Case 1:14-cv-03776-AT Document 2 Filed 05/28/14 Page 1 of 8

JUDGidTL

14 CV 3776

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE,

x InsJ[g©~nw@fOl
WE282014 Ujj

Plaintiffs,

U. S.D.C~~"""1CASffiERS .

- against-

COMPLAINT

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.
______________________________________~x
Plaintiffs THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, by their undersigned attorneys, allege for their Complaint:
1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking the production of agency records from the Office of the Inspector General ("OIG") of Defendant United States Department of Justice ("DO]") in response to requests properly made by Plaintiffs The New York Times Company and Charlie Savage (collectively "The Times").
PARTIES 2. Plaintiff The New York Times Company publishes The New York Times newspaper. The New York Times Company is headquartered in this judicial district at 620 Eighth Avenue, New York, New York. 3. Plaintiff Charlie Savage is a reporter for The New York Times.

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4. Defendant DOJ is an agency of the federal government that has possession and control of the records that Plaintiffs seek. OIG is a department within DOJ.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 6. Venue is premised on the place of business of Plaintiffs and is proper in this district under 5 U.S.C. § 552(a)(4)(B). 7. Plaintiffs have exhausted all administrative remedies available in regards to the requests at issue. DOJ has failed to determine the administrative appeals for the requests within the time frame set by FOIA. Accordingly, Plaintiffs are deemed to have exhausted all administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C).
FACTS 8. OIG is authorized to review the practices, policies, and conduct of DOJ and its constituent units such as the Federal Bureau of Investigation ("FBI"). 9. Beginning in 2008, OIG worked in conjunction with the Inspectors General of other agencies to do a review of the President's Surveillance Program ("PSP"). The review was mandated by Title III of the Foreign Intelligence Surveillance Act ("FISA") of 1978 Amendments Act, signed into law July 10, 2008. 10. The agencies participating in that review, in addition to DOJ, were the Department of Defense, the Central Intelligence Agency, the National Security Agency, and the Office ofthe Director of National Intelligence. 11. In July 2009, the Inspectors General issued a joint report on their review (the "Joint IG Report"), which was submitted to certain congressional committees.

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12. The Inspectors General produced both a classified and unclassified version of the Joint IG Report.
13. OIG has also reviewed the FBI's use of National Security Letters ("NSLs"), orders issues pursuant to Section 215 of the PATRIOT Act, and the FBI's request for phone records for telecommunications companies.
14. At the conclusion of each review, OIG issued a report (collectively, the "OIG Surveillance Reports").
15. Each such report had both unclassified and classified components. 16. In 2013, Edward Snowden provided classified documents to journalists, and some of these documents were then made public. The disclosures included a draft of the National Security Agency's contribution to the classified version of the Joint IG Report along with other documents pertaining to surveillance programs. 17. Following the Snowden disclosures, many aspects of the government's surveillance and data collection activities have been formally declassified. 18. Upon information and belief, many of the underlying facts in OIG Surveillance Reports and the Joint IG Report that were previously classified are no longer classified, and there is no basis for continuing to withhold sections of the reports addressing those facts. 19. On January 31,2014, The Times submitted a request to DOJ for the full, currently classified Joint IG Report (the "Joint IG Report Request"). 20. On February 10, 2014, DOJ denied the Joint IG Report Request on the grounds that the classified Joint IG Report was properly withheld under federal law.

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21. On February 24, 2014, The Times appealed the denial of the Joint IG Report Request administratively.
22. DOl subsequently acknowledged receipt of the administrative appeal. 23. Under FOIA, an administrative appeal must be decided within twenty (20) business days pursuant 5 U.S.C. § 552(a)(6)(A)(ii). 24. DOl has not decided the appeal pertaining to the loint IG Report Request. 25. On February 18, 2014, The Times submitted a request to DOl for complete copies of all OIG Surveillance Reports since September 11, 2001 (the "OIG Surveillance Request"). 26. Specifically, the OIG Surveillance Request sought "all DOl IG reports issued since Sept. 11,2001, pertaining to surveillance and data collection" and listed some of the partially declassified reports for which Plaintiffs are seeking release of the full texts: a. The report on FISA Amendments Act 702, announced on Sept. 25, 2012 (http://www.justice.gov/oig/press/2012/2012 09 25.pdf) b. The January 2010 report on the FBI's use of exigent letters and other informal requests for phone records (http://www.justice.gov/oig/special/sl00lr.pdf) c. The March 2008 report on the FBI's use of Section 215 Orders for Business Records in 2006 (http://www.justice.gov/oig/special/s0803a1fmal.pdf) d. The March 2008 report on the FBI's use of NSLs (corrective actions) (http://www.justice.gov/oig/special/s0803b/final.pdf) e. The March 2007 report on the FBI's use of Section 215 Orders for Business Records (http://www.justice.gov/oig/special/s073a1final.pdt)

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f. The March 2007 report on the FBI's use of NSLs (http://www.justice.gov/oig/special/s0703b/final.pdt) 27. On February 21, 2014, DOJ denied the request, stating that the OIG
Surveillance Reports were properly classified and therefore exempt from disclosure under FOIA. 28. On February 24, 2014, The Times appealed the denial of the DIG
Surveillance Request administratively. 29. Under FOIA, an administrative appeal must be decided within twenty (20)
business days pursuant 5 U.S.C. § 552(a)(6)(A)(ii). 30. DOJ has not decided the appeal pertaining to the OIG Surveillance
Request.
COUNT I
31. Plaintiffs repeat, reallege, and reincorporate the allegations m the foregoing paragraphs as though fully set forth herein.
32. DOJ is an agency subject to FOIA and must therefore release in response to a FOIA request any disclosable records in its possession at the time of the request and provide a lawful reason for withholding any other materials as to which it is claiming an exemption.
33. Under 5 U.S.C. § 552(a)(6)(A)(ii), DOJ was required to determine the administration appeal arising from the Joint IG Report Request within twenty (20) business days.
34. Under 5 U.S.C. § 552(a)(6)(C), a person making a request for materials under FOIA "shall be deemed to have exhausted his administrative remedies with respect to such a request if the agency fails to comply with the applicable time limit provisions" ofFOIA.

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35. Accordingly, The Times is deemed to have exhausted its administrative remedies as to the Joint IG Report Request.
36. DOJ has asserted no lawful basis under FOIA for withholding the material asked for by the Joint IG Report Request.
37. DOJ's failure to provide the material violates FOIA. 38. Accordingly, The Times is entitled to an order compelling the DOJ to produce the material sought by the Joint IG Report Request.
COUNT II 39. Plaintiffs repeat, reallege, and reincorporate the allegations m the foregoing paragraphs as though fully set forth herein. 40. DOJ is an agency subject to FOIA and must therefore release in response to a FOIA request any disc10sable records in its possession at the time of the request and provide a lawful reason for withholding any other materials as to which it is claiming an exemption. 41. Under 5 U.S.C. § 552(a)(6)(A)(ii), DOJ was required to determine the administration appeal arising from the OIG Surveillance Request within twenty (20) business days. 42. Under 5 U.S.C. § 552(a)(6)(C), a person making a request for materials under FOIA "shall be deemed to have exhausted his administrative remedies with respect to such a request ifthe agency fails to comply with the applicable time limit provisions" ofFOIA. 43. Accordingly, The Times is deemed to have exhausted its administrative remedies as to the OIG Surveillance Request. 44. DOJ has asserted no lawful basis under FOIA for withholding documents asked for by the OIG Surveillance Request.

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45. The failure ofDOJ to provide responsive documents violates FOIA. 46. Accordingly, The Times is entitled to an order compelling DOJ to undertake an adequate search of its records and produce the documents sought by the OIG Surveillance Request.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a. Declare that the documents sought by the Joint IG Report Request and OIG Surveillance Request, as described in the foregoing paragraphs, are public under 5 U.S.C. § 552 and 5 U.S.C. § 552(a) and must be disclosed;
b. Order the DOJ to undertake an adequate search for the requested records and provide those records to Plaintiffs within 20 business days of the Court's order;
c. Award Plaintiffs the costs of this proceeding, including reasonable attorney's fees, as expressly permitted by FOIA; and

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•

I

•

•

Case 1:14-cv-03776-AT Document 2 Filed 05/28/14 Page 8 of 8

d. Grant Plaintiffs such other and further relief as this Court deems just and
proper.
Dated: New York, New York May 27, 2014
David E. McCraw, Esq. D. Victoria Baranetsky, Esq. Legal Department The New York Times Company 620 8th Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-1009 e-mail: mccraw@nytimes.com
Counselfor Plaintif.ft

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 Case 1:14-cv-03776-AT-SN Document 59 Filed 08/18/16 Page 1 of 34

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC#:
x DATE FILED: rkttltla

Plaintiffs,

-against-

14 Civ. 03776 (AT)(SN)

UNITED STATES DEPARTMENT OF JUSTICE,
Defendant. ANALISA TORRES, District Judge:

MEMORANDUM AND ORDER

Plaintiffs, the New York Times Company and Charlie Savage, bring this action

challenging Defendant, the United States Department of Justice's, nondisclosure of information

requested by Plaintiffs pursuant to the Freedom oflnformation Act, 5 U.S.C. § 552 ("FOIA").

The parties cross-move for summary judgment. For the reasons stated below, Defendant's

motion is GRANTED, and Plaintiffs' motion is DENIED.

BACKGROUND

I. The Joint Inspector General Report

As part of the nation's counter-terrorism efforts following the September 11, 2001

attacks, President George W. Bush authorized the National Security Agency ("NSA") to conduct

a classified electronic communications surveillance program within the United States. See Decl.

ofDavid E. McCraw ("McCraw Decl.") Ex. G ("Joint IG Report Vol. I") at 1 (filed with the

Court) 1; Decl. of David M. Hardy ("Hardy Decl.") ,-r 5, ECF No. 41. The NSA operated the

surveillance program, referred to as the "President's Surveillance Program" ("PSP") or

1 Plaintiffs filed with the Court hard copies of the complete versions of the government reports produced in response to their FOIA requests. See ECF No. 28; McGraw Decl. Exs. G-0. Plaintiffs electronically filed excerpts from the reports that contain the withheld information they are challenging or to which they otherwise cite in their submissions. See ECF Nos. 28, 32. Included in the electronic filing is a key that indexes the excerpted pages with the corresponding pages in the full reports. See ECF No. 32. The Court refers to the page numbers of the full reports in its opinion; the corresponding pages of the excerpted reports can be found by looking at this key.

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"STELLARWIND," pursuant to regularly renewed presidential authorizations and then, after several years, pursuant to various orders issued by the Foreign Intelligence Surveillance Court ("FISC"). See Hardy Decl. ,-r 5; Joint IG Report Vol. I at 1. Through this program, the NSA intercepted the content of international telephone and internet communications and collected, analyzed, and shared with other intelligence agencies metadata from those communications, tracing connections between and among various phone numbers and internet addresses. Joint IG Report Vol. I at 1.
In 2008, Congress enacted the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 ("FAA") to, inter alia, require the inspectors general of various intelligence agencies to conduct a comprehensive review of the PSP. See Pub. L. No. 110-261, § 301, 122 Stat. 2436,2471-73 (2008) (codified in scattered sections of 50 U.S.C. and 18 U.S.C.); Joint IG Report Vol. I at 1-2. These agencies included the Department of Justice ("DOJ"), Central Intelligence Agency ("CIA"), Federal Bureau oflnvestigation ("FBI"), Department of Defense ("DOD"), NSA, and Office of the Director ofNational Intelligence ("ODNI"). McCraw Decl. ,-r 2, ECF No. 31. The agencies issued a report (the "Joint IG Report") at the conclusion of that review. 2 Joint IG Report Vol. I at 1-2. As directed by the FAA, the report discusses the inception and implementation of the PSP, internal assessments of the PSP's legality, the program's transition from operating pursuant to executive orders to operating under the authority ofthe FISC, and the impact ofthe PSP on counter-terrorism efforts. See generally id.; FAA§ 301(b).
2 A copy of the report prepared for public consumption is available at https://oig.justice.gov/special/s0907.pdf. The online version of the report is not identical to that submitted by Plaintiffs, however, and the Court will consider the submitted report when assessing the pmiies' motions.
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The Joint IG Report was produced in three volumes. Volume I contains the joint report of the inspectors general of the DOD, DOJ, CIA, NSA, and ODNI. See generally Joint IG Report Vol. I. Volume II contains the independent review of the PSP by the inspectors general ofthe DOD, NSA, and Central Security Service,3 and the CIA and ODNI inspectors general's respective reviews of each agency's participation in the PSP. See generally McCraw DecI. Ex. H ("Joint IG Report Vol. II") (filed with the Court). Volume III contains the DOJ OIG's review of that agency's involvement with the PSP. See generally McCraw Decl. Ex. I ("Joint IG Report Vol. III") (filed with the Court).
II. The DOJ Office of Inspector General Reports Relevant to the parties' motions are six additional reports produced by the DOJ Office of
the Inspector General ("OIG") reviewing other intelligence-gathering programs implemented by the federal government following the September 11, 2001 attacks. The reports, and the programs they discuss, are briefly described below.
The first report, titled "A Review of the Federal Bureau oflnvestigation's Use of National Security Letters," was released in March 2007. See McCraw Decl. Ex. M ("NSL Report I") (filed with the Court). Various statutes authorize the FBI to obtain personal information from telephone companies, financial institutions, internet service providers, and consumer credit agencies by issuing to those entities documents called national security letters ("NSLs"). I d. at viii. Through the USA PATRIOT Improvement and Reauthorization Act of 2005 (the "Reauthorization Act"), Congress directed the DOJ OIG to review the "effectiveness and use" ofNSLs. Pub. L. No. 109-177, § 119, 120 Stat. 192, 219-21 (2006); NSL Report I at viii. Specifically, the law required the DOJ OIG to assess whether the FBI had used NSLs
3 The Central Security Service is an agency within the DOD that conducts surveillance and cryptological activities.
3

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improperly, the value of information obtained from NSLs, and how any information collected was managed and utilized. NSL Report I at viii-ix. This report describes the DOJ OIG's findings regarding the use ofNSLs from 2003 to 2005. Id. at viii.
The second report, titled "A Review of the Federal Bureau oflnvestigation's Use of Section 215 Orders for Business Records,'' was released in March 2007. See McCraw Decl. Ex. J ("Section 215 Report I") (filed with the Court). Section 215 of the Patriot Act4 authorized the FBI to petition the FISC for orders permitting the seizure of "tangible things" like books, documents, and other items from businesses and organizations if the items were relevant to counter-terrorism investigations or other intelligence activities. See Section 215 Report I at i (Exec. Summ.). In the Reauthorization Act, Congress directed the DOJ OIG to review the FBI's activities pursuant to Section 215, specifically, to catalogue and assess the requests made by the FBI, the FISC's responses to those requests, the agency's procedures governing the making of these requests, and the manner in which information obtained from the requests was used. See Reauthorization Act§ 106A; Section 215 Report I at vii-viii (Exec. Summ.). This report addresses data from 2002 through 2004. Section 215 Report I at i (Exec. Summ.).
The third report, titled "A Review of the FBI's Use ofNational Security Letters: Assessment of Corrective Actions and Examinations ofNSL Usage in 2006," was released in March 2008. See McCraw Decl. Ex. N ("NSL Report II") (filed with the Court). Similar to NSL Report I, this report was issued pursuant to the Reauthorization Act and describes the DOJ OIG's findings regarding the FBI's use ofNSLs in 2006. See id. at 1. The report also assesses the FBI's response to earlier accounts of the agency's misuse ofNSLs. Id.
4 The "Patriot Act" is shorthand for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
4

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The fourth report, titled "A Review of the FBI's Use of Section 215 Orders for Business Records in 2006," was released in March 2008. See McCraw Decl. Ex. K ("Section 215 Report II") (filed with the Court). Similar to Section 215 Report I, this report was issued pursuant to the Reauthorization Act and reviews the FBI's activities pursuant to Section 215 of the Patriot Act, incorporating data from 2006. See id. at 1. The report also assesses the agency's procedures for minimizing the retention of business records which the Attorney General was required to adopt by Section 106(g) of the Reauthorization Act. !d.
The fifth report, titled "A Review of the Federal Bureau oflnvestigation's Use of Exigent Letters and Other Informal Requests for Telephone Records," was released in January 2010. See McCraw Decl. Ex. 0 ("Exigent Letters Report") (filed with the Court). The report recounts the DOJ OIG's investigation into the FBI's use of procedures other than NSLs or other legal process-in other words, procedures that circumvented legal requirements-to obtain the production of telephone records from employees of three communications service providers. See id. at 1-7. The report assesses the means by which the FBI initiated telephone record requests, the role of various individuals within and outside of the FBI in implementing and supervising those requests, and the "management failures that led to these improper practices." See id.
The final report, titled "A Review of the Federal Bureau oflnvestigation's Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of2008," was released in September 2012. See McCrawDecl. Ex. L ("702 Report") (filed with the Court). Section 702 of the FAA authorizes the FBI to conduct certain foreign surveillance activities after the government's ability to do so under the PSP was curtailed by "rigorous procedural requirements" imposed by the FISC. See FAA§ 702; 702 Report at ix-xi. This report discusses the findings ofthe review which the DOJ OIG was required to perform pursuant to the FAA.
5

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See 702 Report at x. Specifically, the report reviews the FBI's foreign surveillance activities
from September 2008 through early 2010, describing the agency's policies and procedures for
acquiring this intelligence and the agency's "routing, retention, purging, minimization, and
dissemination" of the intelligence after its acquisition. See id. at x, 1-6.
III. The FOIA Requests
On January 31, 2014, Plaintiffs filed a FOIA request with the DOJ OIG, seeking "a copy
ofthe full, currently classified joint IG report on the president's surveillance program that was
mandated by Title III of the FISA Amendments Act." McCraw Decl. Ex. A. On February 18,
2014, Plaintiffs filed another request with the DOJ OIG, seeking:
an updated declassification review and release of all DOJ [O]IG reports issued since Sept. 11, 2001, pertaining to surveillance and data collection, including but not limited to:
1. The report on FISA Amendments Act 702, announced on Sept. 25, 2012 [702 Report] http://www.justice.gov/oip/press/2012/2012 09 25.pdf
2. The January 2010 report on the FBI's use of exigent letters and other informal requests for phone records [(Exigent Letters Report)] http://www.justice.gov/oig/special/s1001r.pdf
3. The March 2008 report on the FBI's use of Section 215 Orders for Business Records in 2006 [Section 215 Report II] http://www.justice.gov/oig/special/s0803a/final/pdf
4. The March 2008 report on the FBI's use ofNSLs (corrective actions) [NSL Report II] http://www.justice.gov/oig/special/s0803b/final.pdf
5. The March 2007 report on the FBI's use of Section 215 Orders for Business Records [Section 215 Report I] http://www.justice.gov/oig/special/s0703alfinal/pdf
6. The March 2007 report on the FBI's use ofNSLs [NSL Report I] http://www.justice.gov/oig/special/s0703b/final/pdf.
McCraw Decl. Ex. D.
6

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On February 10 and 21, 2014, respectively, the DOJ OIG denied Plaintiffs' requests, stating that the reports contained information that was properly classified in the interest of national defense or foreign policy pursuant to an executive order. See id. ,-r,-r 3, 5a5; Exs. B, E (each citing 5 U.S.C. § 552(b)(1)). The DOJ OIG also stated that prior to receiving Plaintiffs' FOIA requests it had asked the ODNI and DOJ to "conduct a declassification review" of the various reports. Id. Exs. B, E. On February 24, 2014, Plaintiffs appealed the denial oftheir requests. Id. ,-r,-r 4, 6a; Exs. C, F. The DOJ OIG did not decide the appeals within the twenty business days prescribed by FOIA, 5 U.S.C. § 552(a)(6)(a)(ii). Id. ,-r,-r 5, 7.
Plaintiffs filed this action on May 28, 2014. ECF No. 1. Upon the parties' consent, the Court issued a scheduling order governing the process by which Defendant would review the seven reports requested by Plaintiffs to determine if any withheld information could be declassified and publicly disclosed. See McCraw Decl. ,-r,-r 9, 10; ECF No.9. Defendant completed its review in September 2015, declassifying and publicly disclosing significant portions of the reports. Throughout the approximately 2,000 pages produced, however, certain information remains redacted. See ECF Nos. 25, 27.
Plaintiffs move for summary judgment, challenging Defendant's nondisclosure of information in twenty-five different places throughout the various reports. McCraw Decl. ,-r 11. Defendant cross-moves for summary judgment, contending that the information Plaintiffs seek is properly withheld pursuant to several ofFOIA's enumerated exemptions.
5 In the McCraw declaration there are two sets of paragraphs numbered ''5" and ''6''. See McCraw Decl. at 2. The Court will refer to the second iteration of each number as "Sa" and "6a," respectively.
7

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DISCUSSION

I.

Legal Standards

A. Summary Judgment

A moving party is entitled to summary judgment when the record shows that there is no

genuine dispute as to any material fact and the moving party is entitled to judgment as a matter

oflaw. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v.

New York, 366 F.3d 138, 148 (2d Cir. 2004). A genuine dispute exists "if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those which, under the governing law,

may affect the outcome of a case. I d. The moving party must establish the absence of a genuine

dispute of material fact by citing to particulars in the record. Fed. R. Civ. P. 56(a), (c); Celotex,

477 U.S. at 322-25; Koch v. Town ofBrattleboro, 287 F.3d 162, 165 (2d Cir. 2002). Ifthe

movant satisfies this burden, the opposing party must then "come forward with specific facts

showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). When deciding the motion, the

Court must view the record in the light most favorable to the non-moving party, 0 'Hara v.

Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002), although speculation and conclusory

assertions are insufficient to defeat summary judgment, see Niagara Mohawk Power Corp. v.

Jones Chern. Inc., 315 F.3d 171, 175 (2d Cir. 2003).

B. FOIA

FOIA, enacted to promote honest and open government, "calls for broad disclosure of

Government records." NY Times Co. v. U.S. Dep't ofJustice, 756 F.3d 100, 111 (2d Cir. 2014)

(internal quotation marks and citation omitted). Under FOIA, the government must "disclose

8

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agency records upon request" unless the documents "fall within one of [the law's] enumerated exemptions." Amnesty Int"l USA v. CIA., 728 F. Supp. 2d 479,500 (S.D.N.Y. 2010) (citations omitted). The exemptions should be construed narrowly, but because "public disclosure is not always in the public interest," the exemptions nonetheless merit "meaningful reach and application." Human Rights Watch v. Dep 't ofJustice Fed. Bureau ofPrisons, No. 13 Civ. 7360, 2015 WL 5459713, at *3 (S.D.N.Y. Sept. 16, 2015) (citations omitted).
On summary judgment, the government bears the burden of showing that information withheld in response to a FOIA request is exempt under the statute. Bloomberg L.P. v. Bd. of Governors ofFed. Reserve Sys., 649 F. Supp. 2d 262,271 (S.D.N.Y. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). This burden can be sustained through the use of"[a]ffidavits or declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption." Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009); see also Bloomberg L.P., 649 F. Supp. 2d at 271 ("An agency must show with 'reasonable specificity' that withheld information falls within a FOIA exemption; conclusory or speculative assertions in support of an exemption are insufficient." (citation omitted)). All doubts as to the applicability of an exemption must be resolved in favor of disclosure. NY. Times Co., 756 F.3d at 112 (internal quotation marks and citation omitted); Wilner, 592 F.3d at 69. That said, government affidavits are "accorded a presumption of good faith," and the Court must give substantial weight to an agency's affidavit concerning classified information relating to national security. NY. Times Co., 756 F.3d at 112; see also Wilner, 592 F.3d at 76 ("[Courts] have consistently deferred to executive affidavits predicting harm to national security." (citation omitted)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wilner, 592 F.3d at 73 (citation omitted). Accordingly, "the government's burden is a light one." ACLU v. US.
9

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Dep 't ofDef, 628 F.3d 612, 624 (D.C. Cir. 2011). "Summary judgment in favor ofthe FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption." Bloomberg L.P., 649 F. Supp. 2d at 271 (alterations omitted).
C. The FOIA Exemptions Defendant invokes a number of statutory exemptions to justify withholding information in response to Plaintiffs' FOIA requests. 6 The standards governing the applicability of each exemptions are discussed below. 1. Exemption 1 The government may withhold information under Exemption 1 if the information is "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) [is] in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Through affidavits, the government must establish "that it complied with proper procedures in classifying materials and that the withheld information falls within the substantive scope" of a particular executive order. Amnesty Int 'l USA, 728 F. Supp. 2d at 506 (citing Salisbury v. United States, 690 F.2d 966,971-72 (D.C. Cir. 1982)). To prevail on summary judgment, the government's affidavits must "contain sufficient detail to forge the logical connection between the information [withheld]" and Exemption 1. I d. (internal quotation marks and citation omitted). That said, because "issues of national security are within the unique purview ofthe executive branch[]," the government's justifications for
6 Often, information is withheld under several different exemptions, each, according to Defendant, independently justifying nondisclosure. The government need only demonstrate the applicability of one FOIA exemption to meet its burden. See Wilner, 592 F.3d at 72. Therefore, a court may end its analysis when the government sustains its burden as to one exemption, without reaching the question of whether additional exemptions would apply to the withheld information.
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classifying information should be accorded deference. Physicians for Human Rights v. US. Dep 't ofDef, 675 F. Supp. 2d 149, 166 (D.D.C. 2009).
Throughout the reports, Defendant contends that information withheld under Exemption 1 is properly classified pursuant to Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) ("E.O. 13526"). This order allows the classification-and thus nondisclosure-of information if (1) it was classified by "an original classification authority"; (2) it is "owned by, produced by or for, or is under the control of the United States Government"; (3) it belongs to one of the eight protected categories listed in section 1.4 ofthe order; and (4) an original classification authority determined that "unauthorized disclosure of the information reasonably could be expected to result in damage to the national security" and the authority is "able to identify or describe the damage."7 E.O. 13526 § 1.1. Section 1.4 ofE.O. 13526 protects, inter alia, information that describes "intelligence activities (including covert action), intelligence sources or methods, or cryptology"; "foreign relations or foreign activities of the United States, including confidential sources"; and "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security." Information may not be classified, however, to "conceal violations of law, inefficiency, or administrative error"; "prevent embarrassment" to an agency or government official; or if it "does not require protection in the interest of national security." Id. § 1.7.
7 Plaintiffs do not appear to dispute that Defendant has satisfied its burden of establishing that withheld material has been classified by an original classification authority or that it is owned by, produced for, or under the control of the government. See Sherman Dec!.~~ 2, 15; Hardy Dec!.~~ 2, 18. Accordingly, the Court need only determine whether the government has established that the withheld information pertains to one cif the categories listed in E.O. 13526 §§ 1.1(3), 1.4, and has adequately described the harm that may result from the information's disclosure, id. § 1.1(4).
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2. Exemption 3 Under FOIA Exemption 3, the government is permitted to withhold information that is "specifically exempted from disclosure by [a] statute" that requires certain information to be withheld or that establishes criteria for the withholding of information. 5 U.S.C. § 552(b)(3). Determining the applicability of this exemption "depends less on the detailed factual contents of specific documents" than with other FOIA exemptions. Amnesty Int 'l USA, 728 F. Supp. 2d at 500-01 (citation omitted). Rather, to sustain its burden the government "need only show that the statute claimed is one ... contemplated by Exemption 3 and that the withheld material falls within the statute." !d. (citation omitted). Defendant invokes three statutes to justify nondisclosure under Exemption 3: 15 U.S.C. § 3605, which exempts from disclosure "the organization or any function of the [NSA], or any information with respect to the activities thereof'; 15 U.S.C. § 3024(i)(l), which directs the director of national intelligence to "protect intelligence sources and methods from unauthorized disclosure" and to "establish and implement guidelines for the intelligence community"-which includes the FBI and other agencies involved in this litigation-regarding the classification and dissemination of sensitive information; and 18 U.S.C. § 798, which prohibits the unauthorized disclosure of classified information "concerning the communication intelligence activities of the United States" or "obtained by the processes of communication intelligence from the communications of any foreign government." Decl. of David J. Sherman ("Sherman Decl.") ~~ 19-21, ECF No. 42. Each ofthese laws qualifies as an exemption statute under Exemption 3. See Elec. Frontier Found. v. Dep 't ofJustice, 141 F. Supp. 3d 51, 58 n.8 (D.D.C. 2015). Therefore, the Court's remaining task is not to "closely scrutinize the contents" of a document withheld under Exemption 3, but to determine whether the information withheld by the
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government "meet[s] the exemption statute's criteria for nondisclosure." NY Times Co. v. US. Dep 't ofJustice, 915 F. Supp. 2d 508, 538-39 (S.D.N.Y. 2013), rev 'din part on other grounds, 756 F.3d 100.
3. Exemption 5 FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). "Stated simply," covered documents include those "which would not be obtainable by a private litigant in an action against the agency under normal discovery rules (e.g., attorney-client, work-product, executive privilege)." Tigue v. US. Dep 't of Justice, 312 F.3d 70,76 (2d Cir. 2002) (internal quotation marks and citation omitted). This exemption is "based on the policy of protecting the decision making processes of government agencies," and protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Brennan Ctr. for Justice at NYU Sch. ofLaw v. US. Dep 't ofJustice, 697 F.3d 184, 194 (2d Cir. 2012) (internal quotation marks and citation omitted). Relevant here, "[a]n inter- or intra-agency document may be withheld pursuant to [Exemption 5] if it is: (1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually ... related to the process by which policies are formulated." Nat'l Council ofLa Raza v. Dep 't ofJustice, 411 F.3d 350,356 (S.D.N.Y. 2005) (internal quotation marks omitted); see also Grand Cent. P 'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) ("The privilege protects recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." (internal quotation marks and citation omitted)); Amnesty Int 'l USA, 728
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F. Supp. 2d at 515-16 (describing further the standard for information to qualify for nondisclosure under Exemption 5).
4. Exemption 7(E) Under FOIA Exemption 7(E), the government can withhold information, "compiled for law enforcement purposes," that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). Information is compiled for law enforcement purposes where the "withheld record has a rational nexus to the agency's law-enforcement duties, including the prevention of terrorism and unlawful immigration." Bishop v. US. Dep 't ofHomeland Sec., 45 F. Supp. 3d 380, 387 (S.D.N.Y. 2014) (citation omitted). This means that, in short, "all records of investigations compiled by the FBI are for law enforcement purposes." Halpern v. FBI, 181 F.3d 279, 296 (2d Cir. 1999). Once this "threshold requirement is satisfied, a court must determine if either of Exemption 7(E)'s two alternative clauses applies." Bishop, 45 F. Supp. 3d at 387 (internal quotation marks and citation omitted). Information discloses "techniques and procedures" if it "refers to how law enforcement officials go about investigating a crime." Allard K. Lowenstein Int 'l Human Rights Project v. Dep 't ofHomeland Sec., 626 F.3d 678, 682 (2d Cir. 2010). "The term 'guidelines'-meaning ... 'an indication or outline of future policy or conduct'-generally refers ... to resource allocation." Id. (citing the dictionary). 5. Exemption 7(A) Under FOIA Exemption 7(A), the government may withhold information, "compiled for law enforcement purposes," if the production of the information "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). This exemption
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"prevent[s] harm to the government's case in court by not allowing litigants earlier or greater access to agency investigatory files than they would otherwise have." Conti v. U.S. Dep 't of Homeland Sec., No. 12 Civ. 5827, 2014 WL 1274517, at *22 (S.D.N.Y. Mar. 24, 2014). Sustaining its burden requires the government to show that "(1) a law enforcement proceeding is pending or prospective and (2) release of the information could reasonably be expected to cause some articulable harm." Azmy v. U.S. Dep 't ofDef, 562 F. Supp. 2d 590, 605 (S.D.N.Y. 2008). Ultimately, the government must "allow[] the court to trace a rational link between the nature of the document and the alleged likely interference." Ctr. for Nat 'l Sec. Studies v. U.S. Dep 't of Justice, 331 F.3d 918, 940 (D.C. Cir. 2003).
II. Plaintiffs' Challenges A. Plaintiffs' Original Challenges Plaintiffs move for summary judgment to compel disclosure of information withheld in
twenty-five different areas of the reports. In their memorandum, Plaintiffs categorize the information and argue, in general terms, why each category of information may not be exempt from disclosure under FOIA. In response, Defendant's memorandum and attached affidavits provide, with specificity, exhaustive arguments supporting the non-disclosure of each area of withheld information. In reply, Plaintiffs contest the government's arguments as to only seven areas of withheld information. This alone may warrant ruling for Defendant with regard to the eighteen challenges unaddressed by Plaintiffs. See, e.g., Estate ofAbdu!Jaami v. U.S. Dep 't of State, No. 14 Civ. 7902, 2016 WL 94140, at *7 (S.D.N.Y. Jan. 7, 2016) (collecting cases in which summary judgment was granted for the government when the plaintiff failed to "challenge [the] agency's justifications for withholding certain information" (citing, inter alia, Augustus v. McHugh, 870 F. Supp. 2d 167, 171-73 (D.D.C. 2012)). Additionally, although Plaintiffs claim
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to maintain each of their twenty-five original challenges, they request that the Court review the remaining challenges only upon a finding in favor of Plaintiffs with regard to the seven challenges detailed in their reply memorandum. See Pl. Reply Mem. 2, ECF No. 49. As discussed below, Plaintiffs' motion is DENIED with respect those seven challenges. Accordingly, the Court finds that Plaintiffs have waived the eighteen remaining challenges, and Plaintiffs' motion is DENIED, and Defendant's GRANTED, with respect to those eighteen challenges. 8
B. The Remaining Challenges 1. Tables of Information about Section 215 Applications In Section 215 Report I, Plaintiffs challenge the withholding of data about applications for the seizure of business records made pursuant to Section 215, including the number of U.S. and non-U.S. persons referenced in Section 215 Orders for the years 2004 and 2005, see Section 215 Report at 19; the types ofbusiness records requested in Section 215 orders, see id. at 20-21, 24; and the FBI field offices from which Section 215 requests originated in 2004 and 2005, see id. at 22, 25. Some information contained in the tables populating this portion of the report is disclosed, including, for example, the total number of Section 215 requests submitted to the FISC during the relevant years, see id. at 17, 19; the number of U.S. and non-U.S. persons referenced in Section 215 orders for the years 2002 and 2003, id. at 19; and the types of investigations for which Section 215 requests were made, id. at 22. Defendant contends that data about the types ofbusiness records requested pursuant to Section 215 is exempt from disclosure
8 Specifically, Plaintiffs' challenges fail as to the information withheld in Joint IG Report Vol. I at 53-54, 65-68, 1216, 36-50; Joint IG Report Vol. II at 99-102, 123 and surrounding pages, and 165; Joint IG Report Vol. III at 25-42, 104-17, 122-33, 142-48, 158-86, 315-24, 333-59, and 402-03; Section 215 Report II at 15-21; 702 Report at xivxxxviii, 71 and surrounding pages, and 150-51; Exigent Letters Report at 61-64 and 75-78; NSL Report I at 65 and 101; and NSL Report II at 119-21.
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under Exemption 7(E), see id. at 21, and that the rest of the withheld information is exempt under Exemptions 1, 3, and 7(E).
As for the information withheld under Exemption 1, Defendant argues that disclosure would reveal important details about the frequency with which the FBI relies on Section 215 in its investigations, the types of materials or information sought in those investigations, and the regions in which those investigations are occurring. See Hardy Decl. ~~ 55-58, 111. According to Defendant, this information might aid individuals or entities in predicting whether they are targeted by FBI investigations, causing them to destroy, or avoid creating, the type of business records that the FBI might seek, or to avoid operating in a region in which the FBI is more active. Id. In other words, the government states that disclosing the redacted information "could reasonably be expected to prompt terrorists and other adversaries to alter their behavior, destroy records, or change their associations, thwarting the FBI's investigative efforts and causing serious harm to national security." Second Decl. of David M. Hardy ("2d Hardy Decl.") ~ 5, ECF No. 57. These explanations are not merely conclusory, but instead demonstrate, with "reasonably specific detail," "the logical connection between information [withheld] and [Exemption 1]." Amnesty Int'l USA, 728 F. Supp. 2d at 507; see also NY. Times Co. v. US. Dep 't ofJustice, 872 F. Supp. 2d 309, 316 (S.D.N.Y. 2012) (crediting the government's claims that the disclosure of the "manner and means by which the ... Government" employs Section 215 orders "could enable America's adversaries to develop means to degrade and evade" intelligence activities).
Plaintiffs' arguments otherwise are unavailing. Plaintiffs contend that the information here is improperly withheld because it reflects agency wrongdoing, citing a Second Circuit decision holding that the FBI's bulk data collection activities-conducted via Section 215
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requests-exceeded statutory authorizations. See ACLU v. Clapper, 785 F.3d 787, 821 (2d Cir. 2015). Information may not be classified for the purpose of concealing wrongdoing. See E.O. 13526 § 1.7. There is no indication, however, that simply "because some of the [FBI]'s techniques are illegal [or were mistakes], the [FBI] therefore classified the documents to conceal the alleged illegality [or mistake]." Amnesty Int'l USA, 728 F. Supp. 2d at 510.
Plaintiffs also argue that it is illogical to disclose data about the number of Section 215 requests in 2002 and 2003, but redact the same information with regard to 2004 and 2005. See 215 Report I at 19. The fact, however, that Defendant distinguishes "seemingly analogous figures"-here, data from 2003-2004, and data from 2004-2005-"evidence[s] [Defendant]'s good faith in deciding that the redacted [information] must remain hidden." Leopold v. CIA, 106 F. Supp. 3d 51, 60 (D.D.C. 2015). And Defendant plausibly explains that the withheld information may evidence trends in the FBI's investigative activities, a detail that cannot be gleaned from the disclosure that the FBI made no Section 215 requests in 2003 and 2004. 2d Hardy Decl. ~ 4.
Finally, although Defendant acknowledges the public's awareness of the FBI's use of Section 215 orders generally, it contends that the information withheld here protects certain details about the extent of the FBI's reliance on Section 215 and how those orders are employed in FBI investigations. "[T]he fact that the government disclosed general information on its [investigation techniques] does not require full disclosure of aspects of the program that remain classified." Amnesty Int'l USA, 728 F. Supp. 2d at 509 (citations omitted). Ultimately, "an agency's justification for invoking a FOIA exemption is sufficient ifit appears logical or plausible." Id. at 510. Such is the case here. Accordingly, Defendant's summary judgment
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motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in Section 215 I Report pp. 19, 20,22-25.
Defendant also meets its burden as to the information withheld solely under Exemption 7(E)-the types of records requested pursuant to Section 215. See Section 215 Report I at 21. Because the withheld information "has a rational nexus to the agency's law-enforcement duties," Bishop, 45 F. Supp. 3d at 387, and pertains to "how law enforcement officials go about investigating a crime," Allard K. Lowenstein Int 'l Human Rights Project, 626 F.3d at 682, it is exempt from disclosure under Exemption 7(E). See, e.g., Bishop, 45 F. Supp. 3d at 391 (finding that Exemption 7(E) applies, even though law enforcement techniques are generally known, if "the manner and circumstances of the techniques are not generally known, or the disclosure of additional details could reduce their effectiveness"). Accordingly, Defendant's summary judgment motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in Section 215 I Report p. 21.
2. Statistics on the Use ofNSLs from 2003 to 2005 In NSL Report I, Plaintiffs challenge the withholding of data about the number ofNSLs issued by the FBI between 2003 and 2005, including the number ofNSLs requesting consumer credit reports, the number ofNSLs requesting financial institution or consumer identifying information, and the number of the FBI's counter-terrorism investigations involving NSLs. See NSL Report I at 36-40.9 Defendant contends that this information is exempt from disclosure under Exemptions 1 and 3.
9 While the motions were pending, Defendant reprocessed several pages from Plaintiffs' original FOIA request. See Second Dec!. of David E. McCraw ("2d McCraw Dec!.")~ 2, ECF No. 50. Defendant unredacted information that was originally withheld on pages 36 and 38 ofNSL Report I. Plaintiffs submitted the updated yersion of those pages, see 2d McCraw Decl. Ex. A, to which the Court refers in its analysis here.
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Plaintiffs argue that withholding this information is illogical given that similar information is disclosed, including data on the total number ofNSLs issued between 2003 and 2005, and information identifying that the majority ofNSL requests sought "telephone toll billing records information, subscriber information (telephone or email) or electronic transactional records." See id. at 36. Defendant, however, distinguishes the information: the disclosed data describes the nature and number ofNSL requests generally, whereas the withheld information reveals the specific number of FBI investigations during the relevant period and the type of information sought in those investigations. See 2d Hardy Decl. ,-r,-r 7-8. According to Defendant, the number of investigations cannot be deduced from knowing the number of requests for information about telephone and e-mail subscribers because one individual can have multiple telephone numbers or e-mail accounts. Id. The number ofNSL requests to financial institutions or credit reporting agencies, on the other hand, parallels the number of subjects under investigation. !d. Therefore, Defendant withholds information that would allow potential adversaries to track, with specificity, the FBI's level of investigative activity related to certain communication records. Because this distinction is "logical or plausible," and given the deference due to the executive branch on its assessment of national security risks, see Wilner, 592 F.3d at 76, Defendant has met its burden justifying nondisclosure. Accordingly, Defendant's motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in NSL Report I pp. 36-40.
3. The Number of Clearances for STELLARWIND In Joint IG Report Vol. II, Plaintiffs challenge the withholding of the total number of persons cleared for access to information collected pursuant to the PSP. See Joint IG Report Vol. II at 165. Defendant argues that this information concerns the NSA's processes for handling
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classified information, see Sherman Decl. ~ 67, and that it is exempt from disclosure under Exemption 3.
In justifying the withholding, Defendant invokes 50 U.S.C. § 3605, which protects from disclosure "the organization or any function of the [NSA], or any information with respect to the activities thereof." The NSA was the agency responsible for processing requests for access to information collected from activities conducted under the PSP. Sherman Decl. ,-r 68. Data about the number of persons who received clearances reveals the "scope ofNSA's implementation of' the processes by which the agency "handles and protects its classified information," implicating one ofthe agency's "core function[s] and activit[ies]." !d. Although the information Plaintiffs seek may be narrow in scope, Section 3605 "broadly exempts [from disclosure] any information pertaining to the agency's 'activities' or 'functions."' Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 933 (D.C. Cir. 2012) (emphasis in original). Accordingly, because Defendant meets its burden of showing that the withheld material is covered by an exemption statute, Amnesty Int 'I USA, 728 F. Supp. 2d at 500-01, Defendant's motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in Joint OIG Report Vol. II p. 165.
4. List of 13 Consequences ofNSL Disclosure In NSL Report II, Plaintiffs challenge the withholding of the FBI's list of possible adverse consequences that may result from disclosing the existence of an NSL. See NSL Report II at 120-21. Under the original statutes authorizing the use ofNSLs, the recipient of an NSL was required to avoid disclosing that it had received the letter. See id. at 117 (citing statutes). The Reauthorization Act removed this presumption of confidentiality; instead, the FBI may now require a recipient's confidentiality only upon identifying a specific harm that might result from revealing the FBI's request for information. Id. at 117-18; Reauthorization Act§ 116. FBI
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agents must assess whether there is a "genuine need" for non-disclosure of an NSL, and, if nondisclosure is warranted, the agent issuing the NSL must provide a "factual predicate" justifying the confidentiality requirement. NSL Report II at 119-20. To guide agents making these determinations, the FBI's general counsel identified thirteen possible adverse consequences of disclosure for agents to consider when articulating the need for non-disclosure. Id. at 120-21.
Defendant withholds this information pursuant to Exemptions 1 and 3, contending that the information "reference[s] with specificity particular covert investigative techniques and procedures employed by the FBI in coordination with the use ofNSLs." 2d Hardy Decl. ,-r 10. Additionally, according to Defendant, revealing the factors that support requiring non-disclosure may allow individuals to modify their behavior to "minimize the likelihood that any NSL directed at their accounts will include a non-disclosure provision." Hardy Decl. ,-r 78.
Although Plaintiffs challenge the reasonableness of Defendant's claims that guidance regarding non-disclosure provisions would be of any concern to would-be terrorists, the Court "should not closely scrutinize the contents" of information withheld under Exemption 3, and instead must only determine whether the information is covered by an exemption statute. ACLU v. F.B.I., No. 11 Civ. 7562, 2015 WL 1566775, at *3 (S.D.N.Y. Mar. 31, 2015) (citation omitted). Defendant relies on 50 U.S.C. § 3024(i), which directs the director of national intelligence to "protect intelligence sources and methods from unauthorized disclosure," and to "establish and implement guidelines for the intelligence community"-which includes the FBIregarding the classification and dissemination of sensitive information. The FBI's affidavits explain that disclosure of the withheld information would reveal intelligence sources and methods, an assertion to which the Court must accord "substantial weight and due consideration." Amnesty Int 'l USA, 728 F. Supp. 2d at 503. Indeed, it is plausible that revealing
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the adverse consequences of disclosing the existence of a particular investigative tool directed at a particular recipient would reveal the nature and vulnerabilities of FBI intelligence-gathering methods. Because Defendant's description of the redacted information is sufficient to show that the information falls under the withholding statute, it has justified non-disclosure under Exemption 3. Accordingly, Defendant's motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in NSL Report II pp. 120-21.
5. Information about Public Prosecutions and Trials In each volume of the Joint IG Report, and in NSL Report I, Plaintiffs challenge the withholding of assessments reviewing how information collected pursuant to the PSP contributed to counter-terrorism efforts, including details about particular investigations and specific ways in which PSP intelligence contributed to the success of those investigations. See Joint IG Report Vol. I at 65-68; Joint IG Report Vol. II at 99-102; Joint IG Report Vol. III at 315-24; NSL Report I at 65. Plaintiffs contend that the reports here discuss investigations that resulted in public criminal prosecutions, at least some of which featured intelligence gathered pursuant to foreign surveillance programs other than the PSP. See Pl. Reply Mem. 9 n.l 0 (citing articles and testimony). Plaintiffs argue that it is unreasonable to withhold information about public proceedings because they resulted from the use of PSP surveillance intelligence when that intelligence is similar to other information that was publicly disclosed in the course of those proceedings. Defendant invokes a number of Exemptions through these portions of the reports, but contends that two Exemptions-! and 3-allow the non-disclosure of all the challenged redactions. The government claims that only surveillance data collected pursuant to the FAAwhich mandates the disclosure of information to be used as evidence against a defendant in a
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criminal prosecution, see, e.g., 50 U.S.C. § 1806(c)-has been disclosed during public terrorism prosecutions. Although Defendant acknowledges that the redacted information may pertain to proceedings which were public, it maintains that the "contribution of the PSP to individual investigations has never been made public and remains properly classified." Hardy Decl. ,-r 50. To the extent intelligence gathered pursuant to the PSP-which is different from programs under the FAA, see Joint IG Report Vol. I at 1 (explaining that the PSP ceased operation by January 2007)-was relevant to any prosecution, it would have been submitted to the court via ex parte submissions to protect its confidentiality. See Sherman Decl. ,-r 51; Hardy Decl. ,-r,-r 50, 52.
According to Defendant, disclosure of this information will reveal, for the first time, the particular investigations and cases in which PSP intelligence was used, alert unaware targets of their surveillance by the government, disclose investigative strategies, and map the ways in which various intelligence agencies-here, the FBI and NSA-work together to combat terrorism. See Hardy Decl. ,-r,-r 46-53; Sherman Decl. ,-r 52. Because the government offers a logical and plausible basis for determining that the redacted information is properly classified, and that harm to national security may result from its release, non-disclosure is justified under Exemption 1. Even if this were not the case, Defendant meets its burden of showing that the withheld information relates to the function ofthe NSA, see 50 U.S.C. § 3605, concerns the government's communications intelligence activities, see 18 U.S.C. § 798, and concerns intelligence sources and methods, see 50 U.S.C. § 3024(i)(l), thereby justifying non-disclosure under Exemption 3. See Sherman Decl. ,-r,-r 53-56; Hardy Decl. ,-r,-r 49, 51, 54. Accordingly, Defendant's motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in Joint IG Report Vol. I pp. 65-68, Joint IG Report Vol. II pp. 99-102, Joint IG Report Vol. III pp. 315-24, and NSL Report I p. 65.
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6. Three Incidents of FBI Wrongdoing Here, Plaintiffs challenge the non-disclosure of information related to three incidents in which the DOJ OIG found wrongdoing on the part of the FBI. The Court will address each in tum. a. Section 215 Report II at 65-74 In Section 215 Report II, Plaintiffs challenge the withholding of a discussion about FBI requests for information that may have exceeded statutory authorization. Section 215 requests may not be used in the course of an investigation premised on a target's protected First Amendment activities. See 50 U.S.C. § 1861(a)(l), (a)(2)(B). The report identifies two instances in which the FISC denied a Section 215 request because of First Amendment concerns. Section 215 Report II at 33-34, 65, 68. Following each application's rejection, the FBI issued an NSL to the target based upon the same factual predicate as the rejected Section 215 application, even though the statute authorizing NSLs shares Section 215' s proscription of investigations premised on protected First Amendment activities, see 12 U.S.C. § 3414(a)(5)(A). Section 215 Report II at 73. Here, the report begins with a description of the FBI investigation in which the Section 215 requests and NSLs were issued. See id. at 65-67. Details ofthe investigation are entirely redacted. I d. Also redacted are portions of ensuing sections describing the Section 215 applications themselves. Although Defendant discloses internal discussions and analysis regarding the legality of the applications, details about the applications' content is withheld. See id. at 68-71. Defendant contends that the description of the investigation is exempt from disclosure under, among others, Exemption 7(E), Hardy Decl. ,-r 64, stating that disclosure of "facts pertaining to how the FBI sought to use Section 215 in a particular investigation, including
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the background of the investigation and the content of the 215 application ... , would provide .. . valuable insight into the FBI investigative process," id. ,-r 62. Specifically, according to Defendant, the redacted information "disclose[s] the subject of [an FBI] investigation," discusses the FBI's "analytical process for evaluating information ... and identifying threats," reveals "operational details, including FBI investigative techniques and operational strategy" for international terrorism investigations, and discusses "how the FBI tracks and investigates subjects" and "how the FBI analyzes records obtained in the course of counterterrorism investigations." 2d Hardy Decl. ,-r 13.
Plaintiffs first contend that information about the techniques and procedures withheld here is already in the public domain, making non-disclosure inappropriate. See Conti, 2014 WL 1274517, at *21. However, although "the government retains the burden of persuasion that information is not subject to disclosure under FOIA, a party who asserts that material is publicly available carries the burden of production on that issue." Inner City Press/Cmty. on the Move v. Bd. ofGovernors ofFed. Reserve Sys., 463 F.3d 239,245 (2d Cir. 2006) (internal quotation marks and citation omitted). In their submissions to the Court, Plaintiffs cite news articles that discuss the government's surveillance programs generally, but do not proffer the public sources of specific information that they contend the government refuses to disclose. See, e.g., Pl. Mem. 5, ECF No. 30. And even ifthere exists in the public domain information about these particular investigations, "an agency does not have to release all details concerning law enforcement techniques just because some aspects of them are known to the public." A CL U v. US. Dep 't of Justice, No. 12 Civ. 7412, 2014 WL 956303, at *7 (S.D.N.Y. Mar. 11, 2014) (citation omitted).
Second, Plaintiffs argue that information about requests for information that implicated First Amendment concerns is not exempt under 7(E) because information may not be withheld to
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conceal agency wrongdoing. "[O]nce," however, "the government has demonstrated that the records were compiled in the course of an investigation conducted by a law enforcement agency, the purpose or legitimacy of such executive action are not proper subjects for judicial review." Halpern, 181 F.3d at 296. Defendant avers that the redacted information is not withheld to conceal wrongdoing, Hardy Decl. ~~ 31-32, a statement which is "accorded a presumption of good faith," Carney v. U.S. Dep 't ofJustice, 19 F.3d 807, 812 (2d Cir. 1994). Absent evidence of bad faith, it is not then for the Court to determine whether the information discloses "records [which] were compiled in the course of an unwise, meritless or even illegal investigation." Williams v. FBI, 730 F.2d 882, 884-85 (2d Cir. 1984). Because Defendant's explanations reasonably indicate that the redacted information is compiled for law enforcement purposes, and would disclose techniques and procedures for law enforcement investigations, non-disclosure is justified under Exemption 7(E).
b. NSL Report I at 83-84 In NSL Report I, Plaintiffs challenge the withholding of information discussing a "possible ... violation" arising from the FBI's use of an NSL to request information about a former college student's educational records. See NSL Report I at 83-84. During the pendency of this action, however, the government determined that this information can be disclosed; it informs the Court that no redactions remain on these pages. See Def. Reply Mem. 22, ECF No. 54; 2d Hardy Decl. ~ 17. Accordingly, the parties' motions with respect to this information are DENIED as moot. c. Exigent Letters Report at 89-122 and 276-79 In Exigent Letters Report, Plaintiffs challenge the withholding of the assessment of three FBI investigations into media leaks in which the FBI requested the telephone records of news
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reporters in violation of federal regulations and department policy. See Exigent Letters Report at 89.
Before subpoenaing a reporter's telephone records, an investigator must determine whether such action is warranted by balancing First Amendment concerns with law enforcement interests and taking reasonable steps to obtain the desired information from alternative sources. See id. at 89-90; 28 C.P.R. § 50.1 O(a)(2). A subpoena must be approved by the Attorney General, and in certain circumstances, notice must be given to the targeted reporter before the subpoena can be issued to the third party from which the record will be obtained. See Exigent Letters Report at 90; 28 C.P.R.§§ 50.10(c)-(e). The report details three FBI investigations into media leaks of classified information in which the FBI requested-and in two circumstances obtained-news reporters' telephone records or other calling activity information. See Exigent Letters Report at 89. The reporters' information was requested or obtained through the use of an exigent letter and without adhering to agency policy or governing regulations. See id. Along with providing background on the investigations, the report recounts the decisions to request reporter information, the procedure that was used to make or authorize those requests, the result of those requests, and the OIG's analysis of the requests' legality. See generally id. at 90-122, 276-79. Defendant contends that text redacted here is withheld pursuant to, among others, Exemptions 7(A) and 7(E).
Defendant invokes Exemption 7(A) on pp. 91, 95, 99-100, 102, and 277-78 of the report, claiming that the withheld information contains details of an ongoing counter-terrorism investigation that has not been publically disclosed and that is being conducted with the cooperation of a foreign government. See Hardy Decl. ~ 97. According to Defendant, this investigation is expected to "result in law enforcement proceedings." Id. ~ 96. Additionally,
28

