.ness records statute, 50 U.S.C §1861, illso

prov1des that upon subm1Ss1on to the FISC of an appl1cat1on

cerL1fy:tng that. the request f:t t_s statute, the FISC shal] lSsue an

WlLhln the parameters of ex parte order approv~ng

the the

release o[ the records l[ the court f1nds that the application

rneets th0 requ1rem not d1sclose that

cnt J.t

.s of was

th 1ss

e ue

statu d for

te. pur

The poses

ex part of an

.

e o:cder may author1zed

1nvestJgat1on served may not

Moreover, the person dJ_sclose to any other

upon whom the person, other

order ls than those

persons necessary to produce the tang1ble th1ngs, t.hat the FBl

hus sought or obLalrH~d the records

At· the preser1l t.J.me, a busJr1ess r-ecoTd re:quest can only De sought [or a tull f1eld J.nvesLtgatlon, lnasm1ch cts the statute

2 ALL INFORMATION CONTAINED HEREIN
IS UNCLASSIFIED DATE 06-04-2004
BY 65179 dmh/bcejamw

Patriot Act II-361

To All F1eld Off1ces From: General Counsel Re 66F-HQ-Al4 31182, 10/29/2003
.... requires that the request pertain to an "author1zed
investigation," not an inquiry. However, DOJ policy may be rev1sed in the near future Lo allow the use of a FISC business records order in a prel1m1nary 1nvestigation. If a new policy is adopted concern1ng the availability of a FISC business records order, th1s guidance w1ll be appropr1ately amended. In the meant1me, agents are adv1sed that they can only obta1n a FISC bus1ness record order 1n a full fleld 1nvest1gat1on.
The bus1ness records request 1s not l1rruted to the records of the target of a full 1nvest1gat1on. The request must simply be sought for a full 1nvestigat1on. Thus, 1f the business records relating to one person are relevant to the full 1nvestigation of another person, those records can be obta1ned by a FISC order desp1te the fact that there is no open investigation of the person to whom the subject of the business records pertain.
One further caveat needs to be noted. Wh1le the statute, on its face, does not l1m1t the nature of the business records we can seek, there 1s a legal question as to whether tax records and educational records, wh1ch are the subJect of separate statutes, are obta1nable under the bus1ness record prov1s1on of the law. Thus, please submit such requests b1ow1ng that court orders may not be obtained as read1ly as with othe1~ types of requests. 1 Further, 1n light of the constitutional 1mplicat1ons of requests for records from l1braries, please note that such requests w1ll be subJect Lo strict scrut1ny to assure that they fully comply w1th the const1tut1on and all appl1cable statutes.
~Process of Obtaining Business Records
The f1rst step 1n the process of obta1n1ng bus1ness records 1S to complete the Bus1ness Records Form, attached herein

1fl.s may be apparent, certain bank records and toJ 1 b1lllng records are obta.inable through NSLs so those records should notbe sought by bus1ness records requests, although records from f:Jnanc1a1 LnsLltUtlons and tclecommunlcatlons compan1es t:.haL are not Wl Lh1.n the parameters ot NSLs may be sought. Cred1 t reports, on the olher hand, are completely outs1de the scope of ~.he
buc;lness records statute, slnce statutory provlslon already ex1st~s to obtcnn Lhem 1n all lnteJl-lgence cases, e:!_tber by an NSL (1n IT cases, per 15 1J S C §168lv) or by cour:: order (ln IT a::1d
CI cases, per 15 (J S C §1681.u(c))

ALL I~JFORMATION CONTAINED HEREIN IS tlNCLASSIFIED

DATE 06-04-2004 BY 65179 dmh/bce/amw

Patriot Act Il-362

To All F1eld Off1ces From General Counsel Re: 66F-HQ- A1431182, 10/29/2003

to this EC. The form requests inforrnat1on requ1red under the law as well as information needed for administrative purposes.
A. General Information The form requires that the party request1ng the business records identify the target of the full 1nvest1gation for wh1ch the records are sought, the f1le number, and the date the full 1nvestigation was opened. Note that because the bus1ness record request may soon be available 1n preliminary 1nvest1gat•ons, the provis1ons that reference a full 1nvest>gat1on also 1nclude the caveat that a prelim1nary 1nvcst1gat•on may soon be 1ncluded. Note also that the target of the 1nvest1gation does not have to be the subject of the request. Other admin1strative provisions relate to the ident1ty of the field of orig1n, the case agent, and the headquarters SSA. Informat1on is also requested concerning the status of the target of the investigation, and, 1f the subject of the request is d1fferent from the target of the 1nvestigation, the status of the subject. ~~Basis of Request for Tangible Things
Thereafter, the form provides for the request1ng party to g~ve a descript1on of the bus1ness records or other tangible obJects that are sought, why the request1ng party bel1eves the records are 1n the possession of the custodian to whom the request 1s d1rected, and whether the originals of the records are sought or whether cop1es will suff1ce. Note that 1f you request cop1es, the order served upon the custod1an will mandate that he/she ma1nta1n the originals of the records for two years unless not1f1ed by the FBI that earl1er destruct1on lS perm1ssible
In order to JUStlfy the request, the requesting party must then descrlbe the >nvestigatlOD for which the business records are sought and the manner 1n wh1ch 1t lS expected that the records Wlll prov1de fore1gn lntellJgence 1nformation of value to the 1nvest1gatlon.
~.!__ Seryj.ce of th.e Order 'l'hc reque.st_ i..ng part.y must prov1de t~he nu.me, addr~ess, Lltle, and telephone number of the custodlan of records upon whom to serve the order
D. Field Office Approval ALL INFORMATION CONTAINED HEREIN

IS UNCLASSIFIED DATE 06·04-2004 4 BY 65179 dmh/bce;amw

Patriot Act 11-363

To: All Field Off1ces From: General Counsel Re 66F-HQ-Al431182, 10/29/2003

The Bus1ness Records Form must be approved by the SSA, CDC, and SAC (or program ASAC) at the field level.
E. Cover EC to Headquarters
The Business Record Form should be transmitted to headquarters v1a a cover EC to NSLB requesting that 1t prepare the appl1cat1on and proposed FISC order and present the package to the FISC A copy of the Bus1ness Record Form should also be sent to the substantive headquarters unit and to the FISA unit.
3. NSLB Preparation of Application and Order
NSLB w1ll review the business records request and, assuming it meets the requirements of the law, w1ll prepare an application and proposed order' to be transmitted to the FISC. We expect that such an appl1cation and proposed order can be prepared w1thin a few days of NSLB's receipt of the business records request form,
Approval authority for the appl1cat1on 1s housed at headquarters. On October 10, 2003, the authority to approve the appl1cat1on was delegated by the Director to the Deputy D1rector, the Executive Assistant Director for Counterterrorlsm/Counterlntelligence, the Ass1stant D1rector and all Deputy Ass1stant D1rectors of the Counterterror1sm, Counter1ntell1gence, and Cyber D1visions, the General Counsel, the Deputy General Counsel for Nat1onal Security Affairs, and the Sen1or Counsel for Nat1onal Secur1ty Affairs. It is expected that, unless ava1labJl1ty becomes a problem, the appl1cation w1ll be s1gned by attorneys w1th1n the General Counsel's off1ce 3

'At this point, it has not yet been determ1ned whether there w1ll be a s1ngle order 1ssued by the FISC, equ1valent to the secondary order(s) assoc1ated w1th FISA electron1c survel]lance process, w1th the bus1ness as the reclplent, or whether there w1ll also be a pr1mary order lssued by the FISC But such issues are of no consequence t.o the tleld.
3S1nce th1s wlll mark the flrst tlme that the bus1ness record procedure has been used, 1t was determlned that approval au thorl ty shou 1d rema1n at_ headquarters 1n the llll t1al stages. Once a rout1ne pract.c ce has belen establ1shed and any problems or ~.ssues have been resolved, conslderatJon w1ll be g1ven to de] ega t J ng t h~ app:coval auLhor.1 ty to the f1eld. However, the practlcal effects of such delegat1on may be m1n11nal, Jnasmuch as
ALL INFORMATIN CONTAINED HEREIN 5

IS UNCLASSIFIED DATE 06-04-2004

BY 65179 dmh/bcejamw

Patriot Act II- 364

To. All Freld Offices From: General Counsel Re· 66F-HQ-Al431182, 10/29/2003

Once the application and proposed order have been prepared, they will be presented to the FISC by an attorney either from OGC or from OIPR. Unless there is reason to do otherwise, the applicatron and proposed order will be presented at the FISC's regularly scheduled Friday hearings.

Upon srgnature by the FISC Judge, a conformed copy of the order (a copy with an offrcral marking by the FISC Clerk attestlng that lt is a true and correct copy of the originaJ document) wrll be forwarded to the FISA Unit at headquarters. Thereafter, FISA Unrt wrll emarl a copy of the conformed copy of the order to the appropriate freld offrce for service and to tlle case agent (r.e., the pornt of contact on the order). Tlle case
agent and freld office should receive the email withrn several days of the signing of the order.'

CONCLUSION

Any questrons about the business records process should

be addressed to Office of General Counsel, Assistant General

L·S -l

Counsel

at!.__ _ _ _ _ ___,

the applrcation must be made to the FISC and attcorneys from OGC and/or OIPR, of necessity, wrll need to shepherd the paperwork through the process, regardless of who srgns the application
~'e expect that the process currently used wrth regard to FISC orders wrll also apply in the future to busrness records orders That rs, per suggested Court procedures (although practrce often differs), the FISA Unrt should recerve the conformed copy of FISC orders Wlthin a day or two of their srgnrng Once received by the FISA Unit, the Unrt scans the orders and emails them to the appropriate offrce within 24 hours While rec1pJ ent.s of FISC orders to daLe generally have not_ required the or1g1nal of the signed document, it 1s poss1ble that Lhe rec1p1ent of the bus1ness record order, l1kely an ent1ty t_hat never heard uf the FlSC, much less a FISC order, Wlll requJ~ re the or1g1naJ of the s1gned order In that event, arrangements \•JJ 11 neP.d to be made w1 th the FISA Un1 t to procure t}Je orlQl ni::l.l of t:.he order Further, 1 f 1L 1s necessary for the off1ce servlng t.he bus1ness record order to rece1ve the document sooner Lhan set forth above. 1 e , 1t there 1s d need for a ''walkaway" copy, arrangements vnlJ need to be made w1th the Clerk of the FlSC well ahead of the S1Qn1ng

ALL INFORMATION CONTAINED HEREIN IS 6

UNCLASSIFIED DATE
dmh/bcejamw

06-04-2004 BY 65179

Patriot Act II- 365

To All Field Offlces From General Counsel Re: 66F-HQ-A1431182, 10/29/2003
LEAD(s):
Set Lead 1: (Adrn) ALL RECEIVING OFFICES Distribute to all supervisory personnel involved
lTI the investlgation of counterlnt..e1J J gence and counterterrorJ_srn cases.
ALL INFORMATION CONTAINED HEREIN IS UNCLASSIFIED DATE 06-04-2004 BY 65179
dmh/bcejamw
7
Patriot Act II- 366

 
  
 ..

FEDERAL BUREAU OF INVESTIGATION

Pr ecedence: I MMEDIATE

Date• ll/28/2001

To• All Fie ld Offices
COunterterror i.sm
Nation~l Security

Attn z

A.DIC;
SAC; CDC FCI/IT Supervisors
AD Watson ;
OAOs; Sec t ion Chiefs
AD Gallagher;
DADs;
Sect i on Chie fs

Fro.m1 General Counsel
CNaotnitoancat;l LrS:e:c:u:r:i:t:y::L:a:w:U::n:i:t~, :R:· :oo:m::':9:1:5:::::J

Approved By: MUel!er Robert s ICI

Pickard Thomas J

b7C

Parki nson Larry R

!lowman M E

I Draft ed By r

mj "'

L------....1 R Jr ' jrl

Case ID f• 66F•HQ•Al255972

Ti tle• NATIONAL SECURITY LETTER 1-IA'l'TERS

Synopaia: Provides guidance on the preparationt approval~ and service of National Security Letters (NSLs ) .

Refe rence • 6oF· HQ·A1255972 Serial 15

En c l o s u r e ( s ) z

l) Subscribe r Information NSL Model 2 ) Toll Billing Records NSL Model
3) Elect roni c Subscriber Information NSL Model 4) Electronic Communi cation Transactional Records
NSL Mode l 5) Financial Recor<ls NSL Model
6) tdentity of Fi nanci al lnsoituoions NSL Model 7) Consumer Identifying Into rma t ion NSL Model 8) Subscriber/Electronic Subscriber (~C) Model 9) Toll/Transactional Records EC Model 10) Pinancial Records sc Model 11) Financial Inst i tutions/Conaurner Ident ity BC
Model 12) ECPA NSL Checkl is t 1)} RFPA NSL Checklis t

..
~o:
Re'

Al l Field Off i eea From: C~ncral Counsel
66P · HQ · Al255972, ll/28/2001

14 ) FCRA NSL Checklist Details: I~ the referenced communication, dated ll/09/2001, t he Dir·ecto:r of the FBI delegated the authority to certify NSLs to the following officials' (1) the Deputy Director; (21 The
Assist ant Directors (ADs) and all Deputy Assistant Directors (DADs) of the Counterterrorism Divi sion (CTD) and the National
Security Division (NSO}; (3} the General Cou nsel and t he Deputy
G~neral Counsel tor Nationa l Security Affairs tDGC). Office of
the General cou.nseJ. (OGC); (4) the Assist ant Director i n Charge (ADIC) . and all Special r.gent s i n Charge (SACs ) , of t he New York,
Washing·ton, O.C., and Loa Angeles field divisions; and (5) the
SACs in all other field divisions. The purpose of this electronic communi cation is co provide comprehensive guidance on the preparation, approval. and aerv ice of NSLs.

l. introduction to National Securit¥ Letters

NSLs arc admini strative subpoenas that c.a.n be used to obta i n

several types o£ records . There are three types of NSLs. Fi rst,

pursu~nt
u.s .c. §

to the Electronic Communi cat i ons Privacy Act (SC?A) 1
2709. the FBI can i ssue NSLs for' (l ) telephone

18

subscriber information {limited to name, addreas. and length of

service); (2) t elephone local and long distance ~oll bil l ing

records; and (3) electroni c conutnlnication t- r ansactional recor:ds .

second, pursuant to the R.ight to Financi al Privacy Act f RFPA) , 12

u.s.c. § 3414(al (5) , the <BI can issue NSLs to obtain fi nanc i al

records fr,om banka and other fi nanci al i nstitutions . Fi nal ly,

pursuant to the Fair Creait Reporting l\ct ( f'CRA), 15 u .s. c . §

l68lu. the FBI can issue NSLs to obtain consumer identifyi ng

information and the identity of financial institutions from

credit bureaus.

NSLs a4e tools available in investigations conducted under t he Attorney Gene.ral Gu i delines for FBI Foreign Intell i gence Collection and Foreign Counterintelligence Investigations {FClG) . The FCIG currently provide that an NSL can be issued during the
course of El full inte-rnntional terrorism or fore ign counterintelligence investigation. NSLs cannot be used in criminal investigations unrelated to international terrorism or clandestine intelligence activities. Given the new statutory language, t he OGC and OOJ have taken the position that NSLs also may be authorized in foreign counterintelligence (FCI} and international t errorism <IT) preliminary inquiries {Pis) , with
prior coordination through the relevant NSD or CTD unit at PS!~Q . This position is based on the conclusion thac all investigations authorized under the FCIG, includi J\9 Pi s. are to ¥protect against international terrorism or c l andestine intelligence ac~ivities. " as required by the NSL statutory authorities. At present,
hO\\·evet', ! sau t ng an NSL i n t he <;:Ont:ext o f a PI wil l requi r e a

2

. .
To: Re'

. .~
All Field Offl~es From: General counsel 66F·HQ·Al2SS972. 11/28/2001

waiver or modificati on of the FCIG. Obtaining such a waiver currently is possible onl y in internat ional terrorism cases. The FClG ~re b~ing revised. but this revision may take some time. Thus, whenever the information sought i s relevant to an established full investigation. the field likely will find it more efficient to issue an NSL out of the related full investigation than to request one i n a PI.
2. General Policy on the use of NSL Authorit~
NSLs are powerful investigative tools, i n that they can compel the production of substantial amounts of relevant i nformation. However, tbey must be used judi ciously. The u~ PATR IOT Act g reatly broadened the FBI's authority to gather thi s i nformation. However, the provisions of the A.ct relating to NSI~s are subject to a • sunset" provi sion that cal l s for the expiration of those pxovislons in four years. !n deciding whether or not to re - authorize the broadened authority, Congress certainly wil l examine the manner in which the PBI exercised it. Executive Order 12333 and t he PCIG r ·equir·o that the FBI accomplish its investig~tiono through the "leaat intrusive 11 means. Supervisors should keep this in mind when deciding whether or not a p~rticular use of NSL authority is appropriate. The greater ~vailability of NSLs does not mean that they should be used in every case .
In addit-ion, the removal of any requirement for F.BIHQ coordination in the i ssuing of NSLs c reates the possibility of duplicate requests for the same information by differenc field offic,es . Pield offices must take steps to avoi d this. In particular, the f ield should check FBI databases (ACS. Telephone Application, etc.) and open sources to see if the information sought has already been obtained by t he f•at or whether it is publically available . This is part i cularly important when consi dering issuing NSLS for telephone or electronic communications data under the Electronic Communications Privacy Act (ECPAJ . Unlike the criminal authorities in ECPI\, the NSL authority does not require the government to reimburse carriers or Internet Service Providers {ISPs) for the coet of producing the requested i nformation. A dramatic iocreaqe in dupl icate NSl1a wi ll only oitugment: ex i sting pressure to requi r e governmental
reimbursement .
Individual field offices have the responsibilit y for establishing and enforcing an appropriate review and approval process for the use of NSL authorities.

3

' ".

.-.

To: All Pi.eld Offict~ta From: Gene:ral Counsel

Re' 66F·H0· Al2S5972, 11/28/2001

3. Th~ Mecbanics of Producing NSL§
For all types of NSLS, the issuing office needs to prepar o two documen~s' (l} the NSL itself; and (2} an EC approvi ng toe NSL and documencing the predicati on. Model NSLs and ECs for all variations of t he three types of NSLs are included as attachments to this contnunication. Thes~ materi als will also be placed on the NSLU Intranet Website and wi ll be di~tributed by GroupWise e· mail. once the initial implementation of these new authorities is accompli~hed , NSLU will work to develop a macro or form to fu~ther streamline the NSL process.
l\. The NSL
There are presently seven variations of the three NSL types: 1} subscri ber information; 2) toll bill i ng records; J) electronic subscriber info~ation; 4) electronic comrr~nication ~ransactionai records; 5) financial records; 6) identity of financial i nstitut iomJ: and 7) consumer i dentifying information . This section wi l:. discuss the features that these variations share in common and highlight the differences.
All NSI~s must be addressed to an appropriate company point of contac~ . NSLU wi ll place a list of known points of contact on its intranet website. However. the respons i bility for ensuring that the company point of contact is up to date belongs to the drafting field divis ion. Pield divisions should advi se NS~U of any new points of contact, or when a particular point of contact is no longe~ valid . Please note that the company point of contact addt:ess does not include a zip code, because NSL:S must be
hand~dolivered.
The first par.ngraph of every NSL provides the appropriate statutory authority for the request, identifies the types of records requested, and provides available identifying informati on so that the company can process the NSL request. It ia this first paragraph that contains the differences that warrant t he seven NSL varieties.
Subscriber and electronic subscriber NSLs should have a specific date for each of ~he phone numbers/e-mail addresses requested. Typically, the specific date is going to be the date that the phcme number or e-mail address was used in communicacion wi t h the subject of the investigation. Any phone numbers identified in a subsc~lber request should contai n all ten digits of the phone number. including the area code.
Toll bil ling record and electronic communicati.on transactional record requests should have a range of dates for
4

•

.. ..