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disclosure of the nature of the investigation would "alert subjects and their associates of the investigation," "cause them to take measures to evade FBI scrutiny and destroy evidence," and "chill the FBI's relationship with [the] foreign law enforcement entity" cooperating in the investigation. Id. ~ 97.
Because the withheld information has a "rational nexus to the agency's law-enforcement duties" and was, therefore, compiled for law enforcement purposes, Bishop, 45 F. Supp. 3d at 387, and upon release could reasonably "be expected to cause some articulable harm" to pending enforcement proceedings, Azmy, 562 F. Supp. 2d at 605, Defendant has satisfied its burden of justifying the information's nondisclosure. See, e.g., Amnesty Int 'l USA, 728 F. Supp. 2d at 52627 (holding that the government's explanation that disclosure of withheld information would, inter alia, alert subjects of CIA investigations was sufficient to invoke Exemption 7(A)).
The remaining information is validly withheld pursuant to Exemption 7(E). Defendant contends that redacted material contains details that, if released, "would disclose techniques and procedures for ... national security investigations." Hardy Decl. ~ 110. Specifically, withheld information includes "operational details [of] investigative methods; the subject and focus of a particular ongoing counterterrorism investigation, including background information about the investigation, methods used in the investigation, and coordination with a foreign entity; the identity of a particular Field Office; and the identities of certain individuals of interest." I d. ~ 81. Additionally, the government redacts "the identities of the FBI Field Office and U.S. Attorney's Office that have program management responsibility for," and details about "the use of a particular investigative technique in," an ongoing investigation. Id. ~ 111. Such explanations are sufficient to establish that the withholdings conceal records compiled for law enforcement purposes that disclose techniques and procedures for law enforcement investigations, and,
29

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therefore, justify nondisclosure. Accordingly, Defendant's motion is GRANTED, and Plaintiffs' DENIED, with respect to the information withheld in Section 215 Report II pp. 65-74 and Exigent Letters Report pp. 89-122,276-79.
7. Internal Legal Dispute over the PSP In Joint IG Report Vol. III, Plaintiffs challenge the withholding of information concerning the dispute within the DOJ over the legality of the PSP. See Joint IG Report Vol. III at 25-42, 104-17, 122-33, 142-49, 158-80, and 182-86. The report discusses, at length, the memoranda written by OLC Deputy Assistant Attorney General John Yoo assessing the legality ofthe PSP, see, e.g., id. at 23-40; the ensuing debate over Yoo's analysis by various members of the administration, see, e.g., id. at 104-08; the eventual reassessment of the PSP's legality, see, e.g., id. at 109-17, 158-63; and changes made to the PSP pursuant to various Presidential Authorizations, see, e.g., id. at 144-48, 168-80. Defendant contends that information withheld here is exempt from disclosure pursuant to one or all of Exemptions 1, 3, or 5. See Decl. of Paul P. Colborn ("Colborn Decl.") ,-r,-r 13(a)-(x), 14-23, ECF No. 45.; Second Decl. ofDavid J. Sherman ("2d Sherman Decl.") ,-r 5, ECF No. 56. Defendant invokes Exemptions 1 and 3 to justify withholding information scattered throughout these sections of the report. 10 Plaintiffs do not dispute that the information was classified pursuant to "the correct technical procedures" or that the information merits classification under E.O. 13526 § 1.4 to the extent the information pertains to "operational details of surveillance." See Pl. Reply Mem. 13-14. According to Defendant, withheld are details about: the "technical means by which NSA conducts" surveillance, Sherman Decl. ,-r 30;
10 Although markings on the redacted report appear to indicate that Exemptions 1 and 3 are invoked coextensively with Exemption 5, Defendant states that in many cases Exemption 1 and 3 pertain independently to a subset of information included within that withheld under Exemption 5. See 2d Sherman Decl. ~ 5.
30

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the identities of, and degrees of participation in the program by, communications service providers, id. ~ 42; information "implicating NSA [surveillance activities] as it relates to specific criminal investigations," id. ~50; and the scope of surveillance activities, particularly, how the scope was altered over time in response to evolving DOJ policy regarding the legality of the program, id. ~57. As described in further detail in Defendant's affidavits, the release of this information could give potential adversaries access to sensitive details about NSA counterterrorism techniques, alert targets ofNSA surveillance, and reveal the extent of the NSA's capabilities. See id. ~~ 30-41, 42-49, 50-56, and 57-64. Thus, with respect to this information, there is no dispute to resolve. Accordingly, the withholdings here are proper under Exemptions 1 and 3. See Elec. Frontier Found., 141 F. Supp. 3d at 58 n.8 (finding details about NSA surveillance activities to be exempt from disclosure under Exemption 3).
Defendant invokes Exemption 5 on pp. 25-27, 33-34, 37, 39, 39-40, 104-08, 116, 122-26, 129,142,146-48,158,159-63,170-77,179, and 182-86. Thewithheldportionsdescribelegal advice and analysis provided to administration officials on "potential policy decisions regarding the PSP" in various OLC memoranda, see Colborn Decl. ~~ 13(a), (c), (d), (e), (o), (r), (s), (t), (u), and (x); relay interviews of administration officials in which those officials recount internal deliberations preceding the formulation of the OLC's legal advice and analysis of the PSP, see id. ~~ 13(b), (f), (i), (k), (1), (n), (p), (q), (u), (v), and (w); and summarize oral legal advice or outlines oflegal analysis given to administration officials making decisions regarding the implementation ofthe PSP, see id. ~~ 13(g), (h), (j), (1), (m), (n), (p), and (v).
Plaintiffs contend that although the legal memoranda discussed in this report contain legal advice and analysis, the content ultimately represents the implemented policy of the administration and, therefore, constitutes the DOJ's "working law," rendering it outside the
31

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scope of Exemption 5. "[E]ven if ... documents ... are 'predecisional' and 'deliberative,"' they are not covered by Exemption 5 "(1) when the contents of the document have been adopted, formally or informally, as the agency position on an issue or [are] used by the agency in its dealings with the public, ... and (2) when the document is more properly characterized as an opinion[] [or] interpretation []which embod[ies] the agency's effective law and policy." Brennan Ctr., 697 F.3d at 194-95 (internal quotation marks and citations omitted, and alterations in the original); see also 5 U.S.C. § 552(a)(2)(A)-(C) (requiring the disclosure, under FOIA, of "final opinions ... made in the adjudication of cases," "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register," and "administrative staff manuals and instructions to staffthat affect a member ofthe public"). In other words, documents may lose coverage under Exemption 5 if they are "express[ly] adopted or incorporate[ed] by reference" in the agency's decisions or policies, or if the documents had "operative effect" and thus constituted the agency's "working law." Brennan Ctr., 697 F.3d at 198. Still covered under Exemption 5 are, for example, "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975).
In their submissions, Plaintiffs do not dispute that OLC advice, analyses, and deliberations other than those contained in the formal memoranda issued by OLC staff are covered by Exemption 5. Because Defendant's affidavits are sufficient to establish that this information relays "the agency's group thinking in the process of working out its policy and determining what its law shall be," id., Defendant has satisfied its burden and has justified the nondisclosure of information pertaining to internal legal disputes and analysis apart from that contained in OLC memoranda.
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Plaintiffs primarily challenge the withholding of memoranda prepared by Yoo and his successors, arguing that they constituted the working law of the administration with regard to PSP surveillance activities. Generally, however, the "OLC [does] not have the authority to establish the 'working law' of the [agency], ... and its advice 'is not the law of an agency unless the agency adopts it."' N. Y Times Co. v. US. Dep 't ofJustice, 806 F.3d 682, 687 (2d Cir. 20 15) (citing Elec. Frontier Found. v. US. Dep 't ofJustice, 739 F.3d 1, 10 (D.C. Cir. 2014)). As described by Defendant and supported by the unredacted portions of the report, the memoranda "describe[d] the legal parameters of what the [agency was] permitted to do, [and did] not state or determine the [agency]'s policy." Elec. Frontier Found., 739 F.3d at 10. Therefore, the memoranda do not constitute working law and are exempt from disclosure. And, even were Plaintiffs to argue that the OLC memoranda were incorporated by reference or adopted by the administration as its official policy-which they do not, see Pl. Reply Mem. 17 n.16 (distinguishing between the "working law" and "incorporation by reference or adoption" doctrines)-the record contains no evidence that the documents were publicly referenced or adopted by agency decisionmakers such that the memoranda's content could be said to constitute official agency policy. Although the report discusses the influence wielded by Y oo and other OLC staff in the internal debate over the PSP, it does not establish: that the memoranda were consistently referenced by decisionmakers in articulating policy; that the reasoning-and not only the conclusions-contained in the memoranda were adopted; or that the recommendations in the documents were in any way binding on agency decisionmakers. See Nat 'l Council ofLa Raza, 411 F.3d at 357-61 (surveying caselaw and identifying circumstances in which a document otherwise subject to the deliberative process privilege is adopted as or incorporated by reference into agency policy). Accordingly, Defendant's motion is GRANTED, and Plaintiffs' DENIED,
33

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with respect to the information withheld in Joint IG Report Vol. III pp. 25-42, 104-17, 122-33, 142-49, 158-80, and 182-86.
C. In Camera Review In FOIA cases, courts should conduct in camera review only as a last resort. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). Indeed, in camera review should only occur when the court "believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption." Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984). Because the Court concludes that Defendant has sustained its burden with regarding to its claims of exemption, further in camera review is unnecessary.
CONCLUSION For the reasons stated above, Plaintiffs' motion for summary judgment is DENIED, and Defendant's motion is GRANTED. The Clerk of Court is directed to terminate the motions at ECF Nos. 29 and 38 and to close the case. SO ORDERED. Dated: August 18, 2016 New York, New York
ANALISA TORRES United States District Judge
34

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:14−cv−03776−AT−SN

The New York Times Company et al v. United States Department of Justice Assigned to: Judge Analisa Torres Referred to: Magistrate Judge Sarah Netburn Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 05/28/2014 Date Terminated: 08/22/2016 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: Federal Question

The New York Times Company

represented by David Edward McCraw The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−4031 Fax: (212) 556−1009 Email: mccraw@nytimes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Victoria Baranetsky New York Times Company 620 Eighth Avenue, 18th Floor New York, NY 10018 (212)−556−5188 Email: victoria.baranetsky@nytimes.com ATTORNEY TO BE NOTICED

Plaintiff Charlie Savage

represented by David Edward McCraw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Victoria Baranetsky (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Emily Ewell Daughtry U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2800 x1579 Fax: (212)−637−2717 Email: emily.daughtry@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte DOJ−USAO Lrm Jones, Lisa 1 St. Andrews Plaza New York, NY 10007 212−637−1041

Email: tara.lamorte2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Tulis United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212)−637−2725 Fax: (212)−637−2702 Email: elizabeth.tulis@usdoj.gov ATTORNEY TO BE NOTICED
John Dalton Clopper U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 212 637 2716 Fax: 212 637 0033 Email: john.clopper@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 05/28/2014 05/28/2014
05/28/2014 05/28/2014 05/28/2014 06/03/2014 06/05/2014
06/30/2014 07/03/2014 07/31/2014
07/31/2014
08/11/2014

# Docket Text
1 CIVIL COVER SHEET filed. (lcu) (Entered: 05/30/2014)
2 COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 465401096003)Document filed by The New York Times Company, Charlie Savage.(lcu) (Entered: 05/30/2014)
SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (lcu) (Entered: 05/30/2014)
Magistrate Judge Sarah Netburn is so designated. (lcu) (Entered: 05/30/2014)
Case Designated ECF. (lcu) (Entered: 05/30/2014)
NOTICE OF CASE REASSIGNMENT to Judge Analisa Torres. Judge John G. Koeltl is no longer assigned to the case. (pgu) (Entered: 06/03/2014)
3 INITIAL PRETRIAL CONFERENCE ORDER: Initial Conference set for 8/4/2014 at 04:15 PM in Courtroom 15D, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Judge Analisa Torres, and as further set forth. (Signed by Judge Analisa Torres on 6/5/2014) (rjm) (Entered: 06/06/2014)
4 ANSWER to 2 Complaint. Document filed by United States Department of Justice.(Clopper, John) (Entered: 06/30/2014)
5 NOTICE OF APPEARANCE by Emily Ewell Daughtry on behalf of United States Department of Justice. (Daughtry, Emily) (Entered: 07/03/2014)
6 LETTER MOTION to Adjourn Conference addressed to Judge Analisa Torres from John Clopper dated July 31, 2014. Document filed by United States Department of Justice.(Clopper, John) (Entered: 07/31/2014)
7 ORDER granting 6 Letter Motion to Adjourn Conference: The parties' request to adjourn the initial pre−trial conference scheduled for August 4, 2014, is GRANTED. The conference is rescheduled to August 13, 2014, at 4:15 p.m. The parties shall submit their joint letter and proposed case management plan by August 11, 2014. (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (Torres, Analisa) (Entered: 07/31/2014)
8 LETTER MOTION to Adjourn Conference addressed to Judge Analisa Torres from John Clopper dated August 11, 2014. Document filed by United States Department of Justice.(Clopper, John) (Entered: 08/11/2014)

08/12/2014
08/25/2014 08/26/2014 08/28/2014
08/28/2014 12/19/2014 12/19/2014
02/04/2015 02/04/2015
04/17/2015 04/17/2015 05/06/2015 05/07/2015 05/07/2015 05/15/2015 05/18/2015 05/18/2015

9 ORDER granting 8 Letter Motion to Adjourn Conference: The parties' request to adjourn the initial pre−trial conference scheduled for August 13, 2014, is GRANTED. The conference is rescheduled to August 28, 2014, at 4:00 p.m. (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (Torres, Analisa) (Entered: 08/12/2014)
10 LETTER addressed to Judge Analisa Torres from John Clopper dated August 25, 2014 re: proposed FOIA processing schedule. Document filed by United States Department of Justice.(Clopper, John) (Entered: 08/25/2014)
11 NOTICE OF APPEARANCE by Diana Victoria Baranetsky on behalf of Charlie Savage, The New York Times Company. (Baranetsky, Diana) (Entered: 08/26/2014)
12 MEMO ENDORSEMENT on re: 10 Letter filed by United States Department of Justice. ENDORSEMENT: The government shall process responsive documents in accordance with the schedule outlined above. (Signed by Judge Analisa Torres on 8/28/2014) (tn) (Entered: 08/28/2014)
Minute Order Proceedings held before Judge Analisa Torres: Initial Pretrial Conference held on 8/28/2014. (mo) (Entered: 09/03/2014)
13 LETTER MOTION for Extension of Time to release document to Plaintiff addressed to Judge Analisa Torres from Emily E. Daughtry dated December 19, 2014. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 12/19/2014)
14 ORDER granting 13 Letter Motion for Extension of Time. GRANTED. The deadline for the release for the "702 Report" is extended from December 22, 2014, to January 9, 2015. SO ORDERED. (Signed by Judge Analisa Torres on 12/19/2014) (ajs) (Entered: 12/22/2014)
15 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Emily Daughtry dated 02/04/2015. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 02/04/2015)
16 ORDER granting 15 Letter Motion for Extension of Time. GRANTED. Defendant shall complete its processing of the Joint Inspector General Report by April 20, 2015. SO ORDERED. (Signed by Judge Analisa Torres on 2/4/2015) (ajs) (Entered: 02/04/2015)
17 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Emily E. Daughtry dated April 17, 2015. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 04/17/2015)
18 ORDER granting 17 Letter Motion for Extension of Time. GRANTED. The deadline is extended from April 20, 2015, to April 24, 2015. SO ORDERED. (Signed by Judge Analisa Torres on 4/17/2015) (ajs) (Entered: 04/20/2015)
19 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from David E. McCraw dated 05/06/2015. Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 05/06/2015)
20 ORDER granting 19 Letter Motion for Extension of Time. GRANTED. The parties shall file any pre−motion conference requests by May 15, 2015. (Signed by Judge Analisa Torres on 5/7/2015) (mro) (Entered: 05/08/2015)
Set/Reset Deadlines: Motions due by 5/15/2015. (mro) (Entered: 05/08/2015)
21 LETTER MOTION for Conference or for Summary Judgment Briefing Schedule addressed to Judge Analisa Torres from John Clopper dated May 15, 2015. Document filed by United States Department of Justice.(Clopper, John) (Entered: 05/15/2015)
22 ORDER granting 21 Letter Motion for permission to file cross−motions for summary judgment. GRANTED. The parties shall adhere to the briefing schedule set forth above. (Signed by Judge Analisa Torres on 5/18/2015) (spo) (Entered: 05/18/2015)
Set/Reset Deadlines: Cross Motions due by 8/3/2015. Motions due by 7/21/2015. Responses due by 8/3/2015. Replies due by 9/14/2015. Reply to Response to Brief due by 10/14/2015. Responses to Brief due by 9/14/2015. (spo) (Entered: 05/18/2015)

07/17/2015 07/20/2015 07/20/2015 09/11/2015 09/11/2015 09/11/2015 09/25/2015 09/25/2015
10/07/2015 10/07/2015 10/07/2015 10/07/2015
11/06/2015 11/09/2015
11/09/2015 11/13/2015

23 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from John Clopper dated July 17, 2015. Document filed by United States Department of Justice.(Clopper, John) (Entered: 07/17/2015)
24 ORDER granting 23 Letter Motion for Extension of Time. GRANTED. The parties shall adhere to the proposed briefing schedule set forth above. SO ORDERED. (Signed by Judge Analisa Torres on 7/20/2015) (ajs) (Entered: 07/21/2015)
Set/Reset Deadlines: Cross Motions due by 10/7/2015. Motions due by 9/16/2015. Responses due by 11/10/2015 Replies due by 12/8/2015. (ajs) (Entered: 07/21/2015)
25 LETTER MOTION for Extension of Time for Summary Judgment Briefing addressed to Judge Analisa Torres from David E. McCraw dated 09/11/2015. Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 09/11/2015)
26 ORDER granting 25 Letter Motion for Extension of Time. GRANTED. The parties shall adhere to the schedule set forth above. SO ORDERED. (Signed by Judge Analisa Torres on 9/11/2015) (ajs) (Entered: 09/11/2015)
Set/Reset Deadlines: Cross Motions due by 11/9/2015. Motions due by 10/7/2015. Responses due by 12/2/2015 Replies due by 1/6/2016. (ajs) (Entered: 09/11/2015)
27 LETTER addressed to Judge Analisa Torres from David McCraw dated 9−25−2015 re: Filing of Voluminous Record. Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 09/25/2015)
28 MEMO ENDORSEMENT on re: 27 Letter filed by The New York Times Company, Charlie Savage. ENDORSEMENT: GRANTED to the extent that Plaintiff shall file on ECF: (1) the report pages containing the challenged redactions, and (2) the report pages cited in Plaintiff's memorandum. Plaintiff shall submit hard copies, as well as an electronic version on a CD, of the entire set of redacted documents. (Signed by Judge Analisa Torres on 9/25/2015) (mro) (Entered: 09/28/2015)
29 MOTION for Summary Judgment . Document filed by Charlie Savage, The New York Times Company. Responses due by 11/9/2015(McCraw, David) (Entered: 10/07/2015)
30 MEMORANDUM OF LAW in Support re: 29 MOTION for Summary Judgment . . Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 10/07/2015)
31 DECLARATION of David E. McCraw in Support re: 29 MOTION for Summary Judgment .. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 10/07/2015)
32 NOTICE of Excerpts Containing Plaintiffs' Challenged Redactions and Cited Portions of Redacted Material Referenced in Plaintiffs' Memorandum of Law in Support of their Motion for Summary Judgment. Document filed by Charlie Savage, The New York Times Company. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6)(McCraw, David) (Entered: 10/07/2015)
33 LETTER MOTION for Extension of Time to file brief addressed to Judge Analisa Torres from John Clopper dated November 6, 2015. Document filed by United States Department of Justice.(Clopper, John) (Entered: 11/06/2015)
34 ORDER granting 33 LETTER MOTION for Extension of Time to file brief addressed to Judge Analisa Torres from John Clopper dated November 6, 2015. Document filed by United States Department of Justice. GRANTED. The parties shall adhere to the schedule set forth above. So ordered. (Cross Motions due by 11/16/2015). (Signed by Judge Analisa Torres on 11/9/2015) (rjm) (Entered: 11/09/2015)
Set/Reset Deadlines: Responses due by 12/22/2015. Replies due by 1/22/2016. (rjm) (Entered: 11/09/2015)
35 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Analisa Torres from AUSA John Clopper dated November 13, 2015. Document filed by United States Department of Justice.(Clopper, John) (Entered: 11/13/2015)

11/13/2015 11/16/2015
11/16/2015 11/16/2015 12/11/2015 12/11/2015 12/11/2015 12/11/2015 12/11/2015 12/11/2015 12/11/2015 12/11/2015
12/11/2015 12/11/2015 12/16/2015 01/12/2016
01/12/2016 02/12/2016

36 NOTICE OF APPEARANCE by Tara Marie La Morte on behalf of United States Department of Justice. (La Morte, Tara) (Entered: 11/13/2015)
37 ORDER granting 35 Letter Motion for Extension of Time to File Response/Reply re 29 MOTION for Summary Judgment. GRANTED. The parties shall adhere to the schedule set forth above. (Responses due by 12/11/2015. Replies due by 1/12/2016.) (Signed by Judge Analisa Torres on 11/16/2015) (kko) (Entered: 11/16/2015)
Set/Reset Deadlines: Cross Motions due by 12/11/2015. Responses due by 1/12/2016 Replies due by 2/12/2016. (kko) (Entered: 11/16/2015)
Set/Reset Deadlines as to 29 MOTION for Summary Judgment: Responses due by 12/11/2015. Replies due by 1/12/2016. (kko) (Entered: 11/16/2015)
38 CROSS MOTION for Summary Judgment . Document filed by United States Department of Justice.(La Morte, Tara) (Entered: 12/11/2015)
39 MEMORANDUM OF LAW in Support re: 38 CROSS MOTION for Summary Judgment . and in Opposition to Plaintiffs' Motion for Summary Judgment. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
40 DECLARATION of Mary E. Wilson in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
41 DECLARATION of David M. Hardy in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
42 DECLARATION of Dr. David J. Sherman in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
43 DECLARATION of John Bradford Wiegmann in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
44 DECLARATION of Douglas R. Hibbard in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
45 DECLARATION of Paul P. Colborn in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(La Morte, Tara) (Entered: 12/11/2015)
46 DECLARATION of Tara M. La Morte in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A)(La Morte, Tara) (Entered: 12/11/2015)
47 NOTICE of Classified Filing re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 12/11/2015)
48 NOTICE OF APPEARANCE by Elizabeth Tulis on behalf of United States Department of Justice. (Tulis, Elizabeth) (Entered: 12/16/2015)
49 REPLY MEMORANDUM OF LAW in Support re: 29 MOTION for Summary Judgment . and in Opposition re: 38 CROSS−MOTION for Summary Judgment. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 01/12/2016)
50 DECLARATION of David E. McCraw in Support re: 29 MOTION for Summary Judgment .. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 01/12/2016)
51 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Analisa Torres from Tara M. La Morte dated February 12, 2016. Document filed by United States Department of Justice.(La Morte, Tara) (Entered: 02/12/2016)

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08/18/2016 08/18/2016
08/18/2016
08/22/2016

52 NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 02/14/2016)
53 ORDER granting 51 Letter Motion for Extension of Time to File Response/Reply re 38 CROSS MOTION for Summary Judgment. GRANTED. Defendant shall adhere to the schedule set forth above. SO ORDERED. Replies due by 2/19/2016. (Signed by Judge Analisa Torres on 2/16/2016) (kko) (Entered: 02/16/2016)
54 REPLY MEMORANDUM OF LAW in Support re: 38 CROSS MOTION for Summary Judgment . . Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 02/19/2016)
55 REPLY AFFIDAVIT of Tara M. La Morte in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(La Morte, Tara) (Entered: 02/19/2016)
56 DECLARATION of David J. Sherman (supplemental declaration) in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 02/19/2016)
57 DECLARATION of David M. Hardy (second declaration) in Support re: 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 02/19/2016)
58 NOTICE of Classified Filing re: 54 Reply Memorandum of Law in Support of Motion, 38 CROSS MOTION for Summary Judgment .. Document filed by United States Department of Justice. (La Morte, Tara) (Entered: 02/19/2016)
59 MEMORANDUM AND ORDER granting 38 Motion for Summary Judgment; denying 29 Motion for Summary Judgment. For the reasons stated above, Plaintiffs' motion for summary judgment is DENIED, and Defendant's motion is GRANTED. The Clerk of Court is directed to terminate the motions at ECF Nos. 29 and 38 and to close the case. SO ORDERED. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/18/2016) (kko) (Entered: 08/18/2016)
Transmission to Judgments and Orders Clerk. Transmitted re: 59 Order on Motion for Summary Judgment to the Judgments and Orders Clerk. (kko) (Entered: 08/18/2016)
60 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Sarah Netburn. (Signed by Judge Lorna G. Schofield on 8/18/2016) (kko) (Entered: 08/18/2016)
62 INTERNET CITATION NOTE: Material from decision with Internet citation re: 59 Order on Motion for Summary Judgment. (Attachments: # 1 Internet Citation, # 2 Internet Citation, # 3 Internet Citation, # 4 Internet Citation, # 5 Internet Citation, # 6 Internet Citation, # 7 Internet Citation, # 8 Internet Citation, # 9 Internet Citation, # 10 Internet Citation) (vf) (Entered: 11/15/2016)
61 CLERK'S JUDGMENT: That for the reasons stated in the Court's Memorandum and Order dated August 18, 2016, Plaintiffs' motion for summary judgment is denied, and Defendant's motion is granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/22/2016) (Attachments: # 1 Notice of Right to Appeal, # 2 Notice of Right to Appeal)(dt) (Entered: 08/22/2016)

 
 [Type text]

U.S. Department of Justice
United States Attorney Southern District of New York
86 Chambers Street New York, New York 10007
January 9, 2015

BY E-MAIL David McCraw Jeremy Kutner Legal Department The New York Times Company 620 8th Avenue, 18th Floor New York, NY 10018
Re: New York Times Company v. U.S. Department of Justice, 14 Civ. 3776 (AT)
Dear Mr. McCraw and Mr. Kutner:

On behalf of the United States Department of Justice (the “Government”), we enclose one document pursuant to the schedule so-ordered by the Court on August 28, 2014, as modified by the Court’s Order on December 19, 2014, in the above-referenced FOIA case. Please find attached documents Bates-labeled DOJ-OIG-00931 to DOJ-OIG-01213. Information in these documents has been redacted pursuant to certain FOIA exemptions, including 5 U.S.C. §§ 552(b)(1), (b)(3), (b)(5), and (b)(7)(E). Where redactions have been made, the applicable exemption is marked on each document.

The Government reserves its right to modify or supplement the exemptions listed for information that has been redacted from these documents. If you have any questions, please let us know.

Sincerely,

PREET BHARARA United States Attorney Southern District of New York

Encls.

By: /s/ Emily Daughtry

__

JOHN D. CLOPPER

EMILY DAUGHTRY

Assistant United States Attorneys

Tel.: (212) 637-2716/2777

Fax: (212) 637-2702

john.clopper@usdoj.gov

emily.daughtry@usdoj.gov

U.S. Department of Justice
T~P SE~T//~//NO)\oRN/F,$A Office of the Inspector General
(U) A Review of the Federal Bureau of Investigation's Activities Under Section 702 of the Foreign Intelligence Surveillance Act
Amendments Act of 2008
Oversight and Review Division Office of the Inspector General
September 2012
DOJ-016-00931

******************************
(UI IFOUO) THIS DOCUMENT CONTAINS INFORMATION FROM
FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) COLLECTION. THIS INFORMATION, AND ANY INFORMATION DERIVED THEREFORM, MAY NOT BE USED IN ANY FOREIGN OR DOMESTIC CRIMINIAL, ADMINISRATIVE, OR OTHER PROCEEDING WITHOUT THE ADVANCE AUTHORIZATION OF THE ATTORNEY GENERAL. IF CONCERNING U.S. PERSON(S), THIS INFORMATION MAY BE DISSEMINATED TO A FOREIGN GOVERNMENT ONLY WITH PRIOR AUTHORIZATION FROM FBIHQ. ANY REPRODUCTION, DISSEMINATION, OR COMMUNICATION (INCLUDED BUT NOT LIMITED TO, ORAL BRIEFINGS) OF THIS INFORMATION MUST BE ACCOMPANIED BY A STATEMENT OF THESE RESTRICTIONS.
(UI IFOUO) ALL CLASSIFICATION MARKINGS IN THIS REPORT ARE
BASED ON THE DESIGNATIONS OF THE AGENCIES THAT PROVIDED INFORMATION TO THE OIG FOR THIS REVIEW. THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE COORDINATED THIS CLASSIFICATION PROCESS AND CONVEYED THE CLASSIFICATION DESIGNATIONS TO THE OIG, AND THE OIG INCORPORTATED THOSE DESIGNATIONS INTO THIS REPORT.
******************************
DOJ-016-00932

DOJ-016-00933

TOp SEQREf} I Si/ I NQFORN/FISA

TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................... i

page intentially left blank ..............................................................................viii

(U) EXECUTIVE SUMMARY ........................................................................... ix

I. (U) Introduction ................................................................................... ix

II. (U) Background ................................................................................... xi
A. (UI IFOUO) Section 702 of the FISA Amendments Act of 2008 .... xi
B. ~ -~~.1.~~-~-~-~~~-~~-~·--~~~-~~~~-~~-~~-~~~-~~-~-~-~-~~~.........xiii

III. (U) The FBI's Targeting Activities Under Section 702 ........................... xiv

A. (UI IFOUO) The FBI's Targeting Procedures ................................ xv
1. ~Findings and Recommendations Relating to

the FBI's Review and Evaluation of the Sufficiency of

~~s Foreignness Determinations .............................. xvi bl, b3,

2. \~ the

and Recommendations Relating to

b7E

............................................. xviii (S)

3.

(S)

.......... xxi

4.

Nomination Activities ....................................................... xxii

B.

~Findings and Recommendations Relating to Selectors
Us~~ Persons Who Have Traveled in the United States .......... xxii

C. (UI IFOUO) Findings and Recommendations Relating to
Statutory Reporting Requirements for FBI Targeting Activities .. xxiv

IV. (UI IFOUO) The FBI's Post-Targeting Activities Under Section 702 ... xxvii

A. (UI IFOUO) The FBI's Standard Minimization Procedures ...... xxviii

B. ~FBI Retention of Section 702-Acquired Information .... xxix

1. 5~F:~:~~~-~-~~~~~~~-~~-~~~~-~~~~-~~~~~~~-~~·····xxix

2. (

Findings Relating to Access to and Purging of

02-Acquired Data Retained i n - ............................... xxxi (S)

C. ~BI Dissemination of Section 702-Acquired

.. bl, b3,

Information ............................................................................. XXXll b7E

DOJ-016-00934

~p SECREfZ/il; /NSJ«IRN/FISA_

1. ~Findings Rela.into Storage of Section 702

Intelligence Reports in

.. (S) ...................................... xxxii bl, b3,

2. (UI I FOUO) Findings Relating to Application of the

b7E

Standard Minimization Procedures to Disseminated

ntelli ence Reports....................................................... xxxiii

3. (S

) Findings and Recommendations Relating to

reatment of 702-Acquired Metadata in Disseminated

Intelligence Reports....................................................... xxxiii

D. (UI IFOUO) Findings and Recommendations Relating
to Statutory Reporting Requirements for FBI Dissemination Activities ......................................................... xxxiv

V. (U) Conclusion ............................................................................... xxxvii

(U) CHAPTER ONE: INTRODUCTION .............................................................. 1

I. (U I IFOUO) Methodology of OIG Review ................................................ 4

II. (U) Organization of this Report. ............................................................. 5

(U) CHAPTER TWO: BACKGROUND ............................................................... 7

I.

b7E

.7

A. (UI IFOUO) The Terrorist Surveillance Program ........................... 7 B. (UI IFOUO) FISA Court Orders .................................................... 9 C. (UI IFOUO) The Protect America Act. ......................................... 11

II. (U) The FISA Amendments Act of 2008 ................................................ 14
A. (UI IFOUO) The Authorization to Collect Foreign Intelligence
Information ................................................................................ 15
1. (UI IFOUO) Section 702 ................................................... 15 2. (UI IFOUO) Sections 703 and 704 .................................... 21 B. (UI IFOUO) Immunity Provisions ............................................... 22

III. (UI IFOUO) The FBI's Role and Organizational Structure
Under Section 702 ............................................................................... 22

IV. (UI IFOUO) The FBI's Evolving Use of Section 702 .............................. 24 A. (UI IFOUO) The FBI's Use of Section 702 Compared
to Traditional FISA ..................................................................... 24 B. (~) The FBI's Plans to Nominate Selectors for
Section 702 Coverage ................................................................. 25

ii
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DOJ-016-00935

TOP SECRBT/} 81/ /N9FORN/FISA

(U) CHAPTER THREE: THE FBI'S ROLE IN THE SECTION 702 TARGETING PROCESS ........................................................................ 27
I. (UI IFOUO) Procedures Governing the Targeting Process..................... 28

bl, b3, b7E

A. ~

.. 28 (S)

B. (UI IFOUO) Targeting Procedures Under the FAA....................... 30

1. (~) Overview of the NSA's Targeting Procedures ........ 31

2. (UI IFOUO) Overview of the FBI's

Procedures .... 33

3. ~~~~~~~~ ~~et~~I's

b7E .......................... 35

C. (U I IFOUO) The FBI's Documentation of Its Targeting Process ... 37

II. (UI IFOUO) The OIG's Methodology for Reviewing the 702 Team's
Targeting Activities .............................................................................. 38
A. (UI IFOUO) Summary ofNSDIODNI and Inspection Division Oversight of FBI Targeting Activities ........................................... 39
1. (UI IFOUO) NSD Compliance Reviews .............................. 39
2. (UI IFOUO) Inspection Division Quarterly Audits ............. 40
B. (UI IFOUO) OIG Methodology for Reviewing the
FBI's Targeting Activities ............................................................ 42

III. (~) The FBI's Application of Its Targeting Procedures: Review of the NSA's Foreignness Determinations ................................. 43

A. ~) Background: The NSA's Application of its Targeting Procedures ................................................................................. 44

B. ~) The FBI's Receipt of Nominated Selectors

From the NSA............................................................................. 45

1. 2.