. .~

To : Ul Field Off:.....es ~·rom: General Counsel

Re' 66r'-HQ-AU55972, ll/28/2001

each of the phone numbers/ e - mail addresse s requested. The date range may be from inception to present. or nome other specified date range relevant to the invest igation. Any phone numbers i dentified in a toll billing record request should contain all ten d igits ~f the phone number, i nc l uding the area code .
Financial record requesta should include all available i dent ifying informatioo to facilitate the financi a l institut ion •s records search. Typically. such identifyi ng i nformat i on includes: name, account number s. social securit y number, a nd
da te of birth . The c.ime period f or f i nanc ia l reco rd r eq·uest.s i s typically from incept ion of account(s} to present, although a more specific date range may be used.
Cred it record requests are s imilar to financial requests in t hat they Should i ncl ude avai labl e identifyi ng information to f acil i tate t he credi t agency's records search . ~ypically, suc h identifyi ng i n formati on incl udes: name. social security number. and date of birth. There is no need to specify a date range for credit reco~d requests because these requesta seek all records where t he consumer mainta i ns or has ~aintained an account.
The se:ond paragraph of every NS~ contains the statut orily r equired cert i fication language. The certif i cation language is virtually i dentical for every NSL. However, ploasc note thae the cer t i f i cat ion language used in the financial records NSLe is slightly d if ferent than the others i n that i t ~tates "the records are sought fot: foreign counteri ntell i gence purposes . . . . .. Pinanc i al record$ also contain an addi t ional cert ifica tion that the FBI has complied wi th a ll applicable provi sions of t he RFPA. Use of the model NSLs ••ill ensure that the proper certi fi cations are rr,.ade .
The next paragraph contains an admoni t ion f or the phone company, ISP, financial i nstitution , or credit agency rec~iving the NSL. T.he paragraph warns t hat no office~: , employee , or agent of the company may discl ose that the FBI has sought or obtai ned access to the requested information or records.
The last substantive paragraph instructs the company point of contact to provide the records personally to a representative of the del ivering field divisi on. It alao states that any quest ions should be directed to the del i vering fiel d division . Thi s last paragraph requires the person p reparing the NSL to input the appropriate delivering field division in t wo places .
The model NSLs for financial records and elect~onic communication transactional records each have a separate attachment. These attachments provide examples of informati on
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To : Al l Field Offices Prom: Genor~l Counocl
Re: 66P-HO•Al255~72 , 11/28/2001
which the company ~ght consider ~o be financial or electronic communication eransactional records.
P1n3lly , the NSL is an unclassi!ied document because ic does
not detail the specific relevance ot the requested records to a.n
authorized PBl inv~stigation. There ie no need to classify the NSL wh~n atteching it to the cover EC.
B. 7he Cover EC The Cover sc serves fo~r essential tunctions in the NSL
proce••: Cl) it documents the predication tor the NSL by
recording ~hy the information sought ie relevant to an invoatigation; (2t it documents the approval of the NSL by relevant o~perviaore and th~ legal ~eviow of the document; (3) it contains t~e i nformat i on needed to fulf!ll the Congress i onal reporting requirements for each type of NSL; and ( t) it transmits the NSL to the requooting squad or delivering field d i vision for delivery to the appropriate telecommunic~t ionu c ar·rier, lSP, f1nancia l inetitucion, or cr~dit agency . There are four
varieties ot model eca provided with this communication: Cl)
subscriber/electronic subscriber informat ion; (2) toll billing/ele-ctronic cor.T!tWlication tr•neactional records; (3)
financial records; and (4 ) credit 1nto~tion. When preparing en
NSL requeat, the fi~ld should use one of the se model ECs, giving special consideration ~o the e lements diecuaeed ~n th~s section.
1) Field Descriptors Th is oect1on wi ll general ly exp lain how moat of the EC Eield descriptoru should be completed . The "Precedence• descriptor will typicltlly be "ROUTINe. w The •oate " deacriptor s hould reflect tho date the NSL and the BC were approved. The "To" descriptor will always include "General Counael" and the requeating aquad 'a fiald division. It may alao include the name
ot t he del i vering field divisi on (alwaya Loa Angeles i n the caoe
of FCRA NSLs ) and the office of origin, if applicabl e. The "Attn~ descriptor ahould include thG na~ o f tho Chiet. NSLU. and tho oquad a~erviaors and case agents from the requesting squad, deliver1ng field division, and office of origin, if applicable and it known. The credit model EC i dent ities the PBI personnel ~~rking on Squad 4, santa Ana RA , who are currently reaponsiblc for the serviee of PCRA KSLs . The •pr~~ deacriptor should identify the certifying official's field divis ion, end include the title of the certifying official. The •contact• descriptor should reflect the name and phone nu~r o f the requesting s~C case agent. The •nrat~ed By• descriptor s hould reflect the name of the penon who prepared the NSL pack.age. The •case ID 1• descrtptor ~ contai~ the case fi le number relevant to the
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to, All Field Offi-~s From, General counsel
Re' 66P· HO·A12559?2, 11/28/2001
request, and the ca$e file numbers indicated in the model EC. The •Titleu descriptor should list tbe subject's name, any known aliases, whether the investigation is an FCI or IT investigation directed at a particular foreign powar, and identify the office of origin, e.g., HILLIAM 8ADGl1Y, AKA BILL BADGUY, l'CI · IRAQ, OQ, NSW YORK. The "Synopsis~ descriptor should use the standard boilerplate contained in the appropriate model BC. 'l"he "Derived Prom" descriptor should be 1'0-3" in bold typeface, 'the "Declassify OD" descriptor should be "Xl• in bold typeface. t:he wFull Investigation IDetituted• descriptor should contain the date the full FCI or IT investigation waa opened on the subject a.nd indicate whether the subject ia a u.s. person. Please ·note that the word "Field" has been deleted from the field descriptor contained in the 8t:andard EC macro. In the unlik·ely event that an NSL is issued during a PI with pri or PBIRQ approval, the f i eld descriptor should be edited to state ' Preliminary Inquiry Ioatituted. • The remaining descriptors can be filled i n according to the model SC being used.
2) Predicat ion and Relevance
The USA PATRIOT Act has greatly simpl i fied the NSL process. The FSl off icia l authorizing the issuance of an NSL is no longer requi't'ed to cert i fy that there- are specific and articulable facts giving reason to believe that the information sought pertains to a foreign power, or an agent of a foreisn power. NSLs may now be issued upon a certification of relevance to an authOl:'ized investigation to protect againet international terrorism or cl~ndestine intelligence activities.
Accordingly, the first paragraph in the uoetai ls" section of the EC should contain the predication for the full i nvest igation and identify the relevance of the requested records to the investigation. Both the predication and relevance should be stated clearly and concisely. The predication shoul d track with the predicates contained in PCIG, Section III.C. l . For example, the predicati on might state. "A f ull foreign counterintelligence i nvestigation of eubject, a Non·U.S. person, was authorized in accordance wi th the Attorney General Guidelines because he may be a suspected i ntelligence officet' for the Government of Iraq." Anothar example might etate, "A full international terrorism investigation of subject, a O.S. person; was authorized in accordance with the Attorney General Guidelines because he may be angaged in international terrorism activities by raising funds for HAMAS."
The relovanco requirement · ties the requested records to the appropriate full investigation. For example, relevance could be e&tablisheC by stating, ~This subscriber i nformation is being
7

•. to: All Field Off . ~es From: General Counsel
Re' 66F·HQ·Al255972. ll/28/2001
requested to dccermine the individualu or entities that the subject hae been in contact with during the past six months." Another example might state, PThe subject'S financial records are being requested to determine his involvement in possible MAMAS fuf'ld raising activities."
3) Approval
the second paragraph in the "Detai ls•· section and the "Approved ey• descriptor field of the EC should reflect the level of the official approving the ia9uance of the EC and s igning t he NSL's certification, Prior to certification, every NS~ and cover EC issued ty the field division should be reviewed by the squad supervisor. the Office of the Chief Division Counsel, and the ASAC. Lawyers reviewing NSL packages should use the checklists
provided with this communication to ensure legal sufficiency. The last step in the approval process occurs when the certifying official {Deputy Director, ADs~ General Counsel, ADICs, DADs, OGC, or SACs) personally aigns the NSL and initials the BC . Certifying officials may not further delegate signature authority.
4) Report ing Requi re~~nts
NSLU "'ill continue to prepare the mandatory reports to Congress required for each NSL type. To ensure that NSLU rec.eives sufficient information to prepare these reports, it ie: critical that the person preparing the NSL package follow the NSL and EC models very carefully . The second lead i n every model EC requests N~LU co "record the appropriate information needed t o fulfill the con9ressional reporting requirements for NS~s.• NSLU will be able to compile the reporting data provided that the cover EC ir.cludes the case file number. the subject's u.s. person status, the type of NSL issued, and the number of phone numbers. e-mail addresses, account numbe~s. or i ndividual records being requested in the NSL. once NSLlJ has ente~red this reporting data into its NSL database, it wil l clear the lead set in the cover EC .
~) Tran&mittal
Often, the equ~d requesting the NSL will be able to handcarry the NSL locally to the appropriate company point of cont4et. However, in many situations, the field division drafting the NSL will have to get it delivered by another field d ivision. In theee situations, the drafting division should Attempt to identify the squo.d and personnel at the delive·ring f i eld division who wil l be responsible for delivering the NSL. In the event that the office of origin is different than either
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to, All Field Offices From, Genera l Counsel
Re ' 66F- HQ- A1255972, 11/28/2001

the drafting division or deliveri ng di vision, thG person drafting the NSL package should ensure that the case agent f rom the office of origin recei vea a copy of the package . The first lead in the model ecs a~ould direct the requesting squad or deli vering field division to deliver the attached NSL. If the delivering division is differen~ than the dL-a!ting division or the office of origin,
then this first lead should also request the delivering divisio n to submit the results to the drafting diviAicn and/or the office of origin.

4 . NSL Prc:parat.ion Assistance

SOme f i e ld divisions may, for a variety of reasons , opt r.ot
to exerc i se their delegated authority to issue NSLe. Other field
divisions may exceed their capacity to issue NSLs a nd seek assistance ~n handl ing the overflow. NSLU will continue to process any NSL request that it receives . Field divisions should send their requests directly to NSLU, with i nformat ion copies to
t he FBlHQ substantive unit. Such requests must contai n all the information identified in this communication as necessary to prepare t he NS~ package. NS~~ anticipates that 1t will be able to process euch requests wi thin one to three business days .

r't.,o...._l.,A.._ny

_ _ _ _ _ _ _ _ _ qpt•St f ans reof! rdi pg

_ _ _ this rqrnmuaication
_!_, NSLU, OOC,

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9

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. . To: ~11 Fi~ld Offices From: General coun•el
Re: 66P-HQ•Al255972, 11/28/2001
LJL\1) ( • ) I
Set Lead 11 ( Adm) 1\LL RBCIUVING OPPICBS
O:. atribute!J to all supervi&ory per•onnel involved in the Na~ional Security Letter process .
••
10

 
 Introduction

"What do I have to do to get a FISA?"

This discussion of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1601 et seq.,
("FISA", or "the statute") provides guidance for seeking authorization to conduct electronic surveillance or physical searches for foreign intelligence purposes. In response to the basic question, "What do I have to do to get a FISA?," first, step back and take a look at the big picture. FISA was enacted to provide a statutory procedure for the government to obtain court orders authorizing the use of electronic surveillance in the United States for foreign intelligence purposes. Later, section 807 of the Intelligence Authorization Act for Fiscal Year 1995 (P.L. 103359) amended FISA to authorize the Court to issue warrants for physical searches for foreign intelligence purposes. Accordingly, FISA deals with electronic swveillance and physical searches of foreign powers and their agents. If your purpose is other than the acquisition of foreign intelligence information, as defined by the statute, you're probably in the wrong forum.

Without going into the historical background of FISA in detail, the impetus for its enactment
was largely concern for the privacy rights of U.S. persons, balanced against the government's need to obtain foreign intelligence information. As a result. the statute's treatment of "U.S. persons" and "non-U.S. persons" is different. For example, in considering this legislation, Congress stated that a U.S. person should be confident that his government cannot invade his privacy with the most intrusive techniques if he conducts himself lawfully and that, as a matter qf public policy, no U.S. person should be targeted for electronic surveillance [or physical search] absent some showing that he at least "may" violate the law. On the other hand, surveillance pursuant to FISA is not primarily for the purpose of gathering evidence of a crime, although evidence of a crime may well be acquired in surveilling persons who engage in the types of activities that define them as agents of foreign powers. As a result, FISA explicitly recognizes that evidence of a crime may be acquired in the course of surveillance or search conducted to protect the United States from the clandestine intelligence activities and international terrorist activities of foreign powers and their agents. Prosecution for a criminal offense is one way to combat such activities-- but only one way, and not always the best way. "Doubling" an agent or feeding him false or useless information are other ways. Monitoring him to discover other agents and their tradecraft can be vitally useful. Prosecution, while disabling one known agent. may only mean that the foreign power replaces him with one whom it may take years to discover or who may never be discovered.

With regard to non-U.S. persons who act in the United States in their official capacities, or who are members of international terrorist groups, however, no nexus to criminality is required, and they are defined as agents of foreign powers solely on the basis of their status. In addition, the retention and dissemination of information concerning non~U.S. persons is signficantly less regulated that that of U.S. person information.
The FISA Court

FISA authorizes the government to apply to a special "Foreign Intelligence Surveillance Court" ("FISC" or "FISA court~) for an order approving the use of electronic surveillance or physical search to acquire foreign intelligence information. Pursuant to an October, 2001,
amendment by the USA PATRIOT Act, the FlSA Court is composed of eleven judges designated by the Chief Justice of the United States. Historical!y, the judges were chosen from different
circuits, but the amendment increasing the number of judges from seven to eleven also specified that they come from seven of the judicial circuits and that no fewer than three shall reside within 20 miles of the District of Columbia.

Approval of a FISA application requires a finding by the court that there is probable cause to believe that the target of the proposed surveillance is a "foreign power'' or an "agent of a foreign power," and that the facilities or places at which the surveillance is directed are used or are about to be used by that foreign power or agent of a foreign power. In addition to determining whether there is probable cause to support the application, the Court is also required to find that procedures proposed in the application to regulate the acquisition, retention and dissemination of information concerning U.S. persons meet the definition of "minimization procedures" in section 101 (h) of the statute. Because the showing that the target of the proposed surveillance or search is a ~foreign power" or an "agent of a foreign power," the definitions of these terms are particularly important. Other terms are also Important, Including "internatjonal terrorism," "foreign intelligence information," "electronic surveillance." "physical search" and "United States person," all of which are defined in section 101 or 301 of the statute and will be discussed in detail, infra.
Subsection 1OS(a) of FISA specifies the findings the court must make before he grants an order approving the use of electronic surveillance for foreign intelligence purposes. While the issuance of an order is mandatory if the court finds that aU of the requirements of this section are met, the judge has the discretionary power to modify the order sought, such as with regard to the period of authorization or the minimization procedures to be fallowed. In practice, the FISA Court has found general supervisory powers in this language, and its power to modify minimization procedures has been used as power to influence or control other aspects of investigations. This is essentially what the Court did in its April 22 and May 17 orders in construing discussions between intelligence officials and law enforcement officials about investigative strategies and tactics as "minimization procedures" that required OIPR attendance to ensure that such discussions did not result in and in requiring OIPR be invited to attend.
Probable Cause ...
In general terms, FISA deals with "foreign powers" and "agents of foreign powers," and the fundamental requirement for the Court's granting a FISA application is probable cause to believe that the proposed subject of surveillance or search is a foreign power or an agent thereof. "Foreign power" includes a forelgn government; a faction of a foreign government; a group engaged in international terrorism; a foreign-based political organization; or an entity directed and controlled by a foreign government or governments. An "agent of a foreign power" includes nonresident aliens who act in the United States as officers, members or employees of foreign powers, or who act on behalf of foreign powers that engage in clandestine intelligence activities in the United States contrary to the interests of this country. U.S. persons meet the "agent of a foreign power" criteria if they engage in certain activities for or on behalf of a foreign power which involve, or may involve, certain criminal acts.
Subsection 105(a}(3) provides that in order to issue an order for electronic surveillance, the Court must find that on the basis of the facts submitted by the applicant there is "probable cause" to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power and that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. Subsection 304(a)(3) provides for similar findings with regard to physical search. As to both electronic surveillance and physical searches, no United States person may be considered a foreign power or an agent of a foreign power solely on the basis of activities protected by the First Amendment to the Constitution.
Probable cause in the FISA context is similar to, but not the same as, probable cause in criminal cases. Where a U.S. person is believed to be an agent of a foreign power, there must be probable cause to believe that he is engaged in certain activities, for or on behalf of a foreign power, which activities involve or may involve a violation of U.S. criminal Jaw. The phrase

"involve or may involve" indicates that the showing of [nexus to] criminality does not apply to FISA applications in the same way it does to ordinary criminal cases. As a result, there is no showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes. The activity identified by the government in the FISA context may not yet involve criminality, but if a reasonable person would believe that such activity is likely to lead to illegal activities, that would suffice. In addition, and with respect to the nexus to criminality required by the definitions of "agent of a foreign power," the government need not show probable cause as to each and every element of the crime involved or about to be involved.
The determination as to probable cause to believe that a target is engaging in certain activities, or that an entity is directed and controlled by a foreign government, should take into account the same aspects of reliability of the government's information as in the ordinary criminal context, including the reliability of any informant. the circumstances of the informant's knowledge and the age of the information relied upon. On the other hand, not all of the same strictures with respect to these matters which have developed in the criminal context may be appropriate in the foreign intelligence context. That is, in the criminal context certain rules have developed or may develop for judging reliability of information. FISA does not require that these "rules" necessarily be applied to the probable cause determination. Rather, in judging the reliability of the information presented by the government, look to the totality of the information and consider its reliability on a case~by~case basis.
In 1/finois v. Gates, 462 U.S. 213 (1983), the Supreme Court overruled rigid application of the two~pronged test for the reliability of an informant set forth in Spinelli v United States, 393 U.S 410 (1 969). Spinelli required both knowledge of the source of an informant's information as well as information as to the reliability of a source before his information could used to establish probable cause. Gates acknowledged that it was appropriate to consider such factors as
instructive, but they should not be applied with mathematical precision. As a result, Gates st<;~nds
for a "totalily-of~the-circumstancesn approach.
Also instructive is the case of Brinegar v. United States, 338 U.S. 160 (1949), which noted that probable cause is a factual and practical consideration of everyday life on which reasonable
and prudent men act, not legal technicians. At the same time, probable cause is based on a
presentation of reliable and corroborated facts, not mere suspicion.
Simply put, "probable cause" is reason to believe, based on available facts and circumstances, as well as the logical inferences that can be drawn from them. 1t is detennined by the totality of the facts and circumstances, as viewed from the perspective of a reasonable person. Probable cause probabllity, not certainty, and, thus, is significantly lower than the "proof
beyond a reasonable doubt~ necessary to support a criminal conviction. It is also lower than the
"preponderance of the evidence" required in most civil cases.
NSLU recommends that a field agent seeking a FISA order focus on the object of the
belief required, I.e., the facts and circumstances demonstrating that the target of the proposed search or surveillance Is an agent of a foreign power and that the premises to be surveilled (e.g., telephone) Is used by that agent of a foreign power, rather than on the
quantum of the belief involved. tf you can show that a target Is engaged in certain
activities, and that he is engaged in them for or on behalf of a foreign power, you have won most of the battle.
No U.S. person may be considered an agent of a foreign power based solely on activities protected by the First Amendment to the Constitution. This provision is intended to reinforce the congressional intent that lawful political activities should never be the sole basis for a finding that a U.S. person is a foreign power or an agent thereof. For example, under the Supreme Court's

decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), the advocacy of violence, falling short of inciting violence, is protected by the First Amendment. Thus, advocating the commission of terrorist acts would not, in and of itself, be sufficient to establish probable cause to believe that an individual or group may be preparing to commit such acts. However, one cannot cloak himself in First Amendment immunity where he is engaged in clandestine intelligence activities, terrorism or sabotage. ["The Constitution is not a suicide pact."]
... Probable Cause to Believe What?
To find probable cause to believe the subject of the surveillance is an "agent of a foreign power," as defined in subsection 101{b), the court must find that each and every element of that status exists. If a U.S. person is alleged to be acting on behalf of a foreign entity, the court must first find probable cause to believe that that entity is a "foreign power," as defined in subsection 101(a). There must also be probable cause to believe that the person is acting "for or on behalf or· that foreign power, as well as probable cause to believe that the efforts undertaken by the target on behalf of the foreign power constitute sabotage, international terrorism or clandestine intelligence activities. Similar findings are required for each element necessary to establish that a U.S. person is conspiring with or aiding and abetting someone engaged in sabotage, international terrorism or clandestine intelligence activities.
The Theory of the Case
The development of a "theory of the case" is a good start to the FISA process. That is, before asking FBIHQ for initiation of an application to the FISA Court, the field agent should review the facts of the case to determine which definition of "foreign power" and/or "agent of a foreign power" best matches the information obtained by the investigation to date. For example, if the subject is a U.S. person who is believed to be knowingly engaged in aiding and abetting an international terrorist, focus on facts that show his activities that aid the terrorist, as well as on facts that tend to demonstrate his knowledge that the person he is aiding is an international terrorist and that his activities aid that International terrorist. If the subject is a non-U.S. person who acts in the U.S. as an employee of a foreign government, focus on presenting facts that demonstrate that status. In such a case, a recitation of intelligence activities is not as important as it would be in the case of a U.S. person, as to whom the FBI would have to show facts demonstrating knowing engagement in clandestine intelligence activities.
It is also helpful to articulate the specific foreign intelligence objectives of the proposed surveillance or search. In an espionage case, e.g., your objective may be to determine whom an intelligence officer has targeted for recruitment. Or you may need to know how a government employee is communicating with an intelligence officer who is his handler. Or you may need to determine the identity of a foreign power a spy is working for, how he obtains access to classified information, whether he is working alone or in concert with others and how he passes information to his handler. In an international terrorism case, your objectives may include identifying the members of the terrorist group or identifying their plans and intentions in order to prevent a terrorist attack.
§ 101(b) --Agent of a foreign power
Probably the single most important aspect of the request for a FISA application is showing that the subject to be surveilled or searched is an "agent of a foreign power." The definitions of "agent of a foreign power" differ for U.S. persons and certain non-resident aliens, including aliens present in the United States as tourists, visiting businessmen, exchange visitors, foreign seamen, diplomatic and consular personnel and illegal aliens, etc. The protections afforded such persons are not as great as those afforded U.S. persons. For example, in the case of non-resident aliens

who are agents of foreign powers by virtue of their employment in the U.S. by a foreign government, there need be no nexus to crim'1nality, and the certification that accompan'1es the application is not subject to judicial review. In addition. there is no requirement to minimize the acquisition, retention and dissemination of information with respect to non-U.S. persons.
§ 101(b){1) --Non-U.S. Persons Who Are Agents of a Foreign Power by Virlue of Status
Subsection 101(b)(1 )(A) includes in its definition of "agent of a foreign power" non-U.S. persons who act in the United States as officers, employees or members of a foreign power. The most obvious examples are diplomats and consular officials. Their very presence is attributable to their status as employees of their governments, and their raison d'etre is to act for or on behalf their governments. The legislative history of FISA points out that Congress considers nonresident aliens who act in the United States as officers, employees or members of a foreign power as likely sources of foreign intelligence or counterintelligence information. This definition does not include persons who serve as officers or employees or are members of a foreign power in their home country, but who do not act in that capacjty in the United States.
"Employee" is meant to describe a normal employee-employer relationship. It does not encompass foreign visitors such as professors, lecturers, exchange students, performers or athletes, even if in such capacity they are receiving remuneration or expenses from their home government.
The term "member" means an active, knowing member of a group or organization that is a foreign power.ll does not include mere sympathizers, fellow-travelers or persons who have merely attended meetings of the group or organization. On the other hand, if a person has received terrorist training from a group engaged in international terrorism or training in intelligence tradecraft from a foreign organization, this would be substantial evidence that he was a "member" of such an entity.
Unlike foreign officials, members of international terrorist groups do not carry membership cards as evidence of their status. They do not have visas or credentials identifying them as "members" of an IT group or organization. As a result, their status as members of a group or organization engaged in international terrorism is inferred from their activities.
The second non-U.S. person definition is the so-called "visitor rule." It includes a non-U.S. person who-
acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engaged in such activities.
This definition does not require a showing that the foreign visitor is in fact engaged in clandestine intelligence activities. As a practical matter, if a foreign visitor who does not have a track record of activities in the United States is present in the U.S. for only a limited period of time, and the FBI is limited to the use of less intrusive techniques, the FBI is not likely to be able to show that he is actually engaged in intelligence or terrorist activities. He can be characterized as an agent of a foreign power, however, if it can be shown that the foreign power on whose behalf he acts systematically engages in clandestine intelligence [or terrorist] activities that threaten the security of the United States. II is a demonstration based on probability; i.e., it is not a show1ng that the individual foreign visitor is himself currently engaged in clandestine Intelligence activitieS, but that the circumstances of his presence in the U.S. indicate he may engage in such activities