(~ ~ti

.............................................. ........................................... 46b7E 47

3 .

~~i:g the OIG Review~e~~~~~~~~.~~·~·~···················· 50

C. ~) FBI's Preliminary Review of

for

b7E

Sufficiency of the NSA's Foreignness

.................... 53

1. ~ Review of the Selector Identification .................... 54 2. (~) Review of the NSA's Foreignness Determination .. 55
3. (UI IFOUO) Change to the Preliminary Review Process ..... 71

IV. ---..1£pli~~~~~.o.f i~s-~[<C~e-~g--~-c~~~r~s·:·.................. 72 bl, b3,

b7E

~h~~~~~~~~~ ~~?......... A.

.....................................................

72

TOP

S

E

¢

0

t

}

I

iii Sl/

I

IieP9RN/~IsA

DOJ-016-00936

TOP 5 FGdi /I Si} I NUl Ci&f/PISA

1.
2.
B.
1.
2.
C. 1. (U/ /FOUO) 2. (U/ /FOUO)
=D.
E.
F. ~I
1. 2.

(S) bl, b3,
(S) b7E
(S)

(S) bl,

.................. 77

b3,

(S) b7E

················································ 79
..................................... 80 (S)

bl,
(S) b3, b7E
(S)

3.

4.

G.

H.

- 1. - ...
2. ~· 3.~

········································································· 95 ········· 95 ········· 97
......... 99

(S) bl, b3, (S) b7E
(S)

v.

(S)

bl, ..... 104 (S) b3,
b7E b7E ································· 104
····························· 107 (S)

}'op = AiARN/~,i::l~ iv S E C R IJ H f 1 .., I I -

""--- ~- • - - :

DOJ-016-00937

T.QP SECRET//SI//NOFORI'f/PI~

VI. (U) Statutory Reporting Requirements for FBI Targeting Activities ..... 114
A. (U) FBI's Annual Reporting under Section 702(n(3}(A)(iii) .......... 115
B. (UI IFOUO) OIG Review of FBI Reportable Incidents ................ 117
1. (UI IFOUO) OIG Methodology ......................................... 117 2. (UI IFOUO) OIG Conclusions Regarding FBI
Reportable Incidents ....................................................... 122

VII. (U) OIG Analysis ............................................................................... 128

A. (UI IFOUO) FBI's Application of its Targeting Procedures ......... 128

1. ~The FBI's Review and Evaluation of the

~y of the NSA's Foreignness Determinations....... 129

2 .

-~~:~~~:~~~~~~~-~~-~~~-~~~:~~··············· 13~)

~~:

B.

(S)

b7E

........................................................................ 135 (S)

C. (U) The FBI's Compliance with its Annual Reporting Requirements under Section 702(n(3)(A)(iii) .............................. 138

~CHAPTER FOUR: THE FBI'S POST-TARGETING ACTIVITIES:
ACQUISITION, ROUTING, RETENTION, MINIMIZATION, AND DISSEMINATION OF SECTION 702 INFORMATION............................ 143

I. (UI IFOUO) FBI's Standard Minimization Procedures ........................ 143 A. (UI IFOUO) Acquisition ........................................................... 145
B. (UI IFOUO) Retention .............................................................. 147
C. (UI IFOUO) Dissemination....................................................... 149

II. ~ FBI Acquisition of Section 702 Data ..................................... 150

A. ~

....................... 150 (S) bl, b3,

b7E

B.
III.
A.
1. 2.

•

(S)

······································································· 152

........................ 153 (S)
bl,
b3, b7E :···· 154 (S)

....................................... 166 (S)

v
TOP SECRkt,;SI/ I IU9FORNIFISA

DOJ-016-00938

~p SECREIJ/&1//'"'fURN/F~A

B. 1.
2.
3.

Retention of and Access to Unminimized 702 Data ..... 168
·(S)·········· 168 bl, b3, {-S)······ ........ 169 b7E ····{"S)··············171

IV. ~) FBI Dissemination of Section 702-Acquired Information ...... 174

A. (U I IFOUO) Definition of Certain Terms ................................... 174

1. (UI IFOUO) Dissemination ............................................. 174

2. 3.

(UIIFO
(~)

4. (UIIFO

..................................... 175b7E ····{"S)············· 176 bl, b3,
................................................. 176 b?E

B. ~) Role of the 702 Team in Disseminations of
702-Acquired Information ........................................................ 176

1. (UI IFOUO) Marking Policies .......................................... 177

2. (UI IFOUO) The Section 702 Case

Coordination Process ...................................................... 178 3. ~) Storage of Section 702 Intelligence

Reports- ..(S"j························································· 182 bl, b3,

C. ~) FBI's Application of its Standard Minimization

b7E

Procedures to Disseminations of Section 702-Acquired

Information .............................................................................. 183

1.

NSD and ODNI Minimization Reviews .......... 183

2.

bl, b3,

b7E

(S) ····································································· 185

V. (U) Statutory Reporting Requirements for FBI Dissemination Activities..................................................................... 192
1. (U) FBI's Annual Reporting under Section 702(ij(3)(A)(i), (ii) and (iv) ..................................... 193
2. (UI IFOUO) OIG Review of the Number of
Disseminated Intelligence Reports Containing a Reference to a U.S. Person Identity............................... 194
3. (UI IFOUO) Disseminations of Previously
Undisclosed U.S. Person Identities .................................. 206

VI. (U) OIG Analysis ............................................................................... 207
A. ~) FBI Poli~ies for Dual ~outing Requests and
Retention of Section 702-Acquired Data ................................... 207
B. (UI IFOUO) Minimization and Dissemination Issues ................ 208

fOp vi SECQF tj; Slf/ICOI 9RxJfiSA

DOJ-016-00939

!op SECB¢' /; 81//IJCPEIIQ/FISA

1. ~ Maintenance of Disseminations

Cont~tiwlng Section 702-

Information ................. 208

2.

bl, b3,

······························· 209 b7E

C. (UI IFOUO) OIG and FBI Reviews under
Section 702(ij(2) and (3) ............................................................ 210

(U) CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS ................ 215

I. (U) FBI Targeting Activities Under Section 702 .................................. 215

A. (UI I FOUO) FBI's Application of its Targeting Procedures ......... 215

1. (~) The FBI's Review and Evaluation of the

Sufficiency of the NSA's

Determinations....... 216

2.

The FBI's

....(S) ....................... 219 bl, b3,

3.

The FBI's

(S)

b7E

-··(5)·········································220

B. (UI IFOUO) FBI's Compliance with its Annual Reporting
Requirements under Section 702(ij(3)(A)(iii) .............................. 222

II. (UI I FOUO) FBI Post-Targeting Activities........................................... 224
A. (~ FBI Policies for Dual Routing Requests and Retention of Section 702-Acquired Data ................................... 225

B.

··(sy····················.................................................... 221 bl, b3,

1. ~) Maintenance of Disseminations

b7E

Cont~u·Jm"ing 702

· Information ............................. 228

2.

(S)

········································································ 228

C. (UI IFOUO) FBI's Compliance with its Annual Reporting
Requirements under Section 702(ij(3)(A)(i) and (ii) ..................... 229

vii
iap sEcae'' 1s1', aaPeRNtnQA

DOJ-016-00940

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PAGE INTENTIALLY LEFT BLANK

viii
!oP s&:se. •: /liii//IT A&liiflSA

DOJ-016-00941

TOP 8B1 it I I I 81) ; W' iF ARN/Fi_!4

(U) EXECUTIVE SUMMARY1

I. (U) Introduction
~UO) The Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2008 (FAA) was signed into law on July 10, 2008. The FAA was enacted as part of Congress's effort to modemize the Foreign Intelligence
Surveillance Act of 1978 (FISA), codified at 50 U.S.C. §§ 1801-1885.

~87 7Sf~ The FAA followed earlier efforts to enhance the nation's

ability to gather signals intelligence in the wake of the terrorist attacks of

September 11, 2001. In October 2001, the President authorized a highly

classified program, known as the President's Surveillance Program, to conduct

electronic surveillance of certain communications into and out of the United

States without seeking orders from the Foreign Intelligence Surveillance Court

(FISA Court). 2 Beginning in 2004, this program was transitioned in stages to

bl,

FISA Court supervision through a series of FISA orders. However, according to b3,

a former senior Justice Department official familiar with these events, in May

b7E

2007, the FISA Court imposed rigorous procedural requirements on the

government's foreign surveillance authority, causing the National Security

Agency (NSA) to place fewer · selectors under

than it wanted to. 3

To address concerns that

(TS)

of

I (UI IFOUO) At the FBI's request, we provided a previous draft of this report to the
FBI so that it could conduct a privilege review before the draft report was circulated to other agencies. Unless otherwise indicated, redactions to this final report are based on the Department of Justice's assertions of the attorney-client privilege. The FBI has also requested
the following notice:
(UI IFOUO) This report contains FBI information that belongs to the FBI and
may not be disseminated further without express authorization by the FBI. If authorized, any dissemination of this information must be made on a strictly need-to-know basis and is not considered a release to the public. Information determined to be exempt under FOIA (5 U.S.C. § 552 as amended by the OPEN Government Act of 2007), or any other privilege, including, but not limited to information protected by the deliberative process privilege, remains exempt or privileged under a limited release to other members of the Intelligence Community ("IC") and Congress. As the report is classified TSISCI, the report or any portion thereof can be released only to individuals with the requisite national security clearance and a need to know.
2 (U1IFOUO) The FISA Court was established under the FISA statute to review the
government's applications to exercise FISA authority and grant orders approving such applications. 50 U.S.C. § 1803.
3 ~ A "selector" is either a telephone number or an identifier used for Internet
communications, such as an e-mail account.

ix
&i I) I 61;; In I op&ZfiSA

DOJ-016-00942

TOP SECREI//SI//NOP6RN/f!IS~
2007 (PAA), a temporary legislative measure designed to streamline collection of foreign intelligence from targets located outside the United States. The PAA expired on February 16, 2008, and Congress thereafter enacted the FAA, key provisions of which are set to expire on December 31, 2012.
~ Section 702 of the FAA generally governs the acquisition of
foreign intelligence information from or with the assistance of an electronic communications service provider by targeting non-United States persons reasonably believed to be located outside the United States. Acquisitions under Section 702 are conducted through electronic surveillance or a search of stored communications. 4
(UI IFOUO) This report describes the Office of the Inspector General's
(OIG) review of the Federal Bureau of Investigation's (FBI) activities under Section 702 of the FAA. The OIG assessed the FBI's policies and procedures for conducting targeting and post-targeting activities under Section 702 from September 2008 through early 2010. As required by Section 702(ij(2) and (3), the OIG also reviewed the number of targets that were later determined to be located in the United States at the time of acquisition and the number of disseminated intelligence reports containing a reference to a U.S. person identity, including identities disseminated in response to requests for U.S. person identities not referred to in the original reporting.
(UI IFOUO) To conduct its review, the OIG interviewed approximately 45
individuals, including FBI personnel who administer the 702 Program and senior FBI officials in the Counterterrorism Division and Office of General Counsel. We also interviewed attorneys in the Department of Justice's National Security Division (NSD), and officials in the National Security Agency (NSA) and the Office of the Director of National Intelligence. In addition, we reviewed thousands of documents related to the FBI's 702 activities and conducted various statistical and other analyses based on data provided to us by the FBI and other agencies.

4 ~As used throughout this Executive Summary and the report, "electronic
surveillance" generally refers to the interception of electronic communications as they are transmitted. A search of "stored communications" generally refers to the acquisition of electronic communications that are in electronic storage, such as on an Internet service provider's (ISP) servers.

3ap SEGRE't/

I

X
SI}

I

H6FORII/F'SA~

DOJ-016-00943

iop 8 FCD I I 51} I iC bi ShiN I ti$A
II. (U) Background
A. (U//FOUO) Section 702 of the FISA Amendments Act of 2008
(UI IFOUO) Section 702(a) of the FAA authorizes the targeting of persons
reasonably believed to be located outside of the United States to acquire foreign intelligence information, without an individualized FISA Court order. s
(UI IFOUO) The affirmative authorization contained in Section 702(a) is
limited by several prohibitions set forth in Section 702(b). The chief prohibition is that an acquisition authorized under Section 702(a) may not intentionally target a United States person.6 Section 702(b) also prohibits the intentional targeting of any person "known at the time of acquisition to be located in the United States," and the intentional targeting of a person "reasonably believed to be Ideated outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States"- the prohibited practice commonly referred to as "reverse targeting."
(U I IFOUO) The requirements of Section 702 that the acquisition target
non-United States persons reasonably believed to be located outside the United States at the time of acquisition form what the Intelligence Community commonly refers to as the "foreignness" requirement. The foreignness requirement is designed to ensure that all persons located in the United States, and United States persons located anywhere, are afforded the protections and procedural requirements for acquisitions under other sections of the FAA and the individualized court order provisions of traditional FISA.
(UI IFOUO) Section 702(c) requires that acquisitions made pursuant to
Section 702(a) must conform to targeting and minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence. The targeting procedures must be reasonably designed to meet the foreignness requirements of Section 702, and the minimization procedures must meet the statutory rules in FISA that apply to information acquired
5 (U1IFOUO) Section 701(a) incorporates the same definition of "United States person"
as provided in Title I of FISA: (U) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence . . . ' an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(l), (2), or (3) of this section.
(U) 50 U.S.C. § 180l(i).
6 (U1IFOUO) The procedures for targeting United States persons outside the United
States under the FAA are set forth in Sections 703 and 704 of the Act.
xi
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DOJ-016-00944

yop SECRET/ I Sl/ I if6F9RM/FISA
through electronic surveillance and physical search. Section 702(g) requires the Attorney General and the Director of National Intelligence to file written certifications with the FISA Court attesting to the fact that appropriate targeting and minimization procedures are in place, with copies of the procedures attached. 7 These certifications are subject to judicial review and provide the primary mechanism by which the FISA Court conducts its judicial oversight of the implementation of Section 702.
(TS)
bl, b3, b7E
(UI IFOUO) Section 702 also requires extensive reporting and oversight
concerning activities authorized under the statute. Section 707(b)(l) requires the Attorney General to provide Congress with a Section 702 Semiannual Report that includes:
• (UI IFOUO) all certifications submitted during the reporting
period;
• (UI IFOUO) the reasons for the exercise of any exigent
circumstances authority under Section 702(c)(2);
• (UI IFOUO) any directives issued during the reporting period and
a description of any action taken to enforce them;
• (UI IFOUO) a description of any judicial review of the certifications
and any targeting and minimization procedures during the reporting period;
• (UI IFOUO) copies of any compliance review conducted by the
Attorney General;
• (UI IFOUO) copies of any procedures implementing Section 702;
and
• (UI IFOUO) a description of any incidents of noncompliance by the
Intelligence Community or by the providers.
7 (U1/FOUO) Unlike traditional FISA applications seeking authority to conduct
electronic surveillance within the United States, the certifications are "not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted." Section 702(g)(4).
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DOJ-016-00945

TOP Sti'ki ; ;81; I I
Section 702(Q(l) requires the Attorney General and the Director of National Intelligence to conduct semiannual assessments of the FBI's compliance with its targeting and minimization procedures. Section 702(Q(2)(B) and (C) requires the Inspector General to review certain FBI activities related to U.S. persons. Section 702(Q(3)(A) requires the Director of the FBI to also conduct annual reviews of certain FBI activities concerning U.S. persons.
B. lSI/Ill+ Roles of the FBI, the NSA, and the CIA in the 702
Program ~The FBI and the NSA are the only agencies authorized to acquire foreign intelligence information under Section 702. The Central
rH::ort-1,r1r•<>tes in Section 702 The
(S) (S)
bl, b3, b7E
(S) bl, b3, b7E
(S)

~~ As noted, a "selector" is either a telephone number or an identifier used for Interne~ications, such as an e-mail account. Because the FBI's tar eting activities

under the 702 Program are limited to acquiring

from (S)

domestic~~frvice proVI ers (usu y Internet service providers), the term "sel~his report, refers to an identifier for Internet

communications, such as an e-mail address.

bl, b3, b7E

xiii
jor sW'kiil; ;81) }ICC£ eRN'F'St

DOJ-016-00946

~ 'MP SECkEl/ /SI/ /NOP6RN/~S~~

FBI retains a (S) di~;semination as finished intelligence bl, b3,
b7E

~ These two basic activities, which are discussed below and in

detail in Chapters Three and Four of the OIG's

are carried out

persc>nJ1el in the Counterterrorism Division's

These pe1~sonnel

bl, b3, b7E

am also uw•rl£"" rlnc;,PI'U
uene:ral Counsel (OGC), including attorneys we refer to in this report as the Operations Attorney and the Policy Attorney.

III. (U) The FBI's Targeting Activities Under Section 702

Prc1gnam is to acquire the

This process (S)

W1

on mte

from o~ies

bl,

~is of signals intelligence already collected, t h a t - (S)

b3,

-

a selector (typically an e-mail address) may yield foreign

b7E

intelligence information. The NSA applies its FISA Court-approved targeting

procedures to determine that the account is used by a non-U.S. person

reasonably believed to be located outside the United States.

~TheNSA forwarded to the 702 Team mailed to the 702 Team each

bl, b3, b7 E

nominations are (S)

bl,

"s~~le1ctc1r sheets" that are e..,u..,·tp-rn called PRISM,
(S)

b3, b7E

xiv TOP SEC:RiW/ } 81} } N9FORN/FISA

DOJ-016-00947

joP SECRET//81) }NOliORN/FISA

A. (U//FOUO) The FBI's Targeting Procedures

~ The 702 Team's analysts are responsible for applying the FBI's

FISA Court-approved targeting procedures to the nominated selectors. The

work of these analysts is reviewed by supervisory special agents or the-

Unit Chief, and in some instances, by attorneys in the Office of General

Counsel and officials in the NSD, for a final determination as to whether a

(S)

can proceed. To implement the

·

of its~

n,..,-v..P•rt

the FBI developed

-

(S)

(S)

which

procedures for

bl, b3, b7E

(S) pnmary oblll:!;atwn.s
pnoc~~dt1res. st, the FBI must review and evaluate the sufficiency of the NSA's explanation for its reasonable belief that the user of the nominated account is located outside of the United States, and the information that the NSA provides concerning the user's non-United States person status. The targeting procedures state that this sufficiency review will be done "in
consultation with" the NSA.

bl, b3, b7E

(S) bl, b3, b7E

~ The targeting procedures do not obligate the FBI to conduct an

independent, de novo

· of a

U.S.

status and location.

Rather unless the FBI

(S)

respoInnsaibdldeitfioornd, ettheermi~S1hg
that a significant purpose of the acquisition is to obtain foreign intelligence

bl, b3, b7E

DOJ-016-00948

!OP SE¢8E: I { /ii;'/N8f' QIRN ZFfSA~
information." In view of these provisions, the 702 Team approaches its targeting responsibilities with considerable deference to the NSA's targeting judgments.
(U/ /FOUO) We concluded that overall the FBI's 702 Team has implemented its targeting procedures with commendable deliberation, thoroughness, and professionalism. Our more specific findings regarding the FBI's targeting activities are summarized below.
1. ~ Findings and Recommendations Relating to the FBI's Review and Evaluation of the Sufficiency of the NSA's Foreignness Determinations
(S) bl, b3, b7E
bl, b3, b7E

bl, (S) b3,
9 ~ After reviewing characterization of the fundamental authority
xvi
Top SECRB¥1 1 Sl} ] ROF URN f FISt..

bl, b3, b7E
bl, b3, b7E

DOJ-016-00949

'tOP &ECRI!R/ 7Sf) I NUF URN I PIM

bl, b3, b7E
bl, b3, b7E

~ However, the OIG reviewed pleadings, memoranda,
transcripts, and court opinions provided by the NSD establishing that, in .u.J. ....uu..-J.~ contexts other than the FAA, the FISA Court has orc~vi·,ouslv aoPr<JVe~d
(TS)

bl, b3, b7E

~1/ ~ The documents we reviewed also included an August 2008

filing with the FISA Court in support of the first FAA certification demonstrating that the FISA Court was aware of the NSA's use o f - (TS) - t o establish foreignness. NSD officials told the OIG that they are

bl, b3, b7E

confident the FISA Court is aware

· the

factor in the TS)

context of the

(TS)

bl, b3, b7E
10 ~The NSA's targeting procedures remained unchanged throughout the OIG's review period.
xvii
TOP SE<! REI; I Sl/J 1401\ eRN/ FlSA
DOJ-016-00950

jOP S@REI J/SI//N9Pa•Rl fi$A

(S) bl, b3, b7E

~ N

senior members of the 702 Team suggested that the

FBI may interpret

factor more strictly if it uses this factor to (S)

support its own nommatwns m

ture. The OIG

that the FBI should

carefully consider how it intends to use the

factor, if at all, when(S)

it assumes the responsibility of nominating

for 702 coverage.

b.~-

Explanations

b7E

~ The OIG also determined that approximately one percent of NSA
nominations were predicated on foreignness explanations that used data older than one year. FBI witnesses generally agreed that foreignness information that was at least one year old raised questions about the sufficiency of the NSA's foreignness determination, yet the OIG found no indication that the 702 Team ever contacted the NSA for additional, possibly more recent information
when asked to approve such nominations.

bl, b3, b7E

~Both the NSA and the FBI told the OIG that the information on

the NSA's selector sheets represents the most current information available to

the NSA at the time of nomination. However, we determined that the NSA

sometimes develops more recent information about a targeted ~

for 702

after the nomination has been submitted b u t - (S)

We therefore recommend that the FBI

the 702 Team should seek more

current information from the NSA about a targeted user's eligibility for Section

702 coverage. This guidance should ensure that the FBI's requests to the NSA

for more current information will be made in a consistent manner.

bl, b3, b7E

2. ~Recommendations Relating to the bl, b3,

FBI's-(S)

b7E

bl, b3,
b7E (S)

xviii
TOP SECRIH/ I Slfj I401~9b/FISA

bl, b3, b7E
DOJ-016-00951

TOP SECRM'/ I 81} I NUF'OPNJfiSA

bl, b3, b7E
bl, b3, b7E

bl, b3, b7E
bl, b3, b7E

xix
j-oP sEc1u:r7 ; s1; ;14oPeRNtFisA

bl, b3, b7E
DOJ-016-00952

~OP SECRET//81/ii4UFUIGf/FI8A

bl, b3, b7E
bl, b3, b7E
bl, b3, b7E

(S) been incorporated into the traLinilng before they may conduct updated version of the

b. (U//FOUO) Documentation of Targeting Activities

(S)

contents of the selector file form the the NSA's request to conduct nominated selector. The OIG targeting activities to be extremely thorough and well-organized.
c. ~Gap

bl, b3, b7E

(S)

bl,

b3,

(S)

b7E

We identified one gap in the 702 Team's procedure f o r - (S)

t we believe can readily be remedied to improve the quality of the FBI's

tat·getm.g activities at

little cost in terms of time or resources. Under the

bl, b3,

(S) b7E

(S)

XX
TOP SECRET//SI/; UOPOIGi/FISA

DOJ-016-00953

TOP SEC:Rfil I I Sl) /N9FORNfFISA

bl, b3,
b7E
(S)
bl, b3,
b7E

~ Taking into account the volume of selectors nominated by the

NSA and the

· of the FBI's

we concluded that the (S) bl,

generally were

the reasonableness (S)

b3,

requ

tru·getin~g procedures, and that the FBI met this standard of

b7E

diligence consistently throughout our review period.

bl,

3.

b3,

b7E

bl, b3,
b7E

(TS) bl, b3,
b7E
DOJ-016-00954

'OOP SEORET/ /Sl//NOJIOitN/RSA
(TS) bl, b3, b7E
4. (U//FOUO) Planned Implementation of FBI Nomination Activities
~ As discussed in Chapter Two of the OIG's report, the FBI plans
to greatly expand its role in the 702 Program in 2012 by nominating selectors for Section 702 coverage.
(S)
bl, b3, b7E

(S) bl, b3,
b7E

~During the OIG's review period, several procedural and technical issues remained to be worked out before the FBI could begin nominating selectors, which witnesses told us was expected to begin in early 2013. While finalizing this report the OIG learned that the FBI began nominating its first selectors in April 2012.
B. ~ Findings and Recommendations Relating to Selectors Used by Persons Who Have Traveled in the United States

]SHtrfFt-The OIG's review of the FBI's application of its targeting

nr'"'""''nures included an assessment of how the FBI processed nominations

The FBI's targeting procedures (S)

rel'l~ar~dmLQ accounts used

who are

to a

(S)

bl, b3, b7E

DOJ-016-00955

TOP SECkEl; /SI;';'IrOF•»RN/FISA

bl, b3, b7E

To address these concerns, the FBI implemented a sp€~CHil

nrl"'t"'t'•<::l<:! for nominations .

users who have

bl, b3, b7E

NSD when conducting these reviews.

~ The OIG identified

that had (TS)

been subject to some level of FBI analysis

review(TS)

period. We determined that the FBI never

based

explicitly on

concerns during the review period. We also (TS)

conducted a

reVIew of selector files and concluded that although the

OGC collected all the information relevant to making a

(TS)

determination for each selector it reviewed, there did

discernable set of

the FBI OGC's ..::u'"'''uv'"'""'

bl, b3, b7E

bl, b3, b7E

xxiii
TOp SECRJW, I 81/ I NOF ORfll/FlsA

DOJ-016-00956

bl, b3, b7E

~ The FBI and other participating agencies have initiated a reassessment of the FBI's r~~electors

bl, b3,

used by persons who h a v e - - The OIG (S) believes that this reassessment should continue, and that the FBI should

b7E

consider the following factors.

~ First, we believe that the review nr.,.,,...~,.,..,

invoked for all nominations that involve

(S)

bl,
b3, (S) b7E

bl, b3, b7E (S) (S)
C. (U//FOUO) Findings and Recommendations Relating to Statutory Reporting Requirements for FBI Targeting Activities
(UI fFOUO) Section 702(n(2)(C) provides that, "with respect to
acquisitions authorized under subsection (a), [the OIG] shall review the number
DOJ-016-00957

of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed[.]"

~ The FBI is also required to conduct an annual review of the

identical information. See Section 702(n(3)(A)(iii). As of February 2012, when a

draft of this report was given to the FBI for its review, the FBI had submitted

one annual report that covered the period of September 1, 2008, through

August 31, 2009 (the 2009 reporting period), effectively the first year of FBI

operations under the FAA.ll In that report the FBI stated that it "did not

discover ... [and] did not receive any reports from either NSA or CIA during the

relevant

·

· · · · that the FBI had acquired subsection

702(a)-derived

of a person who was later (S)

determined to

time of the acquisition."

~ However, in conducting its statutorily mandated review

OIG determined that

for t~t·aptina ~rtiuitiP<O:l

bl, b3, b7E

In<~lUICtlnLg sc~veral aoquisitions ...~, ........ we are c01:1fi<:ier1t
inf·onna.tio1n available to us that the incidents met the FBI's statutory reporting criteria. For example, we found several instances in which the FBI acquired - c o m m u n i c a t i o n s on the same day that the NSA (S) determin~is of intercepted communications that the person was in the United States. We found other instances in which the NSA reviewed
communications and similarly determined (S) United States when the acquisition occurred.

~ Most of these. acquisitions occurred during the FBI's 2009

reporting period and for that reason we believe that the FBI's annual.,.....,.,..,.•..,

was deficient.

(S)

bl, b3, b7E
bl, b3, b7E

~ The OIG made these determinations by reviewing reports

that the NSA is required to submit to the NSD by its targeting procedures

whenever it acquires the communications of a person who is later determined

to be in the United States or a U.S. person at the time of acquisition. We

~eports to FBI records of its acquisitions o f - (S)

-

As noted, for several of these acquisitions, the NSA

11 (U/ /FOUO) On May 22, 2012, the FBI transmitted two annual reports to Congress that covered the periods of September 1, 2009, to August 31, 2010, and September 1, 2010, to August 31, 2011, respectively. The OIG received copies of these documents but was unable to fully assess their contents prior to releasing this report.

bl, b3, b7E

XXV
TOP SECBET//81/} l'fOFeRN/J'iSA

DOJ-016-00958

TOP S'FCRifl/ I Sf]/ NOFORN fFISA

information shows that the ~tor was in the United

States on the day the user's - w e r e acquired. For other (S)

acquisitions, the data contains a strong indication that the user was likely in

the United States on the day the user's communications were acquired, but the

information available to the OIG was not sufficient to determine with certainty

that each of the incidents in fact met the FBI's statutory

criteria. We

believe that the FBI's expertise in analyzing presumed users'

in (S)

the targeting context can be applied to determine whether a user was

United States at the time an acquisition occurred, and therefore ineligible for

coverage under Section 702.

bl, b3, b7E

~ In July 2011, the OIG met with senior FBI Counterterrorism

Division, OGC, and Inspection Division officials to present our preliminary

findings and the methodology we used to reach them. The FBI officials stated

at that time that the FBI was still exploring how to compile the requisite

information for its 2010 reporting period. They also expressed concern about

being required to report on acquisitions for particular selectors that may also

be the subject of

·

the NSA, resulting in what they

characterized as

(S)

bl, b3, b7E

~ The OIG does not believe there is any merit to this concern.

First, the statute unambiguously requires this accounting from "the head of

each element of the intelligence community conducting an acquisition under

[Section 702(a)]." See Section 702(ij(3). The FBI and the NSA both conduct

acquisitions under Section 702 and therefore both

to

submit these

(S)

bl, b3, b7E

(S)
(U f /FOUO) The OIG recommends that the FBI amend its 2009 annual
report and ensure that it fulfills its reporting obligations under Section 702(ij(3)(A)(iii) without delay.
bl, b3, b7E
XXVI
.]'OP SEekS I I I 81/ I NOF9RN/IfSA
DOJ-016-00959

bl, b3, b7E

IV. (U//FOUO) The FBI's Post-Targeting Activities Under Section 702
.., ....·t-.n•hr that the FBI conducts in the 702
(TS)

bl, b3, b7E

S)

~ -

routes all the Section 702 data it acc~ui:res

~ the NSA and at the NSA's

(S)

-

On October 14,2009, the FBI began request

the raw 702-acquired data also be "dual routed" to the FBI so that it could

retain this data for analysis and dissemination in intelligence reports. Prior to

bl, b3, b7E

bl,

acctui~liticms are

as "uJ>sti·erum cc)llecticJn" becau:~e

b3,

located "upstrerum" from the domestic providers.

b7E

technical involvement of the FBI.

emf;'mA xxvii
TOP s;a&ftih I I Sl} I hOi

DOJ-016-00960

TOP 8:Sel&T/ j Sl/ /NOFDRN/FISA

October 2009, none of the Section 702 data that the FBI acquired for the NSA was dual routed to and retained by the FBI.

Section 702 data that is dual routed to the FBI is maintained in

with other FISA-

(S)

and intonnation in accordance with its FISA Courtapproved Standard Minimization Procedures (SMPs).

bl, b3, b7E

A. (U//FOUO) The FBI's Standard Minimization Procedures

~ As required by the FISA statute, the FBI's SMPs are "specific
procedures that are reasonably designed in light of the purpose and technique of the particular surveillance or physical search to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." See 50 U.S.C. §§ 1801(h) & 1821(4). Though initially designed to apply to information of or concerning a United States person that was collected under traditional FISA, the SMPs were adapted to Section 702 through Attorney General-approved language that conforms relevant provisions to Section 702. The FBI has also developed various internal guidance documents to explain how 702-acquired data must be handled by FBI
personnel.
~ The SMPs provide that the FBI may only acquire 702
information in accordance with its targeting procedures, and must purge from its systems any communication it has acquired and retained that is inconsistent with the targeting and acquisition limitations set forth in Section
702(b).

fNit -iS/

The retention provisions of the SMPs restrict access to 702-

acquired information to authorized users who have been trained on the

requirements of the SMPs and Section 702. The SMPs provide that authorized

users may access raw FISA-acquired information on a continuing basis only as

necessary to determine whether it reasonably appears to be foreign intelligence

information, to be necessary to understand foreign intelligence information or

to assess its importance, or to be evidence of a crime (the SMP minimization

standards). Once information has been assessed as meeting SMP minimization

standards, it may be disseminated- that is, made more broadly available

outside o f - However, if the information is "of or concerning'' a United (S)

States person, the FBI's SMP Policy Implementation Guidelines (SMP

bl, b3, b7E

xxviii
ToP sEcBETJ :e11 ; NoF GitNtFISA

DOJ-016-00961

~p SECRET( I 81] I 146F9RX/FTSA

(S)
~ Under the FBI's SMP Guidelines, only case coordinators in.
(where the 702 Team is located) are authorized to mark 702-acquired information i n - In practice, however, the burden is on the operators in (S) the field to apply SMP minimization standards to the information they wish to have marked. Thus, the 702 Team case coordinators defer considerably to the knowledge and judgment of the requesting agents and analysts concerning which marking to apply and why the marking is justified.
B. ~ FBI Retention of Section 702-Acquired Information

bl, b3, b7E
bl, b3, b7E

~ For the FBI to retain 702-acquired data for its own analysis, it must first request the NSA to allow the data to be "dual routed" to the FBI. The OIG examined the evolution of the FBI's Section 702 dual routing and retention policies and practices through April2010, as well as how the data is maintained in and purged from FBI systems.
1. ~Findings Relating to Early Dual Routing and
Retention Issues

rotttinLg of 702 data until (S)

bl, b3, b7E

bl, b3, b7E
13 (UI /FOUO) If the information of or concerning a U.S. person does not meet the SMP
minimization standards, the FBI must "strike or substitute a characterization" for the person's identity before the information may be disseminated. SMPs, Section III.C.
=!9P SECR#t/; x8x1i/x/II 'F nQN/FISA
DOJ-016-00962

TOP SECRET//$1 I !NOF9RII/FISK

(S) bl, b3, b7E
(S) bl, b3, b7E
bl, b3, b7E

bl, b3, b6, b7C b7E
14 ~The NSA is required by its targeting procedures to conduct post-targeting analysis of data acquired under Section 702, whereas the FBI is not explicitly required by its SMPs to review the 702 data that it retains.
1s (U f /FOUO) Art Cummings, the Executive Assistant Director for the National
Security Branch at the time of the policy change, retired from the FBI in April 2010. He declined the OIG's request for an interview.
XXX
=TOP SECkE:CZZSI/;'fJ9P6BHl&A
DOJ-016-00963

(S)

bl, b3, b7E

bl, b3, b7E

~ The OIG concluded that the careful design and implementation
of the means by which 702 data would be housed, accessed, and tagged was not matched with a clear, timely, and well-considered policy from FBI executive managers concerning the FBI's dual routing and retention of this data. It was not until after the automatic dual routing request process was in place for several weeks that the FBI's executive management first began to focus in earnest on whether the FBI should amass 702 counterterrorism data i n - (S) rather than on a selector-specific basis. We believe these policy issues should have been more fully considered in advance of initiating the dual routing and retention process in October 2009.
2. ~indings Relating to Access to and Purging of
702-Acquired Data Retained i n . (S)

-Jwich ~ Section 702-acquired data that the FBI retains for analysis is

stored in

is administered b y - -When the FBI first prepared to

retain 702 data,'th.e 702 Team worked wi~ and the FBI OGC to make

sure that the 702 data would be labeled as 702

· to distinguish it from

the traditional FISA data that is also housed in

FBI also controlled

ts to the 702 data

bl, b3, b7E
bl, b3, b7E
bl, b3, b7E

with each 702

~ communication

al~ commumcation 1s used

outside o f - such as in a disseminated intelligence report, so the data can (S)

be traced in the event it must later be purged.

rni ~) The 702 Team is responsible for tracking 702 data that must be
purg;cl fr~m systems. The FBI typically learns that 702-acquired data must be purged when the NSA determines through post-targeting analysis that

DOJ-016-00964

the targeted communicant was in the United States or a U.S. person at the

time of acquisition, and therefore not eligible for 702 collection. The NSA

conveys this information to the FBI throug~ge reports. The 702 Team

bl, b3,

tracks the tainted data by consulting with-· which maintains access logs

b7E

of each authorized user's activity in-~ then follows up with authorized

users who may have included the data m disseminations to ensure that the

data has been destroyed. -

is responsible for purging the data f r o m - (S)

The OIG found that the 702 Team was diligent and thorough in tracking

tainted 702 data and notifying authorized users and -personnel to destroy

it.

C. ~FBI Dissemination of Section 702-Acquired Information

~ The FBI defines "dissemination" to mean "providing information

to foreign officials and entities, and federal, state, local, and tribal officials and

entities, as well as sharing within the FBI when (or at the time) the FISA-

acquired information is

into a FBI system which allows for broad

access in the FBI

SMP Guidelines, App. B. The FBI (S)

provided the OIG

reports containing 702

information from the inception of the

· 2010. Each

intelligence report was in the form of

that

had been

into

(S)

bl, b3, b7E

1. ~ Findings Relat~to Storage of Section 702 Intelligence Reports i n . . (S)

~ In addition to having exclusive authority to mark 702-acquired
data iri -~s meeting SMP minimization standards, the 702 Team is also (S)

responsible for maintaining disseminated intelligence reports that contain 702

data. The 702 Team maintains these reports through an administrative case

filing system i n - using one administrative subfile for reports containing (S)

702-acquired U.S. person information and another subfile for reports that do

not. Each disseminated report must identify the correct subfile in the text of

the report so that the document can be found through a text

for (S)

auditing and oversight purposes. The OIG found that r ...l<>t-1u...llu

disseminated intelligence reports were either misfiled, mislabeled, or both,

potentially affecting NSD's oversight and the FBI's reporting to Congress, both

of which rely on accurate filing i n . . (S)

bl, b3, b7E
bl, b3, b7E

I,.xxxii
TOP SFCIL!))SI;

II'AftNfFI~

DOJ-016-00965

TOP SECRE"'f7 I 81/ I IQUF9RN/F'SA 2. (U//FOUO) Findings Relating to Application of the
Standard Minimization Procedures to Disseminated Intelligence Reports
(UI /FOUO) The NSD and ODNI jointly conduct reviews to assess the
FBI's compliance with its SMPs. During our review period, these compliance assessments concluded that "all references to United States persons reviewed were consistent with the applicable minimization procedures."16
bl, b3, b7E

3. ~ Findings and Recommendations Relating to Treatment of 702-Acquired Metadata in Disseminated Intelligence Reports

bl, b3, b7E

~However, the joint NSD/ODNI assessment team identified four

disseminations that did not include the FISA warning statement (or "FISA caveat") required by (S)

a5c0qUui.rSe.Cd .in§fo1r8m25a(tci)ona m na d~ - -a - -l -

The warning statement advises proceeding with the advance

that

FISA-

authorization of the Attorney General.

bl b3 b?E ' '

xxxiii TOP &BeRET// SI/; N'oFelUI/FisA

DOJ-016-00966

bl, b3, (S) b7E
bl, b3, b7E
(S)
bl, b3, b7E
D. (U//FOUO) Findings and Recommendations Relating to Statutory Reporting Requirements for FBI Dissemination Activities
(UI /FOUO) Section 702(n(2)(B) provides that, "with respect to
acquisitions authorized under subsection (a), [the OIG] shall review the number of disseminated intelligence reports containing a reference to a United Statesperson identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting[.]"
~The FBI is also required to conduct an annual review that
provides an "accounting" of the identical information. See Section 702(n(3)(A)(i) xxxiv
TOP SF£Pft//Bl/)Nb! eP!T'USA
DOJ-016-00967

yop StCkii I I I 81// NOF9RN/F1SA

and (ii). As noted above, the FBI submitted one annual report that covered the period of September 1, 2008, through August 31, 2009 (the 2009 reporting period). Because the FBI did not begin retaining 702-acquired data until after the 2009 reporting period, it reported that it "did not disseminate any intelligence reports containing a reference to a United States-person identity derived from acquisitions conducted under [Section 702(a)]" during that period. For the same reason, the FBI also reported that it did not disseminate any U.S. person identities that were not referred to by name or title in original reporting.

. ~In conducting its statutorily mandated review, the OIG reviewed

t h e . intelligence reports that the FBI disseminated between December 2009 (S)

and April2010. These reports would fall within the FBI's annual reporting

period for September 1, 2009, through August 31, 2010. However, as of

bl, b3, b7E

February 2012, the FBI had not conducted this statutorily required annual

review. 17

(S)

bl, b3, b7E

(S) bl, b3, b7E

~The 17

FBI submitted its annual reports for September 1, 2009, through

August 31, 2010, and September 1, 2010, through August 31, 2011, on May 22, 2012.

XXXV
'toP seekEI 1; slj /N9FQPN /FisA

DOJ-016-00968

(S) bl, b3 b7E ,
b7E
bl, b3 b7E ,
(S) bl, b3 b7E ,
bl, b3, b7E
(Cont'd.)
DOJ-016-00969

:--
TOP 8&01&1/ I 81;; 'f"BN/FISA

V. (U) Conclusion

~The OIG believes that in general the FBI responsibly

Im.plc:!m.ented its Section 702

·

cedures ................,.5

bl, b3, b7E
bl, b3, b7E

~ The OIG found that the FBI generally conducted its post-

targeting activities responsibly as well, and approached its authority to retain

and t

disseminate d ·t f

702-acquired

· !