because the foreign power for whom or on whose behalf he acts has demonstrated some pattern or practice of engaging in clandestine Intelligence activities in the United States contrary to U.S. interests.
The phrase "acts for or on behalf of a foreign power" requires a nexus between the individual and the foreign power that suggests that he is likely to do the bidding of the foreign power. For example, visitors from totalitarian countries present in the United States under the auspices, sponsorship or direction of their government would satisfy this standard.
Once the requisite facts with regard to the foreign power are established, the key question is whether the circumstances of the person's presence in the U.S. indicate that he may engage in clandestine Intelligence activities for that foreign power contrary to U.S. interests. The answer
may vary according to what is known about the intelligence or terrorist operations of the particular
foreign power. Among the factors that might be taken into account are whether the foreign visitor engages in activities with respect to which there is evidence that other visitors who engage in similar activities are officers, agents or acting on behalf of the intelligence service of that foreign power. If the FBI can show from experience that a particular foreign power uses a certain class of visitors to this country for carrying out secret intelligence assignments, this would indicate that other visitors in this class may also engage in clandestine intelligence activities.
"May engage in such activities" means that surveillance can be conducted to anticipate
clandestine intelligence activities by such persons, rather than waiting until they have taken place. The additional standards for aiding and abetting, and conspiracy, require probable cause to believe that the foreign visitor is knowingly assisting persons who are already engaged in clandestine intelligence activities. The "knowing" requirements are the same as in the aiding or abetting and conspiracy standard for U.S. persons.
This provision does not treat nationals of certain countries differently from others solely on
the basis of nationality, and it is not "profiling." Instead, surveillance of the nationals of certain countries depends on the activities of the governments of those countries and whether the individual is acting on behalf of the government.
HAny Person" Agent of a Foreign Power
§ 101(b)(2)(A)- Clandestine Intelligence Gathering Activities
Under this definition, an agent of a foreign power is "any person who is knowingly engaged in clandestine intelligence gathering activities for or on behalf of a foreign power. which activities
involve or may involve a violation of the criminal laws of the United States."
The first aspect of this definition is that the subject is engaging in certain activities "knowingly." This does not mean that he must know that he may be violating a particular federal criminal statute, but that he knows that what he is doing is clandestine intelligence gathering activities and that he knows that he is doing it for or on behalf of a foreign power. As state of mind is always difficult to show, knowledge is inferred from the circumstances. In showing that a person is knowingly engaged in clandestine intelligence gathering activities, focus on his activities. If, for example, a subject is transmitting classified defense secrets to the military attache of a foreign embassy, and he knows the information is classified and that his recipient is a military attache, this would be sufficient to show thai he "knows" that he is acting for or on behalf of a foreign power. Similarly, if he has received training in the use of equipment for espionage,
e.g., a microdot camera or disguised radio device, this would be sufficient to show that he
"knows" what he is doing. One who is unwitting to what he is doing, or without knowledge that he is acting for or on behalf of a foreign power, is not an agent of a foreign power, but the

government is not required to prove ignorance if a person engaging in such activities would reasonably have known that he was acting for or on behalf of a foreign power.
Next, the person must be "engaged" in the proscribed activities. Unlike the standard for foreign visitors, the fact that he "may engage~ in such activities some time in the future is not sufficient. For example, if information shows that a person has recently engaged in such activities, this would normally suffice to show probable cause that he is "engaged." On the other hand, information that a person engaged in the prohibited activities in the past might well,
depending on the circumstances, be sufficient to show probable cause to believe that he 1S stili
engaged in such activities. For example, information that a U.S. person was for years a spy for a foreign power hostile to the United States, but who had dropped out of sight for a few years, would probably be sufficient to show "probable cause" that he was, having now reappeared, continuing to engage in the clandestine intelligence activities.
Perhaps the most important element of this definition is "clandestine intelligence gathering activities." Most clandestine intelligence gathering activities will constitute a violation of the various federal criminal taws aimed at espionage either directly or by failure to register (see, e.g., 18 U.S.C. §§ 792-799, 951; 42 U.S.C. §§ 2272-2278b; and 50 U.S.C. § 855). The term "clandestine intelligence gathering activities" is intended to mean "espionage" in common parlance; it is not a legal term of art denoting a particular offense. The term also includes activities that are directly supportive of espionage, such as maintaining a "safehOlJSe," servicing ~letter drops," running an "accommodation address,"laundering funds, recruiting new agents, infiltrating
or exflltrating agents under cover, creating false documents for an agent's "cover" or utilizing a
radio to receive or transmit instructions or information by ''burst transmission." The term "clandestine intelligence gathering activities" is lntended to mean activities in which no reasonable person would engage without knowing that society would not condone it.
As the words indicate, the activities must be "clandestine," i.e., the subject must have made
some efforts to conceal his activities. This does not necessarily mean that the information gathered by the agent must itself be secret or nonpublic, although this is usually the case. It is possible that a person might be asked to obtain information that is publicly available, but which a foreign power would not want known it was seeking. If he used false identification or ruse to obtain the information and then delivered the information by means of a microdot hidden in a magazine left at a "dead drop," both the means by which he gathered the information and the means by which he transmitted it would be "clandestine," even though the information itself might not be secret. The FBI may surveil such a person, even if the information he is collecting is not classlfied, because his activities identify him as an agent of a foreign power. By monitoring his contacts, their equipment and modus operandi, the FBI can learn valuable information concerning the tactics, capabilities and personnel of the foreign intelligence service.
"Clandestine intelligence gathering activities" are intended to be conduct of a nature associated with spies and espionage In its generic sense, but the term is supposed to be flexible
with respect to what is being gathered because intelligence priorities and requirements differ
between nations and over time. Obviously, gathering classified defense information, information about intelligence sources and methods and classified foreign relations information qualifies as "clandestine intelligence gathering activities" if it is done in a clandestine manner. Foreign powers also target American technology and trade secrets, economic developments, political information and even personal information for purposes of blackmail or other coercion, so that attempts to collect such information may also be "clandestine intelligence gathering activities."
it is possible, although unlikely, that some people might come close to using espionage techniques for otherwise lawful purposes. Thus, the definition requires that the person be engaged in clandestine intelligence gathering activities "for or on behalf of a fore1gn power." The fact that a person gathers information and transmits it to a foreign power does not, by itself,

satisfy the requirements of this definition, as people may legitimately gather mformation for foreign powers. Registered lobbyists, e.g., often do, but their activity, if legitimate, does not utilize the tradecraft of espionage or clandestine methods, to do so. This means that the FBI must show probable cause to believe that the person is not only engaged in clandestine intelligence gathering activities, but that he is doing so for or on behalf of a foreign power. Thus, showing that a person is stealing defense secrets and using a ~dead drop~ to pass them on is not enough; it must be shown that he is doing so for a foreign power.
The FBI must show that there is probable cause to believe that a subject is engaged in activity that at least "may" violate a federal criminal statute. As noted above, it is expected that most persons under this definition would be likely to violate laws directed against espionage. There are other laws, however, that might be violated, such as interstate transportation of stolen property or the Export Administration Act. The crime involved might be one of several violations depending, for example, upon the nature of the information being gathered.
The words "may involve" are intended to encompass clandestine intelligence gathering activities that may, as an integral part of such activities, involve a violation of federal law. They cover the situation in which the FBI cannot establish probable cause to believe that a foreign agent's activities involve a specifiC criminal act, but where there are specific and articulable facts to indicate that a crime may be involved. The circumstances might be such as to indicate that the activity may involve a crime. The term "may involve" requires only limited information regarding the crime involved, such that electronic surveillance may be permissible at some point prior to the
time a crime, e.g., the passage of classified documents, actually occurs. There need not be a
current or imminent violation of law if there is probable cause to believe that criminal acts may be committed.
In applying this standard, the FISA Court takes all the known relevant circumstances into account, e.g., who the subject is, where he is employed, whether he has access to classified or other sensitive information, the nature of clandestine meetings or other clandestine activity, the method of transmission and whether there are innocent explanations for the behavior. The circumstances must not merely be suspicious, but must be of such a nature to lead a reasonable man to conclude that the activity may involve a federal criminal violation.
Again, a nexus to a foreign power is absolutely necessary. Surveillance would not be authorized against a reporter merely because he gathers information for publication in a newspaper, even if the information were classified. Nor would it be authorized against a government employee who reveals secrets to a reporter or in a book for the purpose of informing the public. This definition would not authorize surveillance of ethnic Americans who lawfully gather political information and perhaps even lawfully share it with the foreign government of their national origin. Nor would it apply to lawful activities to lobby, influence or inform members of Congress or the Administration to take certain positions with respect to foreign or domestic concerns. Nor would it apply to lawful gathering of information prepatory to such lawful activities. It is the combination of {1) obtaining in clandestine fashion (2) information that is necessary to the defense or security of the United States (3) for or on behalf of a foreign power that makes FISA surveillance
In the case of an organization whose leaders are engaged in clandestine intelligence gathering activities. such activity cannot necessarily be attributed to every member of the group. There must be probable cause to believe that a particular member is himself engaged in such activity before electronic surveillance targeted against him may be authorized.
Because the standard under this definition requires that a person knowingly engage in activities for or on behalf of a foreign power, problems can arise in a situation in which a person is

"turned" or "doubled," i.e., after having started out as an agent for a foreign power, he is persuaded to work for the United States. The standard is not met if the person is in fact working for the U.S. and not for the foreign power. There may be doubt, however, as to whether he is actually under U.S. control or that of a foreign power, making it unclear as to which side is deceiving which. The fact that a supposedly "doubled" agent carries out his assignments and instructions from the U$. Government does not necessarily mean that he has stopped carrying out those of the foreign power. It is not necessary, therefore, that a surveillance, once authorized, be discontinued when the agent may have been "doubled." Rather, surveillance may continue until such time as the "doubled" agent is trusted enough to seek his consent to surveillance
§ 101(b)(2)(B) ··"Other Clandestine Intelligence Activities"
Subsection 101(b)(2)(B) defines agent of a foreign power as a person who pursuant to the direction of an intelligence service or network of a foreign power knowingly engages in "other clandestine intelligence activities" for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States. ["Other" refers to other than clandestine intelligence gathering activities.]
The term refers to covert actions by intelligence services of foreign powers. Not only do foreign powers engage in spying in the United States to obtain information, they also engage in activities that are intended to hann U.S. security by affecting the course of government, the course of public opinion or the activities of individuals. Such activities may include political action (recruiting, bribery or influencing public officials to act in favor of the foreign power), disguised propaganda (including the planting of false or misleading articles or stories) and harassment, intimidation or even assassination of individuals who oppose the foreign power. Such activity can undermine democratic institutions as well as directly threaten the peace and safety of U.S. citizens.
There may be a narrow line between clandestine intelligence activities and lawful activities undertaken by U.S. persons in the exercise of First Amendment rights. To avoid crossing that line, this definition requires that the person be shown to be acting "pursuant to the direction of an intelligence service or network of a foreign power." [No such showing is required for the other
definitions of agent of a foreign power.I U.S. persons may well communicate with a foreign
government to obtain information about that government's country or to discuss travel to that country, but such contacts are not necessarily "clandestine intelligence activities" and are not covered by this definition.
The activities engaged in must involve, or be about to involve, a violation of federal criminal law. This is higher than the "may" involve standard found in other definitions. In this area, where there is a narrow line between protected First Amendment activity and the activity giving rise to surveillance, it is important that the activity be such that it involves or is about to involve a violation of a federal criminal statute.
There are a number of crimes that might be involved in covert action, e.g., bribery of public
officials, campaign law violations, foreign agent registration requirements, denial of civil rights, et cetera. It is important to note, however, that such a criminal violation does not necessarily
establish that a person is engaged in "other clandestine intelligence activity." Americans, through ignorance or inadvertence, may well technically violate campaign law requirements or foreign agent registration requirements, but to satisfy the requirements of the definition, it is necessary to show, separately from the criminal violation, probable cause to believe that the person is knowingly engaged in any other clandestine intelligence activities for or on behalf of such foreign power, pursuant to the direction of an intelligence service or network of a foreign power.
§ 101(b}(2)(C) ~-Sabotage or Terrorism