• r

data

with deliberation ·th th • ·

and t

foresight from
d r ·t ti

the f

bl, b3, b7E

(S)

(S) bl, b3, b7E

DOJ-016-00970

(S) bl, b3, b7E
~ Lastly, we found that the FBI has not met all ofits statutory annual reporting requirements under Section 702. As of February 2012, the FBI had issued one annual report that covered various Section 702 activities from September 2008 through August 2009. However, the OIG found that this report was deficient because it did not provide the number of targets whose stored communications were acquired and who were later determined to be in the United States at the time of acquisition, as required by the statute. We also determined that through at least February 2012, the FBI had failed to provide Congress with subsequent annual reports about its Section 702 activities. In addition, we concluded that the FBI lacked the guidance necessary to ensure that the personnel who will be responsible for compiling these annual reports are able to do so with a consistent understanding of the reporting requirements of Section 702. We recommend that the FBI promptly correct deficiencies in its first annual report, and that FBI OGC issue guidance necessary for meeting its annual reporting requirements in a timely manner.
(U / /FOUO) Based on our findings, we made seven recommendations designed to improve the FBI's conduct of its activities under Section 702. The FBI and the National Security Division have provided comments to these recommendations, which are appended to this report. The OIG intends to closely monitor the FBI's progress in implementing these recommendations.

xxxviii
TOp 8 FC'ff; I 51) I nsr=• ,, liSA

DOJ-016-00971

(U) CHAPTER ONE INTRODUCTION
(UI IFOUO) The Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2008 (FAA) was signed into law on July 10, 2008. The FAA was enacted as part of Congress's effort to modernize the Foreign Intelligence Surveillance Act of 1978 (FISA), codified at 50 U.S.C. §§ 1801-1885.
_lTS/J t:\1;'; l.SIR}:_The FAA followed earlier efforts to enhance the nation's
ability to gather signals intelligence in the wake of the terrorist attacks of September 11, 2001. In October 2001, the President authorized a highly· classified program, known as the President's Surveillance Program, to conduct electronic surveillance of certain communications into and out of the United States without seeking orders from the Foreign Intelligence Surveillance Court (FISA Court). 20 This program was transitioned in stages to FISA Court supervision beginning in 2004.
]J1tt4'st;11N}5 However, according to a former senior Justice Department
official familiar with these events, in May 2007, the FISA Court imposed rigorous procedural requirements on the government's foreign surveillance authority, causing the National Security Agency (NSA) to place fewer foreign selectors under coverage than it wanted to.2 1 To address concems that the Intelligence Community was unable to swiftly collect critical foreign intelligence, Congress thereafter enacted two major amendments to the original FISA statute. The first of these amendments was the Protect America Act of 2007 (PAA), a temporary legislative measure that expired on February 16, 2008. It was followed by the FAA, key provisions of which are set to expire on December 31, 2012.
(UI IFOUO) The FAA authorizes the collection of foreign intelligence
information from persons reasonably believed to be located outside of the United States. This portion of the FAA contains separate sections authorizing such collection under three different circumstances: targeting non-U.S. persons outside the United States (Section 702); acquisitions inside the United States targeting U.S. persons outside the United States (Section 703); and other acquisitions targeting U.S. persons outside the United States (Section 704).
20 (UI /FOUO) The FISA Court was established under the FISA statute to review the
government's applications to exercise FISA authority and grant orders approving such applications. 50 U.S.C. § 1803.
21 ~A "selector" is either a telephone number or an identifier used for Internet communications, such as an e-mail account.
8PN'Fffl~ 1
I I I ......& I I - - -
DOJ-016-00972

T9P SECkEl I I 81 I /NOJ'ORN/FISA

(U j jFOUO) Section 702, which is the focus of this report, allows the Attomey General and the Director of National Intelligence to jointly authorize, for up to 1 year, the targeting of non-U.S. persons reasonably believed to be located outside the United States. To exercise this authority, the Attorney General and the Director of National Intelligence must adopt targeting and minimization procedures that govem how targets are determined to be nonU.S. persons outside the United States and how the information acquired may be retained and disseminated. The statute places limitations on the government's targeting authority by prohibiting the intentional targeting of persons known to be in the United States at the time of acquisition, and the targeting of persons outside the United States where the purpose of the acquisition is to obtain the communications of "a particular, known person reasonably believed to be in the United States" (a practice known as "reverse targeting''). The targeting and minimization procedures adopted by the Attorney General and the Director of National Intelligence are subject to FISA
Court review and approval.

~ection 702 also requires the government to certify that "the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider." Under Section 702, foreign intelligence is obtained from these U.S.-based electronic communications service providers (U.S. providers) either by conducting electronic surveillance of communications as they are transmitted, or by conducting a search of communications that are in electronic storage after they
have been transmitted.

~ The Federal Bureau of Investigation (FBI) and the National

Security Agency (NSA) are the only agencies authorized to acquire foreign

intelligence information under Section 702. The NSA is the lead agency in the

702 Program and, · the OIG's review · was the

with the

formal

to

(S)

bl, b3, b7E

(S)

(S)

(S)

bl, b3, b7E

!op 2 SECRft{/81} }MOl 9RN/F'SA

DOJ-016-00973

TOP 8 ECRBT/ I Sl I I h01"6RN/Fi8A

~The FBI is also responsible for routing to the NSA all

communications

· from

under Section 702

bl, b3, b7E
(S) bl, b3, b7E

(UI IFOUO) This report describes the Office of the Inspector General's
(OIG) review of the FBI's use of the authorities provided in Section 702 of the FAA. Section 702(ij(2)(A) authorizes the OIG to review the FBI's compliance with its targeting and minimization procedures. The OIG also conducted this review pursuant to its authority under the Inspector General Act of 1978, as amended, codified at 5 U.S.C. App. 3.
(UI IFOUO) The FBI's compliance with its targeting and minimization
procedures is subject to mandatory reviews that are conducted jointly by the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI). The OIG sought to avoid replicating the DOJ and ODNI's compliance reviews, and instead concentrated on assessing the policies and procedures that the FBI implemented to carry out its targeting and posttargeting activities.
(UI IFOUO) This report also discusses the OIG's findings with respect to
three reviews we are required to conduct under Section 702(ij(2)(B) and (C) concerning the FBI's acquisition and dissemination of U.S. person information. Specifically, with respect to acquisitions authorized under Section 702(a), the OIG is required to review:

3
TOP SECRM'f) Sl I 7N9F0 RN/Flf!_A

DOJ-016-00974

• (UI IFOUO) "the number of targets that were later determined to
be located in the United States, and to the extent possible, whether communications of such targets were reviewed";
• (UI IFOUO) "the number of disseminated intelligence reports
containing a reference to a United States-person identity"; and
• (UI IFOUO) "the number of United States-person identities
subsequently disseminated ... in response to requests for identities that were not referred to by name or title in the original reporting[.]"
(UI IFOUO) The FBI is also required by Section 702(ij(3) to provide annual
reports concerning this same U.S. person information.

I. (U//FOUO) Methodology of OIG Review

~During the course of this review, the OIG interviewed

approximately 45 individuals, including FBI personnel who administer the 702

Program (referred to in this report as the 702 Team), senior FBI

Counterterrorism Division

in the FBI's

f!Rd the opera:t:ions, torm(~r

, and

other Office of General Counsel attorneys who provided legal advice to the FBI concerning Section 702 during our review period.23 In addition, we interviewed several National Security Division attorneys, National Security Agency officials,

and officials in the Office of the Director of National Intelligence.

bl, b3, b7E

~ We also reviewed thousands of documents, including

bl, b3,

ap]prOIXli. na1tely

individual files

· the FBI's processing of NSA (S) b7E

, approximate!- (S)

di~;semi:na1ted mtel1I.ge11.ce reports,

· , Office of Legal Counsel

memoranda, FBI guidance documents and training materials, National Security

Division compliance reports, and e-mails among FBI and other officials

discussing the 702 Program.

bl,

6iG the

~1cI 'o~dn ~~teda

ddition t various

o st

cond atisti

u c

ct al

ing interv analyses

iew of t

s h

a e

n

d

ex~un1mng

docu:me~nts,

(S)

b3, b7E

sing random srurnp1lin.g

23 (Uf /FOUO) Art Cummings, the Executive Assistant Director for the FBI's National
Security Branch until his retirement from the FBI in April2010, declined the OIG's request for an interview.
4
TOP &Eelllit 11st //N9FORN WsA

DOJ-016-00975

TOP SFCR:BT/ / 81 ) 7N9FQPNJFJSA
II. (U) Organization of this Report (U j jFOUO) In Chapter Two of this report we briefly describe how certain
intelligence-gathering activities first authorized by the President in 2001 were brought under FISA Court supervision, followed by Congress's effort to modernize the FISA statute through the Protect America Act of 2007 and the FISA Amendments Act of 2008. We also discuss the legal provisions of Section 702, and provide an overview of the FBI offices and personnel who administer the 702 Program for the FBI.
~In Chapter Four we describe the FBI's post-targeting activities,
which involve the acquisition, routing, retention, purging, minimization, and dissemination of 702-acquired information. The OIG's review period for these activities extends through April2010. However, because the FBI did not begin to retain 702 data until October 2009, we were only able to examine approximately seven months of information related to these post-targeting activities. We describe the policies and practices surrounding the FBI's eventual participation in the routing and retention process as a recipient of 702-acquired data, and how those policies and practices changed over time. We also describe the role of the 702 Team and other FBI personnel in the acquisition, retention, and dissemination process, and assess the FBI's application of its Standard Minimization Procedures and relevant guidance to disseminated intelligence reports containing 702 information. Lastly, we provide our review of the number of disseminated intelligence reports containing a reference to a U.S. person identity, as required under Section 702(Q(2)(B).
5 TOE SECRB!F//81 / /HOF9RX/FISA
DOJ-016-00976

TOP SEQRET/ I 81 I I N6P9RJlfFISA (Uf fFOUO) In Chapter Five we provide our conclusions and
recommendations. Based on our findings, we made seven recommendations designed to improve the FBI's conduct of its activities under Section 702. The FBI and the National Security Division have provided comments to these recommendations, which are appended to this report. The OIG intends to closely monitor the FBI's progress in implementing these recommendations.

TOP

s~eRET/

6
1SI 1/rt6P9RX/FISA

DOJ-016-00977

(U) CHAPTER TWO BACKGROUND
(U1IFOUO) In this chapter, we describe the transition of certain foreign
intelligence-gathering activities from presidential authority under what was known as the "Terrorist Surveillance Program," which was in operation from 2001 through early 2007, to activities approved and supervised by the FISA Court during 2007. We then describe how efforts to modernize the Foreign Intelligence Surveillance Act of 1978 (FISA) through legislation and continued FISA Court supervision of these activities led to the enactment of the Protect America Act of 2007 (PAA), and later the FISA Amendments Act of 2008 (FAA).
(UI IFOUO) We also provide an overview of Section 702 of the FAA,
which authorizes the government to target non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information, subject to certain limitations and in accordance with FISA Courtapproved targeting and minimization procedures. Finally, we provide an overview of the FBI offices and personnel who administer the 702 Program for the FBI, as well as a brief description of how the FBI has used Section 702 in the past, and how it intends to use the statute in the future.
b7E
I.
A. (U//FOUO) The Terrorist Surveillance Program
(UI IFOUO) Following the terrorist attacks of September 11, 2001, the
President authorized the National Security Agency (NSA) to use its signals intelligence capabilities to detect and prevent further attacks against the United States. The classified activities that the President authorized and the information derived from them fell into distinct categories that collectively came to be known as the "President's Surveillance Program" (PSP).24 One category of activity under the PSP was publicly confirmed by the President in December 2005 following a series of media reports about the NSA's surveillance program.2s That activity, called the "Terrorist Surveillance Program" or "TSP,"
24 (UI IFOUO) A detailed description of this program may be found in a classified OIG
report entitled, "A Review of the Department of Justice's Involvement with the President's Surveillance Program" (July 2009).
2s (U1IFOUO) The first media account of the NSA surveillance activities appeared in a
series of articles published in The New York Times between December 16 through 19, 2005. See "Bush Lets U.S. Spy on Callers Without Courts," James Risen and Eric Lichtblau, New York Times, December 16, 2005.
DOJ-016-00978

j{)pse:t 1'; ; 51 I; IIBF 'R'JiJsi

b7E
con of

co:mrnumicat10ns mto ou

nited States where there was a

reasonable basis to conclude that at least one of the communicants was a

JiS?;on,, fNllr The TSP and the other intelligence activities authorized by
the President under the PSP were legally controversial because these activities traditionally were viewed to be govemed by the FISA statute.26 Subject to certain statutory exceptions, and until it was amended in 2007 by the PAA, FISA generally required the approval of the FISA Court whenever the government sought to acquire, for foreign intelligence purposesi "the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." For the FISA Court to grant authority to conduct electronic surveillance, the government would first have to establish probable cause to believe that the target of the 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 the target. FISA imposed similar legal requirements to conduct a physical search, including of stored electronic communications.
(U j /FOUO) When FISA was enacted in 1978, most international telephone calls were carried by satellite. Under FISA, the interception of such calls constituted "electronic surveillance" only if the acquisition intentionally targeted a U.S. person in the United States, or if all participants to the communication were located in the United States. Thus, government surveillance of satellite communications that targeted foreign persons outside the United States generally was not considered electronic surveillance, and the government was not required to obtain a FISA Court order authorizing the surveillance, even if one of the parties to the communication was in the United States.
~ In the mid-1980s, however, fiber optic technology began to replace satellites as the primary means for transmitting international (and domestic) communications. Because many of these communications were now "wire communications" routed through and acquired inside the United States,

26 (U/ /FOUO) Proponents of this view cite 18 U.S.C. § 2511(2)(f), which states, in relevant part, that the
(U) procedures in [chapter 119 and 11 of title18] and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Top

SEGRlh

I

I

8
Si

I

I

hOi

9RK/~Ifi

DOJ-016-00979

NI sit!mri;/SI /}Nor amt;P;i

this change in technology brought most electronic communications within FISA's definition of "electronic surveillance." Consequently, the government was required to obtain FISA Court orders to conduct electronic surveillance it previously had been authorized to conduct outside of FISA.

(U j /FOUO) Under the TSP, the President authorized electronic surveillance to be conducted without the particularized probable cause showings to the FISA Court required under FISA. According to a Justice Department memorandum publicly released on January 19, 2006, the TSP was "supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States." The Department further maintained that the program was lawful because, in the wake of the September 11 terrorist attacks, Congress had passed an Authorization for the Use of Military Force, which "confirms and supplements" the President's inherent power to conduct warrantless surveillance during wartime.

B. (U//FOUO) FISA Court Orders
~ Beginning in 2004, the PSP activities authorized by the
President were transitioned in stages to FISA authority under a series of orders issued by the FISA Court. The last of the activities to come under FISA Court order was the TSP. The transition of the TSP from presidential authority to FISA Court orders was precipitated in part by the disclosure of the program in a series of articles in The New York Times in December 2005.

~ 13} / ~!7 ; I'll!+ The government's application to the FISA Court for this

electronic surveillance authority was premised on a novel and expansive

interpretation of the FISA statute. As noted, FISA generally required the

government to establish probable cause to believe that the target of the

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 the target. In its post-TSP filings with

the FISA Court, the government proposed that the term "facilities" be

interpreted far more broadly than how the term ordinarily had been applied. 27

The government also requested that senior NSA officihls, rather than a FISA

bl, b3,

Court judge, be authorized to make individualized findings of probable cause to b7E

determine that a particular telephone number or e-mail address was

used by a member or agent of the targeted entity

(TS)

9
~p 8 EQRB'f; I Si I I fQ 0£

DOJ-016-00980

bl, b3,
b7E
that the communication was to or (TS)

=tl Sj 7Sl/ j'c.1E)_ FISA Court Judge Malcolm Howard granted the
government's application as to foreign selectors on January 10, 2007.28 On January 17, 2007, Attorney General Alberto Gonzales wrote to Senators Patrick Leahy and Arlen Specter, respectively the Chairman and Ranking Minority Member of the Senate Judiciary Committee, to inform them that due to Judge Howard's order approving the government's application, collection under the
TSP would cease.

tiFf .:(,TS, 7 31) 1 On March 20, 2007, the government filed an application

to renew Judge Howard's January 10 Order. The renewal application was filed

with Judge Roger Vinson, the FISA Court "duty judge" during that week. In an

April3, 2007 Memorandum and Order, Judge Vinson wrote that he could not

grant the government's renewal application. He determined, based on past

practice under FISA and the Congressional intent underlying the statute, that

the FISA Court, not senior NSA officials, must make the necessary probable

bl,

cause determinations. He also rejected the government's broad construction of

b3,

the term "facilities," concluding that the electronic surveillance to be conducted

b?E

by the government was directed at

numbers and e-mail

addresses

(TS)

~While sympathetic to the government's stated need for enhanced "speed and flexibility'' in responding to terrorist threats, Judge Vinson concluded that FISA's requirements reflected a balance struck by Congress between privacy interests and the need to obtain foreign intelligence information, and until Congress took legislative action on FISA to respond to the government's concerns, the FISA Court was bound to apply FISA's procedures. In denying the government's application, Judge Vinson urged the government to seek a 60-day extension of Judge Howard's foreign selectors order, which the government subsequently sought and obtained.
~Iff'ISLEI The government later submitted a revised renewal
application and, on May 31, 2007, obtained authority from Judge Vinson to conduct electronic surveillance on foreign selectors. This authority, however, was considerably narrower than the authority initially sought from and granted by Judge Howard. Although the government was allowed to conduct electronic surveillance targeting selectors reasonably believed to be used outside the United States and for which probable cause existed to believe were being used

2s
selectors

~~~ Judge Howard
used by persons in the United

Sdetactleinse(ddotoma estiu c stehloerci ~o zp eo~soe f d(TbSy)

the government in its application.

bl, b3, b7E

DOJ-016-00981

j>QP SFeiWI)}Sl })NUl OIUf/WSe

or about to be used by associated terrorist en the probable cause determinations as to each selector.

(TS) make

bl, b3, b7E

:{Ts,; ~r, {br:Ej Under the May 31, 2007 Order, the FISA Court initially

approved approximately - f o r e i g n selectors for which the NSA previously (TS)

had found probable cause to conduct electronic surveillance under the terms of

the earlier FISA Court Order. However, according to a former senior Justice Department official familiar with these events, the rigorous nature of the FISA

bl, b3,

Court's probable cause review of new selectors submitted to the various FISA

b7E

Court judges following Judge Vinson's May 31, 2007 Order caused the NSA to

place fewer foreign selectors under coverage than it wanted to. This factor and

the comparatively laborious process for targeting foreign selectors under Judge

Vinson's Order combined to accelerate the government's efforts to amend the

FISA statute to streamline and modernize the government's surveillance

authorities within the United States directed at persons located outside the

United States.

~~/~ The PAA, and its successor, the FAA, accomplished many
of these objectives. The PAA, described briefly below, was signed into law on August 5, 2007. Because the PAA effectively superseded Judge Vinson's May 31, 2007, foreign selectors Order, the government did not seek to renew the
Order when it expired on August 24, 2007.

C. (U//FOUO) The Protect America Act

(UI IFOUO) The Protect America Act of 2007 (PAA), Pub. L. No. 110-55,
was enacted as a temporary measure to address the legal impediments that existed under FISA to the swift acquisition within the United States of communications to or from targeted foreign selectors.29 The PAA accomplished this by amending FISA to exclude from the statute's definition of "electronic surveillance" the interception of communications to or from targeted foreign
selectors.

(UI IFOUO) Under the FISA statute's original definition of "electronic
surveillance," FISA Court authorization generally was required to intercept any communication to or from a "particular, known United States person who is in the United States" if the communication was acquired by targeting that person. Such authorization also was necessary to acquire other communications (such as those acquired by targeting persons outside the United States) if the

29 (U1/FOUO) The PAA was signed into law on August 5, 2007. It was set to expire
180 days after its enactment, or on February 1, 2008. However, Congress passed a bill, signed by the President on January 31, 2008, extending the PAA for 15 days so that discussions on new legislation could continue. No agreement on new legislation was reached during that
period, and the PAA expired on February 16, 2008.

11
T.OP s:seREi 11&I ; 1NUl OltKfFJSA

DOJ-016-00982

TOP SEeREI//SI 1/N6FQRNtFISA
communication was a "wire communication to or from a person in the United States" and the acquisition occurred inside the United States.
(UI IFOUO) The PAA amended FISA by providing: "Nothing in the
definition of electronic surveillance ... shall be construed to encompass surveillance directed at a person reasonably believed to be located outside the United States." The effect of this amendment was to exclude from the individualized FISA Court application and order requirements of FISA any communication acquired by targeting a person overseas, regardless of where the communication was intercepted, whether the communication traveled by a wire, or whether the target was a known United States person determined by the Attorney General to be an agent of a foreign power located outside the United States.
(UI IFOUO) In place of these individualized FISA Court applications and
orders, the PAA inserted a new legal mechanism to govern the acquisition of communications from persons "reasonably believed to be located outside the United States." The PAA provided that the Attorney General and the Director of National Intelligence may authorize the acquisition of foreign intelligence information concerning such persons for up to one year, provided these officials certified that there were reasonable procedures in place for the government to determine that a target was reasonably believed to be outside the United States and that the acquisition of the foreign intelligence therefore was not "electronic surveillance" under the amended definition of the term. Unlike traditional FISA, the PAA did not require the Attorney General and the Director of National Intelligence to identify the specific facilities or places at which the acquisition of foreign intelligence information was directed.
(UI IFOUO) In order to authorize such acquisition of foreign intelligence
information, the Attorney General and the Director of National Intelligence also were required to certify that the minimization procedures to be used with respect to such acquisitions comported with the procedures adopted by the Attorney General for minimizing information obtained by electronic surveillance under FISA.30 As discussed in Chapters Three and Four, these targeting and minimization requirements are central features of the intelligence-gathering and sharing activities conducted under Section 702 of the FISA Amendments Act as well.

30 (U/ /FOUO) FISA generally requires that with respect to electronic surveillance the Attorney General shall adopt "specific procedures ... that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information[.]" 50 U.S.C. § 1801(h).

TOP

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REI

/

/

12
SI I

I

l'f6F9RN/FT~

DOJ-016-00983

(UI IFOUO) In addition to addressing targeting and minimization
requirements in the certification, the Attorney General and the Director of National Intelligence also were required to certify that the acquisition involved obtaining the foreign intelligence information from or with the assistance of a communications service provider having access to the communications, either as the communications were transmitted or while they were stored, and that a "significant purpose of the acquisition is to obtain foreign intelligence
information[.]"

(UI IFOUO) The PAA left unchanged the procedures for acquiring foreign
intelligence information by targeting foreign powers or agents of foreign powers in the United States, as well as the procedures under Executive Order 12,333 (E.O. 12,333) Section 2.5, to obtain Attorney General approval before acquiring foreign intelligence information against a U.S. person outside the United

States.

i'ffiT $!

The first PAA certification was filed with the FISA Court on

August 9, 2007.

were filed with the

certifications and approved them, allowing the government to continue the

bl, b3,

activities authorized by the Attorney General and the Director of National

b7E

Intelligence to acquire foreign intelligence information concerning persons

reasonably believed to be outside the United States without individualized FISA

-Court approval for up to one year. These acquisitions were conducted by the

NSA. As of J

31 2008 the PAA certifications also authorized the FBI to

After the PAA expired on (S)

February 1

m

acquisition authority

under the statute gradually lapsed as the individual certifications expired. The

final PAA certification expired in April 2009.

(S)

bl, b3, b7E

DOJ-016-00984

~The FBI's role under the PAA thus became identical to its current role under the Section 702 of the FAA-

bl,

(S)

b3,

b7E

(S)
bl, b3, b7E

(UI IFOUO) Although the Department viewed the PAA as an adequate
temporary fix to those provisions of FISA seen as outdated because of changes in telecommunications technology, Department and other Intelligence Community officials continued to press Congress for more permanent modernization legislation. The result of these efforts was the FISA Amendments Act of 2008.
II. (U) The FISA Amendments Act of 2008
(UI IFOUO) The FISA Amendments Act of 2008 (FAA) was signed into
law as Public Law 110-261 on July 10, 2008. According to the FAA's legislative history, Congress had two primary goals in passing the FAA. First, Congress wanted to provide a sound statutory framework, consistent with the Constitution, enabling the targeting of persons reasonably believed to be located outside of the United States for the acquisitions of foreign intelligence information, while simultaneously affording additional protections to United States persons whose communications are targeted for collection or collected incidentally. In striking this balance, Congress discarded the PAA's redefinition of the term "electronic surveillance," which had excluded from FISA's individualized order requirement all persons outside the United States, including U.S. persons, and instead promulgated a specific authorization for the acquisition of communications from non-U.S. persons located outside the United States without an individualized order. The result was a sharply narrowed statute under which U.S. persons overseas could no longer be

~ccordin to an attorne in the FBI's Office of General Counsel who

participated in draftmg the

), the document took a long (S)

time to negotiate, and was not m ize until ter t e PAA expired. However, the attorney stated that the . . remained in effect after the PAA expired because certifications issued (S) under the PAA were valid for one year, and thus the use of PAA authority extended beyond the

bl, b3,

PAA's expiration. This attorney also stated that the. . remains in effect under the FAA to (S) b7E

the extent it is relevant to the FAA's provisions. Thus, provisions in t h e - concerning (S)

targeting the accounts of U.S. persons, which is prohibited under the FAi\,"Me considered void.

TEP 14 SFCkiii I I Sl 7/N8F9Rit"i'ISA

DOJ-016-00985

-rap sRei&t; 1st 11MoPeRNtFIM
targeted without an individualized warrant, as had been possible prior to the FAA.
(UI IFOUO) Second, Congress wanted to provide civil immunity for those
electronic communication service providers who had provided assistance to the Intelligence Community under the PSP pursuant to written assurances that the program had been authorized by the President and determined to be lawful. See, e.g., Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007, S. Rep. No. 110-209 (Oct. 26, 2007).
(UI IFOUO) Consistent with these two goals, the FAA contains two
primary provisions: an authorization to collect foreign intelligence information by targeting non-U.S. persons located overseas, including explicit limitations on that authority and an oversight regime to monitor its use; and a mechanism to extend immunity to qualifying electronic communication service providers for prior participation in the PSP.
A. (U//FOUO) The Authorization to Collect Foreign Intelligence Information
(UI IFOUO) The FAA authorizes the collection of foreign intelligence
information from persons reasonably believed to be located outside of the United States. The Act contains separate sections authorizing such collection under three different circumstances: targeting non-U.S. persons outside the United States (Section 702); acquisitions inside the United States targeting U.S. persons outside the United States (Section 703); and other acquisitions targeting U.S. persons outside the United States (Section 704).32 These provisions, and in particular Section 702, which is the focus of this review, are summarized below.
1. (U//FOUO) Section 702
a. (U//FOUO) Authorization and Limitations
(UI IFOUO) Section 702, which is codified at 50 U.S.C. § 1881a, et seq.,
authorizes the targeting of non-United States persons who are reasonably believed to be located outside of the United States to acquire foreign intelligence information, without an individualized order from the FISA Court.33 The affirmative authorization contained in Section 702(a) states:
32 (U/ /FOUO) These provisions will expire on December 31, 2012, unless reauthorized by Congress. See FAA, Section 403(b)(l).
33 (U f /FOUO) Section 70 1(a) incorporates the definition of "United States person"
provided in Title I of FISA: (Cont'd.)
15 TOP SEeREII/SI //NOFOitN{FISA.
DOJ-016-00986

TOP SECRF'Tf/SI I /NOF6RN{FmA
(U) (a) AUTHORIZATION.-Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection [FAA] (i)(3) or a determination under [FAA] subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.
(U1IFOUO) The affirmative authorization contained in Section 702(a) is
strictly limited in several ways. Under the terms of subsection (a) itself, any acquisition under Section 702(a) must be made pursuant to either a FISA Court order (through the approval of a "certification," discussed below), or a determination that exigent circumstances exist, as defined in Section 702(c)(2) and subject to subsequent and expeditious action by the FISA Court.34 The plain language of subsection (a) also requires that acquisitions pursuant to Section 702(a) must be conducted "to acquire foreign intelligence information," and that the person targeted for such acquisition be reasonably believed to be located outside the United States. Id.
(U1IFOUO) Section 702(b) specifies limitations to the authority to collect
foreign intelligence information under subsection (a).35 The chief limitation

(U) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence ... , an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(l), (2), or (3) of this section.

(U) 50 U.S.C. § 1801(i).
34 (U j /FOUO) Section 702(c)(2) allows for the Attorney General and the Director of National Intelligence to determine that exigent circumstances exist when, "without immediate implementation of an authorization under subsection (a), intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order" from the FISA Court. See FAA§ 702(c)(2), 50 U.S.C. § 1881a(c)(2). When such a determination is made, however, the Attorney General and the Director of National Intelligence must submit to the FISA Court a certification for such authorization "as soon as practicable but in no event later than 7 days after such determination is made." FAA § 702(g)(l)(B), 50 U.S.C. § 1881a(g)(l)(B).

35 (U) The full text of Section 702(b) states:
(U) (b) Limitations.-An acquisition authorized under subsection (a)-
(U) (1) may not intentionally target any person known at the time of acquisition to be located in the United States;

(Cont'd.)

DOJ-016-00987

imposed by Section 702(b) is that the acquisition may not intentionally target a United States person; as discussed below, the targeting of United States persons under the FAA is addressed in Sections 703 and 704. Section 702(b) also specifically prohibits the intentional targeting of any person "known at the time of acquisition to be located in the United States." Together, these two limitations- that the acquisition target non-United States persons reasonably believed to be located outside the United States at the time of acquisitionform what the Intelligence Community commonly refers to as the "foreignness" requirement. The foreignness requirement is designed to ensure that all persons located in the United States, and United States persons located anywhere, are afforded the protections of the more robust procedural requirements for acquisitions under other sections of the FAA and FISA.
(U / /FOUO) Section 702(b) imposes other limitations and prohibitions designed to ensure that subsection (a) is not used for surveillance directed at persons within the United States, or at United States persons. Specifically, acquisitions authorized under subsection (a) may not intentionally target a person reasonably believed to be located outside the United States "if the purpose of the acquisition is to target a particular, known person reasonably believed to be in the United States"- the prohibited practice commonly referred to as "reverse targeting." Nor may Section 702(a) be used to intentionally acquire a communication if the sender and all intended recipients are known at the time of acquisition to be in the United States. Finally, Section 702(b) explicitly mandates that acquisitions made pursuant to Section 702(a) must be conducted in a manner consistent with the Fourth Amendment to the United States Constitution, which provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
(U) (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (U) (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (U) (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (U) (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
;;ftA 17
TOP SRCPE17/} 51 I I Nbi 91UlJ
DOJ-016-00988

b. (U//FOUO) Procedural Requirements of Section 702
(UI IFOUO) Section 702(c) requires that acquisitions authorized
pursuant to Section 702(a) shall conform to "the targeting and minimization procedures adopted in accordance with subsections (d) and (e)," and "upon submission of a certification in accordance with subsection (g), such certification," as explained below. FAA, Section 702(c)(l).
(UI IFOUO) Section 702(d) requires the Attomey General, in
consultation with the Director of National Intelligence, to adopt targeting procedures that are reasonably designed to ensure that the acquisition of foreign intelligence information pursuant to Section 702 complies with the limitations in subsections (a) and (b). Specifically, Section 702(d)(l)(A) requires that the procedures "ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States," and Section 702(d)(2)(B) requires that the procedures "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." These targeting procedures are subject to judicial review.36
(UI IFOUO) Section 702(e) requires the Attorney General, again in
consultation with the Director of National Intelligence, to adopt minimization procedures governing the retention and dissemination of information acquired under Section 702(a) that meet the statutory rules in FISA that are otherwise applicable to data acquired through electronic surveillance and physical searches. Those provisions of FISA provide that the minimization procedures must be designed to "minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." The minimization procedures adopted under the FAA are subject to judicial review.37
(UI IFOUO) In addition to specific targeting and minimization
procedures, Section 702(f) requires the Attorney General, in consultation with

36 ~ At present, only the NSA and the FBI conduct acquisitions under Section

and thus are

· to submit their

to the FISA Court for review.

(S)

37 ~ The CIA, NSA, and FBI each receives raw Section 702-acquired data and is required to retain and disseminate such data in accordance with its own minimization procedures. Therefore, the FISA Court must review the minimization procedures of all three agencies. The FBI's minimization procedures are discussed in Chapter Four.

bl, b3, b7E

DOJ-016-00989

: 'OO..P sreft£1 I I si I I NOPORIJ/Flc;A
the Director of National Intelligence, to adopt guidelines to ensure "compliance with the limitations in subsection (b)," and to ensure "that an application for a court order is filed as required by [the FAA]." Section 702(f)(l)(A)-(B). These guidelines are known as the Attorney General's Acquisition Guidelines. In addition to reiterating the targeting limitations of Section 702, these Guidelines provide that "[a] non-United States person reasonably believed to be located outside the United States may not be targeted under subsection 702(a) unless a significant purpose of the targeting is to acquire foreign intelligence information that such person possesses, is reasonably expected to receive, andlor is likely to communicate."
(UI IFOUO) Finally, Section 702(g) requires the Attorney General and the
Director of National Intelligence to submit written certifications to the FISA Court, either prior to the implementation of an authorization under subsection (a), or in the case of exigent circumstances, "as soon as practicable but in no event later than 7 days after such determination is made." Section 702(g)(l)(A)(B). In addition to attesting to the fact that appropriate targeting and minimization procedures are in place, the certifications must also include copies of those procedures. Unlike traditional FISA applications seeking authority to conduct electronic surveillance within the United States, the certifications are "not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted."
(UI IFOUO) These certifications, filed ex parte and under seal, provide
the primary mechanism by which the FISA Court conducts its judicial oversight of the implementation of Section 702. See FAA, Section 702(i) (establishing the FISA Court's "jurisdiction to review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e), and amendments to such certification or such procedures").38
bl, b3, b7E
38 (UI /FOUO) Except as discussed elsewhere in this report, subsections (h)-(k) are not
directly relevant to this review. In summary, those subsections address the Attorney General and the Director of National Intelligence's authority to direct electronic communication service providers to provide the government with information and protect any records pertaining to acquisitions made under Section 702 (Section 702(h)); judicial review of certifications and procedures (Section 702(i)-Ul); and the FISA Court's maintenance and security of records and proceedings (Section 702(k)).
DOJ-016-00990

i()P sp.euz; /81 }/N6PORM/"8 A.
I I
• (UI IFOUO) FBI targeting and minimization procedures;

(TS) bl, b3, b7E
(S)
bl, b3, b7E (S)

bl, b3, b7E
c. (U//FOUO) Oversight Requirements
(UI IFOUO) Section 707 and 702(Q provides for extensive oversight of the
FBI's implementation of Section 702:
• (UI IFOUO) Section 707(a) requires the Attorney General to
submit semiannual reports to Congress that describe, among other things, the judicial review during the reporting period of all certifications and targeting and minimization procedures adopted under Section 702, and any instances of noncompliance with procedures and guidelines adopted under Section 702(d), (e), and (f).
• (UI IFOUO) Section 702(Q(l) requires the Attorney General and the
Director of National Intelligence to conduct semiannual assessments of the FBI's compliance with their targeting and minimization procedures and the Attorney General's Acquisition
(TS)
bl, b3, b7E

WP SECRiii¥/

I

20
81 I

I

HtifORN/fis~

DOJ-016-00991

Guidelines. These assessments are submitted to the FISA Court and to Congress.
• ~ Section 702(ij(2)(B) and (C) requires the Inspector General
to review FBI acquisitions of persons later determined to be located in the United States and disseminations of intelligence reports containing a reference to a U.S. person identity. These reviews are submitted to Congress, the Attorney General, and the Director of National Intelligence.
• (UI IFOUO) Section 702(ij(3)(A) requires the Director of the FBI to
conduct annual reviews of FBI acquisitions of persons later determined to be located in the United States and disseminations of intelligence reports containing a reference to a U.S. person identity, among other requirements. These annual reviews are provided to the FISA Court, the Attorney General, the Director of National Intelligence, and Congress.
(UI IFOUO) The OIG discusses each of these oversight requirements in
Chapters Three and Four of this report. 2. (U//FOUO) Sections 703 and 704
(UI IFOUO) Whereas Section 702 pertains only to non-United States
persons reasonably believed to be outside of the United States, Sections 703 and 704 authorize the targeting of United States persons for the acquisition of foreign intelligence information when those persons are reasonably believed to be located outside the United States.
(UI IFOUO) Section 703, codified at 50 U.S.C. § 1881b, et seq., addresses acquisitions of foreign intelligence information that target United States persons who are reasonably believed to be outside of the United States when the acquisition is conducted, and the acquisition "constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States."
(UI IFOUO) Section 704, codified at 50 U.S.C. § 1881c, addresses other acquisitions targeting United States persons outside the United States in circumstances where that person has a reasonable expectation of privacy and a warrant would be required if the acquisition occurred within the United States. This provision would cover, for example, the physical search of a United States person's home or office outside of the United States.
(UI IFOUO) Our report is limited to the FBI's activities under Section
702.
21 IOP SEGREI)/81 }JN6P9RNJFrSA
DOJ-016-00992

TOP SEeREII/SI //NOFOitN/F~A
B. (U//FOUO) Immunity Provisions (U j /FOUO) The FAA also addresses liability relief for electronic communication service providers who have been alleged in various civil actions to have assisted the U.S. Government under the auspices of the PSP. Specifically, with a certification from the Attorney General, the electronic communication service providers may avail themselves of five statutory defenses, among them, that they acted pursuant to a written request or directive from an appropriate official indicating that the activity in question was authorized by the President and determined to be lawful. See FAA Section 802(a)(l)-(5). In addition to applying retroactively, the immunity provisions of the FAA are not subject to sunset.
III. (U//FOUO) The FBI's Role and Organizational Structure Under Section 702

(S)

(S)

from

m the form

un.minitni2~ed data to the NSA and, at the NSA's direction, to the FBI and

In accordance with its Standard Minimization Procedures, the FBI

retains a portion of the raw data for analysis and dissemination as finished

intelligence products. These two basic activities, discussed in detail in

Chapters Three and Four of this

are carried out

in the

Counterterrorism Division's

these personnel as the 702

~
operatiOnal supplort field.

bl, b3, b7E
bl, (S) b3,
b7E

(S)
bl, b3, b7E

IS~~ TOP SEeREI I

I HOP6RN/;;I\

(S)

bl, b3,

b7E

DOJ-016-00993

TOP SEGREf// 81 II N9F9RJ\l/FISA

(S) bl, b3, b7E
(S)
bl, b3, b7E

(S) bl, b3, b7E
(U / /FOUO) The 702 Team also worked closely with attorneys from the Office of General Counsel's National Security Law Branch (NSLB) during our review period. Among the NSLB attorneys with the most involvement in 702 matters was one attorney who provided advice on policy matters (the Policy Attorney) and another who counseled the team on how the legal requirements of Section 702 applied to the 702 Team's procedures (the Operations Attorney). In addition to the Policy and Operations Attorneys, NSLB Section Chiefs Karen Davis Miller and Richard McNally also had substantial participation in the 702 Program during the review period.
bl, b3, b7E

23
'tOP s:sertEI 1J§t 1/N9FORNtFISA

DOJ-016-00994

IV. (U//FOUO) The FBI's Evolving Use ofSection 702

A. (U//FOUO) The FBI's Use of Section 702 Compared to Traditional FISA

']PI!!;} Si; ,' ~ After acquiring electronic communications under Section

702 and with the NSA's approval, the FBI retains some of the 702 data in ,its o~for analysis and dissemination, primarily in connection (TS)

bl,

with its international terrorism investigations. Prior to the PAA and FAA, the FBI obtained this type of data from traditional FISA coverage. The PAA and

b3,
b7E

FAA allowed the Intelligence Community to transition many selectors covered

under traditional FISA to coverage under these new and more streamlined legal

authorities. During the relevant portion of the OIG's review period, the number

of 702-acquired electronic communications retained by the FBI fluctuated over

time due to policy considerations (described in Chapter Four). However, the

overall number of such communications was substantial, and approximated

the number of electronic communications that the FBI collected and retained

under traditional FISA. Figure 2-1 below shows the relative parity between the

number of electronic communications that the FBI

· and retained

under Section 702

from October (TS)

2009, when the

April2010. (TS)

(S)

bl, b3,

b7E

--(TS)

• • • • •• •

(TS)

(TS)

(TS)
bl, b3,
b7E

~The FBI has used information collected under Section 702 in

several national security investigations. According to senior Counterterrorism

· -41

(S)

bl, b3,
b7E

-::

24

'tOP 8 FQDB I I I Sf I I ld OP&PM 'EISA

DOJ-016-00995

:rgp SEeREI I /SI I /NOF'ORN/Ii'iS:A
bl, b3,
b7E
bl, b3,
b7E
or ex:amLpl4e, GU>..J.<>L.a.J.J.-based al Qaeda operative targeted under Section 702 had been in contact with an e-mail account that the FBI determined was being used by Najibullah Zazi, a legal permanent resident living in Colorado. An FBI investigation revealed that Zazi and two associates planned to bomb the New York City subway lines. FBI agents arrested Zazi On September 19, 2009, and in February 2010 he pleaded guilty to multiple terrorism-related charges.
B. ~ The FBI's Plans to Nominate Selectors for Section 702
Coverage
~ The FBI plans to greatly expand its role in the 702 Program this year by nominating selectors for Section 702 coverage. Because the nominations program was still being formulated during our review period, the OIG was unable to review these proposed activities in depth for this report. However, in Chapters Three and Four we identify certain FBI policies and practices under the 702 Program that may be affected by the nominations initiative, and thus briefly summarize the nominations proposal below.
bl, b3,
b7E

(S) bl,

b3,

b7E

process,

agency for the

sellectm·s it nominates, and would assume the primary obligation to review the

content of incoming communications to ensure that the targeted account remains legally eligible for 702 collection and continues to produce foreign

intelligence information.

~OP

25 SBei&i//Si 7

jl'f6F9RK/FI~A

DOJ-016-00996

bl, b3, b7E
(S) bl, b3, b7E
bl, b3, b7E
~These witnesses told us that the FBI's nominating activities
were expected to begin in early 2013. While finalizing this report, however, the OIG learned that the FBI began nominating its first selectors in April 2012.

26

~

TOP SECRZI/ ]Si 1 /N9FORN/FI

DOJ-016-00997

"Top sseREI//SI 77M6F9RN/FI~
(U) CHAPTER THREE THE FBI'S ROLE IN THE SECTION 702 TARGETING PROCESS

(S)

bl, b3,

(S)

b7E

raw, unminimized form to the NSA and, at the
to the FBI and the CIA. The FBI retains the raw data in analysis and, where appropriate, for dissemination as intelllgc~n<~e proclu<~ts.

~This chapter describes the first of these functions: the FBI's

procedures for

the

of selectors that have been de.,J·.5 ................,.....

by the NSA

the targeting 1ssues ........,~.., ..~"'"'"'-'­

September 2008, when the first

nominated to the FBI, through H'"'l"'..,."',T""r

(S)
bl, b3, b7E (S)

~) In Section I of this chapter, we provide a brief description of the

procedures that governed the targeting process, including the FISA Court-

approved targeting procedures that formed the basis for the NSA to

and

the FBI to review and approve, a selector for a

(S)

Section II describes the OIG's methodology for reV1ewmg

activities. In Section III we describe the FBI's application of its targeting

procedures to review the sufficiency of the NSA's foreignness determinations for

nominated selectors. Section IV describes the FBI's

of its t-:u·rr.,.t-1 ...... rr

bl, b3, b7E

(S)

who were later determined to be

(S) nited

s, a

OIG and the FBI are required to conduct

pursuant to Section 702(n(2) and (3). In Section VII we provide our analysis of

the FBI's Section 702 targeting activities during the review period.

DOJ-016-00998

yap SECRET/ 1SI I I NOPaRX/FISA

I. (U//FOUO) Procedures Governing the Targeting Process

~ The Section 702 targeting process - whereby a selector is

identified for possible acquisition of communications, the foreign intelligence

value of the acquisition is assessed, and a judgment is formed about whether

the presumed user is a non-U.S. person reasonably believed to be located

outside the United States- is a FISA Court-approved process in which each

agency has well defined and distinct responsibilities. The -nr'""~·"'"'

memorialized in three

documents: a

(S)

FBI has developed

hich are de ·

to LTGlJus,H:u.c::

FBI Targeting Procedures into • guidance for se members of the 702 Team who are re~;pc>n~;ible

conducting the FBI's targeting activities under Section 702. This section

summarizes the relevant provisions of these documents.

A. ~he

(S)
bl, b3, b7E
bl,
(S) b3,
b7E
(S)

bl, b3, b7E

TOP SEC~mf//Sl28//NuFORN/FISA

bl, b3, b7E
(S) bl, b3, b7E
DOJ-016-00999

(S) bl, b3, b7E
(S) bl, b3, b7E
bl, b3, b7E
(S) bl, b3, b7E
(S) bl, b3, b7E
DOJ-016-01000

TOP SECRET//SI //NOFORlf/FIS~

(S)
bl, b3, b7E

~ The respective roles of the NSA and FBI described in the MOU

remained largely constant through the transition from the PAA to the FAA and

continue today. With the exception of the

roles (S)bl, b3,

are made binding on the NSA and the FBI

b7E

targeting procedures, discussed below.

B. (U//FOUO) Targeting Procedures Under the FAA
~Pursuant to Section 702(d)(l) of the FAA, all acquisitions of
foreign intelligence information under Section 702 are conducted pursuant to targeting procedures promulgated by the Attorney General in consultation with the Director of National Intelligence. These procedures must be "reasonably designed" to "ensure that any acquisition authorized under [Section 702] is limited to targeting persons reasonably believed to be outside the United States," and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." Section 702(d)(l).

(U j jFOUO) The targeting procedures are filed as attachments to each certification provided to the FISA Court pursuant to Section 702(g), and are specifically reviewed as part of that court's certification approval process. Sections 702(g)(2)(B) and 702(i)(2)-(3). The goal of the FISA Court's review is to determine whether the procedures are consistent with the requirements of the
FAA and the Fourth Amendment.

~During the OIG review nPr-in.rt

separate targeting procedures

all (S)

of which were approved by the

were

conceived of and drafted collaboratively by the relevant agency and the DOJ's

National Security Division, serve as official representations to the FISA Court bl, b3, b7E

about the steps each agency will take to ensure that targeting pursuant to

Section 702 is done in a manner consistent with the authorities and

prohibitions of the statute. The following sections summarize these

procedures.

30 TOP SECRirr7 I 81 I I i49FbRN/FISA

bl, b3, b7E

DOJ-016-01001

TOP SF-CRFT//Sl I I NOF8RN/J''Si

1. ~erview of the NSA's Targeting Procedures

t!:n·aptina procedures are a critical first step in the

process b~cause they must be applied to (S) . bl, b3, sel,ectors can be nommated to the FBI. The NSA's targetmg b?E

procedures, which have remained substantially unchanged since the enactment of the FAA, address two activities directly relevant to the FBI's

role

in the 702 program:

• ~ the manner in which the NSA determines that a person
targeted under Section 702 is a non-United States person reasonably believed to be located outside the United States ("foreignness determination"); and
• f&lfsift"'&bf the post-targeting analysis done by the NSA to ensure that it does not intentionally target a person known at the time of acquisition to be located in the United States or intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.
(U j jFOUO) NSA Targeting Procedures at 1.

The NSA targeting procedures address the tru~getinLg

Internet communications, · section. summariZes

(TS) bl, b3,

Int:en1et communications. According to NSA documents b7E

filed in support of Section 702 certifications, the term "Internet

communications" includes communications that traverse the

(TS)

JT$:1 / s;::;::;::@_ As to the NSA's determination that the target is

reasonably believed to be located of the circumstances"

outside the United States, the NSA applies · based on one or more of the ..-••--··-'-

a

(TS)

bl, b3, b7E

44 ~rr;;:;;=In addition to acquiring communications that are to or from a target,

the

NSA

also

"seeks

to

acquire

communications

about

the

target,"

meaning

communications in (Cont'd.)

31 TOP SECP~//SI //NOFORN/FISA

DOJ-016-01002

j'op SEGRB'f/ ) SI I I if6F9RJI/FISA.

(TS) bl, b3, b7E
(S) bl, b3, b7E

(U j jFOUO) NSA Targeting Procedures at 4.

The NSA targeting procedures also govem the NSA's

fnrP,·i an ·

·

of the

· which is an

(TS~l, b3, b7E

(TS)
bl, b3, b7E

~ When the NSA's post-targeting analysis reveals that a
target has entered the United States or is a United States person, the targeting
which the target is referred to in the content of a communication. Electronic communications "about" a 702 target are only collected "upstream" of U.S. providers, and the NSA has represented to the FISA Court that "no about communications will be obtained by acquisitions conducted by the FBI."

DOJ-016-01003

iQp 8EGRZI'/ /81 I 'NQFQ~FISl'-

procedures direct it to terminate any ongoing acquisition from the target "without delay'' to avoid the intentional targeting of persons known to be in the United States. The procedures also direct the NSA to report the incident to the DOJ and the ODNI, and to treat the acquisition in accordance with its
minimization procedures. In cases where the post-targeting analysis yields information that is unclear as to the location of a target, the NSA targeting procedures direct the NSA to "presume that the target has entered the United
States" and terminate any ongoing acquisition from the target.

2. (U//FOUO) Overview of the FBI's Targeting Procedures

~ The FBI also attaches its targeting procedures to each

certification presented to the FISA Court for approval, and like the NSA

targeting procedures, the FBI targeting procedures remained unchanged during

the OIG's review period. These

which are

when the NSA

nominates an account

address three (S)

primary activities:

bl, b3,
b7E

•

~) the inf~r~n,

FBI's

intelligence by targeting (S)

electronic

accoun

the NSA

("Designated Accounts") as being used by non-United States

persons reasonably believed to be located outside the United

States;

bl, b3,
b7E

• (U j /FOUO) the FBI"s documentation of that process; and

bl, b3,
b7E

a. ~ The FBI's Responsibility for Assessing the
NSA's Foreignness Determinations
~ Consistent with the MOU, the FBI targeting procedures carefully circumscribe the FBI's role in assessing the eligibility of the NSA's nomination for acquisition under Section 702. The targeting procedures require the FBI, "in consultation with the NSA, [to] review and evaluate the sufficiency of: (a) NSA's explanation for its reasonable belief that the user of the Designated Account is located outside of the United States; and (b) information provided by NSA concerning the Designated Account user's nonUnited States person status." Notably, the FBI's targeting procedures do not state that the FBI will assess the NSA's determination that a nomination will
33
TOP SECRBT/fSI //NuFOR:N/FISA

DOJ-016-01004

TOP SECRET//SI //NOF6RK/FISA_

result in the acquisition of foreign intelligence information. Rather, the

targeting procedures state that the "NSA will ... be responsible for determining

that a significant purpose of the acquisition is to obtain foreign intelligence

information," and that the NSA will

the

that a SJ.Lgn.ltic:arlt

purpose of acquiring the

is to

obtain foreign intelligence intonmaLtlOin

~ According to 702 Team personnel, the FBI interprets these provisions to mean that while it will review and evaluate the sufficiency of the NSA's foreignness determinations, it will play no role in assessing the purpose of acquiring communications from a nominated account.

~ In addition to assessing the sufficiency of the NSA's foreignness

determinations the FBI is also

under the

ures to

bl, b3, b7E

bl, b3, b7E

(S)
bl, b3, b7E
(S) bl, b3,
(S) b7E

DOJ-016-01005

iDe SiiURZ I I I 91 } ) MQi'CPN ,;;;

, the FBI targeting procedures ~11

FBI any time "NSA analysis o f - (S)

or other technical

indicates that a user of a

which

were acquired by the (S)

a.~LUC1.J..l.)' locate:d uriH,.;,., the United States

the FBI

(S) (S)

bl, b3, b7E

b. (U//FOUO) Documentation of the FBI's Targeting Activities

~The FBI targeting procedures require the FBI to document its

targeting activities. Specifically, the procedures require the FBI to retain the

information it receives from the NSA c

· each

U.S. pe1rson

status and location. In addition the FBI

bl, b3, b7E (S)

c. (U//FOUO) Compliance and Oversight
~The FBI targeting procedures contain provisions requiring the FBI to take specific steps to ensure compliance with and oversight of its targeting activities under Section 702. The FBI must~iver training for all personnel involved in processing NSA - t o (S) instruct them about their responsibilities under the statute and the targeting procedures. The FBI's Inspection Division is required to conduct oversight of the FBI's exercise of its targeting procedures, and of its training, "at least once every quarter." In addition, the targeting procedures require the DOJ and ODNI to "evaluate the implementation of these procedures" at least once every sixty days. Lastly, the FBI must report any incidents of noncompliance with the targeting procedures by FBI personnel to the DOJ's National Security Division (NSD), the FBI OGC, and the ODNI Civil Liberties Protection Officer within five business days of learning of the incident.

bl, b3, b7E
b7E

bl, b3, b7E

;;p §:f 8 FCU I;; I ICSPQRN l[ISA

DOJ-016-01006

TOP SECRBF// 81 I I NOP9RN/FISA
(U f /FOUO) The SOPs have been in place since the PAA, well before the
FBI began processing stored communications search requests under the FAA in September 2008. FBI representatives who were personally involved in the drafting of the original SOPs told us that the document was the result of collaboration between the FBI OGC and the 702 Team. Section Chief Karen Davis Miller of the NSLB's Policy, Training, Litigation and Oversight Section stated that the SOPs were developed under then-FBI General Counsel Valerie Caproni's direction, and she characterized Caproni's concern as wanting to ensure that the 702 Team would have "crystal clear" directions about what they were to do.45 Miller also told us that the 702 Team and the FBI OGC agreed that the SOPs should be drafted with compliance and future oversight reviews in mind.
bl b3
b7E
(S)

~ The SOPs also address the 702 Team's review of the sufficiency

(S)

-of the NSA's foreignness determinations for nominated selectors but do not
provide the same level of detail for this sufficiency review

bl b3

b7E
(S)

bl

b3

(S)

b7E

45 (Uf /FOUO) Valerie Caproni served as FBI General Counsel from August 2003 until
her resignation from the FBI in September 2011.

bl

(S)

b3

b7E

36
TOP SECKltT/ I 81 )/lf8F8R:If/PIIA

DOJ-016-01007

yop sp• J I !I II IUS ,, . , •si
largely because it has been well designed to reflect operators.

of the (S)

(S)

bl, b3, b7E
bl b3 b7E

(U / /FOUO) In addition to the SOPs and the checklist, the 702 Team views the FBI's OGC as an important source of guidance when conducting the FBI's targeting activities under Section 702. Nearly every FBI representative we interviewed emphasized that the 702 Team is encouraged to contact the FBI OGC with any questions about the statute, the targeting procedures, or the
SOPs.

C. (U//FOUO) The FBI's Documentation of Its Targeting Process

~ Consistent with the requirements of the FBI's targeting
procedures, the 702 Team has implemented a system to retain and organize selector-specific information provided by the NSA, the completed checklists,
and any associated documentation.

~) The core of the system is a series of paper files known as

(S) -

each of which contains all of the relevant information used

the FBI when processing an NSA-

bl

Each selector file contains three co:mrnon eJLenlentts.

b3

b7E

(S)

(S)

bl

b3

b7E

~TOP

SF+Pft;

37
151 I

I

ICC

ORN/FISA

DOJ-016-01008

TOP SEeREI}/Sl )JNOFQR!l/FTSA

(S) bl, b3, b7E
bl, b3, b7E (S) bl, b3, b7E
bl, b3, b7E
(S) bl, b3, b7E

II. (U//FOUO) The OIG's Methodology for Reviewing the 702 Team's Targeting Activities
(U j /FOUO) Before describing how the OIG conducted its review of the FBI's targeting procedure activities, we first summarize the oversight conducted by the joint NSD/ODNI compliance review teams and by the FBI's Inspection Division. The results of these oversight efforts form the foundation for certain factual assumptions that the OIG used in conducting its review of the FBI's targeting activities, as described in subsection B below.

DOJ-016-01009

A. (U//FOUO) Summary ofNSD/ODNI and Inspection Division Oversight of FBI Targeting Activities
1. (U//FOUO) NSD Compliance Reviews
:{&? ;==NF}. The Attorney General is required by Section 707 to submit to
Congress semiannual reports concerning the FBI's compliance with its targeting and minimization procedures under Section 702.47 For targeting activities, each Semiannual Report contains the results of NSD monthly compliance reviews, conducted jointly with ODNI, which document any compliance incidents occurring under Section 702 during the semiannual reporting period. A "compliance incident" generally involves a failure to comply with applicable targeting procedures, whether or not such failure results in an improper acquisition. The reviews are conducted at the NSA, CIA, and the FBI. During the period covered by this review, joint NSD/ODNI compliance assessment teams produced four semiannual reports of the FBI's targeting and minimization activities under Section 702.
(S)
bl, b3, b7E

(S)
bl, b3, b7E

~NSD officials told the OIG that based on their experience

cond\icti~g th~e reviews, the 702 Team personnel

ared the

files for the reviews and accurately identified

(S)

bl, b3 b7E

bl, b3, b7E

47 (UI /FOUO) These Semiannual Reports are in addition to the Semiannual
Assessments conducted under Section 702(ij(l). As NSD officials described them, Semiannual Assessments provide a "30,000 foot look at the overall compliance program and the trends
discovered related to the program."

39

~

TOP SF-CPE£7 I Sl I I N6F9RN/I' A

DOJ-016-01010

bl,

(TS)

b3,

b7E

...,.,..,.,..,.+,,...,,,..basic statistical information about the

the NSD/ODNI compliance reviews (S)

closely on the 702 Team's compliance with

bl,

.,,..,,"',,.,.,,..,(]'that the 702

b3,

(S)

b7E

bl, b3,
b7E

2. (U//FOUO) Inspection Division Quarterly Audits
(UI /FOUO) The FBI's targeting procedures require the Inspection
Division to conduct "periodic reviews ... to evaluate the implementation of the procedures and the training given to relevant personnel." These reviews must be conducted at least quarterly.
bl, b3,
b7E

40 ]'OP SECRWI'/ 181 I I MOF Ok"N/FISA

(TS) bl, b3,
b7E
DOJ-016-01011

bl,
(TS) b3, b7E

~As with the NSD/ODNI compliance assessments, and consistent with the oversight requirement in the targeting procedures, the lm~pe:cti.on
Division audits focused on whether the 702 Team adhered to (S)

bl, b3, b7E

coJm]:>liGmc~e occurrences

m

lVlSlOn audits

involved errors that either had been identified and reported to NSD by the 702

Team or discovered by NSD/ODNI assessment teams during the course of their

oversight activities. In these instances, the audit teams primarily assessed

whether appropriate corrective action had been taken.

~During the OIG's review period, the Inspection Division audits

broadened to include areas that the NSD j ODNI assessments do not include.

In November 2009 the audits

· reviews ofth~

the FBI entity responsible for

mamtammg

audits focused on-·

compliance with its training requirements and internal procedures, including

vp·r1f1,r1na that

·

obtained data was purged from the FBI's

2010 J:<'<>ln..-.1<>-r·u the audits began including reviews (S)

compliance with its training (S)

bl, b3, b7E

(TS) bl, b3, b7E

41
TOP SEGREI I I Si I /N9FQRN/FISA

DOJ-016-01012

;op SEGRE'ff I Si 7I NOF91Ui/FISA
(U/ /FOUO) The NSD/ODNI compliance assessments and Inspection Division audits indicate that the FBI's rate of compliance with its targeting procedures is above 99 percent.
B. (U//FOUO) OIG Methodology for Reviewing the FBI's Targeting Activities

(S)
bl, b3,
b7E

bl, b3,
b7E

bl, b3,
b7E

TOP 8:SeR:EI//S12//NOIOltN/PI~

bl,
b3,
b7E
DOJ-016-01013

TOP SECBft/ / 81 //1101' lPN IFISA

each selector in this random sample, we extracted relevant information from

the

and entered it into a ~¥>5) further analysis

(TS)

~Third, the OIG reviewed
sp,ecJ.tic interest to the review such as seJlector·s

bl, b3, (TS) b7E
bl, b3, b7E

(S)

(UI jFOUO) Fourth, the OIG requested and reviewed other relevant

documents and information, including e-mails, ECs, internal guidance, and

FISA Court filings that further illuminate the FBI's targeting activities during

b7E

the OIG's review period. These documents were provided by many FBI

components, including -OGC, - a n d - as well as by Department

components such as NSD and the Office of Legal Counsel.

the OIG interviewed several (S)

bl, b3, b7E

~ Finally, the 702 Team provided the OIG a comprehensive

demonstration of how it

·

·

observed

N

bl, b3, b7E

III. ~ The FBI's Application of Its Targeting Procedures: Review

of the NSA's Foreignness Determinations

~ In this section we describe how ~eting
procedures to nominate selectors to the FBI f o r - (S) - a n d how those nominations are conveyed to the FBI. We then

bl, b3, b7E

43 XOP SBei&I]}Sl / 7N6PORK/J!ISA

DOJ-016-01014

!_ep S!) f'.i¥;/ 81 I I ii9J:ORNIF(s"A

describe the FBI's preliminary review of the sufficiency of the NSA's foreignness determinations.
A. ~ackground: The NSA's Application of its Targeting
Procedures

As described above, before sending a n o m i n a t i o n - (S) the FBI, the NSA is responsible for applying its
t""~·cu:•t;na proc:;ec1u1~es and determining that that the presumed user of the

bl, b3,

nominated account is a non-U.S. person reasonably believed to be located

b7E

outside the United States (the "foreignness determination"). In interviews with

the OIG, NSA personnel who are directly involved in the Section 702 targeting

process described how the NSA's targeting procedures are implemented. 5 1

bl, b3, b7E

(S)bl, b3, b7E
51 (UI IFOUO) The OIG interviewed the following NSA personnel: the NSA's Section
702 Implementation Lead in the NSA's Office of the Director of Compliance (ODOC); a Technical Director in the Signals Intelligence Directorate (SID) Special Source Operations group; a former Chief of the SID Oversight and Compliance group now staffed to the Monitoring and Assessments group of ODOC; a former Chief of PAAIFAA Procedures and Analytic Support Office of SID Oversight and Compliance, now also staffed to the Monitoring and Assessments group of ODOC; the NSA's Deputy General Counsel for Operations; and a line attorney in the Office of General Counsel with extensive experience with both the PAA and FAA Section 702. The OIG's review benefitted substantially from the NSA's cooperation.
52 (U1IFOUO) However, the analyst does not have discretion with regard to detasking
accounts if it is determined that the presumed user is a U.S. person or located in the United States. Upon recognizing such cases, NSA officials stated that the NSA detasks collection from the account immediately.
44 =!FOP IBSi&i/)Sl) (N9J:OPNIFJSA
DOJ-016-01015

TOP SEa !Ra I //81; I fllQJ'OPNfFISA
bl b3
b7E
(S)

b7E

rP'I.nP,ro itlcludes, among

source

analyst's foreignness determination to verify that the analyst has a reasonable

basis for the foreignness assessment, and often to verify that the analyst has

included in the foreignness explanation the most current relevant information

available to the NSA.

bl b3
b7E
(S)

B. ~) The FBI's Receipt of Nominated Selectors From the NSA

(~ Once the NSA has applied its targeting procedures

nomination to the FBI for those selectors for which it wants a

bl

b3

b7E
(S)

bl

b3

(S)

b7E

45
TOP SECRFt•) I II//N8P=aNJ P1M

DOJ-016-01016

1. ~--

bl, b3, b7E b7E bl, b3, b7E
bl, b3, b7E

(S) bl, b3, b7E
(S) bl, b3, b7E
s~ After reviewing a draft of this report, the FBI told the OIG that while this b?E paragraph accurately describes one use of-during the OIG's review period, the FBI no longer uses - i n this manner.
DOJ-016-01017

TOP 8EGRE"t/ I Sl I 1N9FORN /FISA

bl, b3, b7E

2. (U//FOUO)
I I I I
47
TOP SECRM'/ I Sl I I HOF6RKtiiSA

(S) bl, b3, b7E
b7E (S) bl, b3, b7E
bl, b3, (S) b7E
bl, b3, b7E
(S) bl, b3, b7E
(S) bl, b3, b7E (S) bl, b3, b7E
DOJ-016-01018

TOP sseRE111st 11NOF6Rfl/~;; a
•
I I
I I
I I I

(S) bl, b3, b7E
bl, b3, b7E bl, b3, b7E
(S) bl, b3, b7E
bl, b3, b7E
(S) bl, b3, b7E
t,s;, b3, b7E
bl, b3, b7E
b7E

55~ Certain identifying information relating to the targeted selector and the NSA
analyst has been redacted from this image.

DOJ-016-01019

DOJ-016-01020

TOP SECRET/ /SI //NOFOltlf/FI~

(TS) bl, b3, b7E
bl, b3, b7E

bl, b3, b7E

(S)
bl, b3, b7E

3. ~NSA Nominations of Selectors to the FBI During
the OIG Review Period

(Ts) ~ For the review period of September 1, 2008 through

February 28, 2010, the 702 Team identified and produced to the O I G - (TS)

selector sheets· · · that an account had been nominated by the NSA for ol, b3,

.,..,.,, ...,.,,n.,... t- to Section 702.56 As shown in

b7E

(TS)

bl, b3, b7E
(Cont'd.)

DOJ-016-01021

TOP SECRET//SI //HOF8RN/F:A

Figure 3-2 below, the OIG's analysis of the number of nominations varied from month

indicates that the

bl,

(TS)

b3,

b7E

(TS)

bl, b3, b7E

DOJ-016-01022

DOJ-016-01023

TOP SECRET/ /Si]] NOP8RN/~ISA

for b7E
bl, b3, b7E

bl, b3, b7E

bl, b3, b7E
(S) does not agree that the foreignness explanation ... is sufficient" or does not understand it, and to document the contact. This directive is consistent with the requirement in the targeting procedures that "[t]he FBI, in consultation with NSA, will review and evaluate the sufficiency of' the NSA's foreignness determination.

53
TOP SECREl'//SI 1 I NOF bRN/Ral\

bl, b3, b7E

DOJ-016-01024

TOP SECRB¥7 /81 I )iUeFQPNIFISA

(TS)

bl,

b3,

~ Below we describe this preliminary review in more detail and

b7E

provide select data about its implementation by the 702 Team. We focus on

the two issues which the Lead and Assistant Program Coordinators described

as the primary focus of the SSAs' preliminary review: the adequacy of the

NSA's identification of the targeted selector; and the basis for the NSA's determination that the presumed user is a non-U.S. person reasonably believed to be located outside the United States.

1. ~ Review of the Selector Identification

bl, b3, b7E

bl, b3, b7E

TOP sReREI/7B54I/JNnroRN/~A

(TS) bl, b3, b7E
DOJ-016-01025

2. ~ Review of the NSA's Foreignness Determination
(S)

bl,

b3,

we exam1ne

reVIew

b7E

tor·e1~~m1e~;s dete~rrr.Linati~on:s, and we identify two circumstances in

which the members of the 702 Team expressed discomfort with or raised

questions about the NSA's foreignness determinations: where the NSA bases

its

ss determination on

•

b7E

(TS)

bl, b3, b7E

bl,

~F) According to the second- Unit Chief during our review period'~d. ~02 Team Lead and Assistant Program Coordinators,-

b3, (S) b7E

(S)

bl, b3, b7E

55 TOP sEC:R.E'f//81 11 N«ifnRN/FISA

DOJ-016-01026

(S) bl, b3, b7E
(S) bl, b3, b7E
(S)
bl, b3, b7E

(S) bl, b3, b7E

I

(S)

56
TOP SEGREI 7/ Sf I /:NOFORN/FISA

bl, b3, b7E (S) bl, b3, b7E
(S)
bl, b3, b7E
DOJ-016-01027

bl, b3, b7E
bl, b3, b7E
bl, b3, b7E

TOP

ISGI&T/

I

57
Sl I

/:Di'OFO&N/FI~A

bl, b3, b7E
(S)
bl, b3, b7E
bl, b3, b7E
DOJ-016-01028

bl, b3, b7E
(TS) bl, b3, b7E
bl, b3, b7E 1, b3, b7E (TS) bl, b3, b7E
(S) bl, b3, b7E (S)
bl, b3, b7E
DOJ-016-01029

bl, b3, b7E
(S) bl, b3, b7E
(S) bl, b3 b7E '
(TS) bl, b3 b7E '
(TS)
bl, b3, b7E
(TS) bl, b3 b7E '
DOJ-016-01030

TOP SEeREI//SI //NOI'6RN/~;A
bl, b3, b7E

~ Shortly thereafter, on

2008, the FISA Court (TS)

approved the first FAA Section 702 ceJrtlltlC<:itlt:>n, with it the NSA's first set

of Section 702

·

tl"'t"crP·t1r•o .,...,.,...,,.,rt

bl, b3, b7E

(S)

bl,

b3,

b7E

bl, b3, b7E

(S) bl, b3, b7E
(TS)
bl, b3, b7E

noted that it had "no reason to question the presumption that the vast majority of persons who are located overseas are not United States persons and that most of their communications are with other, non-United States persons, who are also located overseas." The court called this a "common sense presumption." In re Directives, Docket Number 105B(g): 07-01, at 87 & n.81 (FISA Court, April 25, 2008).

DOJ-016-01031

(TS)
bl, b3, b7E

(S) bl, b3, b7E
(S)

(TS) ol, b3, b7E

bl,

(2) ~he

Factor in (S) b3,
b7E

-

(S)

~ Given the 702 Team's longstanding discomfort with

-

the OIG examined how the NSA used

its nominations to the FBI, and how the 702 Team rP.'\!'1P.VV"P.rl

that cited this factor.

(S) in bl, b3, b7E
(S)

(TS)
bl, b3, b7E

61 TOP SBeRETI/Sl //NOIIOit:N/FISA

DOJ-016-01032

TOP SECRtT/ 181 I I NOF9Ril/FlsA

(TS) bl, b3, b7E
bl, b3, b7E
(TS)
bl, b3, b7E

(TS)
bl, b3, b7E

DOJ-016-01033

TOP~! me::::ISA
bl, b3, b7E
(TS) bl, b3, b7E
bl, b3, b7E
bl, b3, b7E
DOJ-016-01034

TOP SECi&'f/781 //NQFORN/FISA

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bl, b3, b7E
(Sbl, b3, b7E
bl, b3, b7E
bl, b3, b7E

bl, b3, b7E
bl, b3, b7E
DOJ-016-01035

TOP SEGREY/ISI //NOFOM/F~A.

(S) hl,b3,b7E
bl, b3, b7E

(TS)
bl, b3, b7E

65 TOP SEGREI} I Sl I I HOFeRN/FISA

(TS) bl, b3, b7E
bl, b3, b7E (TS) bl, b3, b7E
DOJ-016-01036

TO...P SFCRBT7 } SI ) I N8FQPN fitsA

bl, b3, b7E
bl, b3, b7E

bl, b3, b7E

bl, b3, b7E
bl, b3, b7E

66 TOP .§ECP.B!Ff I Si I} hOP6RN/:iJ:SA

DOJ-016-01037

TOP SECRBT/ I Sl I /NQFORN/FISA

(S) bl, b3, b7E

~Our most significant finding from this~analysis (S) bl, b3,

was that we did not identify any instance among the ~rs ~)

b7E

our random sample where the 702 Team requested more current foreignness

information from the NSA based on a concern that the foreignness information

wastoo-(S)

bl, b3, b7E

bl, b3, b7E

bl, b3, b7E

DOJ-016-01038

bl, b3 )b7E

~ Third, many of the 702 Team members the OIG interviewed said

they assume that the NSA provides its strongest rationale, with its most recent

foreignness information, when providing its foreignness explanation. Indeed,

NSA officials confirmed to the OIG that the NSA includes the most recent

foreignness information available at the time of nomination, although they

added that there are occasions when the NSA's most recent information at the

time of nomination is

(S)

bl, b3, b7E

(TS)

bl, b3, b7E

bl, b3, b7E

(S) bl, b3, b7E

68 'OOP SEeREI//SI//NOFORNtnSA

DOJ-016-01039

(S) bl, b3, b7E
bl, b3, b7E
bl, b3, b7E

5£91sn I

69
62 //IT

~

,Fjs~

bl, b3, b7E
DOJ-016-01040

(S) (S)
(S)

TOP SECRI¢1'/t SI //ICOP'O§N/FISA

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b7E
bl b3
b7E
bl b3
b7E

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b7E

63liJT7 21;; £~ The DOJ /ODNI compliance assessment teams do consider the age of
the information the NSA relies upon in tasking accounts for electronic surveillance. For
cmnpliar1ce review of the NSA that covered

bl, b3,
(TS) b7E

70
TOP sea =RFY//&1//IIC-· +RN zrisA

DOJ-016-01041

TOP SEei&i//SI f/N9FQRN/;ISA

However, as discussed below in connection with acquisitions subsequently

determined to be improper under Section 702, the OIG found that the NSA