Subsection 101 (b)(2)(C) allows electronic surveillance or physical search of any person, including a U.S. person, who knowingly engages in sabotage or international terrorism, or activities in preparation therefor, for or on behalf of a foreign power. The terms "sabotage" and "international terrorism" are defined separately and require a showing of criminal activity. Mere sympathy for, identity of interest with or vocal support for the goals of a foreign group, even a foreign-based terrorist group, is not sufficient to justify surveillance under this subparagraph. The term "activities that are in preparation [for]" sabotage or international terrorism is intended to encompass activities supportive of acts of serious violence -- for example, purchase or surreptitious importation into the United States of explosives, planning for assassinations or financing of or training for such activities. Other activities supportive of terrorist acts could likewise satisfy this standard. The circumstances must be such as would lead a reasonable person to conclude that the subject is knowingly engaged in activities that are in preparation for sabotage or terrorism.
The term "preparation" does not mean preparation for a specific terrorist act. Because the definition of "international terrorism" speaks of a range of acts, and "preparation" as used here takes its meaning from the context of the definition of "international terrorism," it could reasonably
be Interpreted to include, e.g., providing the personnel, training, funding or other means for the
commission of acts of terrorism, rather than participating in a particular bombing. This provision also permits electronic surveillance or physical search at a time before the danger sought to be prevented~- whether a kidnaping, bombing or hijacking-~ actually occurs.
The "preparation" standard allows surveillance where the government cannot establish that an individual has already knowingly engaged in an act of sabotage or terrorism, but there are sufficient specific and articulable facts to indicate that his activities are in preparation for such acts. The circumstances must be such as would lead a reasonable person to conclude that the subject is knowingly engaged in activities that are in preparation for sabotage or terrorism.
It should be noted that the "preparation" standard need apply only where there is insufficient information to show that the subject is, in fact, a terrorist. Where the FBI can show that the subject is a known international terrorist, such as the notorious "Carlos," or that he has been engaging in international terrorism for or on behalf of a group engaged in international terrorism, there is no need to show that he is in the act of preparing for further terrorist acts. In some cases, immediate arrest may not be possible, such as situations in which the subject may not have violated U.S. law, even though he may have murdered hundreds of persons abroad. In other cases it may be more fruitful to monitor the subject's activities in the United States to identify otherwise unknown terrorists located here, their international support structure and the locations of weapons or explosives. If a person who has engaged in international terrorism visits the U.S. or resides in the U.S., the FBI should be able to utilize electronic surveillance to monitor his activities, whether or not there is information showing that he is presently planning some particular violent act.
Finally, a subject targeted for surveillance under this definition must be shown to have a knowing connection with the foreign power for whom he is working. In most cases of intemational terrorism, this oonnection will be shown to exist with a group engaged in international terrorism. The case may arise in which a U.S. person is acting for or on behalf of such a group that is substantially composed of U.S. persons. ln such a case, the Court must examine the circumstances carefully in order to determine whether the organization is "a group engaged in international terrorism," as defined, and not a purely domestic group engaged in domestic terrorism. [Domestic terrorism is handled under criminal law processes, e.g., Title Ill of the Omnibus Crime Control and Safe Streets Act of 1968, Title 18, U.S. Code, chapter 119, and the AG Guidelines for General Crimes.]

§101(b){2)(D) --Entering tha U.S. under a False or Fraudulent Identity
This definition includes any person who knowingly enters the United States under a false or fraudulent Identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power. The most obvious example would be the ~illegal" who enters the United States under an assumed name and using a "legend" based on the vital statistics of a real person, usually dead. It would also include a person who enters the United States lawfully, then assumes a false identity, provided assuming such a false identity is done for or on behalf of a foreign power.
§1 01(b)(2)(E) -Aiding, Abetting and Conspiracy
This definition Includes any person, including a U.S. person, who knowingly aids or abets any person in the conduct of activities described in the preceding subsections, or knowingly conspires with any person to engage in such activities. The knowledge requirement is applicable to both the status of the person being aided and the nature of the activity being promoted. This means the FBI must establish probable cause to believe that the subject knows both that the person with whom he is conspiring or whom he is aiding or abetting is engaged in the described activities as an agent of a foreign power and that his own conduct is assisting or furthering such activities. The innocent dupe who unwittingly aids a foreign intelligence officer cannot be targeted under this provision.
In the case of a subject believed to be aiding or abetting persons engaged in international terrorism, the subject might be assisting a group engaged in both lawful political activity and
unlawful terrorist acts. In such a case, it would be necessary to establish probable cause to
believe that he was aware of the terrorist activities undertaken by the group and was knowingly furthering them, not merely that he was aware of and furthering the group's lawful activity.
Verification Procedures

FISA Court's Rule 11
By order dated May 17, 2002, the FISA Court promulgated "Rule 11, Criminal Investigations ln FISA Cases":
All FISA applications shall include informative descriptions of any ongoing
criminal investigations of FISA targets, as welt as the substance of any
consultations between the FBI and criminal prosecutors at the Department of Justice or a United States Attorney's Office.

Rule 11 formalizes the requirement for descriptions of any ongoing criminal investigation, an issue that was addressed in the "verification procedures" dated April 5, 2001. Then Rule 11 adds the requirement to describe the substance of any consultations between the FBI and criminal prosecutors at DOJ or a United States Attorney's Office. The scope and degree of such consultations have proliferated significantly since promulgation of the AG's memo on information sharing on March 6, 2002, and access by prosecutors to intelligence i

Certification
Subsection 104{a)(7) of FISA requires a certification by the Assistant to the President for National Security Affairs ~~ or other Executive Branch official designated by the President from among those officials employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate. The designated presidential advisor is the only one specifically provided for in the statute. By Executive Orders 12139 and 12949 the President has also designated the Director (and Deputy) of Central Intelligence, the Secretary (and Deputy) of Defense, the Secretary (and Deputy) of State and the Director of the FBI. Note that the Deputy Director of the FBI is conspicuously absent ~~ the Deputy Director is typically a career Special Agent rather than an official appointed by the President with the advice and consent of the Senate and therefore does not meet the statutory prerequisites.
Foreign Intelligence Information
The certification consists of five elements, the first of which is that the official making the certification deems the Information sought to be foreign intelligence information. If you relate these officials and their functions to the definition of "foreign intelligence information" in section 101 (e) of the statute, there is a certain attraction of logic in their selection. Under subsection 101 (e)(1 ), "foreign intelligence information" means information that relates to [or, if concerning a
United States person, is necessary to] the ability of the United States to protect against (a) actual

or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (b) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (c) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. These elements go to the classic counterintelligence and counterterrorism functions of the CIA and the FBI.
Under subsection 101(e)(2), the definition of ''foreign intelligence information~ includes information with respect to a foreign power or foreign territory that relates to [or, if concerning a United States person, is necessary to] (a) the national defense or the security or {B) the conduct of the foreign affairs of the United States. These elements implicate the missions and functions of the Secretary of Defense and the Secretary of State.
Under the scheme set up by Executive Order 12333, the Assistant to the President for National Security Affairs (the ~National Security Advisor") is the senior Executive Branch official in the Intelligence Community and has interests in all of these matters.
The requirement that the certifier deems the information sought to be "foreign intelligence information" is designed to ensure that a senior official with responsibilities in the area of national security reviews the determination made at lower levels of the Executive Branch that the information sought is foreign intelligence information. The intent of FISA is ensure that the certifier carefully considers the substance of cases before him and does not simply sign off on boilerplate language. This prevents targeting a foreign power for electronic surveillance when the true purpose is to gather information about an individual for other than foreign intelligence purposes. It is also designed to make explicit that a significant purpose of such surveillance is to obtain "foreign intelligence Information" as defined, rather than some other type of information. The certifier similarly must explain in his affidavit why the information cannot be obtained through less intrusive techniques. This requirement is particularly important when U.S.
persons are the targets of surveillance or search.
A Significant Purpose
The second element of the certification Is that "a significant purpose" of the surveillance or search is to obtain foreign intelligence Information. Since the objective in enacting the statute is to provide a statutory procedure tor the government to obtain a judicial order for electronic surveillance or physical search for foreign inteltigence purposes, the "purpose" aspect of the certification is extremely important. The majority of pre~FISA caselaw had recognized a "national security exception" to the warrant requirement of the Fourth Amendment. In determining whether the cases before them should be accorded that exception, the courts tended to focus on whether the collection of foreign intelligence information was the "primary" purpose of the surveillance. In the case of Humphrey and Truong the trial judge concluded that the fruits of electronic survelllance and physical searches conducted without a warrant were admissible under the Fourth Amendment, provided those surveillances and searches had been conducted for a foreign intelligence purpose. The measure by which he determined purpose was direction and control of the surveillance, or investigation. So long as special agents of the FBI who normally investigated intelligence activities were directing and controlling the investigation, he construed the information as having been obtained for a foreign intelligence purpose. Conversely, when DOJ prosecutors began to write prosecutive memoranda and to control the direction of the investigation, he concluded that the information had been obtained for the purpose of prosecution and, accordingly, was inadmissible since it had been obtained without a warrant.
When FISA was enacted, it required that "the purpose" of the surveillance be to obtain foreign intelligence information. Based on experience with pre-FISA caselaw, the government's practice before the Foreign Intelligence Surveillance Court has been to construe "the purpose" as "primary purposen and to determine purpose by following a procedure similar to that adopted in

Humphrey and Truong. A reading of the legislative history of FJSA suggests that subsection 104(a)(7) was intended to replace the Humphrey- Truong test with the accountable official's certification that the purpose of the surveillance or search is to acquire foreign intelligence information, as defined. The USA PATRIOT Act amended FISA to require that obtaining foreign intelligence information be a "significant" purpose of the surveillance or search. While there is a dearth of legislative history of this amendment, it would appear that the Congress intended to rectify perceived lapses in the government's handling of certain counterintelligence investigations with regard to the determination of probable cause to believe that he was an agent of a foreign power and to steer the government- as well as the Foreign Intelligence Surveillance Court-toward the statutory scheme of relying on the certification for determining purpose.
The information required by the FISC's Rule 11 is largely a recitation of criminal justice pursuits and appears to follow the pre-enactment practice of determining purpose through an examination of direction and control of the investigation. The Court's position in this regard was reiterated in its opinions of April22 and May 17,2002, regarding the AG's March 6, 2002, memo on information sharing. The certification required by subsection 104(a)(7) is not so much an analysis of direction and control as an affirmation of the intelligence objectives of the surveillance or search. The point for field agents to understand is that in submitting a request for initiation of FISA surveillance or search, it is important to articulate the specific intelligence objectives of the requested FlSA coverage. E.g., in an espionage case, those objectives might include identification of a subject's handler, or his tradecraft in servicing dead-drops or how he obtains access to classified information. In the case of a terrorism subject, the objectives of the surveillance might be to learn the extent of the subject's relationship with an international terrorist group. To ensure that the Director has a proper basis for making this certification, NSLU recommends that any communication to HQ requesting application to the Court for authorization to use a FISA technique should both articulate the intelligence objectives to be achieved through the use of FISA techniques and, to satisfy requirements imposed by the Court, describe any criminal aspect of the investigation in sufficient detail to determine that intelligence officials and not law enforcement officials are directing and controlling the use of FISA techniques.
Not Reasonably Obtainable by Other Means
The third element of the certification is that the information sought cannot reasonably be obtained by normal investigative techniques. There is not much legislative guidance on this requirement, but, in general terms, it appears to is based on the general principle -- subsequently reiterated In Executive Order 12333 -- that the Intelligence Community should respect individual privacy rights by conducting intelligence activities using the least intrusive techniques feasible. Thus, it would appear that, due to their intrusiveness, Congress intended FISA techniques should be a last -- rather than first -- resort. In most instances, this requirement can be satisfied by the fact that only surveillance or search of the kind authorized pursuant to FISA can adequately obtain the information sought. For example, if more visible or detectable means of surveillance were utilized, the subject would likely change his means of communication to something tess susceptible of surveillance.
Category ofForeign Intelligence lnfonnation Sought
The fourth aspect of the certification is designation of the type of foreign intelligence information being sought according to the categories described in section 101 (e) of the statute, whether one of the kinds of counterintelligence information defined in subsection 101 (e)( 1), or of positive intelligence as defined in subsection 101(e)(2).
Basis for Certification

The final part of the certification is a statement of the basis for the certification as to the third and fourth elements, i.e., that the information sought is the type of foreign intelligence information designated, and that such information cannot reasonably be obtained by normal investigative techniques. Usually this is based on the results of the FBI's investigation to date. A presentation of facts relevant to this issue might follow a logical flow of relating the activities of the target that make him an "agent of a foreign power" as defined in subsection 101(b) to the appropriate definition of"foreign intelligence information" in subsection 101(e), coupled with a discussion of the technique that would be necessary to obtain that kind of intelligence information. This element of the certification is not required when the target of the electronic surveillance is a foreign power as defined in subsection 801(a)(1), (2) or (3), i.e., a foreign government or component thereof; a faction of a foreign nation not substantially composed of United States persons; or an entity that is openly acknowledged by a foreign government or governments to be directed and controlle4 by such foreign government or governments.
Duration
The general rule is that the FISC may approve electronic surveillance for the period necessary to achieve its purpose, or for 90 days, whichever is less. There are certain excepl!ons. Electronic surveillance of a foreign power as defined in section 101(a)(1 ), (2) or (3) may be authorized for up to one year. Electronic surveillance of a foreign agent as defined in section 101(b)(1 )(A) may be for the period specified in the application or for 120 days, whichever is less. Upon renewal, surveillance of a 101 (b)(1 )(A) agent of a foreign power may be for a period not to exceed one year.
An order authorizing physical search may be approved for the period necessary to achieve its purpose, or for 90 days, whichever is less. As with electronic surveillance, there are exceptions. Physical search of a foreign power, as defined in 101 (a){1 ), (2) or (3), may be authorized for the period specified in the application or for one year, whichever is less, and physical search of a section 101 (b)(1 )(A) agent of a foreign power may be authorized for the period speclfied in the application or for 120 days, whichever is less. An extension may be granted for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period in which search is authorized.
It is important to ensure that surveillance or searches adhere to the timelines specified in the orders. For one thing, the length of time involved in drafting a FISA application and preparing it for presentation to the Court requires that requests for renewal be forwarded in timely fashion. You cannot wait until two weeks before an order expires to submit a request for the next one. It Is also imperative that actual surveillance or search not occur beyond the period of authorization specified in the order. If surveillance should overrun the period of authorization, any unauthorized "take" must be sequestered and forwarded to the Office of Intelligence Policy and Review, via the substantive unit at FBIHQ, for submission to the Foreign Intelligence Surveillance Court. The overrun must also be reported by electronic communication to the Inspection Management Unit of the Inspection Division within 14 days of discovery of the error. [See section 2-56.E of the National Foreign Intelligence Program ManuaL)
Miscellaneous Considerations
Getting an order from the Court is only the beginning of the successful administration of the authorities granted pursuant to FISA. Among the practical considerations that should attend implementation of a FISA order is ensuring that the "premisesM being surveilled are those named in the order. For example, it is important to ensure that telephone coverage is on the right telephone line. Clues that something is amiss might include the fact that intercepted

communications are in a language other than that expected. Or the information obtained might appear to be non-pertinent to the intelligence objectives of the surveillance.
In cases of physical search, the Court typically requires a return by the federal officer
executing the search. The return is essentially a report to the Court of the circumstances under
which the search was conducted and the information or tangible items seized. It is common for
the Court to require a return within twenty-one (21) days of the execution of a search, but 21 days
is not necessarily applicable to all cases, so it is important to note the specific requirements of individual orders.
Another practical consideration is the provision of subsection 105(c)(2) that the Court may order a communications common carrier, landlord, custodian or other specified person to furnish the applicant [the FBI) with all information, facilities or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy. In addition, the Court may order such persons maintain any records concerning the surveillance or the aid furnished that such person wishes to retain under security procedures approved by the Attorney General and the Director of Central Intelligence. Subsection 304(c)(2) makes similar provision for physical searches.
A recurring problem is service of the order on service providers or other specified persons who lack security clearances or, in some cases, the wherewithal to store classified orders properly. When FISA was originally enacted, the overwhelming bulk of the surveillance was
simple telephone wiretaps, and there were only a few large communications common carriers with which to deal. As a result, it was relatively easy to obtain clearances for a security office at a
large carrier to obtain proper access to information and storage facilities. Since then, however, the large telephone companies have broken up into numerous "baby bells.~ leading to a
proliferation of the workload Involved with background investigations and clearances. In addition.
the advent of the Internet and the concomitant proliferation of Internet service providers have also added to investigative and security clearance workloads.
The security procedures approved by the Attorney General and the Director of Central Intelligence empower the SAC to authorize disclosure of a classified order on an emergency basis under circumstances in which such disclosure is necessary to execute the order. As a rule, the classified information contained in a secondary order is typically limited to identification of the target-- which information is frequently communicated to the service provider anyway in preliminary discussion. As a result, showing a service provider the secondary order typically amounts to disclosure of something he already knows-- the identity of the subject of surveillance. In a case in which an ongoing relationship is not likely and there is no need for the service provider to have longtenn access to classified information, the SAC may authorize showing the secondary order to a service provider or other specified person on a one-time basis. It is recommended that the service provider be offered a "trust receipr that relates back to the order by date and docket number and that the field office secure the secondary order. The service provider should be advised that the order will be made available should the need arise. If needed, a copy of the security procedures (which are classified] and a model trust receipt may be obtained from NSLU via Groupwlse e-mail.
With regard to the trust receipt, the most common concern expressed by service providers is the fear of being sued for providing assistance to the FBI. Service providers may be advised of the following provision of subsection 105(i):
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian. or other person {including any officer, employee, agent, or other specified person thereof) that furnishes any

information. facilities, or technical assistance in accordance with a court order or request for emergency assistance under this Act for electronic surveillance or physical search.

In addition to this statutory protection from civil liability, if a service provider were to be sued
for assisting the FBI in conducting electronic surveillance or physical search pursuant to FISA, the Bureau would seek the Attorney General's assertion of the State Secrets Privilege [United States
v. Revnolds, 345 U.S. 1 (1953)} to prevent the disclosure of classified information that would be required to sustain such a cause of action. If a field office is contacted by a service provider about such a situation, NSLU should be notified immediately.

Coming Attractions ...

The gathering of information, including information as to the capabilities, intentions and activities of foreign powers and their agents, would be meaningless without successful exploitation of that information to protect the United States from hostile attack and other grave
acts, acts of terrorism, sabotage and clandestine intelligence activities. Bearing in mind that the
recurring theme in various provisions of FISA is the balancing of individual rights to privacy against the need of the government's need to acquire and produce foreign intefligence information, FISA creates a heavy burden with regard to managing the acquisition, retention and
dissemination of U.S. person information. In sum, this is the process of "minimization." As most
minimization procedures are classified, minimization is not addressed here in detail. In addition,
the procedures for "information sharing" promulgated by the Attorney General on March 6 and
modified somewhat by the FfSA Court are stiff subject to judicia( review. Accordingly, procedures
for the sharing of information wifl be the subject of a separate communication.

fop of Page

I~ Last Updated:

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FEDE RAL BUqEAU OF INVESTIGATI'-<N

Precedence: IMMEOIATl! To: All Divisions

From:

Office

ofthe Ci<ncra.l Counsel Investigative Law Unit,

.
Room

Cont1ct lnvestig;a.tive Law

Approved By: Pal'kioson l..atry PI

AIIll:

As:sis.tant Director, SAc;
Lcpt
CDC

Dace: 06/19102 .

b.;l - I

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Tille: NllW LEGISLATION

·PATRIOT ACT OF 2001 PROVISIONS ADDRESSING INVESTIGATIVE ISSUES

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Deulls: BackmJqnd parPevrrofaoevivrlidraidecbdi.losetgogtouAaistpdhptaehnrOecFcpoBe"iUO&It.oSclOetAthoTvebPeoefAroirdtTl2hsd6ReR,olle2aOn0qsTtl0uhsilAites,ecvtdAhet"tercoaotPliIrmroA"etPostchiuidnletle:hrfiensoopl,rt~smlAoihgneoncdOeflOdejll-bwimlehs.h>aueiicuo"l$hUaf,lenTEhnicteChinDaG.o,ngeracoianemcnsdrdlamplASraCetcrnseotyenoun1lnn!floVsh2eteC0ilon0$(ir11nOui"&glGl&(roaCAlciivh)nmeCbinetaIogrWsio.cliasseby

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Gcmnl

Counsel

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'Tbis document was ChiefDivision Counsels on

prepon:d by the Depi!I1DlCDt October 30,2001.

of Justice

and

providc<l

via

e-mail

to

all

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All ~visiOII$ From: Ollie.. ofthe 66F-HQ-108SI60, 0611912002

Oenenll

Coonsel

1. Jnvatt:atJve Tools
JnfOfJDitioo from Cgmmuniatjqy Providers

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1"o: All Divisions From: Offic ,(the Oenenol Coonsel

• lte: 66F·HQ- 108SI60, 0611912002

communications servio: provider itself is a victim of.computer hacking. This provision will upirc u.ndcr
lhc sunset provision. Sc:e 18 U.S.C. § l702(b) ct (<>q);-n U.S.C. § 2703(c)(2)(F).
Elecyoaje SurvejJ!ms:;e

Expanded Predicotcsfor Title f/1. The predicate offenses for Tille 10 were expon<k:d to include crimes relating 10 chemical weapons (18 U.S.C. § 229), tem>tism (18 U.S.C. §§ 2332, 23321. 2332b, 23321!. 2339A, and 23398), and felony violations ofcomputer fraud and abuse (IS U.S.C. § 1030}. This is setiO expire under the sunset provision. Sc:e 18 U.S.C. § 2516.
Notio'f'Nidc E/f«ufPWT'>r1p OrUn- The Act.-lhc pa>/tnp Sl&tutc to give fcdenol .....,.!he authority 10 compel assistanc:e liom any provider of communication scrviocs in the Urutcd Swcs whose assistance is appoOI'riotcto efT_!he ocdcr. Sc:e II U.S.C. § 3127(2).

For cumplc, a fcdc:ral prooec:utor may ob!ain ao or:dcr 10 uuc calls made 10 a

telephone within the prosecutor's loe&l district. The orderapplies not only 10 the local c.anier saving

that line, but also to other provi~en (such as long-distance caniers and regional cmic:rs in olher parts

. . ofthe country} through whom calls arc placed 10 the target telephone. In some circumstances. the

invtstiaaton: may have to serve the order on the fU'St c.arrier i.n the chain and receive from that earrier

.•'.1...

inrormat.ion identifYing the communication's path to convey to the next canicr in the chain. The

invcsli8Jtor would tbeo save tbe same """" ocdcr CIO tbe D<Xt carrier, induclioa the adcliriooal relevant
conncctiO<l information teamed liom tbe lim cania; the secon.d cani.er would then provide the

••

coancaion informatic:m in its poacssioa for the communicatioo. The invcstip1or would fq)C3l this

proecss until tbe ocdcr bad been served on the crigjnalingearricr who was able to identify the source of

lhe communic:ation.