sometimes develops more recent information about a targe~ibility

for 702

after the nomination has been submitted--

Given the FBI's obligation to review the

· · in consultation with the

NSA, we believe the FBI should request the NSA to provide more current

information in appropriate circumstances. The OIG therefore recommends that

the FBI should consider issuing guidance advising when the 702 Team should

seek more current information from the NSA about a targeted user's eligibility

for Section 702 coverage.

bl, b3,
b7E (S)

3. (U//FOUO) Change to the Preliminary Review Process

(S)
bl, b3, b7E

bl, b3, b7E

bl, b3, b7E

71

;

TQP 8 EGR:EI//SI //NOP6FL 'FISA._

DOJ-016-01042

TOP SECRET//SI ffN8F9R!I/FISA

IV. ~The FBI's Application of its Targeting Procedures:

bl, b3, b7E

-(S)

~n addition to requiring "the FBI, in consultation with the NSA,

to review and evaluate the sufficiency'' of the NSA's ·

· ·

bl, b3,

the FBI

the FBI

(S) b7E

~However, as described above, the targeting procedures do not

require the FBI to conduct an independent, de novo analysis of a target's

foreignness and U.S.

status. Rather the

·

commit

the FBI

bl, b3, b7E

bl, b3, b7E

~ This section will describe the

was conducted

the OIG's review peJnoci,

(S)
provide (S)

1mp1c:~mcent:ed this aspect of the

targeting procedures and t h e - .(S)

A. ~ Background: the PAA

nde~)

bl, b3, b7E bl, b3, b7E

1.

we i n t eewieidi, ithiei FiBiIi'si ·ractice and its

(S)

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b7E

72

TOP SECPIM'7 I 81 I I UeFQRNJFISA

DOJ-016-01043

TOP SECREI} /Sf //NOFOBN/FISA

back to the PAA, prior to the drafting of t h e - (S)

Davis Miller told the OIG that the FBI, at General Counsel

ctu·ec1tlOJn, insisted that the FBI have an active role in the process for bl, b3,

·IJ'-''-'a.u.Se t h e - were · (S) b7E

ca.Pr<)nl told us that because

(S)

bl, b3,

presume that

not

b7E constitutional duty'' with respect to

the rights of United States persons, or otherwise violating the FAA or its own

FISA Court-approved targeting procedures. The Policy Attorney stated that the

and other documents governing the interagency

·

(S)

cru·efttllv drafted to make it clear that the FBI would
S)

~ J~, 17~ This concept of "due diligence" regarding the

(S) bl,

has been conveyed to the operators on the 702 Team, each

Pv·nr,,.~ ..! P n

b3,

similar notions of the standard during interviews with the OIG. For example,

b?E

the Lead Program Coordinator described the Team's standard of diligence as

"thorough but reasonable."

2. ~ How the FBI Decided-

(S) bl, b3, b7E

(S)

bl, b3, b7E

bl, b3, b7E

DOJ-016-01044

TOP SECRET//81 / /nOF9RN/Fi:u

bl, b3, b7E
bl, b3, b7E

bl, b3, b7E
bl, b3, b7E

74
T.OP 8BGI& I I I 81 I /NOFORN fFISA

(S)
bl, b3, b7E
DOJ-016-01045

TOP iEdREI I I Sl I I N9FORNJFISA

bl, b3, ) b7E

(S) bl, b3, b7E

bl, b3, b7E

(S) bl, b3, b7E
(S) bl, b3, b7E

bl, b3, b7E

•

(S) bl, b3, b7E

75 _l'OP &BeKEI/J 81 //:NOFORNtFISA

DOJ-016-01046

TOP sEeREI//SI 7/NOFORN/;ISA

bl, b3, b7E

~ne reviewer we interviewed said that the memorandum assists

in the approval process and helps streamline future

parti-~cu:larlv

on:>vi1dintsz a written record

the

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b7E

(S)
bl, b3, b7E

76 TOP _BECRII!T; I 81 I I NeFOPNtFISA

bl, b3, b7E
bl, b3, b7E
bl, b3, b7E
DOJ-016-01047

~'I'UI' SiJREf/}SI 7/NOFUIUf/P~'

bl, b3, b7E
(S)
bl, b3, b7E

(S) bl, b3, b7E
(S) bl, b3, b7E

T~ 8 ECP I; ;s~~ 1MePeM~s•

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DOJ-016-01048

TOP $£<!REtl/; 81 //If&I QkWj~rsA

(S)

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b3

b7E

(S)

(U f /FOUO) After the OIG presented the above information to General
Counsel Caproni, she stated that she was unaware of the gap in the procedures, called it a "mistake," and said that the Operations Attorney should "flx it."
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(S)
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(TS)

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(S)

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78 Top SECI®r//81; /N6P9iiliPJ/ F194

DOJ-016-01049

iOP SEeREI//SI //N9FQRN/;;SA

bl, b3, (S)b7E

were en

cons1ster1t

No:ne1the~le~;s, for each of these selectors and for any other selectors processed

by the 702 Team during the OIG review period that bore similar characteristics,

the

tial exists that the 702 Team

te a

tion of the

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bl, b3, b7E
bl, b3, b7E

bl, b3, b7E

DOJ-016-01050

'tOP SECRET//SI //NOFORN/F;t.

(S) bl, b3, b7E (S)
bl, b3, bS b7E

(TS) bl, b3, b7E
(S)
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70 (U f /FOUO) The version of this report that has been distributed outside the
Department of Justice contains redactions in this sentence based on the Department's assertion of the attorney-client privilege.

TO_!»

80 SECP.B!Ff/Sl /]

NOFORN/~S

A.

DOJ-016-01051

.T~P 8ECRET//SI//NOF6RN/F'::

(S) bl, b3, b7E
bl,b3,b7E

bl, b3, b7E

TO~SECBFIT//

81 81}

/NbF

9R

X/j;i

M

(S) bl, b3, b7E bl, b3, b7E
DOJ-016-01052

TOP SECRET//SI//NOF6RN/;;SA

bl, b3, b7E
bl, b3, b7E

1. (U//FOUO) Relevance Judgments

(S) bl, b3, b7E
(S)
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(S) bl, b3, b7E
(S) bl, b3, b7E

DOJ-016-01053

'f6P SECkEl II Si I /N9FQRJ\ljFISA

bl, b3, b7E
bl, b3, b7E

2. (U//FOUO) Subjects of Field Office Investigations

(S) bl, b3, b7E
(S)
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71 (:j'/"TNFl These judgments must be understood in the context of the full approval
process at the FBI: they are not made unilaterally b y - but rather represent judgments of the 702 Team that in most cases have been assessed by b o t h - - - (S) - - a n d approved by an SSA. These review and approval processes ar~ ~etail below.

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(S)

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DOJ-016-01054

TOP seei&t 1/SI //NOFORN/FISA
I

bl, b3, (S) b7E (S)
bl, b3, b7E
bl, b3, b7E
bl, b3, b7E (S)
bl, b3, b7E

yop 84 St¢RE I; ;81/ I :NQFORN/FISA

bl, b3, b7E
DOJ-016-01055

~OP SECRET//SI //NOFORN/FI;l.,

(S)bl, b3, b7E
(S) bl, b3, b7E

85 TOP iSGRET//Sl //NOF'ORN/PISA

bl, b3, b7E
bl, b3, b7E
(S) bl, b3, b7E
(S) bl, b3, b7E
(S) bl, b3, b7E
DOJ-016-01056

~TOP seeitEI 77SI//NOPeRNtFISA

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(S) bl, b3, b7E

bl, b3, b7E
bl, b3, b7E (S)

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86 TOP SECRiil/ /Sf //NOJ'ORN;.ISA

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DOJ-016-01057

I

(S)

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bl, b3, b7E bl, b3, b7E
bl, b3, b7E
bl, b3, b7E
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DOJ-016-01058

~TOP SECRET/ I Sl I I l'f6P9RN/i'I~

bl, b3, (S) b7E
(S) bl, b3, b7E
(S) bl, b3, b7E
(S) bl, b3, b7E
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(S)
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88
TOP sseRE 111 §1 I I NuF ORlf/;;S:A:

DOJ-016-01059

~ep SECRET//SI //NOF9RR/;;SA

I

(S)

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bl, b3, b7E

(S)
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b.

~ '~~Change to the Second- Procedures

(SP 1• b3, b7E

bl, b3, b7E

~OP 8EeREI/7S8l9}/!f6F8RN/~ISA

(TS) bl, b3, b7E
DOJ-016-01060

"ieP SECkEl I I Sl I I MeFORN/FJSA

bl, b3, b7E

bl, b3, b7E
bl, b3, b7E
(Sf,l, b3, b7E (S) bl, b3, b7E
DOJ-016-01061

TQP SEekEI]}Si //NQFQPNJFISA 3.

(TS)

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bl, b3, b7E

(TS) bl, b3, b7E
(TS) bl, b3, b7E

bl,b3,b7E

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91 TOP SBeRE I/} SI }/ H'OF8RN/E'SA

DOJ-016-01062

(TS)
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(S)

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bl, b3, b7E

(S)
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92 TOP SECRE'I'/; 01 I I N9FORNIFISA

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DOJ-016-01063

(S) bl, b3, b7E
bl, b3, b7E
bl, b3, b7E
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93 TOP SECRel} /Sf //NQFQRN/FISA

DOJ-016-01064

TOP SEeREI'//SI //NOF'ORN/P;A

(S)
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bl, b3, b7E
I
bl, b3, b7E

(S)
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TOP SEC~f/SI94//NuFORN'fHSA

(S) bl, b3, b7E
DOJ-016-01065

(S) bl, b3, b7E
bl, b3, b7E

bl, b3, b7E

95
TOP SECRBT/ I Sl I I N6F9RNJFTSA

(S) bl, b3, b7E
bl, b3, b7E bl, b3, b7E
bl, b3, b7E
DOJ-016-01066

"ToP sEeREt; 1st ; ; :NoFnBNtFISA

------,.s} located in the United States and thus not eligible for targeting under Section

702. To

a - t h e SSA must memorialize the date and the decisio:r\S) a~d the~arately s~ to send an

electromLc notlltlCGltlOin to - t h a t the

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(S)
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bl, b3, b7E
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96 TOP SECREI//SI/fl\JOFOBN/FISA

DOJ-016-01067

TOP SECRB'f// Si I I NOFOltN/Fis..A.&

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TOP

&:seRE

1

11s9i71I

NuF

; OitN/FI

A.

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DOJ-016-01068

!_.OP SECRET/ I Sl //N9FORN /FISA

bl, b3, b7E
bl, b3, b7E
bl, b3, b7E
(S) bl, b3, b7E
(TS) bl, b3, b7E
bl, b3, b7E

DOJ-016-01069

TOP 8BeREI//SI//NOF6RN/J'ISA

bl, b3, (TS)J7E
(S) bl, b3, b7E
bl, b3, b7E

(S) bl, b3, b7E
(TS) bl, b3, b7E

bl, b3, b7E

DOJ-016-01070

'tOP SEeltE I I I SI//NOFORN 7FI8~

bl, b3, b7E (S)
bl, b3, b7E
(TS) bl, b3, b7E

100

TOP SE¢RFf/; 31 I I N6P8RK ,;;:,.,

-

I

(S) bl, b3, b7E
(TS) bl, b3, b7E
DOJ-016-01071

TOP SEeRET// SI //NUF OltN/FISA

bl, b3, b7E (S)

~ One reason offered was that the NSA's targeting procedures are

de · to ·

· · 'ble

before the selector is nominated to the FBI

for

so that ineligible targets are rarely (S)

nomi:na1ted m

, the Lead Program Coordinator stated that

the "NSA has done an excellent job, in my opinion, of targeting people [who] are

overseas."

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(S)

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Another factor that 702 Team members said the fact that

(S)
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TOP SECRift'J /S1I01/)N6P9RN/~ISA

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DOJ-016-01072

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bl, b3,b6, b7C b7E

I

(S)bl, b3, b7E

(S) bl, b3, b7E

bl, b3, b7E (TS) bl, b3, b7E

102
TDP 8 ECRBT7 1st 11kOPeRNtiisA

bl, b3, b7E
DOJ-016-01073

i()p SEeRET/ /Sl //NoFORH/PISA

(s'fl, b3, b7E
bl, b3, b7E
bl, b3, b7E

(S)
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DOJ-016-01074

-;OP SECPE!l'/i 81 I I IUOI'ORN/FIS~

(S) bl, b3, b7E

bl, b3, b7E

I

(S) bl, b3, b7E

~Section 702 allows the government to acquire the

communications of non-U.S. persons

believed to be located outside

the United States at the time of acc::tui·:sition.

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b1,(6}, b7E

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104 TOP S:SeRET/ /SI //NvP6RN/FISA.

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(TS) (Cont'B} b3, b7E
DOJ-016-01075

TjlP 8 EGRETI/SI //NOFORN'/F~....

(TS) bl, b3,b6, b7C
b7E

bl, b3, b6, b7C b7E
(S)
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105

~

toP SEeMII//SI //NOFORI ISl..

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bl, b3, b7E
(S) bl, b3, b7E
DOJ-016-01076

TOP SECRET//81//NOFORH/Ii'IM

bl, (S) b3,
b7E (S)
bl, b3, b7E
(S)
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(UI /FOUO) MOU -,r 12.

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(S) bl, b3, b7E
(S)
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(S) bl, b3, b6, b7C b7E
DOJ-016-01077

TOP SECREI//SI/7NOFORN/FI8A

bl, b3, b7E
bl, b3, b7E

bl, b3, b7E
bl, b3, b6, b7C b7E
(TS) bl, b3, b7E
DOJ-016-01078

TaP SECKif//SII/NOF6RN/~I~
a. ~ Information Considered i n - (S) bl, b3, b7E
Determination
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I

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I

I

I

(S)

I

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108
roP SEGRBf/ I Sl I I NeF9RX/FlS6

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DOJ-016-01079

;gp s:eeitE111st 11N9FORN IFISA

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(TS)
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TOP

SECRET//

S1l09I

~ /NOFORlfjPI

DOJ-016-01080

TOP s:seREI 1/SI 11 l'f6F9RX/FI~
TOP SECRET/fS1I10//NOF6RN/FI8~

bl, b3,
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bl, b3,
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(S) b 1, b3,
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DOJ-016-01081

,:;;P sEe~m 111St 11NoPeRNJFI;A

(S)
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B. (U//FOUO) Other U.S. Travel Issues
1. ~.s.
111
TOP SEeRJh II SI ]} NOPORN/FIBh

(S) bl, b3, b7E
(S~l, b3, b7E
(S) bl, b3, b7E
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bl, b3, b7E (S) bl, b3, b7E
(TS) bl, b3, b7E
DOJ-016-01082

bl, b3,
b7E
(TS) bl, b3,
b7E
bl, b3,
b7E
bl, b3,
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(TS) bl, b3,
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DOJ-016-01083

""i'op &EekEI; 1SI //NOFORN/FISA

(TS) bl, b3, b7E
(TS) bl, b3, b7E
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(TS)
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bl, b3, b7E

DOJ-016-01084

ioP seeREIJ/Si 1/HOFeRNt~ISA
VI. (U) Statutory Reporting Requirements for FBI Targeting Activities
(UI IFOUO) Section 702 requires the OIG to conduct three reviews of the
FBI's activities under the statute. One of the required reviews concerns the FBI targeting activities described in this chapter, and is set forth in Section 702(n(2)(C), which provides, in relevant part:
(U) The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a) [of Section 702], with respect to the department or element of such Inspector General -
(U) (C) with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed[.] (U) Id.83
(UI IFOUO) The FBI is also required to conduct an annual review of the
identical information. See Section 702(n(3)(A)(iii). The importance of the FBI's reporting requirement to Congress was made clear by Representative Silvestre Reyes, who was the Chairman of the House Permanent Select Committee on Intelligence when Congress passed the FAA. Chairman Reyes stated:
(U) Because of the nature of the new surveillance authorities granted under this bill, we were particularly concerned about the potential for a significant increase in the inadvertent collection of U.S.-person communications and information. For that reason, we have adopted several oversight provisions that require the Intelligence Community to report to Congress on the number of targets later determined to have been located inside the United
83 ~ The two other mandatory reviews are discussed in Chapter Four in connection: ~ithtlle OIG's discussion of the FBI's post-targeting activities. The three mandatory review provisions also apply to the NSA OIG because the NSA is "authorized to
intelliget1ce information" under Section
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]'oP 114 sEt*J!Oii//SI JJRoFORN/FISA
DOJ-016-01085

TOP SECRET// Si }] NOPSRW/iTSA
States, the number of disseminated intelligence reports that contain U.S.-person information, and the number of disseminated intelligence reports that contain information identifying specific U.S. persons. The Intelligence Committee plans to conduct vigorous oversight of the reports.
(UI IFOUO) 154 Cong. Rec. H5758 (daily ed. June 20, 2008).
(UI IFOUO) In this section we discuss the FBI's annual review with
respect to this acquisition issue. We then describe the OIG's review of this issue and provide our conclusions based on our review.
A. (U) FBI's Annual Reporting under Section 702( l)(3)(A)(iii)
(UI IFOUO) The FBI submitted its first annual report required by
702(ij(3)(A) on March 15, 2010. The annual report was drafted by the Operations Attorney, and covered the period of September 1, 2008, through August 31, 2009 (the 2009 reporting period), effectively the first year of FBI operations under the FAA. The report stated:
(S)

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(UI IFOUO) FBI Annual Report (March 15, 2009) at 2.
(UI IFOUO) As of February 2012, when the FBI received a draft of this report for its review, the FBI had not submitted its second annual report, which will cover the period September 1, 2009, through August 31, 2010 (the 2010 reporting period), or its third annual report, which will cover the period September 1, 2010, through August 31, 2011 (the 2011 reporting period).84
bl, b3, b7E
84 (U/ /FOUO) On May 22, 2012, the FBI transmitted two annual reports to Congress that covered the periods of September 1, 2009, to August 31, 2010, and September 1, 2010, to August 31, 2011, respectively. The OIG received copies of these documents but was unable to fully assess their contents prior to releasing this report.
115
TOP sseRE I// s1 1/NoFORN 7FIsA

DOJ-016-01086

TOP SECRFf/) 51 iJ Il bli hRN/FISA

(S)
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bl, b3, b7E
bl, b3, b7E

bl, b3, b7E
(U j /FOUO) To assist the FBI in meeting its statutory reporting requirements, the OIG met with senior FBI officials from the Office of General Counsel, Inspection Division, and Counterterrorism Division in July 2011. During that meeting we presented our preliminary findings concerning these acquisitions and explained the methodology we used to reach them. As we told the FBI at that time, the OIG's analysis was based on information either within the FBI's possession or readily available to it. We describe our methodology and findings in detail below.

=-;gp ~l~ SEeREI/ I ]l'f6FQPN /FISA

DOJ-016-01087

TOP SECRET/ /SI //NOFOitl'f/FISA B. (U/ /FOUO) OIG Review of FBI Reportable Incidents

(S)
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bl, b3, b7E

bl, b3, b7E
1. (U/ /FOUO) OIG Methodology ~ As a preliminary matter, the OIG reviewed all Section 707 Semiannual Reports, Section 702 Semiannual Assessments, and Quarterly Reports to the FISA Court that covered acquisitions occurring during the OIG's review period. ss These reports document compliance incidents - that is, the
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.)
DOJ-016-01088

T6P SECRE't//SI //NUFORN/Ji!ISA.

NSA or FBI's failure to comply with a specific requirement in its targeting (or

minimization) procedures, whether or not the incident results in the improper

bl,

collection of 702 data. We determined that these reports d~

b3,

cmnpliru1.ce incidents attributed to the FBI that resulted i n - (S) b7E

in which the user of the targeted account was in the United

Stllte:s at time of acquisition.

~ The OIG and FBI reporting provisions in Section 702(ij(2) and

(3) would encompass compliance·

but

if such incidents actually

resulted in the acquisition

The reporting provisions (S)

also encompass other· ·

may occur m FBI's exercise of its

Section 702 authority and which are not compliance incidents: -

(S)

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approved after the proper application of the NSA and FBI's targeting

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~which nonetheless result in the acquisition o f - (S)

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-

of a person who was in the United States at the time of

acquisition. We refer to acquisitions covered by Section 702(ij(2) and (3) as

"reportable incidents."

The OIG reviewed the FBI and NSA's targeting procedures and

the

to determine whether such reportable incidents must be

documen

notltJLcation to the FBI provided. The FBI's targeting

procedures provide:

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b7E
(S)

~ If NSA analysis

the

or other technical

which

(S)

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s not appear mechanism to implement this provision during the OIG's review period. 86 However, the NSA's targeting procedures more explicitly provide:

at (S)
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DOJ-016-01089

'MP SEeREI I J$1 I I NOP6RN/J!ISA
~ In the event that NSA concludes that a person is
reasonably believed to be located outside the United States and after targeting this person learns that the person is inside the United States, or if NSA concludes that a person who at the time of targeting was believed to be a non-United States person was in fact a United States person, it will take the following steps:

~ (2) Report the incident to DOJ through the Deputy Assistant Attorney General in the National Security Division with responsibility for intelligence operations and oversight, to the ODNI Office of General Counsel, and to the ODNI Civil Liberties Protection Officer within five business days.

~'s

Procedures

-Moreover,

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(S)

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(U/ /FOUO)-, 15.

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119 TQP SBel&t I I Si I I IieFOR•/FISA

(S) bl, b3, b7E
DOJ-016-01090

TQP SEeltEII/SI //NOPORN/PISA

~ Witnesses stated that the FBI did not request or receive NSA notifications of 702 acquisitions that were later determined to be ineligible for 702 coverage (reportable incidents) until at least October 2009, when the FBI began to retain 702 data for its own analysis. The 702 Team Lead Program Coordinator stated that the FBI first received these notifications in the form of purge reports after it began retaining 702 data, but only concerning accounts for which the FBI had requested dual routing. He and the - U n i t Chief b7E stated that the NSA subsequently began to send purge reports to the FBI whether or not the account was being dual routed to the FBI, although they could not pinpoint when this practice changed. The NSA's Assistant Director for Monitoring and Assessments, Office of the Director of Oversight and Compliance (ODOC), told the OIG that he did not believe the FBI ever requested the NSA to send it notices of reportable incidents beyond those that would have involved accounts that had been dual routed to the FBI.

(U j /FOUO) The net effect of the gaps in this notification process was to leave the FBI unaware of potential reportable incidents during the OIG's review period, which covers all of the FBI's 2009 reporting period and part of its 2010 reporting period. To determine whether this gap resulted in FBI acquisitions during the OIG's review period that meet the reporting requirements of Section 702(ij(2) and (3), the OIG took the following steps.

~First, the OIG obtained from the National Security Division

the reports the NSA is required to provide under Section IV of its targeting

~orts reflect incidents in which the appropriateness of the

- w a s placed in doubt because the user of the targeted

account appeared to be ineligible for 702 coverage. Each incident report

b?E

consists of a short narrative describing the NSA's discovery through post-

targeting analysis that a user of a t~ may have been in

the United States during the N S A ' s - of the account.

Each report involves one selector, although some selectors were involved in

more than one incident, and thus appear in more than one report. The reports

also describe any action the NSA took to address the incident, such as

detasking collection and purging any tainted data.

(TS)

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120
TOP SECRiift/; 61 II UUI'ORl\1/FISA

(TS) lbl, b3, b7E

DOJ-016-01091

TOP SECi&'f//SI I I N'OF6RN/~ISA.
orc>victea the OIG with. incident reports (TS) bl, b3, activities. As described earlier in this (TS) b7E (TS)

(TS)

~ It is important to note that Section 702(~(2) and (3) ask the OIG and the FBI to report on "the number of targets that were later determined to be located in the United States" that are "with respect to acquisitions"

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authorized under Section 7~. j~mphasis added.) We therefore submitted

this list of ~~lectors t o - {ty determine whether an

(S)

occurred at all, and if so, when.

~We asked-(bb provide the tasking histories for t h e . (S)

selectors.

the OIG asked

to

for each selector, what (S)

action the FBI took

when(S)

the action was

was

(S)

-

and when the data from

returned

to the Intelligence Community(S)

bl, b3, b7E

~ T h e - data revealed two points critical to the OIG's analysis. (S)

First, many of the reportable incident-related selectors nominated f o r - (S)

either were not approved or were withdrawn the NSA after the FBI had

ao·orc>ved them. For these

(S)

bl, b3, b7E

121
TOP SECRft/; 51 II li9J'0RN/FISA

(S) bl, b3, b7E
(TS) bl, b3, b7E
DOJ-016-01092

:j;gp BEei&i//SI //NOFORN/FISA

(S) bl, b3, b7E

2. (U//FOUO) OIG Conclusions Regarding FBI Reportable Incidents

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(S) bl, b3, b7E
bl, b3, b7E

122 Trip SkCIWI I /81; /NO:tnRN/FISA

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DOJ-016-01093

iap sEeRS¥/ 1s1 ; 1&oi eRN/~ISA

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bl, b3, b7E

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123 .
ToP sECRET/fBI 11auF ow;PisA

DOJ-016-01094

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(TS)

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bl,

(S)

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b7E

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124
lOP SECRET/ /SI //N8F9RN/~ISA

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DOJ-016-01095

TQP SECRE'f/7 SI /1 NOF ORN/FISA.

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bl, b3, b7E
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3ap 125 SEeRiri') I Sl I 7N9FOPN IFISA

DOJ-016-01096

TOP SEeREII/Sl 7/NOFOitN/FISA
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b. ~ Foreignness Determinations Relied Upon
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(TS) bl, b3, b7E

126
TOP SECRM'//SI I I NUF EJRN/~ISA

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bl, b3, b7E
DOJ-016-01097

jop SECRM I I lSI I I i491'0RR/FIBA
(TS) bl, b3, b7E
c. ~ Review of Communications of Persons
Later Determined to be In the United States
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bl, b3, b7E
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9o ~ We discuss the 702 Team's purging procedures in Chapter Four in connection with the FBI's post-targeting activities under Section 702.

TOP

SECRET/

I

127
Sl I I

NOF9RJJ/~ISA

DOJ-016-01098

mp SECRET//SI 1/ N6P6RW/ F ISA
(U j jFOUO) We believe the foregoing examples illustrate how the FBI can use information that it already possesses or that is readily available to it to meet its statutory reporting requirements under Section 702(n(3)(A)(iii).

VII. (U) OIG Analysis

~ In this section we present our analysis of the FBI's targeting

activities under Section 702 during our review period. We first assess the FBI's

performance of its two fundamental responsibilities under its targeting

procedures: to review and evaluate the

·

of the NSA's tor·el·!~m1e~:;s

determination and to

(S)

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(S)

A. (U//FOUO) FBI's Application of its Targeting Procedures

:m;trt-atlm·ov·ed targeting procedures set out in

and the standard it must meet (S)

of selectors nominated to it under (S)

required to fulfill two principal

bl,

obligations under its targeting procedures. First, in consultation with the NSA, b3,

the FBI must "review and evaluate the sufficiency'' of the NSA's explanation for b?E

its reasonable belief that the presumed user of a nominated account is located

outside the United States and its information that the user is a non-U.S.

for,eignn1ess det:errninlation). Second the FBI must

(S)

128
!foP s:eeitET t 1st 11NOF oRH;FISI..

(S) bl, b3, b7E
DOJ-016-01099

TOP seen111s1 I1NotoRN 1FIs-A

However, the - w e r e designed to implement the targeting procedures, and (S) bl, b3,

thus, to assess how the FBI has met its principal obligations under the

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~t~ reviewed both the -themselves and how the (S)

--(S)

~) We concluded that overall the FBI's 702 Team has implemented

its targeting procedures with commendable deliberation, thoroughness, and

professionalism. In reaching this conclusion, we took into account the FBI's

current limited role in the 702 Program, the fact that the 702

·

rl11r1nn the

of our review the

of the

(S)

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~ However, with regard to the FBI's obligation to review and

evaluate the sufficiency of the NSA's foreignness determinations, we believe bl, b3, b7E

there are opportunities for the FBI to improve the effectiveness of i t s - (S)

through increased consultation and coordination with the NSA with respect to

nominations

(S)

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~Before proceeding to our assessment of these substantive

targeting issues, the OIG notes that the 702 Team's documentation of its

targeting activities was

thorou and weU-1or~~ar1iz1ed.

Documentation of

Witnesses,

accurate

was

emphasized at the outset of the 702 Program by the FBI's OGC, which

anticipated that the FBI's use of 702 authority would be closely scrutinized and

undergo considerable oversight. It is evident that the 702 Team, under the

guidance of the Lead and Assistant Program Coordinators, understood the

importance of this function and executed it diligently.

1. ~The FBI's Review and Evaluation of the
Sufficiency of the NSA's Foreignness Determinations

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su:tlicier.Lcy of the NSA's

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(S)

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(S)

129 'OOP SBeHTIISi //NOFORN/PISi..

DOJ-016-01100

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~ ~ The targeting procedures do not contain a specific standard of

diligence the FBI must employ when

· and

the

· of

the NSA's

ss determinations.

(S)

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(S)

~ We found it s1g:m1I.cru1t the NSA ag~unst

in balancing the FBI's deference to , both the targeting procedures (S)
su:ttlcleiJtcy review "in consultation (S)
(S)

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(S)
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130 Top SEC~/;91 1/HOFURN/~ISA

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bl, b3, b7E
DOJ-016-01101

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(TS)
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131
TOP SECI&ii I I SI I I Ne#QRN/~IS4

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DOJ-016-01102

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(TS) bl, b3, b7E

(S)
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132
-roP sseRET/ 1st 1/NuF ORN/PISA

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lfOP SECREt I; Sl //:N°FOBN/FISA
2. ~ Reasonableness of the FBI's Practices

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(S) bl, b3, b7E
(S) bl, b3, b7E
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~ Taking into account

NSA and the

· of

nominated by the (S) concluded that the (S)

(S) bl, b3,

b7E sister.Ltly thr011gl1011t our review period. However, we identified
concerning a gap in the 702 Team's (S) we believe can improve the quality of the (S) at very little cost in terms of time or resources.

a .. - U s e of 702 Team R e s o u r c e . - (S) hi, h3, h?E

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133
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134
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DOJ-016-01105

WP SEeREI/)81 //N6P9ml/~ISA

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;

135

OP SBeRET/ I Si I I NOP9RN/F'!SA

b7E
DOJ-016-01106

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bl, b3, b7E
bl, b3, b7E
DOJ-016-01107

bl, b3, b7E

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(S)
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137

~

TOP SEeRE I I I 81 I I WOFORN/FISA

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DOJ-016-01108

;OP 8EORE'fiiSI I I NOF eRN/F'SA
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b7E
C. (U) The FBI's Compliance with its Annual Reporting Requirements under Section 702(Z)(3)(A)(iii)
(U j /FOUO) The FBI is required to submit annual reports to Congressional intelligence and judiciary committees, the Attorney General, the Director of National Intelligence, and the FISA Court on its Section 702 targeting activities. Specifically, "with respect to acquisitions authorized under [Section 702(a)]," the FBI is required to provide "the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed[.]" Section 702(ij(3)(A)(iii). The OIG refers to incidents meeting this statutory criterion as "reportable incidents."
(S)
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b7E

bl, b3,
b7E

138
'POP SECREt I /SI I I N6FORN/FISA

DOJ-016-01109

TQP SBekEI//Sl //KOFORN/PISt..
(UI IFOUO) The OIG's review period covered all of the FBI's 2009
reporting period and a portion of its 2010 reporting period. The OIG's findings indicate that the FBI's reporting for the 2009 reporting period was deficient because we found several acquisitions that according to the data we reviewed met the statutory reporting criteria but which were not reported by the FBI in its first annual report.93 We could not assess the FBI's subsequent annual reporting because as of February 2012 that reporting had not been conducted. 94
(UI IFOUO) In an effort to assist the FBI in meeting its statutory
reporting requirements, the OIG met with senior FBI Counterterrorism Division, OGC, and Inspection Division officials in July 2011 to present our preliminary findings and the methodology we used to reach them. We explained that to conduct our review, we used data either maintained by or readily available to the FBI.
bl, b3, b7E
bl, b3, b7E
bl, b3, b7E
(S) bl, b3, b7E
94 (U/ /FOUO) On May 22, 2012, the FBI transmitted two annual reports to Congress that covered the periods of September 1, 2009, to August 31, 2010, and September 1, 2010, to August 31, 2011, respectively. The OIG received copies of these documents but was unable to fully assess their contents prior to releasing this report.
;gp 139 SEeltEI I I Sl I /NOFORN 7FISA
DOJ-016-01110

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141
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DOJ-016-01112

'FOP SEeREI /]SI]/NOFORN/:FISA

PAGE INTENTIALLY LEFT BLANK

TOP sEeRE111S1l4121HOFORN/FI~

DOJ-016-01113

TOP si\3@1 liS'}, tOPBRill ,,,

~ CHAPTER FOUR
THE FBI'S POST-TARGETING ACTIVITIES: ACQUISITION, ROUTING, RETENTION, MINIMIZATION, AND
DISSEMINATION OF SECTION 702 INFORMATION

~ In this chapter we examine the FBI's post-targeting activities under Section 702 from September 2008 through the end of April 2010. Unlike the activities discussed in Chapter Three conceming the F B I ' s - (S)
many of its post-targeting activities did not

bl, b3, b7E

commence un over a year after the FAA was enacted; most significantly, the

FBI did not begin retaining Section 702-acquired data or disseminating it in

intelligence reports until October 2009.

~In Section I we provide an overview of the FBI's FISA Court-
~Minimization Procedures for F I S - (S)

-

as adapted to Section 702. In Section II we summarize

how the FBI acquires 702 communications from participating providers and

bl,

routes the communications within the Intelligence Community. In Section III

b3,

we discuss 702 data retention issues, including a description of the FBI's dual

b7E

routing policies and practices and how unminimized 702 data is retained. In

Section IV we focus on the dissemination process for 702-acquired information.

In Section V we describe our review of the number of disseminated intelligence

reports containing a reference to a U.S. person identity, as required under

Section 702(~(2)(B). In Section VI we provide the OIG's analysis of the FBI's

post-targeting activities under Section 702 during our review period.

I. (U//FOUO) FBI's Standard Minimization Procedures
~0) "Minimization" is a process designed to ensure the
appropriate acquisition, retention, and dissemination of information conceming U.S. persons that is acquired under Section 702 and other surveillance authorities. Minimization is necessary in part because targeting processes may result in the acquisition of communications that are irrelevant to the purpose of the surveillance. Authorized personnel are responsible for reviewing the communications to assess whether they meet the agency's standards for retention and dissemination, and for memorializing these assessments by annotating or "marking'' the acquired communications before they can be made more broadly available. This assessment process generally is referred to as "minimization."
(U / /FOUO) Under Section 702(e) of the FAA, the Attorney General, in consultation with the Director of National Intelligence, must adopt minimization procedures for acquisitions authorized under Section 702(a). The minimization procedures adopted under 702 must meet the minimization
143
TOp 'i'EQMT; I Si I I NOi 019l/FI'i'i

DOJ-016-01114

TOP SEGRBT/ 781 I I HOF URN/FIS 1\

standard.

as defined in the FISA b7E

statute. As

s must be reasonably

designed in light of the purpose and technique of the particular electronic

surveillance or physical search, to "minimize the acquisition and retention, and

prohibit the dissemination, of nonpublicly available information concerning

unconsenting United States persons consistent with the need of the United

States to obtain, produce, and disseminate foreign intelligence information."

See 50 U.S.C. §§ 1801(h) & 1821(4).

(U j /FOUO) The FBI's minimization procedures are reviewed and approved by the FISA Court as part of the govemment's Section 702 certifications and serve as the primary authority governing the FBI's handling of raw 702-acquired information. 95 The FBI's minimization procedures in effect during the period covered by this review are entitled "Standard Minimization Procedures for Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act" (SMPs). Though designed to apply to information collected under traditional FISA, the SMPs were adapted to Section 702 through Attorney General-approved language that conforms relevant provisions to Section 702.96
(~) Among other changes, the 702 conforming language requires
the FBI to remove from FBI's systems the communications of "a person who at the time of targeting was reasonably believed to be a non-United States person located outside the United States but is in fact located inside the United States at the time such communication is acquired or is subsequently determined to be a United States person." This amendment was necessary because the specific foreignness requirement of Section 702(a) (reasonable belief that a target is a non-U.S. person located outside the United States) is not an element of traditional FISA.

~ The Attorney General adopted the SMPs after concluding that

they meet the requirements of the FISA statute.

~The FBI's SMPs for all

(S)
in place from October bl

14, 2009, when the FBI began retaining

· information and b3

thus was first required to apply its minimization procedures, through April 30, b7E

2010, the end of our review period, are identical. The SMPs are organized

95 (~he CIA, NSA, and FBI each receives raw Section 702-acquired information
and is required to retain and disseminate such information in accordance with its own minimization procedures. The FISA Court must review and approve the minimization procedures of all three agencies. The FISA Court was not required to review and approve each agency's minimization procedures under the PAA. See PAA, Section 105C.
96 (U1/FOUO) This Attorney General-approved language is referred to in this report as
the "702 conforming language." Unless otherwise indicated, references in this report to the SMPs in effect during our review period incorporate the 702 conforming language.

144
j'OP $Iii 'k& I I I 81 I /IfOI OIQI I tiSA

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around three basic phases of the minimization process: acquisition, retention, and dissemination. Below we summarize key provisions of the FBI's SMPs, as adapted to Section 702, and as interpreted by the FBI in relevant guidance.
A. (U//FOUO) Acquisition
~ The SMPs govern the acquisition, retention, and dissemination of nonpublicly available information concerning unconsenting United States persons that the FBI obtains under traditional FISA and Section 702. The SMPs provide that "information acquired from electronic surveillance or physical search conducted under FISA concerning United States persons may be used and disclosed by Federal officers and employees without the consent of the United States persons" only in accordance with the SMPs. SMPs, Section LB. The SMPs do not apply to publicly available information about United States persons or to information "acquired, retained, or disseminated with a United States person's consent." In addition, with limited exceptions not applicable to this report, the SMPs do not apply to information concerning nonUnited States persons. Id.
(U/ /FOUO) The SMPs adopt the FISA definition of "United States person," which is:
(U) a citizen of the United States, an alien lawfully admitted for permanent residence [as defined in 8 U.S.C. § 1101(a)(20)], an unincorporated association a substantial number of members of which are citizens ofthe United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power as defined [in 50 U.S.C. § 1801(a)(l), (2), or (3)]
(U) 50 U.S.C. § 1801(i).

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b3

(S)

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145
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(S) bl, b3, b7E

(U j jFOUO) SMP General Provisions, ~ C.

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bl, b3, b7E

~Finally, the FBI is required to purge from its systems any communication it has acquired and retained that is inconsistent with the targeting and acquisition limitations set forth in Section 702(b).97

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97 (U/ /FOUO) As described in Chapter Two, Subsection 702(b) provides that "[a]n aquisition authorized under subsection (a)-"
(U) (1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(U) (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(U) (3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(U) (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

(Cont'd.)

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DOJ-016-01117

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B. (U//FOUO) Retention
(U) ~) The retention provisions of the SMPs govern the storage of, access to, and use of FISA-acquired information within the FBI's data storage systems. The SMPs define "FISA-acquired information" to mean "all information, communications, material, or property that the FBI acquires from electronic surveillance or physical search conducted pursuant to FISA."98
(U) ~) The SMPs restrict access to this information to "authorized users." Authorized users are personnel who have been trained on the
(U) (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. (U) FAA Section 702(b).
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(TS)

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147
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(S) bl, b3, b7E 99 (U) As of May 2011, the FBI had approximately 35,437 employees, including 13,963 special agents and 21,474 support personnel. See http:/ jwww.fbi.govjabout-usjquick-facts. 148
TOP SECREf//Sl )/lf6F9RB/EISA
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C. (U//FOUO) Dissemination

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TOP '~t!fl 5 E C;R I --EI I f.....P '"' .....,_ 21 j
II. ~FBI Acquisition of Section 702 Data
A.
150
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2. ~Upstream Collection

(S)
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~ As NSA officials described to the OIG these activities

sometimes called "backbone" or

" collections,

(TS)

major electronic commu:r:tlc:ations

QOim,es·uc nr,rnrlrtl'•rco. These major electronic

communications providers receive Section 702(h) directives, just as the

domestic providers but not for account-based information. Rather,

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upstream collection

is capable of acquiring in-transit (TS) b3,

communications from

, a major communications network

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that facilitates the routing of data to or from specific e-mail accounts housed

on provider servers.1o1

~ In addition to collecting in-transit communications to or

from 702 targets, the NSA also uses upstream collection to obtain

communications that reference e-mail accounts or other identifiers targeted

under Section 702 in the contents of messages, but which are not necessarily

sent or received by communicants targeted under 702. Electronic

communications "about" a 702

collected

of providers,

(TS)

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In nor from the NSA's upstream collection. 2011, at 18.

]lSH Sf~ Approximately nine percent of the total Internet

communications that the NSA acquires under Section 702 are through

upstream collection. Id. at 23, n.21.

(TS)

bl, b3, b7E

1o1 (U f /FOUO) The Internet backbone is a high-speed network linking large
metropolitan areas around the world at interconnection points called "national access points." Local providers connect to the backbone through routers so that data can be carried through the backbone to a final destination. See Newton's Telecom Dictionary, (241h ed. 2008)

151
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JOP 152 SECRB I I I Si I I N8FQRWJFISA

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III.

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153 TOP SECki!h I I SI // IU9FQR1\l/FISA

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~he 1os

NSA is required by its targeting procedures to conduct post-targeting

ar1alysis of data acq ired under Section 702.

156
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TOP SBed I /7 SI 7/ KOPORN/FISA

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I
157
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158
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TOP SECRft/ 1 51 I I !tOF 61&1/~IiA

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109 (U1IFOUO) See, e.g., A Special Report, Ticking Time Bomb: Counterterrorism
Lessons from the U.S. Government's Failure to Prevent the Fort Hood Attack, United States Senate Committee on Homeland Security and Governmental Affairs, February 3, 2011.
uo (U1IFOUO) The version of this report that has been distributed outside the
Department of Justice contains redactions in this sentence based on the Department's assertion of the attorney-client privilege.
159
lf9P BECKEl/ I Sl JJknFORN/FIS~
DOJ-016-01130

TOP SBCI&Tfj81 I 1 fii9FORN/FISA
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e.

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161
TOP &EGRET/ I Sl II R6P8RN/~ISA

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DOJ-016-01132

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162

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TOP SEeltEI//Sl J]N"OF6ml/F S4

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DOJ-016-01133

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DOJ-016-01134

xop s:sedt/ 1st 11 NoFOitN/PIM

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164
TOP s:eeR£1 11s1 11NeFOR.Il/FISA

DOJ-016-01135

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SECi

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DOJ-016-01136

(S)
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2.

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DOJ-016-01137

TOP SECRET//Sl J]NOI"6RN/FISA.

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167
T.OP eeeRE 1; 1st }J NO:r6RN/FISA

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DOJ-016-01138

ioP szei&I})§I ;;noFc•wJa;:
B. ~ Retention of and Access to Unminimized 702 Data

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DOJ-016-01139

~T P0 SEdR I I I 81 I; Ill ui enr 'EISA

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(S)

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a. (U//FOUO) Volume of 702 Data
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169
¥np 't''' £;;51 II IdOL DltR/F'si

DOJ-016-01140

(TS) (S) (S) (S)

TOP SEeRS I I I Sl I I N6P8Im/f!li ~

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c. (U//FOUO) Training Authorized Users
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170
Tnp SECRi#11 81 //lfSi'IPN ZFISA

DOJ-016-01141

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(S)
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3.

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b. ~Purging 702 Data from Systems
171
~gp SEeltET/ I Sl I /NoF"URH/ li'ISA

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DOJ-016-01142

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(S)

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generally direct the auth<>n2~ed

user

so that it may

the data and determine,

through

and other analysis, whether the data in fact must be (S)

purged.

also direct the 702 Team to

the

(S)

in the event it is corlClllOE~a t h a t -

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172
SECRBT//SI //NuFORlf/PISA

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DOJ-016-01143

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173
tnp SEC~II I /·81 I I N9FQRX/~ISA

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DOJ-016-01144

119P seeRE I II SI II N9i RN 'FISA

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IV. ~ FBI Dissemination of Section 702-Acquired Information
~ This section examines issues related to the dissemination of 702-acquired information, the third phase of the minimization process under the FBI's SMPs. We first discuss the meaning of certain key terms that are used in connection with dissemination activities. We then discuss the 702 Team's special role as case coordinator in the 702 dissemination process, as well as how it stores disseminated reports containing 702 data i n . (S) administrative files. We also describe the NSD /ODNI joint 702 minimization reviews, followed by the OIG's assessment of the FBI's application of its minimization and dissemination requirements under the SMPs and internal FBI guidance.

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(S) bl, b3, b7E

A. (U //FOUO) Definition of Certain Terms
(Uf fFOUO) Before discussing the issues surrounding the FBI's
application of its SMPs and related guidance to 702 disseminations, we clarify certain terms that are used in connection with these dissemination activities. These terms are also used in our statutorily mandated review of disseminated intelligence reports that contain a reference to a U.S. person identity, which is discussed in Section V of this chapter.
1. (U//FOUO) Dissemination

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174
=TOP SEPU I; ; 01 I I NGI Chll/:1''8 4

DOJ-016-01145

XOP lkCUETi/81 /J"IIfORN/FISA

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(S)

2. (U/ /FOUO) Intelligence Reports
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(S)

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175
'tOP SECR#I'7 I 81 I I ICUP9RX/FISA

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(S)

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~ The SMPs define "FISA-acquired information" to mean "all

information

·

or property that the FBI acquires from

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conducted pursuant to FISA." SMPs, (S) b7E

applicable to Section 702 by the 702

conforming language.

According to both the Operations Attorney l~J'\.-aLcquu~ed information" includes both

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4. (U/ /FOUO) U.S. Person
~ The SMPs adopt the definition of "United States person" used in
the FISA statute, which provides that a "United States person" is "a citizen of the United States, an alien lawfully admitted for permanent residence [as defined in 8 U.S.C. § 1101(a)(20)], an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power as defined [in 50 U.S.C. § 1801(a)(l), (2}, or (3)]." 50 U.S.C. § 1801(i). The SMPs also contain certain presumptions about U.S. person status (see Section I.A. of this chapter), which are reiterated in the SMP Guidelines.
~ The Operations Attorney stated that the definition of U.S. person supplied in the FISA statute should also apply for purposes of the reporting provisions of Section 702(~(2) and (3).
B. ~ Role of the 702 Team in Disseminations of 702-
Acquired Information
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176
-:fop seeRET/ I Si I I No:r6Rfl/FISA

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1. (U//FOUO) Marking Policies

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177
TOP siCkET/ /SI I I NOll O!tl'f/FISA:

DOJ-016-01148

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(UI IFOUO) SMP Guidelines at Section 3.4, ~ C.

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(S)
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(UI IFOUO) SMP Guidelines at Section 3.5, ~ C.
2. (U//FOUO) The Section 702 Case Coordination Process
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178 TOP sttRE I; I 81 I I N9F9RN/FISA

DOJ-016-01149

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179 TOil lil!l\::iltDy 7·/"SI I4 I 1• g 1u iQN ZfiSA

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180
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DOJ-016-01152

'1'9P SECREt I jSI //NOJ'ORN/FISA

3 . ~ Storage of Section 702 Intelligence Reports in

•

-(S)

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;

182

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C. ~ FBI's Application of its Standard Minimization
Procedures to Disseminations of Section 702-Acquired Information

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1. (U//FOUO) NSD and ODNI Minimization Reviews
~The Attorney General is required by Section 707 to submit to
Congress semiannual reports concerning the FBI's compliance with its targeting and minimization procedures under Section 702. For minimization activities, each Semiannual Report contains the results of NSD bi-monthly compliance reviews, which are conducted jointly with ODNI during the semiannual reporting period, documenting any compliance incidents occurring under Section 702. These joint NSD/ODNI compliance teams compile the semiannual assessments after conducting periodic targeting and minimization reviews at the NSA, CIA, and the FBI. Each review is written up in the form of an "Oversight Review Report of the Department of Justice's National Security Division," which we refer to as NSD compliance reports.
(U/ /FOUO) The NSD/ODNI minimization compliance reviews are designed to ascertain whether the FBI is properly marking disseminated 702 information, and whether disseminations of U.S. person information are performed in accordance with the SMPs and the FISA statute.
(U j /FOUO) The OIG reviewed the three NSD compliance reports that covered the FBI's minimization activities through April30, 2010. We also interviewed NSD attorneys who participated in the minimization reviews. Lastly, the OIG sought to determine whether the NSD's reviews were likely to have included all relevant documents.
a. (U//FOUO) NSD/ODNI Minimization Review Methodology
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DOJ-016-01154

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b. (U//FOUO) NSD Minimization Review Findings

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184 TOP SECRBT/ ) Si } 1N9FOPN IF'ISA

DOJ-016-01155

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DOJ-016-01156

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186
TOP SECREt I I 81 I 7N6F9RX/FTSA

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DOJ-016-01157

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11s (U) Under 50 U.S.C. § 1801(e), as amended by FAA§ 110(a}(3}, "foreign intelligence information" means
yap 187 SEGRB'fJ) 81 1/ N9FQRNJFISA

(Cont'd.)

DOJ-016-01158

TOP S@RH I )/81 /1 NOFORN/FISA

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(U) (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against (U) (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (U) (B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (U) (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (U) (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to (U) (A) the national defense or the security of the United States; or (U) (B) the conduct of the foreign affairs of the United States.
188
TOP SECRE*/ 1Sf }I Nbi OltN/PitY•
DOJ-016-01159

I 81 SECi&T/}SI I 7NOF U!Gf/l!;s l

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DOJ-016-01160

WP sseu111s1 1; NeFQRW/FISA
(S)
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120 (U1IFOUO) The version of this report that has been distributed outside the
Department of Justice contains redactions in this sentence based on the Department's assertion of the attorney-client privilege.

121 (U1IFOUO) The FBI may issue National Security Letters to obtain transactional
data and subscriber information for electronic communications upon the FBI Director or his designee's certification that the "information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States." 18 U.S.C. § 2709(b).

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190
!OP $E« :&EY//81 II NOFORW/FISA

DOJ-016-01161

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DOJ-016-01162

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(S)

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(S)
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V. (U) Statutory Reporting Requirements for FBI Dissemination Activities
(UI IFOUO) Section 702 requires the OIG and the FBI to report to
Congress on references to U.S. person identities that are contained in intelligence reports that the FBI disseminates. The OIG's reporting requirement is set forth in Section 702(Q(2)(B), which provides, in relevant part:
(U) (B) with respect to acquisitions authorized under subsection (a), [the OIG] shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting[.]
(UI IFOUO) For analytical purposes, the OIG has separated the above
provision into two issues, both of which are "with respect to acquisitions authorized under'' Section 702(a): (1) How many intelligence reports did the FBI disseminate that contained a reference to a U.S. person identity; and (2) How many U.S. person identities did the FBI disseminate in response to requests to unmask such identities where they were not referred to "by name or title in the original reporting."
(UI IFOUO) The FBI is also required to review and report on the identical
information. However, rather than being required to provide "a review of the number" of intelligence reports containing this information, the FBI is required to conduct "an accounting of' the number of such intelligence reports. See Section 702(Q(3)(A)(i) & (ii). In addition, Section 702(Q(3)(A)(iv) requires the FBI to provide "a description of any procedures developed [by the Director of the FBI] and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the acquisitions authorized under [Section 702(a)] acquire the communications of United States persons, and the results of any such assessments." While the statute provides
192
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DOJ-016-01163

'l'~r sscRE11; s1 11 wo, ormtPie:t
no time period for the OIG's review, the FBI is required to conduct an "annual review'' of these issues.
(Uf /FOUO) In this section we discuss the FBI's annual reviews of these
intelligence reporting issues. We then describe the OIG's review of these issues and provide our conclusions based on our review.
1. (U) FBI's Annual Reporting under Section 702(l)(3)(A)(i), (ii) and (iv)
(S)
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123 (U/ /FOUO) As noted above, the FBI did not submit its 2010 and 2011 annual reports until May 22, 2012, after it had reviewed a draft of the OIG's report.
124 (U/ /FOUO) In September 2011 the Operations Attorney moved to another position in the OGC and was no longer responsible for advising the 702 Team on Section 702 matters.
(Cont'd.)

ioP eECREI

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193
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DOJ-016-01164

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(U / /FOUO) As described below, this absence of guidance was reflected in the varying and sometimes inconsistent approaches FBI witnesses took in applying the central elements of the Section 702 reporting requirements to specific intelligence reports we presented to them during the OIG's review.
2. (U//FOUO) OIG Review of the Number of Disseminated Intelligence Reports Containing a Reference to a U.S. Person Identity
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Another OGC attorney is now advising CXS on operational matters and the Operations Attorney is no longer responsible for drafting the FBI's annual reports.
194 TOP SECkS I I I SI I I NOFORN /FISA
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12s (U/ /FOUO) The OIG's approach to identifying references to U.S. person identities for reporting purposes is similar to the approach set forth in the Attorney General Guidelines for Disclosure of Grand Jury and Electronic, Wire, and Oral Interception Information Identifying United States Persons, which instructs that to be a U.S. person identity, "the information must discuss or refer to the U.S. person by name (or nickname or alias), rather than merely including potentially identifying information such as an address or telephone number that requires additional investigation to associate with a particular person. The Guidelines further state that "in most instances it will be necessary to use the context and circumstances of the information pertaining to the individual in question to determine whether the individual is a U.S. person." Id. at p. 2.
l'op 195 SEGRE'ffJSI //NuFORlf/PISh
DOJ-016-01166

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DOJ-016-01167

yop SECRBT// Si 7I NOFOR:N/FISA
a. (U/ /FOUO) USPER Reports

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197
TOP SECRB~/;'81//H••M«IRN/FISA

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DOJ-016-01168

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DOJ-016-01169

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DOJ-016-01170

;OP SECRE'l'/ /SI I I NOFORX/FISA_

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b. (U//FOUO) Non-USPER Reports

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SECRET/

200
/SI I

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DOJ-016-01171

TOP SECRldt//SI //N8FQRX/FISA

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201 TOP SEGIWT//81 /; WO:tnRN/FISA

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DOJ-016-01172

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130 ~ti7WFT The Operations Attorney stated that he had discussions with NSA

OGC attorneys regarding their view of what constitutes a reference to a U.S. person identity for

purposes of their SMPs. He stated, "They started with the notion that [a U.S. provider domain

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name] constitutes a U.S. person reference," but that this approach proved unworkable. The

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NSA's Minimization Procedures for Section 702 Acquisitions in effect during the OIG's review

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period incorporate the FISA statute's definition of "United States person," ·ust as the FBI's

SMPs do. See NSA Minimization Procedures

(TS)

However, the NSA minimization procedures provide ad ition

constitutes a U.S. person identity:

.:ps 1 1 ~I) 1 tl~ Identification of a United States person means the name, unique
title, address, or other personal identifier of a United States person in the context of activities conducted by that person or activities conducted by others that are related to that person. A reference to a product by brand name, or
manufacturer's name or the use of a name in a descriptive sense, e.g., "Monroe Doctrine," is not an identification of a United States person.

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202
roP SEGRB'f/7 st 1/NOPORN/FISA.

DOJ-016-01173

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203
TOP SE' 'kB I; I SI I I N&F8RN/FISA

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DOJ-016-01174

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204
TQP SEeltE I I I Sl I I NOF6RN/~181\

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DOJ-016-01175

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205 TOP 8EGREI/ /SI} I N9FQRJI/FISA

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DOJ-016-01176

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3. (U//FOUO) Disseminations of Previously Undisclosed U.S. Person Identities
(UI IFOUO) As noted at the outset of this section, Section 702(n(2)(B)
also requires the OIG to review, "with respect to acquisitions authorized under subsection (a), ... the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting[.]" The FBI similarly is required to provide an accounting of this same information in its annual reports under Section 702(n(3)(A)(ii).
(UI IFOUO) The OIG requested this information from the FBI. In late
2010, the FBI provided the following information to the OIG:
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(UI IFOUO) The Assistant Program Coordinator told the OIG in January 2011 that the 702 Team had never been audited on this information and therefore had not been keeping track of it. The Operations Attorney stated that he is working on ideas for tracking this information on an ongoing basis so that "we don't have to go back and reconstruct it every year."

206

...

joP sEckETz,s• ; , If6POitlli/FiiA

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DOJ-016-01177

T9P BBei& I II SI II NUl 9Rit/ Fli 1\

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VI. (U) OIG Analysis

~ In assessing the FBI's post-targeting activities, the OIG took

into account the fact that the FBI did not begin retaining and disseminating

702-acquired information until October 2009 over a

after it

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(S)
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A. ~ FBI Policies for Dual Routing Requests and Retention
of Section 702-Acquired Data
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yop 207 SECRti'//BI ; ; ItOF 9kN/FisA

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DOJ-016-01178

TOP SEGRET/ I Sl I I i40P8RN/~ISA

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(S) bl, b3, b7E
(S) bl, b3, b7E
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B. (U//FOUO) Minimization and Dissemination Issues
~ In this section we present our findings regarding the FBI's
application of the SMPs and FBI guidance for minimizing and disseminating 702-acquired information. As noted, because the FBI did not begin to generate intelligence reports until close to the end of the OIG's review period, our review of this activity is based on a relatively small number of reports.
1. ~ Maintenance of Disseminations Containing Section 702-Acquired Information
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208 TOP SBGRDI//SI JIN911'9RiJFISA
DOJ-016-01179

~ XOP 8EGREI I I 81 I I h91'0ir.ll/FISA

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I

(S) bl, b3, b7E

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(S) bl, b3, b7E
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134 (U1/FOUO) The version of this report that has been distributed outside the
Department of Justice contains redactions in this sentence based on the Department's assertion of the attorney-client privilege.
209 'XOP SEORE'f//SII/NUFOMf/FISl..
DOJ-016-01180

Top SEC:Rfi'/; Sf ; 1NUl eRN/J'ISA

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C. (U//FOUO) OIG and FBI Reviews under Section 702(l)(2) and (3) (S) bl, b3, b7E
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210
~TOP SECRi! I I I 81 /J HQi'nPN' IFISA

DOJ-016-01181

T9P SECREI//SI 7/!f6P9RNJ~ISA

~ The FBI is required by Section 702

annual

of the same information.

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(S) bl, b3,
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(UI IFOUO) Based the analysis we conducted, we provide two
observations about this reporting requirement, as well as some suggestions for how the FBI should approach its own statutorily required reporting obligations.
(UI IFOUO) First, the oversight and accounting objectives of Section
702(ij(2) and (3) are important and should be achieved in a timely manner. For this reason, we were concerned that as of February 2012, the FBI had not yet met its statutorily mandated annual accounting of intelligence reports that it disseminated as far back as December 2009. 136
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b7E
136 (U/ /FOUO) As noted above, the FBI did not submit its 2010 and 2011 annual reports until May 22, 2012, after it had reviewed a draft of the OIG's report.
211
'tOP sSel&I 7I 81 1 / N9FOU/FISA
DOJ-016-01182

fu;p sBei&I I I Sl I 1N9F91Ul/J:ISA

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212
'F9P SEei&i 1/ Sl 1/ N6P91UI/~ISA

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DOJ-016-01183

;6P SECREI//SI //NOF8RN/FISA_

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213
flip SECk£ I //81 I ; flJO#ORN IFISA

DOJ-016-01184

TOP SEekS I I /81/J IJQi «iQN/FISA

PAGE INTENTIALLY LEFT BLANK

214
TOP SEGRBT7 ) Si I I I' OF URN/~ISA

DOJ-016-01185

xop sseu I 11Sl/ 1ifoPeRN/J!ISA

(U) CHAPTER FIVE CONCLUSIONS AND RECOMMENDATIONS
(U j /FOUO) In this chapter we present the OIG's conclusions and recommendations based on our review of the FBI's use of Section 702 authority through February 2010 for targeting activities and through April 2010 for posttargeting activities.

I. (U) FBI Targeting Activities Under Section 702

~ The OIG's review and analysis of the FBI's targeting activities

under Section 702 during our review period is described in Chapter Three of

this report. We assessed the FBI's performance of its two fundamental

responsibilities under its FISA Court-approved targeting procedures: to review

and evaluate the

of the NSA's

ss determinations· and to

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A. (U//FOUO) FBI's Application of its Targeting Procedures

~TheFBI
been nominated to it for
referred to as targeting pr,occ~dl~n~s U.S. nprc;,r,,.,

trurge~tir.Lg tJ~roceciu:res to accounts that have

(sometimes (S)

atJipli[ed its own

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(S)

215
'I'OP SECkEl I I Si I /N9J!OPNJFISA

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DOJ-016-01186

TOP ilEGRBP7 I 81 I I NOF eM/~ISi

~To implement the ger1enaJ. n~q1un~ments

pn)ced

the FBI developed

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(S) bl, b3, b7E
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1. ~The FBI's Review and Evaluation of the Sufficiency of the NSA's Foreignness Determinations

~ The FBI is required by its targeting procedures to review and

evaluate the sufficiency of the NSA's explanation for its reasonable belief that

the user of the nominated account is located outside of the United States, and

the information that the NSA provides concerning the user's non-United States

nP,r<>n.,., status

NSA's ·

· ·

(S)

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216 TOP SFCki7i)J81//If9i'IPR7FISA

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DOJ-016-01187

TOP SECkEii/SI//NOFORN/FISA bl, b3, b7E
bl, b3,
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140 ~he NSA's targeting procedures remained unchanged throughout the GIG's
review period.
217
TOp SEC~//81 I I liOF URN /FISA
DOJ-016-01188

yap SECRB¥7) Sl I I I491'0R•JFISA~

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b.

Information

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~ The OIG also determined that a relatively small percentage of
NSA nominations were predicated on foreignness explanations that used data older than one year. FBI witnesses generally agreed that foreignness information that was at least 1 year old raised questions about the sufficiency of the NSA's foreignness explanation, yet the OIG found no indication the 702 Team ever contacted the NSA for additional, possibly more recent information when asked to approve such nominations.

~ Both the NSA and the FBI told the OIG that the information on

the NSA's selector sheets represents the most current information available to

the NSA at the time of nomination. However we determined tht~oule:h

statutorily mandated review of FBI

that (S)

the NSA sometimes develops more recent

user's

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for 702 .:;;.l.lio.lU'.l.l.lo.y

after the nomination has been s u b m i t t e d - (S) Given the FBI's obligation to

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reVIew

· tions in consultation

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with the NSA, we believe the FBI should request the NSA to provide more

current information in appropriate circumstances. We believe that this

prudential measure can be implemented with a minimum of disruption to 702

Team operations, and in a manner that is consistent with the case-by-case

nature of foreignness determinations.

(U//FOUO) Recommendation No. 1

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218 'tOP 1!11SGI&Tf/81/} ICQI'ORN]FISA

DOJ-016-01189

i'np SECHBII ;s1 11 wutnRN/FIS~

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(S)
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(U //FOUOl Recommendation No. 2

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(S)

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219
Tap sltt&t; /81 1; NeFORNJFISA

DOJ-016-01190

TOP SEeltET/)91 //NuFOltN/FISh 3.

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220
TOP SECi&i]]Si //N6FORN/i''SA

DOJ-016-01191

;OP SECRE;1'//SI I/H6F9RJl/FISA

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(U //FOUO) Recommendation No. 3
221 'fOP SECREI}/81 }/NeFORN/FISA

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DOJ-016-01192

~ 'WP SEeREI //§I I I NOF6R-N/FIS~

(S)

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B. (UI /FOUO) FBI's Compliance with its Annual Reporting
Requirements under Section 702(l)(3)(A)(iii)
(UI IFOUO) The FBI is required to submit annual reports to Congress on
its Section 702 targeting activities. Specifically, "with respect to acquisitions authorized under [Section 702(a)]," the FBI is required to provide "the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed[.]" Section 702(ij(3)(A)(iii). The OIG refers to acquisitions found to be ineligible under Section 702 and that meet this statutory criterion as "reportable incidents."

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bl, b3, b7E
(UI IFOUO) The OIG's review period covered all of the FBI's 2009
reporting period and a portion of its 2010 reporting period. The OIG's findings
14 1 (U/ /FOUO) On May 22, 2012, the FBI transmitted two annual reports to Congress that covered the 2010 and 2011 reporting periods, respectively. The OIG received copies of these documents but was unable to fully assess their contents prior to releasing this report.
222
TOP SBeRET/ I Si I I NeFORN/FISA
DOJ-016-01193

TOP SEeREI//SI /JNOFOftff/:FISA indicate that the FBI's annual report for the 2009 reporting period was deficient because we found several acquisitions that according to the data we reviewed met the statutory reporting criteria but which were not reported by the FBI in its first annual report.142
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(spl, b3, b7E 143 (U/ /FOUO) As noted above, the FBI did not submit its 2010 and 2011 annual reports until May 22, 2012, after it had reviewed a draft of the OIG's report.
223
TOP SECRH/ / 91 I } MOPOI&l} #IS 1\
DOJ-016-01194

TOP SECRE't//SI//NOP6RN/FISA (U //FOUO) Recommendation No. 4

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(U//FOUO) Recommendation No. 5

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II. (U//FOUO) FBI Post-Targeting Activities
224
yop SECki: I ; ; 81 //1101 Okl\f/FISA

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DOJ-016-01195

Top sRtRLt;; s1 1; NoPeRH/Fisi

(S)
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A. ~ FBI Policies for Dual Routing Requests and Retention
of Section 702-Acquired Data
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14~ As the lead collection agency in the 702 Program, the NSA has the primary obligation to review the contents and the technical data from 702-acquired communications to ensure that the targeted users remain non-U.S. persons outside of the United States and
(Cont'd.)
225
TOP &sed I 17 st II n=oPeRN/FIS.A.
DOJ-016-01196

l'OP SECRBT/ I Sl 7I NuF ORK/PISA

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therefore eligible for 702 coverage. The FBI is not explicitly required by its SMPs to review the 702 data that it retains.
226 TOP SECRBI)}SI J;N9FORNtFJSA
DOJ-016-01197

'f'6P SECREI}}Sl 7/N9FORN/FISA

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227 'FOP 8ECRE I I I Si ) 7N6P8RB/:Fii.A.

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DOJ-016-01198

TOp SEGRiri'J I Sl I I N6P9RN/FISA
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1. ~ Maintenance of Disseminations Containing 702Acquired Information
(S)
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2.

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(S)
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228
'fOP SECid!ii I }Si //N'9FOPN/FISA

DOJ-016-01199

T.OP SEei& I I I Sl ) 7NOF Oltl'f/FIS:t\
(U//FOUOl Recommendation No. 6

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C. (U//FOUO) FBI's Compliance with its Annual Reporting Requirements under Section 702( l)(3)(A)(i) and (ii)

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TOP

sseRET/

229

~

1st 1tNePeRMJFrs

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DOJ-016-01200

TOP SECRET//SI/7NOFORl'ffFIS:A

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(S) bl, b3, b7E

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(S)
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230 'tOP SSeRET/ /81 //NOFORN/FISa

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DOJ-016-01201

~gp SEeF<EI//Sl )Jl'f6F8Rli/i'JSA

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(U //FOUO) Recommendation No. 7 b7E

(S)
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231 ~gp SSCIWY//81 1JIIIOJCIQN/FISA

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DOJ-016-01202

APPENDIX
DOJ-016-01203

·--------·--·-------

UNCLASSIFIED U.S. Department of Justice

Federal Bureau of Investigation

Otllce of the General Counsel

Washington. D.C. 10SJS
August 17,2012

The Honorable Michael E. Horowitz Office ofthe Inspector General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

(U) Dear Inspector General Horowitz:
(U) The Federal Bureau of Investigation (FBI) appreciates the opportunity to review and respond to the Office of the Inspector General (OIG) audit report entitled, A Review ofthe Federal Bureau ofInvestigation's Activities Under Section 702 ofthe Foreign Intelligence Surveillance Amendments Act of2008. With respect to the OIG's recommendations, the FBI is pleased to report that it is a1ready implementing measures to resolve the issues underlying each and every recommendation. Enclosed are the FBI's specific responses to the recommendations.
(U) The FBI appreciates OIG's oversight and independence. We were thus pleased that the report notes the "commendable deliberation, thoroughness, and professionalism" demonstrated by the FBI in its implementation of the Section 702 authority. The FBI takes pride in ensuring that its actions are consistent with the relevant statute and the Constitution of the United States.
(U) On behalf of the FBI, I thank you for the professionalism your staff exhibited as they worked with our representatives to complete this report. If I may be of further assistance in this matter, please do not hesitate to contact me.

Enclosure

Andrew Weissmann General Counsel

UNCLASSIFIED

DOJ-016-01204

--------------·---
JBI :p '1//lf •&i>@_
(U) FBI Responses to the OIG Recommendations in A Review ofthe Federal Bureau of Investigation's Activities Under Section 702 ofthe Foreign Intelligence Surveillance Amendments Act of2008

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(U) FBI Response: The FBI concurs with this recommendation.
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... ... ...
(S)
(U) FBI Response: The FBI concurs with this recommendation.
(S)
* * *
(S)

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DOJ-016-01205

(S)
(U) FBI Response: The FBI concurs with this recommendation.
(S)
* * •
(S)
(U) FBI Response: The FBI concurs in part with this recommendation.
(S)

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•••
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(S)

~ 2

DOJ-016-01206

(U) FBI Response: The FBI concurs with this recommendation.

(S)

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* *.

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(U) FBI Response: The FBI partially concurs with this recommendation.
bl b3
(S)

* * *
(U) Recommendation 7: "The FBI OGC should promptly issue guidance for meeting its
annual reporting requirements under Section 702(/)(3)(A). The guidance should defme the phrases "with respect to'' and "reference to a United States-person identity" for statutory reporting purposes, and clarify the circumstances under which metadata constitutes a reference to a U.S. person identity, so that the FBI can fulfill these annual reporting requirements in a timely manner."
(U) FBI Response: The FBI concurs with this recommendation.
(U) The FBI intends to update its SOP to define the phrases "with respect to" and "reference to a United States-person identity" for statutory reporting purposes. Further, the FBI will issue guidance clarifying the circumstances under which metadata constitutes a reference to a U.S. person identity.

(___-----------------------------------~

DOJ-016-01207

U.S. Department of Justice National Security Division

Of!ire ofthe Assistant Attorney General

Washington. D.C. 20530
August 24, 20 I2

The Honorable Michael E. Horowitz Inspector General United States Department of Justice Washington, D.C. 20530
Re: Department of Justice Office of Inspector General's (OIG) A Review of the Federal Bureau of Investigation ·s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008

Dear Inspector General Horowitz:
Thank you for the opportunity to comment on the Department of Justice Office of Inspector General's (OIG) A Re\·iew (~lthe Federal Bureau ofbm?stigation 's Activities Under Section 702 ofthe Foreign Intelligence Surveillance Act Amendmenrs Act of2008. The scope and detail of this report demonstrate the thoroughness and care with which OIG has conducted its review of this important, and complex, program. NSD concurs with the report's finding that the Federal Bureau of Investigations (FBI) has "implemented its targeting procedures with commendable deliberation, thoroughness, and professionalism," and appreciates the recommendations OIG has fonnulated to improve the implementation of the FBI's targeting and minimization procedures. (U)
NSD, in collaboration with the Office of the Director of National Intelligence (ODNI), is committed to ensuring that the Intelligence Community's use of section 702 is consistent with the law, orders of the Foreign Intelligence Surveillance Court, and the protection of the privacy and civil liberties of Americans. NSD and ODNI recognize the important role that your office serves to help ensure that section 702 authorities are implemented in a manner that reflects a

SF I i&'f/flfGJ• 1Rii

Unclassified when attachments are removed

Classified by: Lisa 0. Monaco. Assistant Attorney General.

National Security Division. Department of Justice

Reason:

.!.A.{£}

Declassify on: 24 August 203 7

DOJ-016-01208

focused and concerted effort by FBI personnel to comply with the statute's requirements. Attach~d are NSD's responses to each of the recommendations set forth in the report. (U)
Please let me know ifl'iSD can be of further assistance on this or any other issue. (U)
Lisa 0. Monaco Assistant Attorney General for National Security Attachment: National Security Division Department of Justice Office of Inspector General's (OIG) A Review of the Federal Bureau of Investigation's Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 200S
DOJ-016-01209

SECI& I !Jl H=Jt oJi&

National Security Division Department oflustice Olfice oflnspector General's (0/G) A Review uf the Federal Bureau of Investigation 's Adivities Under Section 702 ofthe Foreign Intelligence Surveillance Act Amendments Act o(2008.

Recommendation 1: (U)

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Response: (U)
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Recommendation 2: (U)

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Response: (U) NSD concurs with this recommendation. (U)

Recommendation 3: (U)

DOJ-016-01210

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Response: (U)

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Recommendation 4: (U)

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Response: (U)
NSD agrees that the FBI should ensure that its reporting obligations have been fulfilled and that the FBI should track statutorily reportable obligations as they arise. (U)
Recommendation 5: (U) bl b3
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Response: (U)

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DOJ-016-01211

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NSD concurs with this recommendation. (U)

Recommendation 6: (LJ)

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Response: (U)
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Recommendation 7: (U)
The FBI OGC should promptly issue guidance for meeting its annual reporting requirements under Section 702(1)(3l(A). The guidance should define the phrases "with respect to.. and "reference to United States-person identity"' for statutory reporting purposes. and clarify the circumstances under which metadata may constitute a reference to a U.S. person identity, so that the FBI can fulfill these annual reporting requirements in a timely manner. (U)
Response: (U)
NSD concurs with this recommendation. (U)

DOJ-016-01212

TOP SECRET//SI//NO:VORN)FISA
TOP SE«!RET//81//NOFORN/FISA
DOJ-016-01213

 
 TOP SECRETIISTLW//COMINT/ ORCONINOFORN
ST-09-0002 WORKING DRAFT
OFFICE OF THE INSPECTOR GENERAL NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE 24 March 2009
(U) TABLE OF CONTENTS
I. (U) INTRODUCTION:.............................................................................................1 II. REVIEW CATEGORIES........................................................................................3
(U) APPENDIX A: About the Review (U) APPENDIX 8: Presidential Authorizations (U) APPENDIX C: Timeline of Key Events (U) APPENDIX D: NSA Legal Review of the Presidential Authorization (U) APPENDIX E: Flowchart of Metadata Analysis (U) APPENDIX F: Flowchart of Content Analysis (U) APPENDIX G: Security Clearances for President's Surveillance Program (U) APPENDIX H: NSA Office of the Inspector General Reports on President's Surveillance Program
WORKING DRAFT
TOP SECRETIISTLW//COMINTIORCONINOFORN

TOP SECRETIISTLW//COMINTIORCONINOFORN
WORKING DRAFT
TOP SECRET/ISTLWI/COMINTIORCONINOFORN ii

TOP SECRETIISTLW//COMINT/ORCONINOFORN
ST-09-0002 WORKING DRAFT
I. (U) INTRODUCTION

Background

(U//FOUO) On 4 October 2001, President George W. Bush issued a memorandum entitled "AUTHORIZATION FOR SPECIFIED ELECTRONIC SURVEILLANCE ACTIVITIES DURING A LIMITED PERIOD TO DETECT AND PREVENT ACTS OF TERRORISM WITHIN THE UNITED STATES." The memorandum was based on the President's determination that after the 11 September 2001 terrorist attacks in the United States, an extraordinary emergency existed for national defense purposes.
(TS//SI//OR/NF) The 4 October 2001 Presidential authorization delegated authority to the Secretary of Defense, who further delegated it to the Director of Nationa l Security Agency/Chief. Central Security Service (Df RNSA/CHCSS} to conduct specified electronic surveillance on targets related to Afghanistan and international terrorism for 30 days. Because the surveillance included wire and cable communications carried into or out of the United States, it would otherwise have required FISC authority.
(TS//SV/ORINF) The Authorization specified that NSA could acquire the content and associated metadata of telephony and Internet communications for which there was probable cause to believe that one of the communicants was in Afghanistan or that one communicant was engaged in or preparing for acts of international terrorism. In addition, NSA was authorized to acquire telephony and Internet metadata1 for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States. NSA was also allowed to retain, process, analyze and disseminate intelligence from the communications acquired under the authority. 2

(U) This Report
(U//FOUO) This report provides the classified results of the NSA Office of the Inspector General (OIG) review of the President's Surveillance Program (PSP) as mandated in the FISAAmendments Act (FAA) of2008. It includes the facts necessary to describe from NSA's perspective:
1 (U)Metadata is data that describes content, events, or networks associated with SIGINT targets. 2 (U)The Authority changed over time. See Appendix B for details.
WORKING DRAFT
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TOP SECRETIISTLWI/COMINTIORCON/NOFORN

ST-09-0002 WORKING DRAFT

liJ establishment of the PSP (Section One)
liJ implementation and product ofthe PSP (Section Two)
liJ access to legal reviews of the PSP and access to information about
the PSP (Section Three)
liJ interaction with the Foreign Intelligence Surveillance Court (FISC)
and transition to court orders related to the PSP (Section Four)
liJ oversight of PSP activities at NSA (Section Five)

(U) President's Surveillance Program Terminology
(U//FOUO) For purposes of this report, the PSP, or "the Program," refers to NSA activities conducted under the authority of the 4 October 2001 memorandum and subsequent renewals, hereafter known as "the Authorization." As mandated by the FAA, this review includes activities authorized by the President between 11 September 2001 and 17 January 2007 and those activities continued under FISC authority. This includes the program described by the President in a 17 December 2005 radio address as the Terrorist Surveillance Program, which was content collected under the Authorization.

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TOP SECRETIISTLW//COMINTIORCONINOFORN
WORKING DRAFT
II. REVIEW CATEGORIES
(U) ONE: ESTABLISHMENT OF THE AUTHORITY
(UIIFOUO) Immediately after the attacks of11 September 2001, NSA considered how to work within existing SJGJNT authorities to counter the terrorist threat within the United States and adjusted SIGINTprocesses accordingly. Shortly thereafter, in response to a White House request, the Director ofNSA identified SIGJNT collection gaps. The Counsel to the Vice President used this information to draft the Presidential authorization that established the PSP.
(U) Actions Taken After 9/11
(TS//SII/NF) On 14 September 2001, three days after terrorist attacks in the United States, General Hayden approved the targeting of terroristassociated foreign telephone numbers on communication links between the United States and foreign countries where terrorists were known to be operating. Only specified, pre-approved numbers were allowed to be tasked for collection against U.S.-originating links. He authorized this collection at Special Collection Service and Foreign Satellite sites with access to links between the United States and countries of interest, including Afghanistan. According to the Deputy General Counsel, General Hayden determined by 26 September that any Afghan telephone number in contact with a U.S. telephone number on or after 26 September was presumed to be of foreign intelligence value and could be disseminated to the FBI.
(TS//SII/NF) NSA OGC said General Hayden's action was a lawful exercise of his power under Executive Order (E.O.) 12333, United States Intelligence Activities, as amended. The targeting of communication links with one end in the United States was a more aggressive use ofE.O. 12333 authority than that exercised by former Directors. General Hayden was operating in a unique environment in which it was a widely held belief that additional terrorist attacks on U.S. soil were imminent. General Hayden said this was a "tactical decision."
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(U//FOUO) On 2 October 2001, General Hayden briefed the House Permanent Select Committee on Intelligence (HPSCI) on this decision and later informed members of the Senate Select Committee on Intelligence (SSCI) by telephone. He had also informed DCI George Tenet.
(TS) At the same time NSA was assessing collection gaps and increasing efforts against terrorist targets immediately after the 11 September attacks, it was responding to Department ofDefense (DoD), Director of Central Intelligence Community Management Staff questions about its ability to counter the new threat.
(U) Need to Expand NSA Authority
(U//FOUO) General Hayden said that soon after he told Mr. Tenet about NSA actions to counter the threat, Mr. Tenet shared the information with the "Oval Office." Mr. Tenet relayed that the Vice President wanted to know ifNSA could be doing more. General Hayden replied that nothing else could be done within existing NSA authorities. In a follow-up telephone conversation, Mr. Tenet asked General Hayden what could be done if he had additional authorities. General Hayden said that these discussions were not documented.
(U/IFOUO) NSA Identifies S/GINT Collection Gaps
(TS//SI//NF) To respond to the Vice President, General Hayden met with NSA personnel who were already working to identifY and fill SIGINT collection gaps in light of the recent terrorist attacks. General Hayden stated that he met with personnel to identifY which additional authorities would be operationally useful and technically feasible. In particular, discussions focused on how NSA might bridge the "international gap." An NSA Technical Director described that gap in these terms:
"Here is NSA standing at the U.S. border looking outwardfor foreign threats. There is the FBI looking within the United States for domestic threats. But no one was looking at the foreign threats coming into the United States. That was a huge gap that NSA wanted to cover. "
(TS//SI//NF) Possible Solutions. Among other things, NSA considered how to tweak transit collection-the collection of communications transiting through but not originating or terminating in the United States. NSA personnel also resurfaced a concept proposed in 1999 to address the
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Millennium Threat. NSA proposed that it would perform contact chaining on metadata it had collected. Analysts would chain through masked U.S. telephone numbers to discover foreign connections to those numbers, without specifYing, even for analysts, the U.S. number involved. In December 1999, the Department of Justice (DoJ), Office of Intelligence Policy Review (OIPR) told NSA that the proposal fell within one of the FISA definitions of electronic surveillance and, therefore, was not permissible when applied to metadata associated with presumed U.S. persons (i.e., U.S. telephone numbers not approved for targeting by the FISC).
(TS//SI//NF) Collection gaps not adequately filled by FlSA authorized intercept. NSA determined that FISA authorization did not allow sufficient flexibility to counter the new terrorist threat. First, it believed that because oftechnological advances, the jurisdiction of the FISC went beyond the original intent of the statute. For example, most communications signals no longer flowed through radio signals si!!nals or via phone svstems as they did in 1978 when the FISA was written. By 2001, Internet communications were used worldwide, undersea cables carried huge volumes of communications, and a large amount of the world's communications passed through the United States. Because of language used in the Act in 1978, NSA was required to obtain court orders to target email accounts used by non-U.S. persons outside the United States if it intended to intercept the communications at a webmail service within the United States. Large numbers of terrorists were using such accounts in 2001.
(TS//SII/NF) Second, NSA believed that the FISA process was unable to accommodate the number of terrorist targets or the speed with which they changed their communications. From the time NSA sent FISA requests to the DoJ, OIPR until the time data arrived at NSA, the average wait was between four and six weeks. Terrorists could have changed their telephone numbers or internet addresses before NSA received FISC approval to target them. NSA believed the large number of terrorist targets and their frequently changing communications would have overwhelmed the existing FISA process.
(TS//Sl//NF) Emergency FlSA provision not an option. NSA determined that even using emergency FISA court orders would not provide the speed and flexibility needed to counter the terrorist threat. First, although the emergency authorization provision permitted 72 hours of surveillance without obtaining a court order, it did not-as many believed-allow the Government to undertake surveillance immediately. Rather, the Attorney General had to ensure that emergency surveillance would ultimately be acceptable to the FISC. He had to be certain the court
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would grant a warrant before initiating emergency surveillance. Additionally, before NSA surveillance requests were submitted to the Attorney General, they had to be reviewed by NSA intelligence officers, NSA attorneys, and Department of Justice attorneys. Each reviewer had to be satisfied that standards had been met before the request proceeded to the next review group, and each request was certified by a senior official in the DoD, usually the Secretary or Deputy Secretary. From the time NSA sent a request to Justice's OIPR until the time data arrived at NSA, the average wait was between a day and a day and a half. In the existing threat environment with U.S. interests at risk, NSA deemed the wait too long.
(U//FOUO) Early Efforts to Amend FISA
(TS//SI/INF) Given the limitations of FISA, there were early efforts to amend the statute. For example, shortly after 11 September, the HPSCI asked NSA for technical assistance
in drafting a proposal to amend Section Ill of FISA that
would give the President the authority to conduct electronic surveillances without a court order for the purpose of obtaining foreign intelligence information. On 20 September 2001, the NSA General Counsel wrote to Judge Alberto Gonzales, Counsel to the President, asking whether the proposal had merit. We found no record of a response.
(U/IFOUO) We could not determine why early efforts to amend FISA were abandoned. Anecdotal evidence suggests that government officials feared the public debate surrounding any changes to FISA would compromise intelligence sources and methods.
(U) NSA identifies S/GINT collection gaps to Vice President's Office.
(TS//SI//NF) Because early discussions about expanding NSA's authority were not documented, we do not have records of specific topics discussed or people who attended General Hayden's meetings with White House representatives. General Hayden stated that after consulting with NSA personnel, he described to the White House how NSA collection of communications on a wire inside the United States was constrained by the FISA statute. Specifically, NSA could not collect from a wire in the United
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States, without a court order, either content or metadata from communications links with either one or both ends in the United States. Furthermore, General Hayden pointed out that communications metadata did not have the same level of constitutional protection as content and that access to metadata of communications with one end in the United States would significantly enhance NSA's analytic capabilities. General Hayden suggested that the ability to collect communications with one end in the United States without a court order would increase NSA's speed and agility. General Hayden stated that after two additional meetings with the Vice President, the Vice President asked him to work with his Counsel, David Addington.
(U) Presidential Authorization Drafted and Signed
(TS//SI//ORINF) According to General Hayden, the Vice President's Counsel, David Addington, drafted the first Authorization. General Hayden described himself as the "subject matter expert" but stated that no other NSA personnel participated in the drafting process, including the General Counsel. He also said that Department of Justice (DOJ) representatives were not involved in any of the discussions that he attended and he did not otherwise inform them.
(TS//SV/NF) General Hayden said he was "surprised with a small's'" when the Authorization was signed on 4 October 2001, and that it only changed the location from which NSA could collect communications. Rules for minimizing U.S. person information still had to be followed.
(U//FOUO) SIGINT Activity Authorized by the President
(TS//SI//OR/NF) On 4 October 2001, the President delegated authority through the Secretary of Defense to the Director ofNSA to conduct specified electronic surveillance on targets related to Afghanistan and international terrorism for 30 days. Because the surveillance included wire and cable communications carried into or out of the United States, it would otherwise have required FISC authority.
(TS//SI//STLW//NF) The Authorization allowed NSA to conduct four types of collection activity:
[R] Telephony content
[R] Internet content
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[RJ Telephony metadata
[RJ Internet metadata
(TS//SII/NF) NSA could collect the content and associated metadata of telephony and Internet communications for which there was probable cause to believe that one of the communicants was in Afghanistan or that one. communicant was engaged in or preparing for acts of international terrorism. In addition, NSA was authorized to acquire telephony and Internet metadata for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States. NSA was also allowed to retain, process, analyze and disseminate intelligence from the communications acquired under the authority.
(UIIFOUO) Subsequent Changes to the Authorization
(TS//SII/NF) After the first Presidential authorization, the specific terms, wording, or interpretation of the renewals periodically changed. (See Appendix B for a completed listing of changes.)
(TS//SII/NF) Domestic Collection. The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for domestic collection.
(TS//SII/NF) Afghanistan. In January 2002, after the Taliban was forced out of power, Afghanistan was no longer specifically identified in the Authorization.
(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion oflraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President's concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004. TOP SECRET/ISTLW//COMINTIORCONINOFORN
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(U) TWO: IMPLEMENTATION OF THE AUTHORITY AND RESULTING SIGINT PRODUCT
(TS//SII/NF) General Hayden said that although he felt comfortable exercising the Presidential authorization and believed it to be legal, he recognized that it was politically sensitive and controversial and would be subjected to scrutiny at some point in time. He and NSA leadership strove to ensure that NSA personnel executed the terms of the Authorization with care and diligence and that they not go beyond that which was authorized. PSP-related operations began on 6 October. Early on, personnel worked under the assumption that the Authorization was temporary and that operations would stop in the near future. After it became evident that the Authority would be continuously renewed, management focused on designing processes and procedures for Program activity.
(U//FOUO) Stand Up of Operations
(TS//SV/NF) On 4 October 2001, after receiving the Authorization, General Hayden informed the SIGINT Director and other key personnel ofNSA's new authorities and asked the NSA General Counsel if the Authorization was legal. The General Counsel said that the next day, 5 October, he told General Hayden that he believed it was legal (see Appendix D).
(TS//SV/OC/NF) Under General Hayden's direction, immediate steps were taken to implement the temporary authority.
00 A 24-hour watch operation, the Metadata Analysis Center (MAC),
was created in the Signals Intelligence Directorate (SID).
00 The first Program Manager was identified and informed of his new
responsibilities.
00 A cadre of experienced operational personnel was chosen to
implement the Program.
00 Office space was identified to accommodate newly assigned
personnel.
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00 A new security compartment with the temporary cover term
STARBURST was established.3
00 Fifty computer servers to store and process data acquired under the
new authority were ordered.4
00 Initial funding of $25 million for PSP operations was obtained from
the DCI.

(TS//SI//NF) On Saturday and Sunday, 6 and 7 October, small groups of operational personnel were called at home and asked to report to work for special PSP clearance briefings.

(TS//SI//ORINF) On Monday, 8 October 2001, Columbus Day, General Hayden briefed the analysts, programmers, and mathematicians that had been selected to implement the Authorization. At that briefing, General Hayden said he did not share the specific content of the Authorization with attendees but relayed key information such as:
00 The Authorization came from the President.
00 The Authorization was temporary.
00 The Authorization was intended to be an early warning system of
impending terrorist attacks in the United States.
00 The NSA General Counsel had reviewed the Authorization and
concluded that it was legal.
00 NSA would do exactly what the Authorization stated and "not one
electron or photon more."
00 The Authorization should be kept secret and it required strict
compartmentation. Attendees had to sign a non-disclosure agreement.

(TS//SI//NF) General Hayden stated that after he briefed the attendees, he turned the briefing over to the General Counsel to discuss the terms of the Authorization.
3(TS//SI//NF) A pennanent cover tenn, STELLARWIND, was assigned to Program infonnation on 31 October 2001. 4(TS//SII/NF) Because of the heightened terrorist threat, at NSA's request, a vendor diverted a shipment of servers intended for other recipients to NSA, where they arrived under police escort on 13 October 2001.
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(U) Early Operations
(TS//SI//NF) Within one week, approximately 90 NSA employees were cleared for access to the PSP. On 11 October 2001, the Associate General Counsel for Operations and the NSA Deputy General Counsel were cleared for the Program and agreed with the NSA General Counsel's determination that the Authorization was legal. NSA OGC did not formally document its opinions or legal rationale (see Appendix D).
(TS//SI-STLW//NF) The MAC was created to analyze metadata obtained under PSP authorization. By 7 October 2001, it was a 24-hour 7-day a week watch center with 20 analysts, reporters, and software developers working in three shifts. Many MAC employees were former Russian traffic analysts with manual call chaining analysis experience. Initially, the MAC reported directly to General Hayden and the Deputy Director. The MAC Chief briefed the Director every week, and the Deputy Director visited MAC spaces for a briefing each evening.
(TS//SV/NF) While the MAC was setting up to analyze PSP metadata, the Counterterrorism (CT) Product Line was realigning to conduct PSP content tasking and analysis. The MAC and the CT Product Line worked closely together to coordinate efforts and share information. The CT Product Line was growing rapidly as handpicked employees were moved to support the new mission.
(TS//SV/NF) Within 30 days, the PSP was fully operational. While awaiting delivery of requested computer servers, the FBI and CIA gave NSA lead telephone numbers, and the MAC was able to immediately chain within the United States with SIGINT collected overseas. Private sector partners began to send telephony and Internet content to NSA in October 2001. They began to send telephony and Internet metadata to NSA as early as November 2001.
(U//FOUO) On-Going Operations
(TS//SV/NF) After operations began and it became evident that the Authorization was likely to be renewed indefinitely, NSA management became increasingly focused on designing processes and procedures to implement the Program effectively and to ensure compliance with the Authorization.
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(U) Organizational Structure
(TS//SII/NF) NSA conducted all PSP analysis and reporting at its headquarters at Ft. Meade, Maryland, within the SIGINT Directorate. Specifically, tasking approvals, analysis, and reporting were conducted in the CT Product Line within SID, Analysis and Production. Collection of data was managed in SID, Directorate for Acquisition. No PSP activities were managed at NSA field sites.
[OIG will insert high level SID org chart from 2001 here]
(TS//SI//NF) Although the formal chain of command for SIGINT operations was through SID, in practice, the Director and Deputy Director ofNSA/CSS managed the Program while keeping the SIGINT Director informed. Over time, the SIGINT Director became more involved, but the Director and Deputy Director always maintained direct operational control.
(TS//SI//NF) Program Manager. Five officials held the Program Manager position over the life of the PSP.5 Initially, the Program Manager reported to the Chief of the CT Product Line. In 2004, the Program Manager position was restructured as the SID Program Manager for CT Special Projects and elevated to report to the SIGINT Director. This allowed the Program Manager jurisdiction ofPSP elements across SID, not just those within the Directorate for Analysis and Production. At that time, the position was also formally designated as a senior level civilian position. A small staff was added to form the Program Management Office.
(TS//SI//NF) SID Analysis and Production. Initially, the MAC analyzed PSP metadata (data that describes the content, events, or networks associated with SIGINT targets), while SIGINT Development in the CT Product Line analyzed non-PSP metadata. The CT Product Line performed PSP content analysis. SIGINT Development, a separate organization within the SID, managed approvals for content tasking. In 2004, the analysis and production of metadata and content were consolidated into a new organization called the Advanced Analysis Division (AAD). AAD was divided into three teams: internet metadata, telephony metadata, and content.
(TS//SI//NF) Coordination with FBI and CIA. By 2004, four FBI integrees and two CIA integrees, operating under SIGINT authorities in accordance with written agreements, were co-located with NSA PSP-
\TS//SII/NF) The Chief of the CT Product Line was Acting Program Manager for a brief time in 2004.
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cleared analysts. The purpose of co-locating these individuals was to improve collaborative analytic efforts.
(TS//SI//NF) SID Data Acquisition. Through the life of the Program, data collection was managed by Special Source Operations in SID, Data Acquisition Directorate. Collection managers were responsible for putting telephone numbers and email selectors on PSP-authorized collection by private sector companies and taking them off collection.
(U) Metadata
(TS//SI//NF) The authority to collect bulk telephony and Internet metadata significantly enhanced NSA's ability to identify activity that may have been terrorist-related. Contact chaining is the process of building a network graph that models the communication (e-mail, telephony, etc.) patterns of targeted entities (people, organizations, etc) and their associates from the communications sent or received by the targets.6 Metadata is data that describes other data, specifically information that describes the content, events or networks associated with SIGINT targets. For example, for an email message, it would include the sender and recipient email addresses. It does not contain the subject line or the text of the email; they are considered to be content. Likewise. for a telephone conversation. metadata would include the called number and the calling number as well as the duration of the call.
(TS//SI//NF) Although NSA had the capability to collect bulk telephony and Internet metadata prior to the PSP, its application was limited because NSA did not have the authority to collect communications in which one end (the number being called or the recipient address of an e-mail) was in the United States. PSP significantly increased the data available to NSA analysts and allowed them to create more thorough contact chaining. This gave NSA the key to an early warning system-the ability to identify individuals in the United States or individuals outside the U.S. using U.S. telecommunications structures in contact with a foreign target, a terrorist.
(TS//SI//NF) Because metadata was not constitutionally protected, NSA did not consider it to be as sensitive as content collection. Nevertheless, processes were set up to document requests for metadata analysis and justifications for conducting such analysis under Program authority. The
6 (TS//SI//OC/NF) Additional chaining can be perfonned on the associates' contacts to detennine patterns in the way a network of targets may communicate. Additional degrees of separation from the initial target are referred to as "hops." For example a direct contact is one hop away from the target. A contact of the direct contact would be described as being 2 hops away from the target. The resulting contact-graph is subsequently analyzed for intelligence and to develop potential investigative leads.
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following describes the process used to obtain requests, conduct analysis, and report results under the PSP. (See Appendix E for a flowchart of the end-to-end process.)
(TSIISVINF) Requests for Information and Leads. Contact chaining analysis requests were received from FBI, CIA, or NSA. Requests typically took one of two forms, Requests for Information (RFI) and Leads. RFis were specific questions about a target's telephone numbers or email addresses, called "selectors" at NSA. Leads were more general requests about a target's contacts. Requestors submitted leads to discover new investigative leads. Contact chaining requests were documented from the inception of the PSP.
(TS//SV/OC/NF) Approvals to Chain. Prior to chaining, NSA counterterrorism shift coordinators reviewed chaining requests to determine whether they met criteria provided by the OGC and based on the terms of the Authorization. They had to have enough information to identify a terrorism nexus and demonstrate compliance with criteria required by the Authorization before analysis could begin. Shift coordinators either approved requests, approved them for 1-hop (direct contact) analysis, or denied them. Approved requests were passed to analysts for contact chaining.
(TS//SV/OC/NF) Analysis. NSA used a variety of tools to conduct metadata analysis and view the results. NSA's primary tool for conducting metadata analysis, for PSP and traditional SIGINT collection, was MAINWAY. MAINWAY was used for storage, contact chaining, and for analyzing large volumes of global communications metadata. At the beginning ofthe PSP, only the "SIGINTNavigator" tool was available to view MAINWAY output. Over time, new tools and new processes, such as automated chaining alerting, were created to improve analysts' efficiency. To obtain the most complete results, analysts used data collected under PSP and non-PSP authorities. Typically, they analyzed networks with two degrees of separation (two hops) from the target. Analysts determined if resulting information was reportable.
(TS//SV/OC/NF) In addition, an automated chaining alert process was created to alert analysts of new potentially reportable selectors. Previously approved selectors were compared to incoming MAINWAY data authorized by the PSP, E.O. 12333, or the FISC. Alerts of direct contacts with approved selectors were reported to NSA analysts for further analysis and potential reporting to FBI and CIA.
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(TS//SI//NF) Storage. NSA stored metadata obtained under PSP authorities in a protected database. Only cleared and trained analysts were given access to PSP metadata.
(TS//SI//OC/NF) Reporting. Reports based on metadata analysis were typically referred to as "tippers." Tippers contained contact chaining analysis results relevant to terrorism or with potential links to terrorism that warranted the attention of the FBI or the CIA for further investigation. Before releasing reports with U.S. person information, analysts obtained permission to do so in accordance with established NSA dissemination procedures.
(TS//SI//OC/NF) For each published report, NSA retained documentation of the analysis, supporting RFI or lead information, and a justification statement explaining the link to terrorism . If a report was not published, documentation was not retained. Counterterrorism personnel manually updated information in a computer tracking system to reflect the disposition of chaining requests.

(U) Content