Wben prosccuton apply foro pen/trap order usiug this procedure, they g~ly will not know 'he name of the second or subscqumt providers in the chain ofcommunication covered by

.'I

the order. Thus. the application and order will not ncces.s:aily name these providm.. The amendments
10 section 3123 therefore spe<ify that, tr a provider rcqucslll il. law enforcement mus1 provide a "wrillen

.

or electronic ecrtificatioo~ that the order opplies to that provides. OGC will provido.adclitional guidon«

~

on tonaulie for sucb ccrtilieatioo in lhc ncar fut= '

/fllur;q><Uig ~110111 of<Ampwu Trespassus • The wi~ap statute was

amended 10 explicitly provide victims ofcomputcr attacb the ability 10 invite law cnfon:cntalt into a

protected computer to rnorritor lhc: COC'IlpUttr ri"hpassa•s cammun_ieatioas. ln the past. the law was

ambiauous on this poinL Befon: mooitorina c:on OCCW", howC\'a', four requirements must be met. First.

oonscnt from the owner e< operatorofliteprotcetcd computer must be obwi>ed. Second, law

enforcement must be a<:tiug pwsuantto an ongoing iitveatigatim. Both criminal and intelligenoc

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All Divisions

From:

F'
Otr. of the

66F-HQ-108SI60, 06/191200Z

General

Counsel

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General

Coumcl

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EduCDtlonal RocoNJs - Low cducatiooolagcncy or inotilUiioo ifthey

enforccme<1l C:ao now obtain eduC.tionaJ records beld by are relevant to on aulhorizodinvctti&ationol'domcstic or

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All Divisions
66F-HQ-108S

From: Offi< .'lhe
I60, 06/1912002

General

Counsel

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 Case: 1:03-cv-2522 As of: 10/02/2018 12:49 PM EDT 1 of 5
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:03−cv−02522−ESH

AMERICAN CIVIL LIBERTIES UNION et al v. DEPARTMENT OF JUSTICE Assigned to: Judge Ellen S. Huvelle Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 12/10/2003 Date Terminated: 08/25/2004 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION

represented by David L. Sobel ELECTRONIC FRONTIER FOUNDATION 5335 Wisconsin Avenue, NW Suite 640 Washington, DC 20015−2052 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY 475 Riverside Drive Suite 302 New York, NY 10115 (646) 745−8500 Email: jameel.jaffer@knightcolumbia.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

Plaintiff
ELECTRONIC PRIVACY INFORMATION CENTER

represented by David L. Sobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Case: 1:03-cv-2522 As of: 10/02/2018 12:49 PM EDT 2 of 5

Marcia Clare Hofmann ZEITGEIST LAW PC 25 Taylor Street San Francisco, CA 94102 (415) 830−6664 Email: marcia@zeitgeist.law ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION

represented by David L. Sobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
FREEDOM TO READ FOUNDATION

represented by David L. Sobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE

represented by Raphael O Gomez U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Room 6144 Washington, DC 20530 (202) 514−1318 Fax: (202) 616−8460 Email: raphael.gomez@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514−5302 Fax: (202) 616−8470 Email: Elizabeth.Shapiro@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:03-cv-2522 As of: 10/02/2018 12:49 PM EDT 3 of 5

Date Filed 12/10/2003
12/10/2003 12/10/2003
12/10/2003 01/09/2004 01/09/2004 01/12/2004 01/14/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/18/2004
02/18/2004
02/18/2004

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE (Filing fee $ 150.) , filed by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION.(jf, ) (Entered: 12/16/2003)
SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 12/16/2003)
2 NOTICE OF RELATED CASE by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. Case related to Case No. 02−2077. (jf, ) (Entered: 12/16/2003)
3 LCvR 7.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PLAINTIFFS (jf, ) (Entered: 12/16/2003)
4 NOTICE of Appearance by Elizabeth J. Shapiro on behalf of DEPARTMENT OF JUSTICE (Shapiro, Elizabeth) (Entered: 01/09/2004)
5 ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Shapiro, Elizabeth) (Entered: 01/09/2004)
6 NOTICE of Appearance by Arthur B. Spitzer on behalf of all plaintiffs (Spitzer, Arthur) (Entered: 01/12/2004)
7 ORDER that defendant shall file a motion to dismiss or for summary judgment on or before February 16, 2004.. Signed by Ellen S. Huvelle on 1/14/04. (BL, ) (Entered: 01/14/2004)
8 ENTERED IN ERROR..... MOTION for Summary Judgment Partial by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)
9 ENTERED IN ERROR..... MOTION for Summary Judgment partial by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)
10 ENTERED IN ERROR...... MOTION for Summary Judgment Statement of Material Facts/Motion for Partial Summary Judgment by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)
11 ENTERED IN ERROR..... MOTION to Stay Motion for Partial Open America Stay by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)
12 ENTERED IN ERROR..... MOTION to Stay Memorandum in support of Motion for Partial Open America Stay by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)
13 MOTION for for Partial Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order # 2 Affidavit # 3 Exhibit)(Gomez, Raphael) Modified on 2/20/2004 (rje, ). (Entered: 02/18/2004)
NOTICE OF CORRECTED DOCKET ENTRY. Document Nos. 8, 9 & 10 were Entered in Error and counsel was instructed to refile said pleadings as one filing entry with the necessary attachments and not as separate filing entries. (Entered: 02/18/2004)
NOTICE OF CORRECTED DOCKET ENTRY. Document Nos. 11 and 12 were Entered in Error and counsel was instructed to refile the motion with order and exhibits as attachments and not as two separate filing entries. (rje, ) (Entered: 02/18/2004)
14 MOTION For a Partial Stay of Proceedings by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5

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03/01/2004 03/01/2004
03/01/2004
03/02/2004 03/02/2004 03/03/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/22/2004 05/10/2004 05/10/2004

Exhibit 4# 6 Exhibit 5# 7 Exhibit 6)(Gomez, Raphael) Modified on 2/20/2004 (rje, ). (Entered: 02/18/2004)
15 MOTION to Stay Proceedings Related to Defendant's Open America Motion by AMERICAN CIVIL LIBERTIES UNION. (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 03/01/2004)
16 Memorandum in opposition to motion re 13 for partial summary judgment filed by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. (Attachments: # 1 Exhibit Exhibit A Part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit A Part 3# 4 Exhibit Exhibit A Part 4# 5 Exhibit Exhibit A Part 5# 6 Exhibit Exhibit B# 7 Exhibit Exhibit C# 8 Statement of Material Facts# 9 Proposed Order)(Spitzer, Arthur) (Entered: 03/01/2004)
17 Cross MOTION for Summary Judgment (Partial) by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. (Attachments: # 1 Exhibit Exhibit A Part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit A Part 3# 4 Exhibit Exhibit A Part 4# 5 Exhibit Exhibit A Part 5# 6 Exhibit Exhibit B# 7 Exhibit Exhibit C# 8 Statement of Material Facts# 9 Proposed Order)(Spitzer, Arthur) (Entered: 03/01/2004)
18 RESPONSE to Plaintiffs' Motion to Stay Proceedings Related to Defendant's Open America Motion filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Gomez, Raphael) (Entered: 03/02/2004)
19 MOTION for Extension of Time to File Response/Reply Defendant's Motion And Memorandum To Extend Time by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Gomez, Raphael) (Entered: 03/02/2004)
Minute ORDER granting 15 Motion to Stay, granting 19 Motion for Extension of Time to File Reply to 3/15/2004. Signed by Judge Ellen S. Huvelle on 3/3/04. (BL, ) (Entered: 03/03/2004)
20 REPLY in support of motion re 13 Memorandum of Points and Authorities in Reply to Plaintiffs' Opposition to Defendant's Motion for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Supplemental Declaration of David M. Hardy)(Gomez, Raphael) (Entered: 03/15/2004)
21 Memorandum in opposition to motion re 17 Memorandum of Points and Authorities in Opposition to Plaintiffs' Cross Motion for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Supplemental Declaration of David M. Hardy)(Gomez, Raphael) (Entered: 03/15/2004)
22 ENTERED IN ERROR.....Memorandum in opposition to motion re 17 Defendant's Proposed Order/Defendant's Opposition to Plaintiffs' Cross Motion for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 3/16/2004 (jf, ). (Entered: 03/15/2004)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 22 was entered in error and counsel was instructed not to re−file said pleading. Proposed Orders should not be docketed using the event Memorandum In Opposition. (jf, ) (Entered: 03/16/2004)
23 REPLY in support of motion re 17 Plaintiff's Cross−Motion for Partial Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION. (Sobel, David) (Entered: 03/22/2004)
24 ORDER granting in part and denying in part 13 Motion for Summary Judgment, finding as moot 14 Motion to Stay, granting in part and denying in part 17 Motion for Summary Judgment . Signed by Judge Ellen S. Huvelle on 5/10/04. (BL, ) (Entered: 05/10/2004)
25 MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on 5/10/04. (BL, ) (Entered: 05/10/2004)

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05/10/2004 05/21/2004 05/24/2004 05/24/2004 07/28/2004
07/29/2004
08/04/2004 08/11/2004
08/11/2004
08/24/2004
08/25/2004 09/02/2004
09/02/2004 09/03/2004

NOTICE of Hearing:Status Conference set for 5/20/2004 03:30 PM in Courtroom 18 before Judge Ellen S. Huvelle. (gdf) (Entered: 05/11/2004)
26 ORDER re briefing scheduling. Signed by Judge Ellen S. Huvelle on 5/21/04. (BL, ) (Entered: 05/21/2004)
27 Unopposed MOTION for Leave to Appear Admission Pro Hac Vice by AMERICAN CIVIL LIBERTIES UNION. (Sobel, David) (Entered: 05/24/2004)
Minute ORDER granting 27 Motion for Leave to Appear pro hac vice (Jaffer). Signed by Judge Ellen S. Huvelle on 5/24/04. (BL, ) (Entered: 05/24/2004)
28 MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Gomez, Raphael) (Entered: 07/28/2004)
MINUTE ORDER granting 28 Motion for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF JUSTICE. Signed by Judge Ellen S. Huvelle on 07/29/04. (lcesh1, ) (Entered: 07/29/2004)
29 NOTICE of Appearance by Marcia Clare Hofmann on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Hofmann, Marcia) (Entered: 08/04/2004)
30 Unopposed MOTION for Extension of Time to File Dispositive Motions by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Gomez, Raphael) (Entered: 08/11/2004)
Minute ORDER granting 30 Motion for Extension of Time to file its summary judgment motion. Signed by Judge Ellen S. Huvelle on 8/11/04. (BL, ) (Entered: 08/11/2004)
31 MOTION to Dismiss the Case with Prejudice by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 08/24/2004)
Minute ORDER granting 31 plaintiffs' Motion to Dismiss the Case with Prejudice. Signed by Judge Ellen S. Huvelle on 8/24/04. (lcesh1) (Entered: 08/25/2004)
32 Unopposed MOTION for Extension of Time to File Motion for Attorneys' Fees by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 09/02/2004)
Set/Reset Deadlines: Motions due by 9/30/2004. (gdf) (Entered: 09/14/2004)
Minute ORDER granting 32 plaintiffs' Motion for Extension of Time to 9/30/04 to file any motion for attorneys' fees pursuant to 5 U.S.C. section 522(a)(4)(E). Signed by Judge Ellen S. Huvelle on 9/2/04. (lcesh1, ) (Entered: 09/03/2004)