(TS//SI//NF) Collection and analysis of content is NSA's traditional wav of reportin2: means of eendueting SIGINT. Content generally refers to words spoken during a telephone conversation or the written text of an email message. NSA collection of the content of telephony and Internet communications under the PSP improved its ability to produce intelligence on terrorist-related activity. For example, by allowing NSA access to links carrying communications with one end in the United States, NSA significantly increased its access to transiting foreign communications, i.e., with both communicants outside the United States. General Hayden described this as "the real gold of the Program." And, by allowing the intercept of international communications, NSA was able to identify threats within the United States.
(TS//SI//NF) From the start of the Program until January 2007, NSA issued 490 reports based on PSP-derived content information. Also, as shown below, approximately 37,664 telephony and Internet selectors were tasked for PSP-authorized content collection during that time period. Only 8 percent were U.S. targets. The vast majority (92 percent) were foreign.
(TS//SI//OC/NF)

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Approximate Number of Selectors Targeted for PSP Content Collection 4 Oct 2001 to 17 Jan 2007 *
Foreign E-mail (19,000)
(TS//SI//OC/NF) (TS//SV/NF) NSA leadership considered selectors for targets located in the United States to be extremely sensitive. As such, processes were set up to ensure strict compliance with the terms of the Authorization. The following describes the general process for tasking, collecting, storing and reporting telephony and Internet content under the PSP. (See Appendix F for a flowchart of the end-to-end process.) (TS//SI//STLW//NF) Tasking Approvals. Under the PSP, each domestic selector tasked for content collection was formally approved and tracked. Analysts submitted content collection requests, also called tasking packages, to the Chief of CT for approval. Tasking packages contained a narrative analysis, conclusion, supporting information, documentation, and a checklist of package contents. In the Chief's absence, the Deputy Chief of CT or the Program Manager could approve the requests. The approving officials reviewed the tasking packages to ensure that the proposed target and related metadata selectors met criteria in the Authorization. If criteria were not met, the officials requested additional information or denied the request. In limited cases, collection was approved for specific time periods. If the content contained foreign intelligence, the time period for collection would be extended. If it did not, collection was stopped. All approvals were documented in tasking packages.
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(TS//SV/NF) Foreign selectors tasked for PSP content collection did not require formal approvals or tasking packages. Analysts were responsible for determining whether a foreign selector met the criteria for forei2:n intellig:ence terms of the Authorization.
(TS//SI//NF) Collection. After a domestic selector was approved for PSP content collection, it was identified as "tasked" in the STELLARWIND Addresses Database by CT/AAD tasking managers who then emailed a collection tasking request to the SSO Collection Manager for telephony and Internet content collection. Foreign selector content collection requests were sent directly to the SSO Collection Manager. They did not require special approval.
(TS//SI//STLW//NF) SSO collection managers were responsible for ensuring that telephony and Internet content selectors were put on or taken off collection. For telephony telephony content selectors, collection managers sent content collection tasking instructions to private sector companies. Private sector companies were responsible for implementing tasking at front-end devices to obtain the required content collection. For Internet content selectors, collection managers sent content tasking instructions directly to equipment installed at company-controlled locations. Collected data was sent back to NSA/SSO and made available to analysts through the HYBRID voice processing system for telephony content selectors or the PINWALE database for Internet content selectors. SSO collection managers worked with private sector companies and the CT Product Line to ensure that collected data was as intended and legally authorized.
(TS//SV/NF) Storage. Content (voice or dBata} collected under PSP was stored in protected partitions in existing NSA databases. Access to the partitions was restricted to PSP-cleared personnel.
(TS//SV/NF) Reporting. After analyzing content data collected under Presidential authority and identifying foreign intelligence information, counterterrorism analysts wrote reports. After an initial review within the CT Product Line, some reports were sent to SID Oversight and Compliance (O&C) for a second review for U.S. person identities. O&C reviewers determined whether the U.S. identities in the report were necessary to assess or understand the forei2:n intelligence information being reported..QL was required with in the conduct of recipient's official duties . If an identity was found to be unnecessary, it was not reported. Before any U.S. person information was disseminated in reporting, internal NSA approvals were obtained as required by United States Signals Intelligence Directive SPOO18- Legal Compliance and Minimization Procedures.
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(TS//SI//STLW//NF) Initially, NSA responded to FBI and CIA information requests in encrypted email. These initial reports, sometimes called "Tippers" or "Snippets," were "hidden in plain sight," meaning the information in the report did not reveal the source of the information. Later, FBI and CIA wanted to understand how NSA knew certain information that could not be provided in normal reporting channels. Eventually, "tear line" reporting was established. Tear lines are used regularly by NSA as a way to report SIGINT-derived information and sanitized information in the same report to appropriately cleared individuals. The sanitized "tear line" information conveys the same basic facts as the COMINT-controlled information while hiding COMINT as the source.
(TS//51//NF) Dissemination of SIGINT Product
(TS//SI//NF) Regardless ofwhich organization submitted requests or leads to NSA, all resulting reports were sent to CIA and FBI. Reports answered specific RFI questions or provided new investigative leads developed from chaining analysis. Reports contained selectors of interest (potential leads) with potential terrorist connections, not full chaining results~ NSA had minimal insight into how CIA and FBI used PSP products.
(U) Discovery Requests
(U) On occasion, the Department of Justice (DoJ) attorneys determine that the facts of a particular matter justify a search ofNSA files and submit a search request. In response to those requests or in response to discovery orders, NSA conducts a search of its databases to locate records that may fall within the scope ofDoJ's discovery obligations and Rule 16 ofthe Federal Rules of Criminal Procedure. Typically the search process begins with a written request from DoJ including the names and aliases of individuals. NSA attorneys work with personnel trained in the retrieval of NSA reports to craft search strategies reasonably designed to identify reporting that may be responsive to the request. These search strategies are then used to perform electronic searches ofNSA repositories of disseminated foreign intelligence reports. All responsive reports, to the extent any exist, are made available for review by DoJ.
(TS//SI) NSA searches only databases of reported intelligence and does not search databases containing acquired but not processed information (e.g., raw traffic) or acquired and processed but not reported or disseminated
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information/communications (e.g., gists). NSA would include in its search applicable disseminated foreign intelligence derived from the PSP.
(TS//SI) After the search is completed, NSA provides all information, including PSP-derived material, to a small number of appropriately cleared DoJ individuals in the National Security Division who review the information on behalf of the DoJ and file motions on behalf of the government and the United States Attorney.
(U) Funding for NSA Activity Authorized by the PSP

(TS//SI//STLW//NF) NSA spent approximately $146,058,000 in CT supplemental funds for Program activities from FY02 through FY06. The funds were given annually to SID for Project MAINWAY hardware and contract support, analytic tools and contract analytic support, and collaborative partnerships with private sector companies. Funding requests were submitted annually to the PSP Program Manager and CT program budget officer. Each request had to justify why funds were needed and how the purchased item or service would support SID's PSP activities.
(TS//SV/STLW//NF) Program Costs FYOl to FY06 ($in thousands)

Category Data

Description

FY02

FY03

FY04

FYOS

FY06

Total

Metadata and content (including one time set-up costs)

$25 ,668

$14,050

$15,500

$21,150

$25,900

$102,268

Tools and Systems

Processing, display and manipulations capabilities

$9,700

$8,000

$8,000

$9,500

$8,000

$43,200

Infrastructure

Facilities and

$590

0

0

0

0

$590

equipment to

support program

TOTALS

$35,958

$22,050

$23 ,500

$30,650

$33 ,900

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$146,058

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(U) THREE: ACCESS TO LEGAL REVIEWS, THE AUTHORIZATION, AND INFORMATION ABOUT THE PROGRAM
(UIIFOUO) NSA did not have access to the original OLC legal opinion, but did have access and provided input to an OLC opinion prepared in 2004. The original Authorization and renewals were kept in the NSA Director's safe, and access to the documents was tightly controlled. By January 2007, nearly 3,000 people had been briefed on the PSP, including members of Congress and the FISC.
(U) Access to Legal Reviews
(TS//SI//NF) The NSA did not have access to the early DoJ Office of Legal Counsel (OLC) opinions supporting the Attorney General's statement that the PSP was legal. General Hayden, NSA lawyers, and the NSA Inspector General agreed that it was not necessary for them to see the early opinions in order to execute the terms of the Authorization, but felt it would be helpful to do so. NSA was, however, given access and provided comments to the OLC opinion issued in 2004.
(U) Access to OLC's Original Legal Review
(TS//SII/NF) Two NSA requests for access to the original OLC legal opinion were denied.
(TS//SII/NF) First Request. NSA General Counsel Robert Deitz stated that he asked the Vice President's Counsel if he could see the opinion. Even though Mr. Deitz's request was denied, the Vice President's Counsel read a few paragraphs of the opinion to him over the classified telephone line.
(TS//SII/NF) Second Request. At a 8 December 2003 meeting with the Dol Associate Deputy Attorney General to discuss collection of metadata and an upcoming NSA OIG compliance audit, NSA's IG and Deputy GC requested to see the OLC legal opinion. The Counsel to the Vice President, who unexpectedly attended the meeting, denied the request and said that any request to see the opinion had to come directly from General Hayden.
(TS//SII/NF) General Hayden stated he never asked for or read the OLC legal opinion supporting the PSP. The Deputy GC stated that it was his
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understanding that the opinion was not shared with NSA because it was considered confidential legal advice to the President.
(TS//SI//NF) The IG, GC, and Deputy GC agreed that their inability to read the OLC opinion did not prevent or impair them from executing and overseeing the Program. They were able to determine legality of the Program independently from DoJ (see Appendix D). However, the IG said that he found the secrecy surrounding the legal rationale to be "odd." Specifically, he said that it was "strange that NSA was told to execute a secret program that everyone knew presented legal questions, without being told the underpinning legal theory." The IG, GC, and Deputy GC all stated that they had yet to see the full text of the original OLC opinion.
(U/IFOUO) Access to the May 2004 Opinion
(U//FOUO) In 2003 and 2004, the DoJ Associate Deputy Attorney General and the OLC Assistant Attorney General visited NSA to receive briefings on the PSP. On 04 May 2004, NSA, at the request of the OLC Assistant Attorney General, provided comments on the OLC's draft opinion on the Legality of the PSP. The OLC Assistant Attorney General submitted his opinion on 06 May 2004.
(U//FOUO) Access to the Presidential Authorization
(TS//SII/NF) As directed by the White House, access to the original Presidential authorization and subsequent renewals was tightly controlled.
(C) The Vice President's Counsel drafted the Authorizations and personally delivered them to NSA. On a few occasions, NSA picked up the Authorization at the White House.
(C) The first Authorization and subsequent renewals were kept in a safe in the Director's office. Initially, access was limited to General Hayden and a few others, including three OGC attorneys, Program Managers, and certain operational personnel. Those with access were not allowed to disseminate the Authorizations.
(TS//SI//NF) Importantly, most NSA operations personnel, including the Chief of the CT Product Line, who approved tasking for content collection, were not allowed to see the actual authorization. Rather, OGC answered targeting, information sharing, and implementation legal questions on an "on call" basis for operators. When the Authorization changed, OGC
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summarized those changes in emails distributed to key program executives or communicated changes in due diligence meetings.
(TS//SI//OC/NF) Such limited access to the Authorization was documented in an IG investigation as a primary cause of two early violations of the Authorization. At the IG's recommendation, in March 2003, General Hayden began issuing Delegation ofAuthority letters that explained the Authorization as it applied to executing the Program . A new Delegation of Authority was promulgated with each renewal of the Authorization. The Delegation ofAuthority letters were sent to the Program Manager and the two managers of the SID CT Product Line and not further disseminated. (See Section Six.)

(U) Access to Program Information
(TS//SV/STLW//NF) Between 4 October 2001 and 17 January 2007, NSA cleared over 3,000 people for the PSP. The majority worked at NSA. Others were from the CIA, the FBI, the Department of Justice, Congress, the FISC, the ODNI, the White House, and the DoD.
(TS//SV/STLW//NF) PSP Clearance Totals

Aeency

Number of Cleared Personnel

NSA

1,936

CIA

460

FBI

467

DOJ

64

Congress

60

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FISC

14

ODNI

13

White House

14

DOD (excluding NSA)

5

Total

3,033

(TS//SII/STLW//NF) Within the first 30 days ofthe Program, over 190 people were cleared into the Program. This number included Senators Robert Graham and Richard Shelby, Congresswoman Nancy Pelosi, President George W. Bush, Vice President Richard Cheney, Counsel to the Vice President David Addington, and Presidential Assistant I. Lewis "Scooter" Libby. By 31 January 2002, FISC Judge Royce Lamberth was cleared. By June 2002, over 500 people had been cleared, including two additional members of Congress, Senator Daniel Inouye and former Senator Theodore Stevens, as well as FISC Judge Colleen Kollar-Kotelly. See Appendix G for a list, by date, of the number of people briefed into the Program.
(U) Non-Operational Personnel
(TS//SI-ECII/NF) Knowledge of the PSP was strictly limited at the express direction of the White House. General Hayden, over time, delegated his PSP clearance approval authority for NSA, FBI, and CIA operational personnel working the mission to the NSA PSP Program Manager. For members of Congress, FISC, outside counsel for providers, and the NSA IG, General Hayden had to obtain approval from the White House.
(U//FOUO) From the start, General Hayden and NSA leadership pushed to keep members of the legislative and judicial branches of government informed. General Hayden said he told the Vice President that he had no
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concerns about the lawfulness of the Authorization but worried about the politics. After some hesitancy, the White House gave General Hayden permission to brief certain members of Congress. In addition, the Chief Judge of the FISC was first cleared in January 2002 (see Section_).
(TS//SI//NF) Interactions with Members of Congress. Between 25 October 2001 and 17 January 2007, General Hayden, sometimes supported by operational target experts from the CT Product Line and SSO office, conducted over 49 briefings to members of Congress or their staff. (See Appedix _for a complete list of briefings.)
(TS//SV/NF) General Hayden first briefed the following members of Congress on 25 October 2001:
IRJ Chair - House Permanent Select Committee on Intelligence
IRJ Ranking Minority Member of the House Permanent Select
Committee on Intelligence
IRJ Chair- Senate Select Committee on Intelligence
1RJ Vice Chair- Senate Select Committee on Intelligence
(TS//SI//NF) In addition, NSA received and responded to a variety of Program-related inquiries from members of Congress, including Senators Inouye, Stevens, Pelosi, and Rockefeller.
(U//FOUO) General Hayden always believed that the PSP was legal. He said that during the many PSP-related briefings he gave to members of Congress, no one ever said that NSA should stop what it was doing. He emphasized that he did not just "flip through slides" during the briefings. They lasted as long as attendees desired.
(TS//SI//NF) Interactions with the FISC. On 31 January 2002, Chief Judge Royce Lamberth was briefed on the PSP and on 17 May 2002, his successor, Colleen Kollar-Kotelly, was briefed. A law clerk was also briefed in April2004. (See Section Five.)
(UIIFOUO) The Clearance Process
(TS//SI-ECV/NF) NSA managed the NSA clearance process. Clearance requests were submitted to the PSP Program Office for Program Manager approval or disapproval. Access was granted only to those who needed it
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to perform assigned job duties. The Program Manager questioned access requests with unclear justifications. Approved requests were forwarded to the Program security officer, who performed a security check. If the security check yielded nothing to impede access, individuals were instructed to go to the security office to read the "Security Pre-Brief Agreement" and sign a "Sensitive Compartmented Information Nondisclosure Agreement" form. NSA's General Counsel also had the authority to read in Attorneys from other agencies. (TS//SI//NF) On 20 May 2005, the Program Manager changed the PSP clearance request and re-certification process. The Project Security Officer assigned to Special Source Operations in the SIGINT Directorate assumed responsibility for the PSP clearance process. (Special Source Operations managed all PSP-related collection for NSA.) Additionally, the Program Manager initiated monthly PSP clearance briefings. (TS//SII/NF) From 4 October 2001 until23 May 2005, a two-level PSP clearance structure was used. One level was limited to the "fact of' Program existence. A second level included access to PSP targeting data through a "must know" principle. Access lists were maintained in the SSO Security Director's office on an internal SSO compartmented LAN. (TS//SI-ECII/NF) Regular zero-based reviews were conducted by the SSO Security Director's office quarterly to validate that cleared individuals had a continuing need for access to PSP information. The clearance did not automatically transfer with individuals who moved to new assignments. The clearance had to be re-justified for the new position, or the individual would be debriefed from the Program.
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(U) FOUR: NSA PRIVATE SECTOR RELATIONSHIPS
(TS//SI/INF) To conduct foreign intelligence-gathering activities under the PSP, NSA required the assistance of private companies, which provided access to international communications chokepoints in United States. Immediately after 11 September 2001, some private companies contacted NSA to offer support. Subsequent to PSP authorization, NSA sent request letters to companies stating that their assistance was authorized by the President with legal concurrence of the Attorney General.
(U) Need for Private Sector Cooperation
(TS//SII/NF) The United States carries out foreign intelligence activities through a variety of means. One ofthe most effective means is to partner with commercial entities to obtain access to information that would not otherwise be available.
(U//FOUO) Telephony
(TS//SII/NF) Most international telephone calls are routed through a small number of switches or "chokepoints" in the international telephone switching system en route to their final destination. The United States is a major crossroads for international switched telephone traffic. For example, in 2003, circuit switches worldwide carried approximately 180 billion minutes of telephone communications. Twenty percent of this amount, over 37 billion minutes, either originated or terminated in the United States, and another thirteen percent, over 23 billion minutes, transited the United States (neither originating nor terminating here). [NSA is authorized under Executive Order 12333 to acquire transiting telephone calls.]
(TS//SII/NF) NSA determined that under the Authorization it could gain access to approximately 81% of the international calls into and out of the United States through three corporate partners: COMPANY A had access to 39%, COMPANY B 28%, and COMPANY C 14%. NSA did not seek assistance from local exchange carriers, because that would have given NSA access primarily to domestic calls.
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(UIIFOUO) Internet Communications
(TS//SI//NF) AI Qaeda and associated terrorist organizations have made extensive use of the Internet. It is their preferred method of communication. Terrorists use Internet communications, particularly webbased services, because they are ubiquitous, anonymous, and usually free of charge. They can access Web-based email accounts and similar services from any origination point around the world.
(TS//SI//NF) The United States is a major Internet communications hub. The industry standard for characterization of the volume of Internet communications is bandwidth, which measures the amount of digital data transmitted in one second- bits per second or bps. For example, data available from 2002 shows that at that time, worldwide international bandwidth was slightly more than 290 Gbps7• Of that total, less than 2.5 Gbps was between two regions that did not include the United States.
(TS//SI//NF) The United States is also home to computer servers providing Internet communications services often used by terrorists. The majority of known terrorist email addresses that NSA has tracked are hosted on U.S.-
(U//FOUO) Evolution of NSA Partnerships with Private Sector
(U) History of NSA Partnerships with Private Sector
(TS//SII/NF) As far back as World War II, NSA has had classified relationships with carefully vetted U.S. companies that assist with essential foreign intelligence-gathering activities. NSA maintains relationships with over 100 U.S. companies. Without their cooperation, NSA would not be able respond to intelligence requirements on a variety oftopics important to the United States.
(TS//SI//NF) Two of the most productive SIGINT collection partnerships that NSA has with the private sector are with COMPANY A and COMPANY B. These two relationships enable NSA to access large volumes of foreign-to-foreign communications transiting the United States
7(U) Gpbs is an abbreviation for Gigabits per second, which can also be described as one billion bits per second or 1,000,000,000 bps.
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through fiber-optic cables, gateway switches, and data networks. They also provide foreign intelligence authorized under the FISA.
(TS//SI//NF) According to General Alexander, General Hayden's replacement as Director ofNSA/CSS, if the relationships with these companies were ever terminated, the U.S. SIGINT system would be irrevocably damaged, because NSA would have sacrificed America's home field advantage as the primary hub for worldwide telecommunications.
(U) Partnerships after 11 September 2001
(TS//SI//NF) According to the former Deputy Chief of SSO, between 11 September 2001 and the 4 October 2001 Authorization, COMPANY A and COMPANY B contacted NSA and asked "what can we do to help?" COMPANY B personnel approached NSA SSO personnel through an existing program. They said they noticed odd patterns in domestic calling records surrounding the events of 11 September and offered call records and analysis. With no appropriate authority under which to accept the call records, NSA suggested the company contact the FBI.
(U//FOUO) Partnerships Supporting the PSP
(TS//SI//NF) Once the Authorization was signed on 4 October 2001, NSA began a process of identifYing and visiting commercial entities requesting their support. While requesting help from corporate entities to support the PSP, NSA personnel made it clear that the PSP was a cooperative program and participation was voluntary. NSA knew that the PSP was an extraordinary program and understood if companies viewed it as too much of a liability.
(TS//S/1/NF) NSA Approaches to Private Sector Companies
(TS//SI//NF) 2001: On Columbus Day, 8 October 2001, NSA Special Source Operations (SSO) personnel responsible for the access relationships with corporate partners COMPANY A, COMPANY B, and COMPANY C were called in to work and informed that the President had authorized the PSP on 4 October 2001. The SSO personnel were tasked with initiating a dialog with the respective TS/SCI-cleared officials from COMPANIES A, B, and C to seek their cooperation under the new Authorization. Over the next few business days, SSO personnel met separately with officials from the three companies. Each company agreed to cooperate.
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(TS//SI//NF) Upon confirmation that formal NSA letters requesting their assistance were forthcoming, the providers, acting independently and officially unaware of the cooperating agreements with other companies, initiated collection to support the PSP.
(TS//SI//NF) 2002: In early 2002, NSA SSO personnel met with the Senior Vice President of Government Systems and other employees from COMPANY E. Under the authority of the PSP, NSA asked COMPANY E to provide call detail records (CDR) in support of security for the 2002 Olympics in Salt Lake City. On 11 February 2002, the company's CEO agreed to cooperate with NSA. On 19 February 2002, COMPANY E submitted a written proposal that discussed methods it could use to regularly replicate call record information stored in a COMPANY E facility and potentially forward the same information to NSA. Discussions with COMPANY E continued in 2003. However, the COMPANY E General Counsel ultimately decided not to support NSA.
(TS//SI//NF) On 5 September 2002, NSA legal and operational personnel met with internet provider COMPANY D's General Counsel to discuss the PSP and ask for the company's support. COMPANY D provided support, but it was minimal. (For a description of COMPANY D's support, see page_, "What Providers Furnished.").
(TS//SI//NF) On 29 October 2002, NSA legal and operational personnel met with internet provider COMPANY F's Legal and Corporate Affairs personnel, and a former NSA OGC employee hired by COMPANY F as independent counsel. NSA requested COMPANY F's support under the PSP for email content. At the meeting, COMPANY F requested a letter from the Attorney General certifying the legality ofthe PSP. In December 2002, NSA's Commercial Technologies Group was informed that the company's CEO agreed to support the PSP. According to NSA's General Counsel, COMPANY F did not participate in the PSP because of corporate liability concerns.
(TS//SII/NF) 2003: In April2003, NSA legal and operational personnel met with the President and Chief Operating Officer, General Counsel, and other personnel from private sector COMPANY G. After the meeting, the company's General Counsel wanted to seek the opinion of outside counsel. NSA determined the risk associated with additional disclosure outweighed what COMPANY G would have provided. NSA decided to not pursue a partnership with this company.
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(UI/FOUO) NSA Letters to Private Sector
(TS//SI//NF) The Director sent letters to private sector companies requesting their assistance with the PSP. NSA OGC drafted the letters for the Director, tracked each renewal of the President's..E.uthorization and modified the letters accordingly, and ensured the letters were delivered to the companies. Between 16 October 2001 and 14 December 2006, NSA sent 147 request-for-assistance letters to private sector partners.

[!) COMPANY A:

44 Letters

[!) COMPANY B:

44 Letters

[!) COMPANY C:

46 Letters

[!) COMPANY D: 11 Letters

[!) COMPANY E:

2 Letters

(TS//SI-ECII/NF) 2001. In his first PSP-related letter on 16 October 2001 to COMPANIES A, B and C, General Hayden stated that the National Security Agency and the Federal Bureau oflnvestigation required their assistance "to collect intelligence vital to the national security arising from the events of 11 September 2001 ," and specifically requested that they "provide survey, tasking and collection against international traffic, some of which terminates in the United States; provide aggregated call record information; and supply computer to computer data which can be used to determine the communicants." Their assistance was "needed to identify members of international terrorist cells in the United States and prevent future terrorist attacks against the United States." These first letters also stated that the requested assistance was authorized by the President with the legal concurrence of the Attorney General, pursuant to Article II of the Constitution.

(TS//SI-ECII/NF) 2002: Subsequent letters were sent to COMPANIES A, B, and C by General Hayden (or his deputy) each time the President reauthorized the PSP. Throughout 2002, these written requests for assistance referenced the 16 October letter; repeated the need to provide the Presidentially-authorized assistance; emphasized that such assistance was necessary to counter a future terrorist attack; and stated that such assistance was reviewed by the Attorney General and had been determined to be a lawful exercise of the President's powers as Commander-in-Chief. Starting in mid-2003, the wording of the letters was revised but in substance remained the same.

(TS//SI-ECII/NF) Two request letters for assistance were sent to private sector COMPANY E. The first letter was sent on 26 February 2002, and

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the last letter was sent on 14 March 2002. All letters were signed by General Hayden.
(TS//SI-ECV/NF) In addition to the letters sent to COMPANY A, COMPANY B, COMPANY C and COMPANY E, eleven request letters for assistance were prepared for internet provider COMPANY D. The first letter was on 9 October 2002 and the last letter was 1I September 2003. All letters were signed by General Hayden or his designee.
(TS//SI-ECI//NF) 2003: In June 2003, COMPANY C's General Counsel and Chief of Staff requested a written Attorney General opinion on the legality and lawfulness of the PSP, to include a directive to comply. COMPANY C cited corporate liability concerns as their reason. On 8 August 2003, the Attorney General sent COMPANY C a letter stating that the request for support was a lawful exercise of authorities assigned to the President under Article II of the Constitution. Additionally, the Attorney General directed COMPANY C to comply with NSA's request.
(TS//SI-ECV/NF) 2004: On 26 March 2004, the President amended his II March 2004 authorization after deciding to discontinue bulk collection of Internet metadata. Before 11 March 2004, all authorizations covering Internet metadata collection (as well as content collection and telephony metadata collection) were approved for form and legality by the Attorney General. Accordingly, NSA's I2 March 2004 letters to the companies stated that the most recent authorization had been approved for form and legality by the Counsel to the President, not the Attorney General as with previous authorizations.
(TS//SI//ECI//NF) 2005: Beginning I9 September 2005 through 14 December 2006, new NSA/CSS Director General Alexander, or his designee, signed the request letters to the companies.
(TS//SI-ECII/NF) 2006 Attorney General Letters. On 24 January 2006, the Attorney General sent letters to COMPANIES A, B, and C, certifying under I8 U.S.C. 25II(2)(a)(ii)(B) that "no warrant or court order was or is required by law for the assistance, that all statutory requirements have been met, and that the assistance has been and is required."
(TS//SI-ECI//NF) 2006 DNI Letters. On 13 April2006, the Director of National Intelligence (DNI) sent letters to Companies A, B, and C to underscore the continuing critical importance of their assistance. The DNI letter also stated that the "intelligence obtained from their assistance has been and continues to be indispensable to protecting the country and the American people from terrorist attacks."
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(TS//SI-ECII/NF) Letters for COMPANIES A, B, C, and E were couriered to the companies' local facility. COMPANY B sometimes picked up its letters at NSA Headquarters. Letters for COMPANY D were stored at NSA since no one at the company had the proper clearance to store them.
(U/IFOUO) PSP Authorized Support to NSA
(TS//SI-ECII/NF) Private sector companies provided assistance to NSA under the PSP in three categories: telephone and Internet Protocol content, Metadata from Call Detail Records, and Internet Protocol Metadata.
(TS//ECI//NF) The PSP allowed content to be collected if the selected communication was one-end foreign or the location of the communicants could not be determined. Selectors (email addresses and telephone numbers) were provided by NSA's Office of Counterterrorism.
(TS//SI-ECI//NF) Content: Telephony. Under the PSP, companies provided the content of one-end-foreign international telephone calls (telephony content) and the content of electronic communications (email content) of al Qaeda and its affiliates. COMPANIES A, B, and C provided telephony content from communications links they owned and operated. They had been providing telephony content to NSA before 2001 under FISA and E.O. 12333 authorities. NSA began to receive telephony content from COMPANIES A and Bon 6 October 2001 and COMPANY Con 7 October 2001. This support ended on 17 January 2007.
(TS//SI-ECII/NF) Content: Internet Email. COMPANIES A, B, and C provided access to the content ofAI Qaeda and AI Qaeda-affiliate email from communication links they owned and operated. NSA received email content from COMPANY A as early as October 2001 until 17 January 2007, from Company B beginning February-March 2002 through 17 January 2007, and from COMPANY C from April2005 until 17 January 2007. From April2003 through November 2003, COMPANY D provided a limited amount of email content under the PSP. It did not provide PSPrelated support after November 2003, but it did provide support under FISA.
(TS//SI-ECII/NF) Metadata from Call Detail Records. COMPANIES A and B provided Call Detail Records to NSA. The records were used by NSA Counter-Terrorism metadata analysts to perform call chaining and network reconstruction between known al Qaeda and al Qaeda-affiliate telephone numbers and previously unknown telephone numbers with which they had been in contact. Providers generated Call Detail Records as a normal course of doing business (e.g., billing purposes and traffic
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engineering). Records included all call events from the companies' long distance and international communication networks. The Call Detail Records were aggregated as large files by TS/SCI-cleared groups at COMPANY A and COMPANY B and forwarded, on an hourly or daily basis, across classified communications circuits to a PSP-restricted NSA data repository. COMPANY A provided PSP-authorized CDRs as early as November 2001, and COMPANY B began to provide CDRs in February 2002. Both continued to provide this support through the end of the PSP, and support continues today under the FISC Business Records Order. COMPANY C provided select PSP-authorized CDRs from December 2002 through March 2003.
(TS//SI-ECI//NF) Internet Metadata. The last category of private sector assistance was access to Internet Protocol (IP) metadata associated with communications of al Qaeda (and affiliates) from data links owned or operated by COMPANIES A, B, and C. In order to be a candidate for PSP IP metadata collection, data links were first vetted to ensure that the preponderance of communications was from foreign sources, and that there was a high probability of collecting al Qaeda (and affiliate) communications. NSA took great care to ensure that metadata was produced against foreign, not domestic, communications.
(TS//SI-ECI//NF) COMPANY A began providing PSP IP metadata collection as early as November 2001. Although COMPANY B began providing CO-ROMs ofPSP IP metadata in October 2001, an automated transfer of data was not available until February-March 2002. The Presidential authority to collect IP metadata was terminated in March 2004. COMPANY A and COMPANY B IP metadata collection resumed after the FISC Pen Register/Trap & Trace (PRITT) Order authorizing this activity was signed on 15 July 2004. COMPANY C provided IP metadata beginning in April2005.
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{U) FIVE: NSA'S INTERACTION WITH THE FISC AND TRANSITION TO COURT ORDERS
(TS//SII/NF) Until2006, NSA's PSP-related interaction with members of the FISC was limited to informational briefings to the Chief Judge. Chief Judge Royce Lamberth, Judge Colleen Kollar-Kotelly, who replaced Judge Lamberth as Chief Judge in May 2002, and one law clerk were the only members of the FISC that NSA had briefed on the PSP In the spring of 2004, NSA's interaction with Judge Kollar-Kotelly increased as NSA and DoJ began transitioning PSP-authorized activities to FISC orders in 2004. It was not until after parts of the PSP were publicly revealed in December 2005 that all members of the FISC were briefed on the Program.
(U) NSA's Interaction with the FISC
(TS//SI//NF) General Hayden stated that from the start of the PSP, he and other NSA leaders recognized the importance of keeping all three branches of the Government informed of the Program and pressed the White House to do so.
(TS//SI//NF) In all of its interactions, neither NSA nor DoJ presented before the FISC the factual and legal issues arising from the PSP in any case or controversy. Therefore, the FISC did not express any view or comment on the legality or illegality of the PSP.
(UIIFOUO) NSA Briefings on the PSP to Members of the FISC
(TS//SII/NF) The White House first permitted NSA to brief the Chief Judge of the FISC in January 2002. General Hayden stated that on 31 January 2002, he provided Judge Lamberth a very detailed PSP briefing, and the Deputy Assistant Attorney General in the DoJ OLC explained the Program's legality. General Hayden stated that this briefing was prompted by a concern expressed by DOJ that PSP-derived information would be used in FISA applications
(TS//SII/NF) On 17 May 2002, General Hayden briefed incoming Chief Judge Kollar-Kotelly, with Judge Lamberth in attendance, on the PSP. In a
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letter to the Counsel for Intelligence Policy dated 12 January 2005, Judge Kollar-Kotelly stated that, on that date, she was also shown a short legal memorandum, prepared by the Deputy Assistant Attorney General in the DoJ, OLC, that set out a broad overview of the legal authority for conducting the PSP. Judge Kollar-Kotelly added that she was allowed to read the memorandum but not to retain it for study.
(TS//SI//NF) NSA records show that Judge Kollar-Kotelly was briefed again on 12 August 2002 at the White House. Although we found no documentation of the purpose of the meeting or topics discussed, Judge Kollar-Kotelly stated in the January 2005 letter to the Counsel for Intelligence Policy that, at her request, she was permitted to review the Authorization of the PSP on that date.
(TS//SI//NF) In response to a New York Times "warrantless wiretapping" story published in December 2005, General Alexander briefed all FISC members on the PSP on 9 January 2006.9
(U) Transition of PSP Authorities to FISC Orders
(TS//SV/NF) The transition ofPSP-authorized activities to FISC orders was precipitated by preliminary results ofDoJ OLC legal review ofthe components of the Program. In March 2004, OLC found three of the four types of collection authorized under the PSP to be legally supportable. However, it determined that, given the method of collection, bulk Internet metadata was prohibited by the terms ofFISA and Title Ill.10 Consequently, the White House Counsel rather than the Attorney General signed the 11 March 2004 Authorization.
(TS//SI//NF) NSA Implements Controversial
9 (TS//STLW//SI//OR/NF)Judge Scullin did not attend this briefmg, but was later briefed on 31 January 2006. Judge Bates, a new judge, was briefed on 21 March 2006. 10(TS//STLW//SII/OR/NF) OLC ultimately issued three opinions: 15 March 2004, 6 May 2004, and 16 July 2004.
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(TS/ISIIINF) Until March 2004, NSA considered its collection of bulk Internet metadata under the PSP to be legal and appropriate. Specifically, NSA leadership, including OGC lawyers and the IG, interpreted the terms of the Authorization to allow NSA to obtain bulk Internet metadata for analysis because NSA did not actually "acquire" communications until specific communications were selected. In other words, because the Authorization permitted NSA to conduct metadata analysis on selectors that met certain criteria, it implicitly authorized NSA to obtain the bulk data that was needed to conduct the metadata analysis.
(TS//SI/INF) On 11 March 2004, General Hayden had to decide whether NSA would execute the Authorization without the Attorney General's signature (/V-A/32-11). General Hayden described a conversation in which David Addington asked, "Will you do it (IV-A/32-11)?" At that time, General Hayden also said that he asked Daniel Levin, Counsel to the Attorney General, in March 2004 if he needed to stop anything he was doing. Mr. Levin said that he did not need to stop anything (IV-A/32-7 and IV-A/32a7&8). After conferring with NSA operational and legal personnel, General Hayden stated that he decided to continue the PSP because 1) the members of Congress he briefed the previous day, 10 March, were supportive of continuing the Program, 2) he knew the value of the Program, and 3) NSA lawyers had determined the Program was legal.
(TS//SI//NF) Eight days later on 19 March 2004, the President rescinded the authority to collect bulk Internet metadata and gave NSA one week to stop collection and block access to previously collected bulk Internet metadata. NSA did so on 26 March 2004. To close the resulting collection gap, DoJ and NSA immediately began efforts to recreate this authority in what became the PRITT order. By January 2007, the remaining three authorities had also been replicated in FISC orders: the Business Records (BR) Order, the Foreign Content Order, and the
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Domestic Content Order. On 1 February 2007, the final Authorization was allowed to expire and was not renewed.
(TS//SI/INF) Transition of Internet Metadata Collection to Pen Register/Trap and Trace Order Authority
(TS/lSI//NF) According to NSA personnel, the decision to transition Internet metadata collection to a FISC order was driven by DoJ. At a meeting on 26 March 2007, DoJ directed NSA representatives from OGC and SID to find a legal basis, using a FISC order, to recreate NSA's PSP authority to collect bulk Internet metadata.
(TS//SI//NF) After extensive coordination, DoJ and NSA devised the PRITT theory to which the Chief Judge of the FISC seemed amenable. DoJ and NSA worked closely over the following months, exchanging drafts of the application, preparing declarations, and responding to questions from court advisers. NSA representatives explained the capabilities that were needed to recreate the Authority, and DoJ personnel devised a workable legal basis to meet those needs. In April 2004, NSA briefed Judge Kollar-Kotelly and a law clerk because Judge Kollar-Kotelly was researching the impact of using PSP-derived information in FISA applications. In May 2004, NSA personnel provided a technical briefing on NSA collection of bulk Internet metadata to Judge Kollar-Kotelly. In addition, General Hayden said he met with Judge Kollar-Kotelly on two successive Saturdays during the summer of2004 to discuss the on-going efforts.
(TS//SI//NF) The FISC signed the first PRITT order on 14 July 2004. Although NSA lost access to the bulk metadata from 26 March 2004 until the order was signed, the order essentially gave NSA the same authority to collect bulk Internet metadata that it had under the PSP, except that it specified the datalinks from which NSA could collect, and it limited the number of people that could access the data. The FISC continues to renew the PRITT approximately every 90 days.
(TSI/SII/NF) Transition of Telephony Metadata Collection to the Business Records Order
(TS//SI//NF) According to NSA General Counsel Vito Potenza, the decision to transition telephony metadata to the Business Records Order was driven by a private sector company. After the New York Times article was published in December 2005, Mr. Potenza stated that one of the PSP providers expressed concern about providing telephony metadata to NSA under Presidential Authority without being compelled. Although OLC's
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May 2004 opinion states that NSA collection of telephony metadata as business records under the Authorization was legally supportable, the provider preferred to be compelled to do so by a court order. 11
(TS//SII/NF) As with the PRITT Order, DoJ and NSA collaboratively designed the application, prepared declarations, and responded to questions from court advisers. Their previous experience in drafting the PRTT Order made this process more efficient.
(TS//SI//NF) The FISC signed the first Business Records Order on 24 May 2006. The order essentially gave NSA the same authority to collect bulk telephony metadata from business records that it had under the PSP. And, unlike the PRTT, there was no break in collection at transition. The order did, however, limit the number of people that could access the data and required more stringent oversight by and reporting to DOJ. The FISC continues to renew the Business Records Order every 90 days or so. (See Appendix H.)
(TS//SII/NF) Transition of Internet and Telephony Content Collection to the Foreign and Domestic Content Orders
(TS//SI//NF) According to NSA OGC, the transition ofPSP content collection to FISC orders was driven by DoJ. DoJ had contemplated a transition in July 2004 when the FISC's signing of the PRITT order indicated its willingness to authorize PSP activities under court order. Given this precedent, DoJ concluded the FISC might also accept content collection. However, little progress was made until June 2005 when the DoJ OIPR with NSA OGC and SID representatives began researching the feasibility of collecting PSP content under court order. In essence, DOJ and NSA needed to find a legal theory that would allow NSA to add and drop thousands of foreign targets for content collection. Because the law was more restrictive for content than metadata, NSA had serious reservations about whether it would be possible to find a workable solution using a FISC order at that time, especially given the large number of selectors to be tasked and the complexity from legal and operational perspectives. For example:
11(TS//STLW//SV/OR/NF) In addition to the telephony metdata that NSA was receiving from private sector companies as business records, it was also obtaining "live" telephony metadata from its own SIGINT collection sources. It continued until mid-2005. (***We will include a reference to the corresponding notification here.***)
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[RJ (TS//SI//NF) NSA risked losing flexibility in the means of
collection, given that facilities and collection accesses were complex and in constant flux.
[RJ (TS//SI//NF) In executing the PRITT and Business Records Orders,
the FISC's and DoJ's consistently increasing demands for information took NSA analysts away from target-related duties.
[RJ (TS//SI//NF) The process imposed by the FISA statute was not able
to handle the large volume ofNSA requests for FISC authorization needed after 11 September 2001.
[RJ (TS//SV/NF) Because OLC's May 2004 opinion found that the
existing Authorization for content collection was lawful, there was no pressing need to find an alternative legal vehicle.
(TSIISVINF) In a letter dated 21 February 2006, the NSA GC expressed the aforementioned concerns, among others, to the Acting Assistant Attorney General suggesting that:
" .... now might be the right time to seek substantial revisions to the FISA. The purpose of the legislation was to protect the privacy of U.S. persons who could be subjected to surveillance, either intentionally or incidentally. Twenty-seven years later, the United States Government fmds itself obtaining FISA orders so that it can carry out surveillance on foreign intelligence targets who are outside the United States and, more often than not, communicating only with others outside the United States. This serves no U.S. person's privacy interests, was never anticipated by the statute's drafters, and diverts valuable resources from the fight against terrorism. The FISA needs to be simplified and streamlined."
(TSIISVINF) Ultimately, DoJ decided to pursue a FISC order for content collection wherein the traditional FISA definition of a "facility" as a specific telephone number or email address was changed to encompass the gateway or cable head that foreign targets use for communications. Minimization and probable cause standards would then be applied. As with the PRTT and Business Records orders, NSA collaborated with DoJ to prepare the application and declarations and provided the operational requirements needed to continue effective surveillance.
(TS/ISVINF) After 18 months of concerted effort and coordination, the FISC ultimately accepted the theory for foreign selectors but rejected it for
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domestic selectors. Consequently, on 10 January 2007, the FISC signed two separate orders: the Foreign Content Order and the Domestic Content Order. (TS//SV/NF) The Foreign Content Order negatively affected SIGINT exploitation. Most notably, the number of foreign selectors on collection dropped by 73 percent, from 11,000 selectors under PSP to 3,000 under the order. In addition, the administrative workload for NSA analysts to put critical foreign selectors on collection was so burdensome that the order became operationally unsustainable. The order was eventually superseded by Congress' FISA modernization. It was temporarily replaced by the Protect America Act in August 2007 and then permanently replaced by the FISA Amendments Act in July 2008. (TS//SI//NF) The Domestic Content Order did not create a similar loss in collection because so few domestic numbers were tasked at that time. It did, however, slow operations because of the documentation required, and it took considerably longer to task under the order than under the PSP. Over time, the scope of the Domestic Content Order gradually decreased to a single selector tasked for collection in January 2009. In January 2009, the FBI, at NSA's request, assumed responsibility for the Domestic Content Order and became the declarant before the FISC.
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(U) SIX: NSA OVERSIGHT OF PSP SIGINT ACTIVITIES
(U/IFOUO) NSA Office of General Counsel and SID, Oversight and Compliance provided oversight of NSA PSP activities from October 2001 until January 2007. NSA OIG initiated PSP oversight in 2002.
(U) Office of General Counsel
(U//FOUO) The OGC was the first NSA organization with oversight responsibilities to learn of the PSP, and it continued to provide significant oversight over the life of the Program. The GC was briefed on 4 October 2001, the day the Authorization was signed. On 6 October, he gave the Director and Deputy Director talking points for briefing NSA personnel on the new authority. The talking points included the fact that General Hayden had instructed the GC and the lead attorney for operations to conduct routine review and oversight of PSP activities.
(U//FOUO) The NSAAssistant General Counsel for Operations provided most of the Program oversight before the OIG learned of the PSP in 2002. He and his successors reviewed proposed target packages and rejected those not compliant with the Authorization, answered questions, gave briefings, reviewed program implementation, and coordinated programrelated issues with DoJ.
(U) SIGINT Directorate
(U//FOUO) The SIGINT Directorate Office of Oversight and Compliance (O&C) represents the Director NSA/CSS and the Signals Intelligence Director in overseeing compliance with authorities that govern the collection, production, and dissemination of intelligence by the National Security Agency. The Chief of O&C was briefed on the PSP on 10 October 2001. Initially, O&C's ability to provide effective oversight was limited by insufficient staffing and a lack of methodologies to provide meaningful oversight ofPSP collection. It, therefore, focused on identifying problem areas while documenting program activity. It also helped establish database partitions and assisted with data flow compliance issues to prevent uncleared personnel from seeing Presidentially-authorized collection. Later, it reviewed justification statements for tasked selectors. Also, it directed PSP-cleared SIGINT operations personnel to follow
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established procedures for the dissemination of U.S. person information and obtained approvals to permit dissemination of U.S. person information
(U) Office of Inspector General
(U//FOUO) NSA OIG conducted oversight ofPSP activities from August 2002 until the Program ended in January 2007. It issued 12 formal reports and 14 Presidential Notifications on PSP activities at NSA.
IRJ Investigations were conducted in response to specific incidents or
violations to determine the cause, effect, and remedy.
IRJ Reviews were conducted to determine the adequacy of management
controls to ensure compliance with the Authorization and related authorities; to assess the efficiency and effectiveness in mitigating high-risk activities associated with the Program; and to identify impediments to satisfying the requirements of the Authorization and related authorities.
1RJ Presidential Notifications were drafted for the Director's signature
to notify the President's Counsel about violations of the Authorization. (See below for additional details.)
1RJ Monthly Due Diligence Meetings were held by program officials
to exercise "due diligence" in addressing program issues and developments. The OIG attended these meetings to stay aware of program activities. (U//FOUO) OIG also provided oversight of FISC-authorized activity previously conducted under Authorization. (U//FOUO) See Appendix H for a list ofOIG reports on PSP activity at NSA.
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(U) NSA IG Not Cleared until 2002
(TSIISIIINF) We could not determine exact reasons for why the NSA IG was not cleared for the PSP until August 2002. According to the NSA General Counsel, the President would not allow the /G to be briefed sooner. General Hayden did not specifically recall why the /G was not brought in earlier, but thought that it had not been appropriate to do so when it was uncertain how long the Program would last and before operations had stabilized. The NSA /G pointed out that he did not take the IG position until April 2002, so NSA leadership or the White House may have been
resistant to clearing either a new or an acting /G.
(TS//SII/NF) Regardless, by August 2002, General Hayden and the NSA General Counsel wanted to institutionalize oversight of the Program by bringing in
the /G. General Hayden recalled having to "make a
case" to the White House to clear the /G at that time.
(UIIFOUO) 0/G concerns lead to change
(C) In addition to formal recommendations made in review and investigative reports, OIG concerns about access to the terms of the Presidential authorization and about the means of reporting PSP violations resulted in three major changes.
(C) First, in December 2002, the IG recommended that General Hayden formally delegate authority to NSA operational personnel, some of whom had unknowingly violated terms of the Authorization. The Counsel to the Vice President, demanding secrecy, refused to let them see terms of the authority, which had been delegated by the President to the Secretary of Defense, who delegated it to the Director ofNSA. General Hayden issued the first "Delegation ofAuthority" letter to key operational personnel in the SID on 4 March 2003. Subsequent delegation letters were issued each time the President renewed the authority.
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(C) Second, in March 2003, the IG advised General Hayden that he should report violations of the Authorization to the President. In February of 2003, the OIG learned ofPSP incidents or violations that had not been reported to overseers as required, because none had the clearance to see the report. (TS//SI//OC/NF) Before March 2003, NSA quarterly reports on intelligence activities sent to the President's Intelligence Oversight Board (through the Assistant to the Secretary of Defense for Intelligence Oversight) stated that the Director was not aware of any unlawful surveillance activities by NSA other than that described in the report. Beginning in March 2003, at the IG's direction, NSA quarterly reports stated that except as disclosed to the President, the Director was not aware of any unlawful surveillance activities by NSA. Also beginning in March 2003, PSP violations, including those not previously reported to the Intelligence Oversight Board, were reported in "Presidential Notifications." (U//FOUO) Third, shortly after learning about the Program, the IG participated in a September 2002 meeting of key cleared personnel at which important PSP matters were discussed. He recommended that these types of meetings be held every month. As a result, monthly "due diligence" meetings were held until the Program ended.
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